The opinion of the court was delivered by: SPORKIN
STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.
This case is before the Court on defendant Aaron A. Felder's motion to suppress evidence seized from his person and his property on December 1, 1989. The defendant contends that the actions of Metropolitan Police Department's Narcotic Interdiction Unit violated his constitutional rights. The Government opposes the defendant's motion maintaining that defendant's encounter with members of the Metropolitan Police Department's Narcotic Interdiction Unit did not violate defendant's Fourth Amendment rights.
At a hearing on February 8, 1990, the Court heard testimony from Detective Edward Hanson of the Metropolitan Police Department's Narcotic Interdiction Unit and the defendant. Michael L. Kane, a private investigator, also testified on the defendant's behalf.
This case involves another in a series of "bus stops," in which members of the Metropolitan Police Department's Narcotic Interdiction Unit board buses stopping in Washington, D.C. in order to intercept drug smugglers coming from other cities. See e.g., United States v. Cothran, 729 F. Supp. 153 (D.D.C. 1990); United States v. Lewis, 728 F. Supp. 784 (D.D.C. 1990). Det. Hanson testified that members of the Narcotic Interdiction Unit routinely interview travellers to intercept narcotics which are being smuggled into Washington, D.C. from "source cities" via public transportation. Det. Hanson testified that members of his unit will actually board buses and trains to question passengers rather than confining their interviewing activity to passengers after they have arrived in Washington, D.C. and exited from the bus or train.
According to Det. Hanson, there is no articulable profile he uses in determining which passengers to interview. Interviewees are simply selected at random. Det. Hanson is unaware of any written policy concerning the "bus stops," but testified that he and other members of his unit have been instructed to board buses in order to interview passengers. Since this program has been in existence, Det. Hanson testified that he has interviewed approximately 50 passengers on board buses, and about 35 passengers on board trains. Of these 85 passengers, Det. Hanson could recall only 3 or 4 occasions in which passengers had refused to consent to an interview. According to Det. Hanson, when passengers who appear nervous refuse to consent to an interview, certain members of his unit then take it upon themselves to notify authorities at the next stop.
These "refuseniks" may then be approached again, by officers further down the line, in order to obtain their consent to undergo a search for drugs.
Turning to the facts of this case, Det. Hanson testified that on December 1, 1989, he and two other officers of the Metropolitan Police Department's Narcotic Interdiction Unit were on duty at the Greyhound Bus Terminal at 1005 1st Street, N.E. At approximately 9:05 p.m., all three officers boarded Greyhound bus number 1793 which had recently arrived from New York City. The ultimate destination of the bus was not D.C., but rather points further south. All three officers were in plain clothes and their weapons were not visible. Many of the passengers had already left the bus by the time the officers boarded, but approximately six to ten passengers were still on board.
The defendant testified that when the three officers boarded the bus, two officers, including Det. Hanson, walked to the rear of the bus while one officer remained up front to use the intercom system by the driver's seat to make an announcement. The defendant could not recall the precise content of the announcement, but remembered that the announcement identified the officers as members of the Narcotics Interdiction Unit. Det. Hanson testified that when members of his unit boarded buses, officers would, at times, make announcements over the loudspeaker of the bus of the presence of members of the Metropolitan Police Department.
According to Det. Hanson, there is no fixed policy concerning the announcements or their contents, and different officers might make different statements. Det. Hanson testified that an officer would usually announce that D.C. had a drug problem, that the Narcotics Interdiction Unit was concerned with preventing drugs from coming into D.C., and that as part of the drug interdiction program officers would be interviewing individual passengers. The officer making the announcement would request the passengers' cooperation. Based upon the uncontradicted testimony of the defendant, the Court finds that such an announcement was made in this case and that the police officer who made the announcement remained by the front door of the bus while various passengers on the bus were being approached, questioned, and searched.
After the announcement was made, Det. Hanson approached the defendant who was sitting in an aisle seat on the driver's side of the bus. Det. Hanson testified that there was nothing in particular that drew his attention to the defendant, a 23 year old black male, and that he approached the defendant on a strictly random basis. He identified himself as a police officer and began to speak to the defendant in a low, conversational tone. Det. Hanson first asked to see the defendant's bus ticket. The defendant took the ticket out from a bag sitting on the floor between his feet and gave it to Det. Hanson. The ticket indicated that the defendant was travelling from Newark, New Jersey to Petersburg, Virginia. Det. Hanson returned the ticket to the defendant and asked if he had any identification. The defendant replied that he did not.
Det. Hanson then asked if he could search the bag resting between the defendant's feet. The defendant testified that at this point he did not feel free to leave and did not realize that he could refuse to comply with Det. Hanson's requests. The Court credits defendant's testimony that because Det. Hanson was blocking his path to the aisle, he would have been unable to exit the bus without coming into physical contact with the officer unless Det. Hanson had turned sideways to allow the defendant to pass through the narrow aisle. Rather than answer Det. Hanson's question immediately, the defendant instead gave Det. Hanson misinformation about his background and his destination.
Det. Hanson testified that he asked and received permission from the defendant to search his bag. The defendant denies that he gave the officer permission to search and testified instead that he merely moved his bag into the aisle when Det. Hanson motioned that he turn his bag over to him. While the circumstances surrounding this encounter are ambiguous, based upon my assessment of the credibility of the witnesses, I find that the defendant did not refuse to have his bag searched and that his "yes, sir" response to Det. Hanson's request for permission to search his bag was understandably taken by Det. Hanson as permission to conduct the search. After the defendant moved the bag into the aisle, Det. Hanson took the bag, placed it on the seat, and proceeded to search it. According to Det. Hanson, at this point, the defendant began to shake uncontrollably.
Det. Hanson drew a sweatshirt out of the bag that had an insignia of the L.A. Raiders. He handed the sweatshirt to the defendant and asked him if he was a Raider's fan. The defendant replied that he was not. Det. Hanson continued with his search of the bag. Inside the bag, he discovered a plastic bag containing two smaller plastic bags -- one of which contained white powder that later field tested positive for cocaine powder, and the other of which contained a white rock substance that later field tested positive for cocaine base.
The defendant was then placed under arrest. In a pat down search of the defendant after his arrest Det. Hanson discovered a small packet of greenish weed substance later determined to be marijuana.
Michael L. Kane, a private investigator, testified that Greyhound bus number 1793 was a 2000 series bus and that he had measured and photographed the interior of a bus from this series. According to Mr. Kane, the width of ...