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UNITED STATES v. SMITHEN

May 24, 1990

UNITED STATES OF AMERICA
v.
BERTSFIELD SMITHEN and JOHN HOFFMAN a.k.a. JOHN JOSEPH, Defendant



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.

 This matter is before the Court on defendant Bertsfield Smithen's motion to suppress physical evidence. Co-defendant John Hoffman filed a "motion to adopt" Smithen's motion to suppress. This motion was granted by the Court. Accordingly, the Court treats the motion before it as a joint motion of the defendants to suppress. Defendants contend that the evidence seized from them must be suppressed because it resulted from an unconstitutional seizure. The Government argues that the encounter between police officers and the defendants did not rise to the level of a seizure and that the evidence obtained was the product of a consensual search.

 FINDINGS OF FACT

 On the afternoon of February 14, 1990, two Amtrak Police officers were working Penn Station in New York City. These officers were responsible for approaching individuals whom they believed were possibly carrying narcotics. The two officers working Penn Station were Captain Steven Goldstein and Captain Robert Sauve. These officers testified that because of Amtrak's limited funds on certain days of the week it is their policy just to approach individuals in New York and to ask some limited questions. On these limited approach days, no searches are conducted but if an officer's suspicions are aroused about particular passengers he may "call down" to other stations along the train's scheduled route to advise the officers at those locations that it may prove fruitful to conduct further interviews of those passengers.

 Captain Goldstein and Captain Sauve testified that on the afternoon of February 14, 1990 (a limited approach day), they observed two young males walking together through the main concourse area of Penn Station. They observed these two individuals speaking with each other and saw them approach the ticket counter area. The officers further stated that their attention was drawn to these two individuals because they were exhibiting "nervousness." The officers continued to observe these two individuals and saw them go to a boarding gate and heard them ask which train was headed to "Charlottesville." The individuals then boarded the train and proceeded to sit 5-7 rows apart from one another.

 Captain Sauve approached the second yet to be identified male who he and Captain Goldstein had observed earlier. Captain Sauve had a conversation with this individual during which he learned that his name was Bertsfield Smithen, that he was travelling alone, and that he was carrying a bag. Captain Sauve testified that he never searched any of Mr. Smithen's belongings, never touched Mr. Smithen, and that after speaking with Mr. Smithen he simply exited the train. *fn1"

 Later that evening at approximately 6:05 p.m., officers of the District of Columbia Metropolitan Police and the Amtrak Police boarded the train upon its arrival at Union Station from New York City. The officers had received information from Captains Goldstein and Sauve that two individuals who were travelling in coach #1940 would be "worth interviewing." The New York officers provided descriptions and the names of these two individuals.

 According to Amtrak investigator Sergeant Lawson, approximately five (5) officers boarded coach #1940. Those officers were as follows: 1) Amtrak investigator Thomas Cook; 2) Metropolitan Police Officers Vance Beard; 3) Edward Hanson; 4) Centrella; and 5) himself. The train was dark at the time the officers boarded because the engine was being switched from an electric to a diesel. There was some emergency or auxiliary lighting on the train but the lighting was quite dim. Lawson testified that some of the officers were carrying flashlights at the time they boarded the train.

 Once on board, Detective Hanson encountered the defendant John Hoffman (John Joseph). Detective Hanson approached from behind the seat where Mr. Hoffman was situated. Detective Hanson, who was wearing plain clothes and whose service revolver was not visible, identified himself as a police officer and asked Mr. Hoffman if he could speak with him. Hoffman agreed. Hanson requested to see Mr. Hoffman's train ticket and some identification. The defendant complied with this request, however, the ticket he was carrying was in the name of "John Hoffman" while the New York identification card he produced was in the name of "John Joseph." When questioned about this apparent inconsistency, the defendant responded that his brother who had a different father had purchased the ticket for him.

 Hoffman also told Detective Hanson that he was travelling to "Charlottesville, North Carolina" and that he was carrying some luggage. Detective Hanson proceeded to explain to Mr. Hoffman that he was assigned to the Drug Interdiction Unit and that there was a problem with individuals bringing narcotics into the city via the train. Detective Hanson next asked Mr. Hoffman if he was carrying any drugs. Mr. Hoffman responded that he was not. Detective Hanson then asked for permission to search Mr. Hoffman's bag. Mr. Hoffman replied that Detective Hanson could search the bag. After obtaining consent, Detective Hanson began to search the red duffel bag that Hoffman had identified 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. *fn2" 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. *fn3" 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. ...


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