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UNITED STATES v. COTHRAN

January 24, 1990

UNITED STATES OF AMERICA
v.
LEIGHA COTHRAN


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 This case compels the Court to examine the latest technique in the "war on drugs" as it is waged at the local bus and train stations. The question presented is whether a young traveller passing through D.C., cornered by police on an interstate bus at the Greyhound station, and faced with a request to search her bag has been seized within the meaning of the Fourth Amendment and whether her subsequent denial of ownership of the bag was voluntary. The defendant has moved to suppress evidence and statements obtained from her as the result of this encounter. The motions have been fully briefed and, after an evidentiary hearing, argued.

 The sole witness at the hearing for either side was Detective Ronnie Hairston of the Metropolitan Police Department's Drug Interdiction Unit, a unit on which many motions to suppress have focused because of its role in the "war on drugs." See, e.g., United States v. Maragh, 282 U.S. App. D.C. 256, 894 F.2d 415 (D.C.Cir. 1990); United States v. Winston, 282 U.S. App. D.C. 96, 892 F.2d 112 (D.C.Cir. 1989). Officers attached to the unit patrol the local bus and train stations, approach arriving and departing passengers and passengers in transit, question them, and, frequently, ask them to produce identification and tickets and for permission to search pocket books, bags, and clothing. These officers follow a set routine, are generally courteous, and clearly announce their purpose as narcotics officers from the outset of each encounter.

 On November 16, 1989, Detective Hairston and other officers were present when a Greyhound bus coming from the north and heading south stopped at the D.C. Greyhound station. There were no reports of criminal activity or suspicious persons on the bus. The officers initially questioned a number of passengers disembarking at Washington. Thereafter, at about 6:50 p.m., Detective Hairston and two other officers boarded the bus with the intention of questioning each of the approximately 20 passengers still on the bus planning to continue south. The officers showed cards indicating that they were police officers and announced their intention to question the passengers about narcotics.

 The officers worked the bus from each end toward the middle, with Detective Hairston starting from the back. Defendant, age 20, was sitting near the back, on the aisle seat next to a man who appeared to be her companion.

 Detective Hairston approached the pair politely and identified himself as a police officer interested in drug traffic. He asked if he could speak to the man. The man agreed and indicated that he and the defendant were travelling together. Detective Hairston then asked the defendant if he could speak to her, and she said yes. He asked for identification and for her bus ticket, and she produced them. The ticket indicated that she was travelling from New York to Orangeburg, South Carolina, a city Detective Hairston did not associate with the drug trade. After returning the identification and the ticket, he asked defendant where her baggage was, and she said it was in the baggage compartment under the cabin. (The evidence revealed that defendant did indeed have baggage in the compartment.) She permitted him to search her handbag and the pockets of her coat, which she was holding. She appeared calm and cooperative. Detective Hairston found no contraband.

 Detective Hairston then asked whether a blue tote bag on the luggage rack almost directly above the defendant belonged to her. She said no. The man sitting next to the defendant said it was not his. Another officer, Sergeant Brennan, then inquired generally of the passengers if any of them owned the bag. No one claimed it. Sergeant Brennan next asked the bus driver if all passengers travelling past Washington were on the bus, and the driver said yes.

 There is no evidence that Detective Hairston or the other officers at any point drew weapons or spoke to the defendant or other passengers in a threatening or intimidating manner during the entire inquiry on the bus.

 Officer Hairston reboarded the bus with the intention of arresting the defendant. He approached her and asked her to smile, because the woman who appeared to be the defendant in the photograph was smiling. When she smiled, he noted a further resemblance. She equivocated when asked if she was the woman in the photograph.

 Detective Hairston took defendant off the bus and, once outside, formally arrested and handcuffed her, read her her Miranda rights, and placed her in a cruiser headed for the police station.

 Defendant's counsel contends that she was unlawfully seized within the meaning of the Fourth Amendment once the officers took the tote bag from the rack above her seat and asked if it was hers and that the contents of the tote bag must be suppressed. As the following analysis indicates, the fundamental issue is whether defendant's denial of ownership of the bag was voluntary under the circumstances.

 A seizure occurs where a police officer, by physical force or show of authority, has restrained a citizen's liberty, Terry v. Ohio, 392 U.S. 1, 19 n. 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), that is, where the police conduct, in view of the totality of circumstances, is "'so intimidating' that [an individual] could reasonably have believed that he was not free to disregard the police presence and go about his business." Michigan v. Chesternut, 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975, 1981 (1988). In this Circuit, a test has emerged requiring the Court to decide whether a reasonable person, innocent of any crime, would have felt free to ...


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