his ticket and identification resulted in a detention. Battista, 876 F.2d at 204-05. In Savage, the interview became a detention when the officer learned that the defendant was using an assumed name and began to question him more forcefully. Savage, 889 F.2d 1113, slip op. at 13.
This court similarly believes that there are a number of details in the record here that, when taken with the rest of the circumstances of the interview, would lead a reasonable person to believe either that he was not free to leave or end the interview.
As suggested in Battista, the freedom to leave is much the same as the ability to get the police to leave one alone. In Levetan's case, the court has found as fact that Levetan had been told that the police were searching others on the train. The court also found that Levetan understood that the train might be held over until the officers finished their questioning and requested search. A reasonable person is unlikely to believe that he alone can walk away from police when he is one of a group of persons being questioned. The second fact reinforces the same conclusion. A reasonable person cannot feel free to walk away from police when he knows his means of getting home is to be held over until the officers are finished with their business of questioning him.
The court also considers that a reasonable person believes that after giving satisfactory answers to police questions, the officers will conclude their interview. Not only did the police here learn nothing to create, confirm, or heighten any suspicion, but Levetan told them things that should reasonably have tended to dispel suspicion. He produced a ticket and driver's license that matched each other and the reservation. His answers about his time in New York squared with what the officers knew otherwise. A reasonable person may be forgiven for thinking he is not free to leave when the response to his truthful co-operation is a statement that his interviewers are narcotics officers trying to stop drugs who would like permission to search his room and bags.
At the end of the second section above, the court listed all the factors confronting the reasonable person in Levetan's situation. In the totality of these circumstances, the court holds that Levetan had been detained before Burns unzipped the grey pouch. Although the initial police contact was not a seizure, the course of Brennan's and Burn's activity would cause a reasonable person to feel he could not end the encounter and leave the scene. When this conclusion is combined with the holding that Brennan and Burns never had a reasonable suspicion to justify the detention, the court must rule that Burns' search of the grey pouch was unlawful. Levetan had been unlawfully seized, and he could give no valid consent to search. Without consent, and with no warrant or probable cause, Brennan and Burns had no authority in law to conduct the search that found the heroin. On this basis alone, the court must rule in favor of defendant's motion.
The court's third conclusion of law is an alternative basis for granting the defendant's motion. The court holds that even if police conduct here did not escalate into a detention or seizure, Levetan did not freely and voluntarily consent to the search.
Once again, the court must undertake a fact-based analysis of the totality of the circumstances. Schneckloth, 412 U.S. at 227; Battista, 876 F.2d at 207. When the prosecution "seeks to rely upon consent to justify the lawfulness of a search, [it] has the burden of proving that the consent was, in fact, freely and voluntarily given," Bumper v. North Carolina, 391 U.S. 543, 549, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968). Obviously, a defendant's actions and demeanor, as well as his words, are included in the circumstances. So, too are the actions of the police, and the prosecution's "burden [of proof of voluntariness] cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Id.
In this situation, a number of the circumstances considered in the court's analysis of whether a detention occurred again play a key role in deciding whether Levetan voluntarily consented. The cases point up the initial importance of the police officers' actions when asking for Levetan's consent first to speak with them and then to search his roomette. Battista, 876 F.2d at 206-07; Lloyd, 868 F.2d at 451;
Brady, 842 F.2d at 1315.
As noted, Brennan and Burns did not shout or threaten; they were in plain clothes, and they kept their weapons holstered. The court also recognizes that other criteria stated in Schneckloth and reiterated in Lloyd and Battista, do not militate against a finding of voluntariness. Nothing in the record suggests that Levetan's age, lack of intelligence or poor education vitiated any consent. Battista, 876 F.2d at 207, quoting Lloyd and Schneckloth. Nor does it appear that there was a prolonged detention or repeated questioning. Last, Brennan did tell Levetan, perhaps ambiguously, that the search could only go forward with his permission.
In reviewing the alleged consent to search, the court considers it useful to note that there are two possible consents to compare in this case. The first is Levetan's undoubtedly voluntary consent to speak with the police when they knocked on the door to his roomette. This is a clear example of consent freely given. Levetan conceded that he agreed to speak with Brennan and Burns. His consent is reflected in the prompt response in producing his ticket and license when asked, and the testimony about his demeanor at this early stage of the encounter. This is when Brennan described Levetan as calm. Shortly afterward, Levetan got extremely nervous, and began to sweat. He asked if it was necessary to search the suitcase on the rack.
Not only may this be distinguished from his earlier apparent willingness to cooperate with Burns and Brennan, but it is also to be contrasted with the consent given in Schneckloth, where the subject "actually helped in the search." The court finds it hard to square voluntary consent with Brennan's testimony about Levetan's reluctance.
Rather than reading voluntary consent into what took place when Brennan sought to search Levetan's luggage, the court believes that another explanation more correctly characterizes Levetan's response. It appears that Levetan did what Brennan requested because he believed he had to. In the court's view, Levetan was complying with a request made under color of authority.
Here, two of the facts discussed in the detention issue have great significance: Levetan understood that the officers were searching other passengers and the officers planned to hold the train. "In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subject state of the person who consents." Schneckloth, 412 U.S. at 229. The knowledge that police are searching a group of other persons must have at least subtly coerced Levetan into believing that the police could lawfully search his bags whether he consented or not. Moreover, Levetan clearly was in a vulnerable subjective state of mind, as evidenced by his nervous sweating. He also was in an objectively vulnerable state of mind because he had heard that the police could hold the train over. This must have confirmed the view that the officers could have carried the search out regardless of his consent.
For these reasons, it appears to the court that the totality of the circumstances in Levetan's situation make out a poor case for a voluntary consent. Indeed, the image of an individual in a small room, sweating and nervous, facing two police officers who are searching other passengers and who can hold the train does not suggest an unforced willingness to cooperate or consent. It suggests instead someone who grudgingly assists police officers in doing what they have come in order to do to minimize the damage to property. The prosecution cannot be said to have met its burden of showing voluntary consent, and, indeed, it appears Levetan did not consent to the search.
Having held that Levetan has not been proved to have consented to the search of his bag voluntarily, regardless of whether he was seized, it again follows that the search of his bag cannot be held to be lawful. On this second ground, the court again decides that it must grant defendant's motion to suppress.
In conclusion, the court holds the following: (1) until they found the heroin in his bag, Brennan and Burns had no reasonable suspicion to justify detaining Levetan; (2) by the time Burns began to search Levetan's grey pouch, Levetan had been subjected to an investigatory detention and thus had been seized unlawfully in violation of his Fourth Amendment rights; any consent to search the bag procured under such circumstances is invalid, and the search was unlawful; and, (3) whether or not Levetan had been seized, it has not been demonstrated that Levetan voluntarily consented to the search of his grey pouch; the police otherwise lacking probable cause or a warrant for the search, the search was unlawful.
As a result of the foregoing, the court will grant Levetan's motion to suppress. An appropriate order accompanies this opinion.
ORDER -- January 3, 1990, Filed
This matter came before the court upon defendant's motion to suppress evidence. Upon consideration of defendant's motion, the government's opposition, defendant's supplemental memorandum in support of the motion, the evidence presented at a hearing on the motion held November 30, 1989, the entire record herein, and for the reasons stated in the accompanying memorandum opinion, it is by the court this 2nd day of January 1990
ORDERED that defendant's motion to suppress be, and it hereby is, granted.