First Street, he again heard the footsteps of someone running. A voice called out. He turned around to find Hairston approximately seven or eight feet away and rapidly walking to catch up. Beard had zig-zagged across First Street moving to the west side of the street and back. He arrived close to Alexander just after Officer Hairston. As Hairston and Alexander stopped walking they were approximately three feet apart. Beard took a position immediately behind Alexander. As they slowed down and stopped, Hairston said he was an officer with the interdiction unit. He asked if he could ask Alexander some questions. Alexander said "yes." Hairston told Alexander several times he "fit the profile." Hairston asked Alexander where he was going and other routine questions. Alexander gave an address. Hairston asked if he could search Alexander, Alexander said "no." Alexander asked if he could leave, Hairston said "no." Hairston asked Alexander for identification. While Alexander was retrieving his identification, Hairston noticed rolling papers in Alexander's wallet. Hairston asked about the rolling papers. Alexander answered that the papers belonged to a friend who forgot to get them back. Hairston asked again if he could search Alexander. Alexander answered "no" and asked again if he could leave. Hairston said "no." Alexander told the officer three or four times that he did not want to be searched and unsuccessfully asked the officer three or four times if he could leave. During most of the questioning Hairston remained calm, but after Alexander had several times answered "no" to Hairston's request to search, Hairston appeared to become disturbed and upset.
While neither officer brandished any weapon, Alexander knew that all plain clothes officers carried weapons so that once Hairston showed his police identification, Alexander knew that Hairston and Beard were armed. When asked why he didn't walk away, Alexander testified: "I couldn't. I mean you don't walk away from a police officer . . . I didn't know I could just walk away. He didn't tell me I could walk away. . . . Plus, his buddy was right on my back, so I felt cornered. You don't leave no police officer in Washington and just walk away from him." Transcript of December 10, 1990 Hearing (Testimony of Parris Alexander) at 19. When later asked: "Why didn't you simply walk down the sidewalk?" Alexander answered: "Because I felt like they might shoot me in the back, or something would happen, if I tried to leave. I wasn't free to go." Id. at 29-30.
The questions for decision are (1) whether the officers had articulable suspicion to stop Alexander when Hairston caught up with him; (2) whether as a matter of law a reasonable and innocent person in the circumstances in which defendant found himself would feel free to walk away from the officers who were "interviewing" him; (3) whether as a matter of fact Alexander voluntarily consented to the search that was conducted; and (4) whether Alexander admitted to carrying marijuana and, if so, whether the subsequent search of his person was lawful incident to an arrest based on probable cause stemming from that admission. See United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); United States v. Lewis, 287 U.S. App. D.C. 306, 921 F.2d 1294 (D.C. Cir. 1990); United States v. Maragh, 282 U.S. App. D.C. 256, 894 F.2d 415 (D.C. Cir.), cert. denied 498 U.S. 880, 112 L. Ed. 2d 174, 111 S. Ct. 214 (1990).
A. The Seizure
The government argues that even before the defendant admitted (albeit falsely) that he possessed a marijuana joint, the officers had the articulable suspicion required to make a Terry stop at the time Hairston first approached Alexander and identified himself, evidenced by Hairston's testimony that the bus on which Alexander arrived originated in New York City, that Alexander was not carrying any luggage, that he walked rapidly through the station and on L and First Streets, and that he twice turned and looked over his shoulder. However, it is neither unusual to walk rapidly through a station after exiting a bus nor to travel without luggage between many of the locations along this bus route. Furthermore, Alexander credibly testified that he looked over his shoulder only after hearing footsteps following him. These facts do not create the reasonable suspicion required for a lawful stop on the authority of Terry. They do not support the same degree of suspicion found present in United States v. Sokolow, 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989), and United States v. Savage, 281 U.S. App. D.C. 280, 889 F.2d 1113 (D.C. Cir. 1989), both of which involved suspects who purchased tickets with cash, provided suspicious telephone confirmation numbers, travelled under aliases, and appeared nervous upon questioning. See also United States v. Tavolacci, 283 U.S. App. D.C. 1, 895 F.2d 1423, 1424 (D.C. Cir. 1990); United States v. Winston, 282 U.S. App. D.C. 96, 892 F.2d 112, 114-15 (D.C. Cir. 1989), cert. denied, 497 U.S. 1027, 111 L. Ed. 2d 787, 110 S. Ct. 3277 (1990); 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).
The government alternatively argues that no articulable suspicion was required as a predicate to the defendant's standing still and answering questions asked to him because defendant consented to standing still and answering questions. Appraisal of this argument requires resolution of the disparity between Hairston's account of the interview and Alexander's obviously self-serving version. Alexander testified that Hairston had repeatedly rejected requests to leave and that, with a fence and Hairston in front of him and Officer Beard immediately in back of him, both armed, neither he nor anyone would feel free to remain silent with armed police so close by or to leave without their permission. Despite this testimony, Hairston's credible account of the conversation supports a finding that Hairston did not in so many words refuse any requests by Alexander to leave. The undisputed facts remain nevertheless that defendant was a 32 year old black male who was street wise and familiar with urban mores in New York and Washington, that the officers were armed, that defendant knew they were armed (albeit with concealed but handily available weapons), that they chased Alexander across L Street and up First Street, that they were not observed or observable by other pedestrians, and that one stood in front of defendant and the other stood menacingly silent behind him, or kept him between the barbed wire fence and themselves, at all times during the interview.
If I were authorized to do so, I would find therefore that a reasonable innocent person in defendant's circumstances
would have done as Alexander did: i.e. what the armed police who chased and confronted him asked him to do. A reasonable innocent person would know that in the United States plain clothes police officers carry guns and know how to use them. A reasonable innocent person in Alexander's circumstances would know from the fact that the police ran after him that they urgently wanted him to stop and, after stopping, to stay stopped until they completed whatever business caused them to run after him in the first place. A reasonable innocent person in defendant's circumstances would know that there were no by-standers to witness whatever transpired between the police and himself except for passing motorists. A reasonable person in defendant's circumstances (a black male familiar with street life in New York and Washington and with the Washington bus station and its environs) could reasonably fear that if he walked away from the officers confronting him or declined to permit a search of his underwear that he would be forcibly restrained, if not beaten, or, as defendant testified, shot. It is undisputed that neither officer ever told Alexander that he was free to leave or to refuse a search. No reasonable innocent person in the circumstances and in the absence of an explanation by the officers would know that Hairston and Beard, as members of the Metropolitan Police Department's elite drug interdiction team, are specially trained not to use force to prevent a prospective interviewee from refusing to stand still for an interview or from refusing to consent to a search.
However, recent decisions by our Court of Appeals have concluded as a matter of law that if officers in the stance of Hairston and Beard speak to a reasonable innocent person in a populated public bus, train, or station in a low, conversational tone, display no weapon, and leave the interviewee a physically open path by which to leave, that person would feel free to decline to converse with the officers and to walk away from them. See United States v. Lewis, 921 F.2d 1294 (D.C. Cir. 1990); United States v. Maragh, 282 U.S. App. D.C. 256, 894 F.2d 415, 417-19 (D.C. Cir.), cert. denied, 498 U.S. 880, 112 L. Ed. 2d 174, 111 S. Ct. 214 (1990); United States v. Winston, 282 U.S. App. D.C. 96, 892 F.2d 112, 114-15 (D.C. Cir. 1989), cert. denied, 497 U.S. 1027, 111 L. Ed. 2d 787, 110 S. Ct. 3277 (1990). I obviously disagree with the Court of Appeals' assumptions about the reactions of a hypothetical reasonable person and am concerned about the effect of those assumptions on constitutional values. Moreover, I take the liberty of expressing my dismay at the Court of Appeals' disparaging description of the District Court opinions in Cothran5 and Lewis6 as rulings that:
A police officer who questions and searches consenting passengers aboard a bus . . . commits a per se violation of the Constitution that is reminiscent of abuses under George III, Hitler, and Stalin.
Id. slip op. at 2-3. In my view the War on Drugs and the activities of the Metropolitan Police Department's dedicated drug interdiction officers make timely and relevant reminders of the Eighteenth Century origins of the Fourth Amendment and of more contemporary events which evidence the vulnerability of the liberties it is designed to protect. Disparagement of these reminders disserves the common enterprise of federal courts. Nevertheless I am bound by the Circuit law as it presently stands. I cannot conscientiously say in the case at hand that the chase or the site of the officers' interview of Alexander would cause the hypothetical reasonable person contemplated in Maragh, Winston, and Lewis to submit to an interview by drug interdiction officers. Accordingly, the accompanying Order must deny the motion to suppress evidence insofar as it posits an unlawful seizure.
B. The Search
The factual question remains whether Alexander felt free to refuse Hairston's request to search him in these circumstances, and, if not, whether the ensuing search was reasonable. The government bears the burden of proving that Alexander's consent was voluntary, based on all of the circumstances, including "the characteristics of the accused and the details of the interrogation" and "the lack of any advice to the accused of his constitutional rights." Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). A finding of lack of voluntariness requires detailed factual findings about the suspect and the circumstances. See United States v. Lewis, 921 F.2d 1294, Slip. Op. at 13 (D.C. Cir. 1990). Unlike in Lewis, the facts here are controverted. Moreover, Alexander testified as to his state of mind -- that he felt cornered and believed he could not leave. Hairston credibly testified that Alexander, after initially expressing reluctance, said "go ahead." While it is unlikely that Hairston expressly refused requests by Alexander to leave, Alexander credibly testified that Hairston asked him several times to submit to a search and that he detected Hairston's aggravation at his initial refusals to submit backed by the threat latent in the close proximity of armed police beyond the earshot of potential witnesses. Therefore, I find that Alexander did not consent to the search. Rather, he submitted to the search only after refusing to do so out of the fear of the consequences if he persisted in his refusal.
Finally, the question remains whether the police conducted an impermissible involuntary search. Hairston testified that Alexander admitted to carrying marijuana prior to Hairston's asking Alexander if he could search him. Alexander conspicuously failed to refute or traverse this testimony (or the testimony that he removed his shoes to permit the search for marijuana). Alexander's testimony that Hairston observed rolling papers in his wallet as he was retrieving his identification tends to corroborate rather than refute Hairston's testimony. Therefore, accepting Hairston's testimony, it necessarily follows that once Alexander admitted to carrying marijuana, the officers had probable cause to arrest him.
Incident to arrest, a police officer has broad authority to search the arrested suspect for weapons or to prevent the destruction of evidence. See Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969); United States v. Robinson, 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973); see also United States v. Brown, 217 U.S. App. D.C. 79, 671 F.2d 585 (D.C. Cir. 1982). However, the presence of probable cause to arrest, when the police have not effected an arrest, permits a more limited search than that permitted incident to arrest. See Cupp v. Murphy, 412 U.S. 291, 296, 36 L. Ed. 2d 900, 93 S. Ct. 2000 (1973). In Cupp, the defendant was called into the police station for questioning about his wife's murder. The police observed a spot under his fingernail resembling blood. They asked Murphy if they could take a sample of scrapings from his fingernails. He refused, but the police proceeded to take the samples despite his refusal. The evidence obtained was held to be admissible, in part due to the exigent circumstances arising from the ease with which the defendant could remove and dispose of the material from underneath his fingernails. The Court found that the police had probable cause at that time to arrest Murphy stemming from several facts in addition to the spots under the fingernail. Id. at 293. Explaining its decision, the Court expressly distinguished between police authority to search a suspect's person incident to arrest under Chimel and the authority to search with probable cause a person who has not been arrested, stating "we do not hold that a full Chimel search would have been justified in this case without a formal arrest . . . ." Id. at 296. Nevertheless, the Court has interpreted Cupp to permit an involuntary search in circumstances not unlike those here, where the suspect has admitted to commission of a crime but the arrest follows, rather than precedes, the search. Rawlings v. Kentucky, 448 U.S. 98, 110-111, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980).
Hairston's search of Alexander in which Hairston reached inside Alexander's underwear on a public sidewalk was more intrusive than the search in Cupp, that in Rawlings, or those in cases such as Bailey v. United States, 128 U.S. App. D.C. 354, 389 F.2d 305 (D.C. Cir. 1967), United States v. Brown, 150 U.S. App. D.C. 113, 463 F.2d 949 (D.C. Cir. 1972), or Doe v. Chicago, 580 F. Supp. 146, 151 (N.D. Ill. 1983). But it did not intrude to the degree permitted prior to arrest in border searches (which are not given the full protection of the Fourth Amendment), or to the degree of a strip search under which District of Columbia policy requires special findings and conditions of privacy. See United States v. Ramsey, 431 U.S. 606, 619, 52 L. Ed. 2d 617, 97 S. Ct. 1972 (1977); Tatum v. Morton, 183 U.S. App. D.C. 331, 562 F.2d 1279, 1285 n. 14 (D.C. Cir. 1977). The constitutional doctrine regarding searches at borders has included considerations of "the embarrassment caused by the exposure of intimate body parts . . . ." United States v. Vega-Barvo, 729 F.2d 1341 (11th Cir.), cert. denied, 469 U.S. 1088, 83 L. Ed. 2d 706, 105 S. Ct. 597 (1984). Despite similar concerns about Hairston's actions here, however, this search does not "shock the conscience." Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952). Exigent circumstances, such as the risk that a delay in a search could have enabled Alexander to dispose of the drugs in private in a bathroom, made Hairston's decision to conduct the search he conducted once Alexander admitted to carrying marijuana reasonable.
Accordingly, for the reasons stated above, an accompanying Order denies defendant's motion.
ORDER - January 4, 1991, Filed
For the reasons stated in the accompanying Memorandum, it is this 4th day of January, 1991, hereby
ORDERED: that defendant's motion to suppress is hereby DENIED.