to move to suppress the evidence. TR at 45-46.
The defendant moved for reconsideration of the prior ruling on the motion to suppress based two recent decisions by judges of this court. See United States v. Cothran, 729 F. Supp. 153 (D.D.C. 1990) (Judge Gesell) and United States v. Lewis, 728 F. Supp. 784 (D.D.C. 1990) (Judge Sporkin). See also United States v. Felder, 732 F. Supp. 204 (D.D.C. 1990) (Judge Sporkin). All three cases involved "encounters" at the Greyhound-Trailways Bus Station.
The Court has carefully reviewed the transcript of the hearing on the motion to suppress, together with the above decisions. After giving consideration to the reasons stated for the rulings in the above cases, the Court is persuaded that the evidence in this case should have been suppressed; therefore, the motion for reconsideration is granted as is the motion to suppress evidence.
Normally a brief encounter by a police officer where there is no show or threat of force and where the citizen is free to walk away does not violate the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). "The test provides that the police can be said to have seized an individual 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565 (1988) (citation omitted). See also United States v. Savage, 281 U.S. App. D.C. 280, 889 F.2d 1113, 1116 (D.C.Cir. 1989).
Here, after reviewing all of the circumstances surrounding the encounter, the Court concludes that a reasonable man would not have believed that he was free to leave. The defendant was merely passing through the District of Columbia and had no intention of stopping over in this city. He had briefly stepped off the bus to purchase something to eat and he then returned to his seat. Under these circumstances, once approached by the officers, there was no place for the defendant to go but to remain on the bus. The circumstances are much different from the 'encounter' which takes place within a bus station, see United States v. Winston, 282 U.S. App. D.C. 96, 892 F.2d 112 (D.C.Cir. 1989), or a train station, see United States v. Maragh, 282 U.S. App. D.C. 256, 894 F.2d 415 (D.C.Cir. 1990), where the citizen can walk away. The defendant here had no place to go except to step off the bus, assuming he felt free to do so, thereby running the risk that the bus might leave without him. Moreover, the situation is different than an "encounter" on a train where a citizen has the option of walking into another car without actually leaving the train. See United States v. Savage, 281 U.S. App. D.C. 280, 889 F.2d 1113 (D.C.Cir. 1989); United States v. Baskin, 280 U.S. App. D.C. 366, 886 F.2d 383 (D.C.Cir. 1989); United States v. Brady, 269 U.S. App. D.C. 18, 842 F.2d 1313 (D.C.Cir. 1988).
Additionally, the defendant was effectively blocked from standing up, since he was seated while the officer was asking for his "consent", he was seated three-quarters of the way toward the back of the bus, he was one of only four passengers on the bus, and he was surrounded by the three police officers; one standing by his seat, one standing behind him, and one standing between him and the door. While it may be argued that the officers were in plainclothes and did not display their weapons, the officer speaking to him identified himself and there is evidence that Sergeant Brennan also took part in the conversation at some point. It would be straining credulity to believe that a reasonable person would not believe that a police officer is not armed. Under these circumstances the Court concludes that a reasonable man would not have felt free to ignore the officers or to refuse to consent to their request to speak with him and then to search his bag.
Although the defendant denied that the bag was his, the Court cannot accept the government's argument that the defendant abandoned the bag. See United States v. Brady, supra, at 1315-16. The officer asked the defendant whether the bag on the overhead rack was his and the defendant responded in the negative. TR. at 10. The officer then asked the other three passengers whether it was their bag and they also disclaimed ownership. TR. at 11. Under the facts of this case, unlike those in Brady, the record supports a finding that the defendant did not abandon the bag. In Brady, the evidence supported a finding that Brady voluntarily consented to speak with the officers, whereas here, the Court finds that a reasonable man would not have felt free to leave the bus or to refuse to answer the questions propounded by the officers. Likewise, a reasonable man would not have felt free to deny the officer's request that he search the bag; thus, the choice is presented; acknowledge ownership of the bag and deny consent for a search, or deny ownership of the bag. The defendant selected the latter course, but at that time, his actions were dictated by the actions of the police officers.
This Court recognizes the difficult task involved in ferreting out and locating drugs and those who engage in the dangerous trade of distributing illicit drugs. But, as the Supreme Court has cautioned: "However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness." Miller v. United States, 357 U.S. 301, 313, 78 S. Ct. 1190, 1197-98, 2 L. Ed. 2d 1332 (1958).
The Court concludes that the motion to suppress should be granted. An appropriate order has been filed.
ORDER - March 23, 1990, filed
This comes before the Court on the defendant's motion for reconsideration of the Court's Order denying his motion to suppress evidence. After giving careful consideration to the motion and the opposition thereto, together with the record in this case, the Court concludes for the reasons set forth the accompanying Memorandum, that the motion to suppress should be granted.
It is hereby
ORDERED that the defendant's motion for reconsideration is granted, and it is further
ORDERED that the defendant's motion to suppress evidence is granted.