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UNITED STATES v. MARAGH

February 1, 1991

UNITED STATES OF AMERICA
v.
MARK A. MARAGH, Defendant


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on remand from the Court of Appeals' determination that a reasonable person in defendant's position would have felt free to leave when interviewed in Union Station by Detective Beard while Detective Hansen backed him up, with Detective Cassidy "downfield." On the basis of that finding, the Court of Appeals majority concluded that defendant was not under any restraint until Detective Hansen literally seized defendant after Detective Beard found drugs in defendant's luggage. The remand leaves me the task of determining whether Maragh, being free to leave, voluntarily consented to Beard's search of the bag. United States v. Maragh, 282 U.S. App. D.C. 256, 894 F.2d 415 (D.C. Cir. 1990), cert. denied, 498 U.S. 880, 112 L. Ed. 2d 174, 111 S. Ct. 214 (1990), rev'g 695 F. Supp. 1223 (D.D.C. 1988). I find that he consented involuntarily.

 I.

 On remand, at an evidentiary hearing held on January 11, 1991, the government supplemented the record with the following testimony of Detective Beard and former Detective Cassidy. *fn1" Beard, a detective in the Narcotics Branch for 21 years, has been a member of the interdiction squad since its formation in 1987. The squad was originally made up of six police officers. After the first two and a half years, four members were added, bringing the squad to a total of ten officers. Beard received twenty hours of training relevant to the squad's activities before joining the squad and in the early days of the squad's activities. The officers of the squad wear plain clothes, speak to interviewees in a conversational tone, and do not display their weapons or handcuffs. Rather than displaying a badge, the officers display an ID folder. They do not stand so as to block an interviewee's path. The interdiction squad conducts one on one interviews, i.e., a single detective interviews a single subject. (In contrast, Beard noted, the Drug Enforcement Agency conducts two on one interviews.) Each officer uses his own set of interview questions. In Beard's three years of approaching interviewees, no person has ever walked away from him on initial contact.

 Beard's normal practice is to ask whether the interviewee just disembarked from a train or bus. If the answer is "yes," he asks to see the person's ticket. He checks the ticket, then hands it back to the person. He asks where the person lives. He inquires about the person's travel. Then he asks: "You're not carrying drugs in your bag, are you?" He has never had an interviewee admit to carrying drugs in response to that question. Following these questions, Beard sometimes, but not always, asks if he may search the person and his or her bags. His decision whether to request a search depends on his mood and various indicators such as the time the person has been away or plans to travel and whether the number and size of the person's bags are consistent with the amount of luggage normally carried on the type of trip the person has described.

 Beard estimated that, in the three years that he has worked with the interdiction squad, he has conducted about 1,500 interviews. Beard has conducted more interviews than any other officer on the squad. He roughly estimated that the entire interdiction squad has conducted between four and five thousand interviews. The squad has made approximately 600 arrests. Beard has participated in half, or about 300, of those arrests. Beard has considered making a record (i.e., a paper notation -- not a tape recording) of interviews. At one time, he recorded interviews for a period of two months. However, he found he could not keep it up. Beard estimated that he requests a search in two-thirds of the interviews that he conducts. Accordingly, he acknowledged that he has asked approximately 1,000 persons if he could search them and their bags. Of all of the persons Beard has asked to submit to a search, exactly eleven have declined his request to search them. Beard did not estimate this number, because he keeps count. No other officer on the squad has experienced more refusals than Beard. Other officers, he said, have four, or seven, refusals.

 At the January 11, 1991 hearing, Beard testified that at one point he observed Detective Cassidy standing by the exit of the station. At the September 23, 1988 hearing, however, Beard testified that:

 
A: [Cassidy] walked past me, past Mr. Maragh and the other two, and he was, at the time I made my approach to Mr. Maragh, by the baggage area where construction is under way. He was already there.
 
Q: Do you know for what purpose he was going in that direction?
 
A: Yes, sir.
 
Q: What purpose was that?
 
A: To -- should anybody run for any reason, he was there to ...

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