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UNITED STATES v. ALSTON

July 23, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
BRENDA ALSTON, Defendant


June L. Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JUNE L. GREEN, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on Defendant Brenda Alston's Motion to Suppress Evidence and Statements. The sole witness at the suppression hearing was Detective Kimberly K. Oxendine, of the Metropolitan Police Department, who testified on behalf of the government. For the reasons stated below, the Court grants defendant Alston's motion to suppress evidence and statements.

 I. FACTS

 The defendant, Ms. Brenda Alston, was traveling aboard a Greyhound bus from New York City to Richmond, Virginia on March 23, 1990. The bus made a scheduled stop in the Greyhound Bus Station located at 1005 First Street, N.W. in Washington, D.C. During the stop, Detective Kimberly Oxendine and Detective Hairston, of the Metropolitan Police Department, boarded the bus looking for two male passengers suspected of carrying narcotics. The officers located one of the suspects towards the front of the bus. Detective Hairston requested and received permission to interview him. Detective Oxendine testified at the suppression hearing that the suspect also agreed to be searched. While still at the front the bus, Detective Hairston searched the man but found no illegal substances.

 A short while later, the second suspect returned to the bus. Detective Oxendine boarded the bus again, this time with Detective Edward Curley who interviewed the second man with his consent. The officers also conducted a consensual search of the second suspect's suitcase just outside the bus. The suitcase contained Tusinex, an illegal narcotic substance, and was seized by the officers.

 Detective Oxendine testified that she first noticed the defendant when she saw Ms. Alston staring out the bus window, while the police officers searched the suitcase. Ms. Alston appeared to show an inordinate amount of interest in the officers' operations. Detective Oxendine approached the defendant when she boarded the bus a third time. She positioned herself in the row of seats directly behind the defendant. Detective Curley also was behind the defendant in a nearby seat. Detective Oxendine identified herself as a police officer and asked Ms. Alston if she could talk with her. The defendant agreed to speak with the detective. Detective Oxendine asked for the defendant's ticket, and the defendant produced a ticket reflecting travel from New York to Richmond, Virginia. The defendant explained that she was traveling to Richmond to visit her boyfriend, who was a married man, and that she was returning immediately to New York so she carried no luggage. Oxendine then explained the interviews were conducted in an attempt to stem the flow of drugs into Washington, D.C. She asked the defendant if she was carrying any illegal narcotics. Ms. Alston responded that she was not. The detective then asked and received permission to search the person and handbag of Ms. Alston. As the defendant handed her purse to the detective, Detective Oxendine said she noticed the defendant's hands shaking. Inside the purse the detective found a sock which concealed 81 vials and 159 wax bags containing cocaine, and a plastic bag filled with heroin. The defendant was placed under arrest.

 The defendant argues that the police officers violated her fourth amendment rights when they questioned her and searched her handbag. She claims that the police lacked probable cause or any articulable suspicion of wrong-doing, and therefore, she was seized illegally.

 The government counters that Ms. Alston's rights were not violated because she agreed voluntarily to speak with and have her handbag searched by the officers. The government maintains that the fourth amendment is not implicated by a voluntary encounter between law enforcement officers and a citizen. The government further argues that the defendant's consent to the search of her handbag vitiates her claim of a fourth amendment violation.

 II. DISCUSSION

 The Fourth Amendment of the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures . . .". The search or seizure of a person without a warrant is per se unreasonable unless it falls within certain narrowly defined exceptions to the warrant requirement. Absent a warrant, the government carries the burden of justifying an unreasonable search or seizure. Rouse v. United States, 123 U.S. App. D.C. 348, 359 F.2d 1014 (D.C.Cir 1966).

 The first question this Court must address is whether or not under the fourth amendment the defendant was "seized" when she was approached aboard the Greyhound bus by Metropolitan Police Department Officers. Not all police-citizen encounters result in the seizure of the citizen. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The Supreme Court has held that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual . . . in [a] public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). Thus, even absent any probable cause or articulable suspicion of wrongdoing, a police officer may engage a citizen in voluntary conversation without violating the fourth amendment. United States v. Tavolacci, 283 U.S. App. D.C. 1, 895 F.2d 1423 (D.C.Cir. 1990); United States v. Winston, 282 U.S. App. D.C. 96, 892 F.2d 112 (D.C.Cir. 1989); United States v. Baskin, 280 U.S. App. D.C. 366, 886 F.2d 383 (D.C.Cir. 1989), cert. denied, 494 U.S. 1089, 108 L. Ed. 2d 960, 110 S. Ct. 1831 (1990).

 Whether or not a particular defendant was seized depends on the totality of the circumstances. Baskin, 886 F.2d at 386. If, in view of all the circumstances, a reasonable person would not feel free to leave, then a "seizure" has taken place under the fourth amendment. United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). In this Circuit, a reasonable person is one who is innocent of any crime. Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134, 140 (D.C. Cir. 1982).

 Considering all the circumstances surrounding Ms. Alston's arrest, the Court concludes that the defendant was seized when officers interviewed her and searched her handbag on board the Greyhound bus. As the plaintiff points out, other Judges of this Court have held such bus interviews tantamount to a seizure of the interviewee. United States v. Lewis, 728 F. Supp. 784 (D.D.C. 1990) (J. Sporkin); United States v. Cothran, 729 F. Supp. 153 (D.D.C. 1990) (J. Gesell); United States v. Felder, 732 F. Supp. 204 (D.D.C. 1990) (J. Sporkin); United States v. Fields, 733 F. Supp. 4 (D.D.C. 1990) (J. Penn). Factors which led these courts to conclude that the defendant had been seized included: "the cramped nature of the interior of a Greyhound bus and the narrow width of the exit aisle . . .", which limit a passenger's mobility; the presence of several law enforcement officers, at least one of whom blocks the bus' only exit; the fact that a passenger who leaves the bus to avoid further questioning risks ...


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