after its short stop. At this point Detectives Oxendine and Beard re-boarded and walked back to the defendant.
Detective Beard testified that the officers re-boarded because they had determined that several pieces of luggage without identification tags, which were located in the rack near the defendant's seat, had not been searched. Detective Oxendine stood in the seat immediately in front of the defendant, with only her foot in the aisle. Detective Beard stood two seats ahead, by his own admission with half of his body partially blocking the narrow aisle. Another detective stood near the front of the bus, but, according to Beard, did not block the aisle. Detective Beard testified that the defendant admitted that three bags in the overhead rack were his, and consented to their search. Two of the bags contained narcotics. The defendant testified that he admitted ownership of only two blue bags, one of which was searched the first time, and one of which was searched the second time the detectives came through the bus.
Neither of those bags contained narcotics. He testified that Detective Oxendine told him to hand her the other bags from the rack to be searched, and he did. Whether he consented to their search or handed them to the officer without saying anything is not important in light of the Court's finding that the circumstances of this encounter were so coercive as to render any "consent" invalid.
It has become commonplace for the Court to hear of confrontations involving the Narcotics Interdiction Unit and individuals passing through this city's bus terminal. The officers in this case testified that they inspected every piece of luggage in the racks above the passengers' heads, looking for bags without identifying tags. These were the bags the officers ultimately determined to search. The Court emphasizes the fact that many of the individuals stopped by the Interdiction Unit, like the defendant and his companions, are traveling on an interstate bus through Washington, D.C. They have no intention of stopping in Washington, D.C., or presumably, of distributing illegal narcotics on the streets of Washington, D.C. Yet, it has become routine to subject interstate travelers to warrantless searches and intimidating interviews while sitting aboard a bus stopped for a short layover in the Capital. These searches, ostensibly made with the interviewee's consent, are inconvenient, intrusive and intimidating. In this case, and in many others, the warrantless search and seizure of these citizens violates the fourth amendment to the constitution.
The fourth amendment protects "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures . . . ." Whether or not an individual is seized so as to implicate the protections of the fourth amendment depends upon the totality of the circumstances. United States v. Baskin, 280 U.S. App. D.C. 366, 886 F.2d 383, 386 (D.C. Cir. 1989), cert. denied 494 U.S. 1089, 108 L. Ed. 2d 960, 110 S. Ct. 1831 (1990). If, in view of all the circumstances, a reasonable person would not feel free to leave, then a "seizure" has taken place. United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). The Court finds that the police conduct in this case was "'so intimidating' that [an individual] could reasonably have believed that he was not free to disregard the police presence and go about his business." See Michigan v. Chesternut, 486 U.S. 567, 576, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988); United States v. Cothran, 729 F. Supp. 153, 155 (D.D.C. 1990).
Although the officers used conversational tones and did not outwardly display their weapons, the Court finds additional circumstances support its conclusion that the interview and search of the defendant was conducted in an atmosphere so coercive that the protections of the fourth amendment were implicated. The District of Columbia was not the defendant's destination, yet to avoid the officers' questioning he would have had to exit the bus and risk missing its departure. This factor is especially compelling because the evidence shows that the bus was in fact ready to depart when the officers boarded the second time. The cramped nature of the bus and the narrow width of the aisle limited the defendant's mobility, especially in light of Detective Beard's testimony that he at least partially blocked the 15 inch aisle at all times. No fewer than three and as many as five officers were on the bus while the interviews were conducted. The officers requested the defendant's bus ticket, and held the ticket throughout the initial encounter. A number of recent opinions by Judges of this Court have relied on these factors in concluding that evidence obtained in similar warrantless searches aboard interstate busses must be suppressed. See United States v. Alston, 742 F. Supp. 13 (D.D.C. 1990) (this Court's opinion); United States v. Mark, 742 F. Supp. 17 (D.D.C. 1990) (this Court's opinion); United States v. Fields, 733 F. Supp. 4 (D.D.C. 1990) (Penn, J.); United States v. Felder, 732 F. Supp. 204 (D.D.C. 1990) (Sporkin, J.); United States v. Cothran, 729 F. Supp. 153 (D.D.C. 1990) (Gesell, J.); United States v. Lewis, 728 F. Supp. 784 (D.D.C. 1990) (Sporkin, J.).
This warrantless search and seizure of the defendant arguably fits only one of the narrow exceptions to the warrant requirement, that of consent. However, the Court finds that the defendant's alleged consent to the search of the two bags from the overhead rack was not "an intervening independent act of free will" sufficient to "purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); see also Alston, at 16-17 (consent followed immediately on the heels of the illegal seizure and was not voluntary).
The Court finds that the defendant was seized in violation of the fourth amendment when he was twice approached by police officers on an interstate bus en route to a destination several hours south of Washington, D.C. The defendant's purported consent to a search of his bag was a product of this illegal seizure. Moreover, the intimidating circumstances surrounding his seizure render defendant's consent involuntary. Absent the defendant's voluntary consent, the warrantless search of his bags is unconstitutional. Therefore, for the reasons stated above, the Court grants the defendant's motion to suppress physical evidence.
ORDER - July 31, 1990, Filed
Upon consideration of defendant's Motion to Suppress Physical Evidence; the Opposition of the government to the motion; oral argument and testimony given at a hearing on the motion held on July 31, 1990; the entire record of this matter; and for the reasons stated in the accompanying memorandum, it is by the Court this 31st day of July 1990,
ORDERED that defendant's motion to suppress physical evidence is granted.