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 the aisle in a 2000 series bus is approximately 14 inches.
CONCLUSIONS OF LAW
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, shall not be violated . . ." The Supreme Court has declared that "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). The issue in this case is whether Det. Hanson's approach and questioning of the defendant on the bus, which was conducted on a strictly random basis, amounted to a "seizure" under the Fourth Amendment.
A seizure occurs when a citizen's liberty is restrained by a police officer through physical force or a show of authority. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Whether the defendant was seized depends on the totality of the circumstances. Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). The question is whether "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (opinion of Stewart, J.). The subjective beliefs of the person approached are irrelevant to whether a seizure has occurred. United States v. Winston, 892 F.2d 112, 115-16 (D.C.Cir. 1989); United States v. Carrasquillo, 877 F.2d 73, 76 (D.C.Cir. 1989). Rather the test assumes a reasonable citizen "innocent of any crime." Gomez v. Turner, 672 F.2d 134, 140 (D.C.Cir. 1982).
The Court of Appeals for this Circuit has held that "the Fourth Amendment is not necessarily implicated when a police officer initiates an encounter with a citizen he has no articulable reason to suspect of a crime." Winston, supra at 117; See also United States v. Baskin, 886 F.2d 383 (D.C.Cir. 1989). As this Court noted in United States v. Lewis, supra, both Winston and Baskin were cases in which the police approached and interviewed individuals after they had deboarded their trains and were walking in the open and public concourses in and outside of Union Station. In both cases, the Court held that under the circumstances a reasonable person would have felt free simply to walk away from the officer and, therefore, a seizure did not take place.
As I stated in Lewis, I do not believe that a reasonable person would feel free to leave under the circumstances of a "bus stop," in which officers board a narrow, cramped bus en route to another destination in order to randomly question passengers. Id. at 787. This case differs from Lewis in several respects: the defendant was not asked if he was carrying drugs in this case nor was he subjected to a full body search prior to his arrest. Nonetheless, I believe that the encounter between Det. Hanson and the defendant constitutes a seizure under the Fourth Amendment. Indeed, the record in this case more fully demonstrates that "a reasonable person would conclude from the circumstances, and the show of authority, that he was not free to leave the officer's presence." United States v. Brady, 842 F.2d 1313, 1314 (D.C.Cir. 1988).
First, when the three officers boarded the Greyhound bus, and made their announcement over the intercom system to announce their presence and the purpose of their visit they had in effect "seized" the bus. The passengers, not being advised to the contrary, clearly had to believe they could not leave the bus until they had acceded to the officers' requests and cooperated with the interdiction program. The sudden appearance of three D.C. police officers where one officer planted himself at the bus's only exit along with the use of Greyhound's equipment to announce the official nature of their presence could only suggest to the passengers that the officers had taken control of the bus. Indeed, these actions seem designed to convey the impression that passengers were not free to leave the bus.
Such a display of official police authority would clearly have an intimidating effect on these passengers.
Moreover, when Det. Hanson approached the defendant, who was sitting in his seat, there was one officer standing behind him at the back of the bus and another officer standing in front, by the door of the bus. Thus, the defendant would have had to extricate himself from his seat and negotiate his way in the 14 inch aisle past both Det. Hanson and the officer standing in the front of the bus, by its only exit, in order to walk away from the encounter. Given Det. Hanson's location and the narrow width of the aisle, it would have been impossible for the defendant to walk past Det. Hanson without any physical contact unless the officer was willing to move or turn sideways. Under these circumstances, it is clear that the defendant "was confined to a particular location." United States v. Baskin, 886 F.2d 383, 387 (D.C.Cir. 1989).
Finally, Det. Hanson testified that a passenger who refused to consent to an interview might be considered suspicious simply for refusing consent and, therefore, some members of the Narcotic Interdiction Unit might notify authorities at the next stop and provide a description of the uncooperative passenger. As Judge Gesell has noted, this practice could result in further scrutiny and questioning at every stop:
Any reasonable person would feel less than free to refuse a police search if aware that refusal to cooperate would lead to repeated harassment. As the hour became late, police in every city down the line could board the bus and wake the uncooperative passenger.
Cothran, supra at 156.
Because the defendant was improperly seized by Det. Hanson, his subsequent consent to the search of his bag did not overcome the taint of the prior police conduct. United States v. Maragh, 894 F.2d 415, 419-20 (D.C.Cir. 1990). Only when the subsequent consent is "the product of an intervening act of free will" can it "purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Because such an intervening event was not present in this case, the defendant's consent to the search of his bag did not dissipate the initial taint of his improper seizure by the police.
Moreover, the record demonstrates that the defendant's consent was not voluntary. "Voluntariness is a question of fact to be determined from the totality of circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). After reviewing the totality of circumstances in this case, the Court concludes that the defendant's consent was not voluntary. At the time of the questioning, the defendant was confined in his seat with two officers preventing his exit. Det. Hanson stood in the aisle next to him and another officer stood in the front of the bus by the only exit. The officers had just made an announcement over the loudspeaker which suggested that they had assumed control of the bus. The Court is convinced that a reasonable person, innocent of any crime, would not have felt capable of saying "No" under these circumstances.
Although I am deeply troubled by the prospect that an alleged drug dealer may go free on the basis of a procedural ruling rather than a substantive jury verdict, the strictures of the Fourth Amendment are not mere technicalities, but important constitutional safeguards that protect all citizens. Police practices must be designed to conform to the Fourth Amendment; a citizen's constitutional rights cannot be twisted to conform to current police practices.
As I stated in Lewis, the police practice of boarding buses and randomly approaching passengers to question and search them without any articulable suspicion is repugnant to this nation's constitutional values and safeguards as embodied not only in the Fourth Amendment, but also in the Fifth Amendment. Other constitutional protections may also be involved. The First Amendment guarantee of the right to freely assemble and the interstate commerce clause may also be implicated by the police conduct in question.
Det. Hanson and the other officers involved in this case are not renegade officers; instead they acted pursuant to an official police practice of boarding buses to approach and search passengers randomly without any particularized suspicion and subjecting those passengers to future stops simply because they exercised their constitutional right to say "No." I do not believe that such a practice meets the requirements of the Constitution. Our desire to overcome the scourge of drugs cannot override the constitutional guarantees that generations of Americans have fought so hard to protect.
This case presents issues that go well beyond an isolated instance between an alleged drug dealer and a police officer. At stake here are the rights of a large segment of our populace. While I realize that the drug epidemic is of tremendous proportions, it cannot be said that everyone who boards an interstate bus must be deemed a suspected drug courier. I know of no precedent where a program as intrusive as this one has been upheld. No case has been made that the only way we can stamp out the drug scourge is for our local police to in effect "seize" buses engaged in interstate transportation in order to indiscriminately search travellers and their possessions. The police must not be allowed to initiate programs of this kind without taking into account the severe impact their actions might have on the constitutional rights of our citizens.
Accordingly, the evidence seized by the officers involved in this case will be suppressed.
An appropriate order accompanies this opinion.
ORDER - March 7, 1990, Filed
Upon consideration of defendant's motion to suppress evidence, the Government's opposition thereto, the hearing held before this court, and in accordance with the Court's opinion of this date, it is hereby
ORDERED that defendant's motion to suppress be and hereby is GRANTED.
March 7, 1990