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UNITED STATES v. WILLIAMS

February 8, 1990

UNITED STATES OF AMERICA, Plaintiff
v.
ORTHNELL D. WILLIAMS, Defendant



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 FINDINGS OF FACT

 United States Park Police Sergeant Thomas Moyer and Richmond City, Virginia Police Detective Richard Palmer testified for the government at a hearing held before the Court on January 29, 1990. After the defendant filed a supplemental motion to suppress, the Court held another hearing on February 5, 1990 at which Special Agent Robert S. Berton of the Immigration and Naturalization Service testified for the defendant and the defendant testified on his own behalf. At the second hearing the defendant also recalled Sgt. Moyer.

 Sgt. Moyer testified that on October 3, 1989, he met with Assistant United States Attorney Paul Howes about a pending murder investigation in which two suspects had been apprehended and two suspects, including the person who allegedly acted as the "lookout" for the murder, were still at large. Sgt. Moyer testified that he had seen the "wanted flyer" with a composite drawing of the "lookout" suspect. See Government's Exhibit 1. The flyer described the suspect as a "Jamaican male, in his twenties, dark complexion, short, about 5'7" tall, fat, about 200 lbs, known as 'Butter.' This subject is known to sell crack in the area of Georgia Ave, N.W. Washington, D.C. and has been known in this city by the name John." Sgt. Moyer also testified that the suspect was known to travel between New York City, Washington, D.C., and Florida.

 On the evening of October 3, 1989, Sgt. Moyer and Special Agent Berton were monitoring buses from New York City at the D.C. Trailways/Greyhound bus station as part of a drug interdiction program. According to Sgt. Moyer, at approximately 9:30 p.m. he observed the defendant, who greatly resembled the composite drawing of "Butter," come off a bus from New York City and walk through the lobby of the bus station to a hamburger stand. After purchasing food, the defendant walked back through the lobby and stood near the telephones.

 Sgt. Moyer testified that he and Special Agent Berton approached the defendant and identified themselves as law enforcement officers. Sgt. Moyer explained to the defendant that they were part of a drug interdiction unit which routinely approached people coming from source cities for narcotics. Sgt. Moyer asked if he could talk with the defendant. Sgt. Moyer explained that he was interested in talking to the defendant because he strongly resembled a composite drawing of a murder suspect who was known to come from New York. Sgt. Moyer asked if he could see defendant's bus ticket and defendant complied. The ticket was in the name "Orthnell Williams" and was from New York to Orangesburg, South Carolina. Sgt. Moyer testified that Orangesburg, South Carolina was not considered a source or destination city for narcotics. The officers asked the defendant if he was a U.S. citizen and the defendant replied that he was born in Jamaica. Special Agent Berton then asked if the defendant was carrying his "green card" and the defendant replied that he was not.

 In response to Sgt. Moyer's requests for identification, defendant produced a N.Y. temporary driver's license and a hospital identification from his wallet. Neither piece of identification contained a picture. Both the license and the hospital card identified defendant as Orthnell Williams. Because Sgt. Moyer was not satisfied with the non-photo i.d., he asked defendant for further identification. Sgt. Moyer testified that he was not satisfied with the identification that defendant had produced because in his 18 years of experience he had found that "Jamaican cases" often involved very convincing examples of false identification.

 At this point in the encounter, there was an announcement over a loudspeaker that defendant's bus was preparing to leave the station. Defendant told the two officers that he did not have much more time for conversation as he was about to miss his bus. Special Agent Berton testified that he then briefly left to go outside and retrieve his camera in order to take a picture of the defendant to be used to show witnesses in the murder investigation. *fn1" Sgt. Moyer remained with the defendant.

 Because Sgt. Moyer was not convinced that the defendant had thus far produced valid identification, he asked the defendant to let him see his wallet which was in the defendant's hand before defendant left to catch his bus. Sgt. Moyer testified that he requested the wallet not because he hoped to find narcotics, but because he thought there may have been some piece of identification, a phone number or a name in the wallet that would help him to definitively identify the defendant and either prove him to be the murder suspect or show that he was not the person in the composite drawing. *fn2"

 The defendant voluntarily tendered his wallet to Sgt. Moyer, who, upon opening the wallet, discovered four plastic bags containing a green leafy substance which he believed was marijuana and later field tested to be marijuana. At this point, Sgt. Moyer placed the defendant under arrest. Sgt. Moyer testified that it was in his discretion whether to make an arrest for possession of a small amount of marijuana. Sgt. Moyer testified that while it was his understanding the U.S. Attorney's Office would decline to prosecute such a case, he nevertheless had discretion whether to arrest the defendant and in the exercise of his discretion decided to arrest the defendant because he wanted the opportunity to obtain further information about the defendant with respect to the on-going murder investigation.

 After the arrest, while still at the bus station, Sgt. Moyer testified that he asked the defendant if he had any bags on the bus and the defendant replied that he did not. The defendant denied that while at the bus station he was asked whether he had luggage. I do not credit the defendant's testimony on this point. Sgt. Moyer then brought the defendant to the station house to book him on the possession charge. Sgt. Moyer explained to defendant that his arrest for possession of marijuana was a minor infraction and that it was unlikely the case would be prosecuted. He advised the defendant he probably would be released the next day when purportedly the identity question would have been resolved. At this point, at the station house, the defendant explained to Sgt. Moyer that he had lied about not having bags on the bus and asked for help in getting his bags off the bus. The defendant then gave a description of his luggage which consisted of a red bag and brown tweed bag with the name "WILLIAMS" written on the front. The defendant explained that one bag was located by his seat aboard the bus and the other bag was in the luggage compartment.


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