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January 4, 1991


Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 Defendant Parris Alexander is a 32 year old black male who has prior convictions for assault on a police officer and destruction of property. On October 4, 1990 at approximately 6:30 p.m., Alexander exited a bus at the Greyhound Bus station on L and First Street, N.E., Washington, D.C. and left the station, followed by Metropolitan Police Officers Ronny Hairston and Vance Beard. About a block and a half away, on the sidewalk of First Street, Hairston caught up with Alexander, questioned him, and then searched him, while Beard stood close by. The search produced more than 50 grams of cocaine base concealed in Alexander's underwear. Thereupon, the officers arrested Alexander. Alexander moves to suppress use of the drugs as evidence against him on the ground that he was stopped and searched in violation of the Fourth Amendment. For reasons stated below the motion will be denied.

 At a hearing on defendant's motion, the government presented only the testimony of Hairston. Beard did not testify. Alexander testified on his own behalf. The two witnesses presented different versions of the event, which are recounted below. *fn1"


 A. The Police Version

 Detective Hairston testified that he was standing inside the bus station by a glass partition that faced the row of arriving buses when he observed defendant Alexander disembark from a bus arriving from New York, by way of Baltimore. Hairston immediately determined that he wanted to interview Alexander. *fn2" He rapped on the glass to signal Beard, who was sitting in a parked bus just outside the window. Alexander, who was carrying no baggage, entered the station, walked quickly through it, and exited out of the front door. Hairston followed, approximately thirty feet behind Alexander. Beard, meanwhile, left his spot on the parked bus and initially followed at some distance behind Hairston. Alexander turned left and rapidly headed west on L Street. Hairston observed that, before reaching the corner of L and First Streets, N.W., Alexander turned and looked back twice. Alexander turned right, crossed L Street, and continued walking rapidly north on First Street. Officer Hairston ran across L street to catch up to Alexander. He ran to close the distance between himself and Alexander, changed pace to a fast walk and overtook Alexander approximately in the middle of the block on First Street. When Hairston came alongside (on the right of Alexander), he started talking. As the conversation began, Hairston and Alexander stopped and continued the conversation while standing, face to face, on the north-south sidewalk paralleling First Street -- Hairston facing west, towards the street, and Alexander facing east, towards a high barbed wire fence separated from the sidewalk by a grassy strip about twenty-five feet wide. When Hairston was running after Alexander he did not observe where Beard was. But Hairston knew Beard was close behind him because Beard's mission was to back up Hairston when he approached a suspect. Beard arrived shortly after Hairston. He took a position standing in the street directly at Alexander's back, three to five feet behind Alexander, also facing east towards the fence. Both officers were dressed in plain clothes. Each officer carried a gun and handcuffs concealed under his clothing. There were no pedestrians in sight, no residences or business establishments open in the vicinity, nor other activity with the exception of light motor traffic on First Street. When Hairston questioned Alexander, Alexander stood directly between Hairston and Beard, with Beard standing in the street at Alexander's back. When Hairston searched Alexander, Beard moved off of the street and the officers changed their positions so that Alexander was between Hairston and the barbed wire fence and Beard stood to the south side of the two of them. During the episode, no physical or human obstacle prevented Alexander from turning to the north and proceeding on his way on the First Street sidewalk. However, his ability to move backward and forward, and at times towards the south side of the street from which he had come, was limited by the officers and, to some degree, by the fence. *fn3"

 Hairston, speaking in a quiet voice, identified himself as a police officer, showed Alexander his ID folder, and asked if he could talk to Alexander. Alexander said "yes." After routine questioning such as where Alexander was coming from and going to, which Alexander answered, Hairston told Alexander that he was a narcotics officer, that his job was to intercept drugs at the bus station, that drugs were a serious problem in Washington, and that there was a high homicide rate in Washington stemming from drug trafficking. Hairston asked Alexander if he understood why he was being questioned. Alexander said he did. Hairston then asked Alexander if he was carrying drugs. Alexander responded that he had a marijuana "joint" or cigarette. Hairston asked if he could search Alexander. Alexander responded "how come?" Hairston replied that Alexander had already admitted to carrying marijuana on his person and asked him where it was. Alexander said it was in his shoe. Hairston asked Alexander to take his shoes off. Alexander stepped out of both shoes and shook them out. There was no marijuana cigarette in either shoe. Hairston then asked again if he could search Alexander. Alexander responded: "go ahead, go ahead." Hairston, making physical contact with the Alexander for the first time, searched defendant's person and found a bag containing cocaine inside the front of defendant's underwear. Beard did not say anything during the questioning and search. Alexander never asked if he could leave or explicitly refused to be searched. If Alexander had said "let me go," Hairston would have let him go. If he had declined to be searched, Hairston would not have searched him. However, Hairston never told this to Alexander.

 B. Defendant's Version

 Alexander testified that after exiting the bus he walked directly through the station and out through the automatic doors at the front. He turned left, walking west, but before he reached the corner of L and First Streets, he heard footsteps, running or walking quickly, behind him. He turned to look behind him, sensing that he was being followed. He noticed Hairston standing there, not in motion. Alexander continued walking, crossing L Street, and heading north on First Street, N.E. When he had walked part of the way up the east side of 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 ...

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