The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
Defendant is charged in a one count indictment filed on October 5, 1989, with unlawful possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1), (b)(1)(C). The case is now before the Court on the defendant's motion for reconsideration of the Court's denial of 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 that the motion for reconsideration should be granted, and that the motion to suppress should be granted.
Briefly, the underlying facts are as follows: On or about September 8, 1989, the defendant was on a bus which originated in Connecticut or New York City and which was enroute through Washington, D.C., to the southeastern United States. The defendant boarded the bus in Connecticut or New York, was travelling alone and, was travelling to a destination in North Carolina. The bus arrived at the Greyhound - Trailways Bus Station in the District of Columbia at approximately 8:30 p.m. At the station at that time were Sergeant John Brennan, Detective Vance Beard and Detective Edward Curley. The officers were assigned to the Morals Division Interdiction Unit with the Metropolitan Police Department. Their duty was to intercept the flow of narcotics traffickers from known source cities, either travelling to Washington or through Washington via public transportation. TR at 3.
The officers observed defendant exit the bus and then Curley, Brennan and Beard boarded the bus. The bus was carrying only four passengers, one being the defendant. Beard was interviewing another individual when the defendant returned to the bus carrying a chili dog, and took his seat approximately two or three seats from where Curley was standing adjacent to the aisle of the bus. TR at 5 - 6. The defendant was seated about three-quarters of the way down on the driver's side of the bus. At this time Beard was all the way in the back of the bus and Brennan was standing near the front of the bus. Curley had been maintaining a backup position while Beard was interviewing another individual. All of the officers involved were in plain clothes, did not have their weapons displayed, and all spoke in conversational tones.
After the defendant returned to his seat, Curley approached him, displayed his photo identification and asked whether he could speak with him. At this time the defendant was seated alone while eating his chili dog. After the defendant "consented" to speak with Curley, Curley asked if he had his ticket. The defendant answered affirmatively and immediately pulled out a Connecticut driver's license and handed it to Curley. TR-8. The driver's license was in the name of Roland Fields with an address in Stanford, Connecticut. The officer never asked for the defendant's identification. Curley then asked the defendant if the suitcase that was in the overhead rack directly above him belonged to him. The defendant indicated that the bag was not his after which Curley inquired whether he was travelling with any luggage. The defendant answered that he did not have luggage. Curley then asked the other passengers on the bus whether they owned the bag that was on the overhead rack and all three of them stated that they did not. At that time only one bag was located in the area of the defendant, that bag being the bag on the overhead rack. Curley then took the bag down, placed it on the seat directly in front of the defendant, opened the bag and began to search the bag. Inside Curley recovered several plastic bags containing white powder. The powder later tested positive for heroin. Curley also found "several thousand glassine envelopes, a screen, a spoon, and a rubber identifier stamp." TR at 11-12. He also found two prescription bottles in the bag that were in the name of Roland Fields. The only other item he found in the bag was a bus ticket showing travel from Stanford, Connecticut. Once Curley found the illegal drugs and items apparently belonging to Fields, he placed the defendant under arrest. TR at 12.
Curley explained that neither Beard nor Brennan had made any effort to detain the defendant up to the point the drugs were found in the bag. Brennan spoke with the defendant and asked whether he had any identification. Brennan was given the same driver's license that the defendant had handed to Curley. Brennan then handed it back and moved a few feet away, this being his only contact with the defendant up to that point. This contact was made by Brennan at the time Curley was still searching the bag. The officer testified that prior to finding the items in the suitcase, the defendant had not indicated that he wanted to leave the bus but instead he merely continued to eat his chili dog. The officer testified that if the defendant had indicated that he wanted to leave the bus he would have been free to leave. Curley also testified that he did not tell the defendant that he was required to answer the officer's questions, did not touch him in any manner, did not tell him why he wanted to talk with him and did not indicate that he was not required to answer any questions or that he was free to leave.
The record reflects that the officers did not have any information on Mr. Fields prior to the time Detective Curley approached him, and that there was nothing suspicious about the activity or the dress of Mr. Fields prior to the time the officer approached him. In other words, this is a case in which it is conceded by the government that the officers lacked probable cause or even a reasonable suspicion to detain or arrest the defendant at the time they approached him. At no time during his conversation with the defendant, prior to finding the drugs, did the officer refer to drugs. The officer testified that he had no reason to stop Mr. Fields until such time as he found the prescription drugs with his name on the label indicating that the bag in question belonged to the defendant.
This Court originally heard the motion to suppress evidence on November 14, 1989 and thereafter orally ruled that the motion to suppress should be denied. In denying the motion, the Court observed:
Now, I know that Sergeant Brennan was perhaps at the door -- but there is no evidence that Mr. Fields knew that or that he suspected that he was not able to leave. Mr. Fields has offered no evidence on that point, he has not testified that he was in any way coerced or intimidated by the presence of the officers . . . . the officer has testified that the conversation was in a normal tone of voice, that there was no coercion, that his weapon was not displayed, that all he did was to identify himself.
TR at 44. Moreover, notwithstanding the government's argument that the defendant had abandoned the bag found on the overhead rack, the Court observed that it was not clear that the bag had been abandoned and ruled that the defendant had standing 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 ...