The opinion of the court was delivered by: SPORKIN
STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on defendant Clarence Morris' motion to suppress statements
and physical evidence. Defendant contends that certain statements he made and physical evidence that was seized from him must be suppressed because this evidence was the product of an unconstitutional seizure. The Government argues that the encounter between police officers and the defendant did not rise to the level of a seizure of defendant's person and that even if a seizure occurred the physical evidence recovered was not a fruit of that seizure.
On March 21, 1990, at approximately 3:55 p.m., officers of the District of Columbia Metropolitan Police Department Drug Interdiction Unit were working at the Greyhound/Trailways terminal located in Northeast Washington, D.C.
While performing his normal duties, Detective William Buss observed the defendant Mr. Morris and an unidentified male exit a Greyhound bus that had just arrived in Washington from New York City. Mr. Morris had a brief conversation with the other individual, handed him something, and returned to the bus.
Detective Buss noticed that the defendant was carrying what appeared to be a small black bag and that something appeared to be contained therein.
Detective Buss then observed the defendant re-enter the bus. The defendant proceeded to the rear of the bus to use the rest room.
Detective Buss decided to continue his surveillance of the defendant. To that end, Buss boarded another Greyhound bus that was parked adjacent to the one the defendant boarded. At the same time that these events were occurring, the defendant's unidentified friend returned from the fast food restaurant. Prior to re-entering the bus, Detective Vance Beard approached this individual and identified himself as a police officer. Detective Beard and the defendant's companion then reboarded the bus. Detective Beard asked this individual some questions. The detective was satisfied with the responses that he received and left the bus. Detective Brennan, who had been acting as Beard's back-up, was situated in a seat at the front of the bus near the driver's seat and did not leave the bus.
While Detective Brennan was interviewing the defendant's friend, Detective Buss continued to observe the defendant's movements from the adjacent bus. Detective Buss testified that he saw the defendant take an aisle seat about half-way back into the bus. The defendant then moved over to the window seat and began to make arm and shoulder movements that indicated to Detective Buss that he was trying to stuff something between the seats on the bus.
Detective Buss decided to approach the defendant and ask him if he would cooperate by answering some questions.
Detective Buss then exited the empty bus in which he had been seated and entered the bus in which the defendant was seated. Detective Buss was accompanied by Detective Kimberly Oxendine while Detective Brennan remained seated at the front of the bus. All of the officers were in plain clothes and there service revolvers were concealed. Detectives Buss and Oxendine proceeded toward the rear of the bus walking past the defendant. Detective Oxendine remained positioned in the rear of the bus and Detective Buss approached the defendant from behind so as not to block the exit aisle of the row of seats where the defendant was seated.
Detective Buss then explained to the defendant that he was assigned to the Drug Interdiction Unit and that there was a problem with individuals bringing drugs into the city via the bus. Detective Buss proceeded to ask the defendant if he was carrying any guns or drugs. Mr. Morris responded that he was not. Detective Buss then requested permission to perform a limited pat-down of the defendant's person. The defendant assented to this request. While the defendant remained seated, Detective Buss conducted a brief pat-down for the purpose of determining whether the defendant was carrying a weapon.
After Detective Buss determined that the defendant was unarmed, he turned away from the defendant and went directly to the seat on the bus in which he had originally observed the defendant to be seated. He looked between the seats to see if the defendant had in fact hidden anything there. Detective Buss discovered a clear plastic bag with over thirty (30) small clear plastic vials. Such vials are considered drug paraphernalia since they are used in the packaging of illicit drugs for distribution. Detective Buss held up the plastic bag and displayed it to Detective Brennan who was still positioned at the front of the bus. Having discovered the vials, Detective Buss proceeded to ask the defendant to accompany him to the rest room at the rear of the bus so that a more thorough search could be performed. The defendant agreed to this request. Before Detective Buss and the defendant had a chance to walk to the rear of the bus, Detective Brennan approached the defendant and conducted a non-consensual pat-down search. During the course of this search, Detective Brennan recovered from the inside of the defendant's right sock a plastic bag that contained a white rock substance which later field tested positive for cocaine. The substance weighed approximately 28 grams.
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). The defendant has vigorously argued that the the initial encounter between himself and Detective Buss rose to the level of illegal seizure in violation of the Fourth Amendment. This Court does not consider this to be the relevant issue in the case.
The discovery of the plastic bag containing the viles was not a product of the encounter between Detective Buss and Mr. Morris. Rather, the defendant had abandoned the plastic bag thereby relinquishing any protections afforded by the Fourth Amendment. A warrantless or non-consensual search or seizure of property that has been abandoned does not violate the Fourth Amendment. See e.g. Abel v. United States, 362 U.S. 217, 241, 4 L. Ed. 2d 668, 80 S. Ct. 683 (1960). The Fourth Amendment affords protection only when 1) a person exhibits an actual (subjective) expectation of ...