as his luggage. Once inside the bag, Hanson observed a pair of "Bugle Boy" tennis shoes with socks stuffed inside. Upon closer examination of the socks, Detective Hanson discovered three large plastic bags secreted inside of the socks. These bags contained approximately 381 small ziplock bags each containing a white rock-like substance that field tested positive for cocaine.
At approximately the same time, Metropolitan Police Detective Vance Beard approached the defendant Bertsfield Smithen, identified himself as a police officer, and asked if he would mind speaking to him. Smithen agreed to speak with Detective Beard. At the time that Detective Beard approached, Smithen was seated at a window seat and there was another female passenger seated next to him. In order to facilitate the conversation between Smithen and Hanson, Amtrak Investigator Cook requested that the female passenger relocate to a seat across the aisle. Once this was accomplished, Detective Beard asked Mr. Smithen for his train ticket. Smithen replied that he had a ticket, and proceeded to stand up to retrieve a blue travel bag from the luggage compartment. He placed the travel bag on the empty seat next to him, opened the bag, retrieved the ticket from within and handed it to Detective Beard. The ticket reflected travel from New York to Charlotte, North Carolina. Smithen told Beard that he lived in New York and was going to visit relatives in North Carolina for two weeks.
Detective Beard then told Mr. Smithen that he was assigned to the Drug Interdiction Unit and that his job was to speak with individuals travelling through Washington in an attempt to stop the flow of drugs into the city. Beard next asked Smithen if he was carrying any drugs in his blue travel bag. Smithen responded that he was not. Beard then asked Smithen if he could search his bag, in response Smithen offered his bag.
Upon examining the bag, Detective Beard found on top of some clothing a "DIAL" deodorant can. Detective Beard took the can out of the bag and twisted off the bottom.
Inside of the false bottomed can, he recovered two large plastic bags which contained several small yellow ziplock bags containing a rock-like substance. One of the large bags contained 179 small ziplock bags the white rock-like substance contained therein field tested positive for cocaine. The second bag contained 122 small bags of white powder that field tested positive for cocaine. One of the bags also contained another 69 small bags of white powder that field tested positive for cocaine. Additionally, the arresting officers recovered from the defendant's crotch area a small bag containing a green weed substance that field tested positive for marijuana.
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 searches 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, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). In this case, the issue is whether the approach and questioning by police officers of a citizen who is travelling on board a train amounts to a "seizure" under the Fourth Amendment.
A seizure occurs when a citizen's liberty is restrained by a police officer through the exercise of physical force or a show of authority. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Whether an individual is seized must be evaluated in light of the totality of the circumstances. Michigan v. Chesternut, 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988). Thus, the central 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, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). The subjective beliefs of the person who is approached are irrelevant to whether a seizure has occurred. United States v. Carrasquillo, 278 U.S. App. D.C. 138, 877 F.2d 73, 76 (D.C.Cir. 1989).
The Court of Appeals for this Circuit when evaluating the constitutional propriety of citizen and police encounters that are based on something less than probable cause 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." See United States v. Winston, 282 U.S. App. D.C. 96, 892 F.2d 112, 117 (D.C. Cir. 1989); United States v. Baskin, 280 U.S. App. D.C. 366, 886 F.2d 383, 386-87 (D.C. Cir. 1989). In concluding that these citizen and police encounters did not constitute a seizure, the Court of Appeals placed a great deal of emphasis upon the fact that an ordinary citizen, when confronted by police officers who conduct themselves in a polite and nonaggressive manner, would not feel constrained from walking away. Most recently, the Court of Appeals has unequivocally declared, "an encounter between a police officer and a citizen, involving no more than approach, questioning, and official identification, does not constitute a seizure and does not require probable cause, articulable suspicion, or any other 'kind of objective justification.'" United States v. Smith, 284 U.S. App. D.C. 64, 901 F.2d 1116, 1990 U.S. App. LEXIS 5743 (D.C. Cir. 1990) (citations omitted).
This Court, however, has ruled in the past that the practice of several officers boarding a bus, blocking the aisle and exit, and randomly questioning people and asking them to submit to a search of their persons rises to the level of a seizure. See United States v. Felder, 732 F. Supp. 204 (D.D.C. 1990); United States v. Lewis, 728 F. Supp. 784 (D.D.C. 1990). The Court of Appeals has treated the confines of a train compartment differently. Specifically, the Court has held that a seizure does not occur when officers approach at the entry door of a train roomette. United States v. Tavolacci, 283 U.S. App. D.C. 1, 895 F.2d 1423, 1425 (D.C. Cir. 1990) (noting that in such an instance an individual is free to walk to another part of the train or to simply close the door and end the conversation). The Court of Appeals has unequivocally stated, "It [is] also perfectly lawful for the agents to approach the defendant on the train and ask him if he [is] willing to answer some questions, whether or not the agents had reasonable suspicion." Carrasquillo, 877 F.2d at 76, citing Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). Here, Detectives Hanson and Beard did nothing more than this when they approached the defendants. Given the facts, this Court concludes that neither defendant was unlawfully seized.
Although not directly raised in the defendants' motion to suppress, this Court feels compelled to address the voluntariness of the consent that was given by the two defendants to search their bags. Having already ruled that the defendants were not illegally seized, the limited question presented is whether the consent, if any, was voluntarily given. In Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), the Supreme Court ruled that the voluntariness determination "is a question of fact to be determined from the totality of the circumstances." Id. at 227. A review of all the circumstances in this case leads this Court to conclude that the consent to search that was given by defendants Smithen and Hoffman was voluntary. Defendants make much of the fact that the officers did not give any Miranda-type warnings to the defendants regarding their Fourth Amendment rights. The Supreme Court in Schneckloth rejected this very argument noting "it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning." Id. at 231-32. This Circuit has not adopted any exceptions to this general rule. See Smith, slip op. at 4; see also 3 W. LaFave, Search & Seizure, § 8.2(i), at 190-91 (2d ed. 1987) ("a valid consent may be established without a showing that the police advised the consenting party of his Fourth Amendment rights or that this party was otherwise aware of those rights").
Accordingly, the joint motion of co-defendants Smithen and Hoffman to suppress the evidence seized from them while on board the train is DENIED.
An appropriate order accompanies this opinion.
ORDER - May 25, 1990, Filed
Upon consideration of defendants' joint motion to suppress evidence, the Government's opposition thereto, after a hearing held before this Court on May 3 and May 7 of 1990, and in accordance with the opinion issued this date, it is
ORDERED that defendants' joint motion to suppress the evidence seized during a search conducted on February 14, 1990, aboard an Amtrak train at Union Station in Washington, D.C. is DENIED.