Appeal from the Superior Court of the District of Columbia; Hon. Joseph M.F. Ryan, Jr., Motions Judge
Ferren, Terry, and Steadman, Associate Judges.
The opinion of the court was delivered by: Terry
In what promises to become a familiar scenario, appellant Kelly was approached by a member of the Metropolitan Police Department's Narcotic Interdiction Unit after getting off a train at Union Station. Following a brief conversation and a request to search the shopping bag that Kelly was carrying, the officer found cocaine in a smaller bag inside a shoe which was in the shopping bag. Kelly was charged with possession of cocaine with intent to distribute it, a violation of D.C. Code § 33-541 (a)(1) (1988). He moved to suppress the cocaine as the fruit of an illegal search, but the motion was denied after a hearing. Kelly then entered a conditional guilty plea to the charge against him, reserving the right to challenge on appeal the trial court's denial of his motion to suppress. See Super. Ct. Crim. R.11 (a)(2).
Appellant maintains that his Fourth Amendment rights were violated when the cocaine was removed from the shopping bag. He makes two specific contentions. First, he argues that he was unreasonably "seized" when he was questioned by the detective at Union Station. Second, he asserts that the search of the shopping bag was conducted without his valid consent. We reject both contentions and affirm the conviction.
On October 10, 1989, Detective Vance Beard, a member of the Narcotic Interdiction Unit of the Metropolitan Police Department, and Special Agent Sauve, an employee of Amtrak, were at Union Station in Washington observing passengers who were getting off Amtrak trains. Both were in plain clothes, and neither visibly carried a gun or displayed a badge. At about 4:00 p.m. they noticed Kelly among the passengers leaving a train that had recently arrived from New York. *fn1 He was carrying a white shopping bag which, according to Beard's testimony, *fn2 "appeared to be not full." As Kelly passed Sauve, the two made eye contact, and Kelly glanced backwards "like he was looking to see if someone was going to follow him." Sauve and Beard did follow Kelly for approximately 100 yards. When they were all in the main terminal area, Detective Beard approached Kelly from behind, presented his identification folder, identified himself verbally as a police officer, and "asked if could speak with him." Kelly said yes. At the same time, Agent Sauve positioned himself about four feet in front of Kelly.
Detective Beard asked Kelly if he had just gotten off a train, and Kelly said he had. Beard then asked where he had come from; Kelly responded, "New Jersey," and displayed a ticket from Trenton to Washington. Detective Beard next inquired whether Kelly lived in New Jersey or Washington, and Kelly said that he lived on Congress Street, S.E. *fn3 When asked how long he had lived there, Kelly "said all of his life." Detective Beard next asked Kelly how long he had been in New Jersey, and Kelly replied, "About a week." When asked whether all the clothes he had for that one-week visit were in the shopping bag, Kelly "said no, that he had other clothes in New Jersey."
Beard then told Kelly that he was from the Narcotics Branch of the police department, and that his job included interviewing people coming into Washington in an effort to stop the flow of illegal drugs. Kelly said he understood. Detective Beard's testimony continued:
I then asked him if he was carrying any drugs in the shopping bag. He said no. I asked if he would have a problem if I searched the shopping bag, and he said no.
Kelly then opened the shopping bag, "one hand on each handle, and he opened it all the way." Beard looked in and saw a pair of pants and some tennis shoes. Inside one of the shoes was a folded-over brown paper bag. When Beard asked what was in the paper bag, Kelly said he did not know. Agent Sauve then stepped closer to Kelly and Beard, reached into the shopping bag, and took out the brown paper bag. Inside it was a plastic zip-lock bag containing a white substance which later turned out to be cocaine.
On cross-examination, the following exchange took place between Kelly's counsel and Detective Beard:
Q. And at that time, did you ask Mr. Kelly whether you could remove anything from the bag?
Q. But Special Agent Sauve just reached in and grabbed something, right?
A. After him hearing his response to my question about the ...