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UNITED STATES v. CLARKE

October 29, 1991

UNITED STATES OF AMERICA
v.
VICTOR CLARKE, Defendant


Revercomb


The opinion of the court was delivered by: GEORGE H. REVERCOMB

ORDER

 Upon motions in this case by the defendant and his former co-defendant Gilberto Mendoza to suppress evidence and statements related to the defendants' arrests, this Court considered the testimony, evidence and arguments offered by all parties at a hearing on October 23, 1991. Based on this hearing, the Court denied from the bench the defendants' suppression motions, noting then that its written findings and conclusions would follow. Subsequent to the Court's ruling, defendant Mendoza entered an unconditional guilty plea. Defendant Clarke is now scheduled for trial on January 13, 1992. The Court's grounds for denying defendant Clarke's suppression motion are set forth below.

 Facts

 Sergeant Arthur Lawson of the Amtrak Drug Enforcement Unit appeared as the sole witness at the October 23 hearing. Sgt. Lawson testified that on March 13, 1991, at about 12:30 p.m., he and D.C. Metropolitan Police Detective Michael Bernier arrested the defendants in possession of some 50 pounds of cocaine. As part of his regular drug interdiction duties focused on Amtrak's overnight "Crescent" train from New Orleans to New York, Sgt. Lawson identified train reservation information pertaining to defendant Mendoza. Specifically, Sgt. Lawson observed that a person using a credit card in the name of Mendoza had made reservations on March 11 to take a one-way trip from New Orleans to New York City over the night of March 12-13, that this person had left a "call-back" telephone number for those reservations in the "(404)" area code -- a location other than the departure city -- and that he purchased the two reserved tickets one hour before departure and had upgraded to a sleeper car. Sgt. Lawson contacted the Amtrak agent who remembered selling tickets under the Mendoza reservations to two black males. The agent reported that the two men had duffel bags with them which they did not check. Based on this information, Sgt. Lawson targeted the two passengers for questioning when the train reached Washington, D.C.'s Union Station, where Sgt. Lawson has conducted drug interdiction since October 1988.

 When the Crescent arrived around noon on March 13, Sgt. Lawson and Det. Bernier spoke to the attendant of Crescent sleeping car No. 2000 and were told that Bedroom F on that car was occupied. The two officers then boarded the car and went to the adjacent Bedroom E, from which Sgt. Lawson could hear two men, through a movable fabric-covered partition separating the two rooms, speaking in English in Bedroom F. Sgt. Lawson then knocked at Bedroom F, identified himself at the doorway to Mr. Clarke as an Amtrak policeman and asked if he could speak to both defendants, who agreed.

 Both Sgt. Lawson and Det. Bernier were dressed in plain clothes and neither displayed a weapon. Sgt. Lawson observed that the bedroom smelled of coffee and moth balls, two items often used to confound drug-sniffing dogs. Sgt. Lawson requested, examined and returned both defendants' train tickets, as well as a New York driver's license presented by Mr. Clarke and a credit card presented by Mr. Mendoza as identification. Det. Bernier remained in the hallway, watching through the open bedroom doorway, while Sgt. Lawson stood in the doorway, without blocking egress through it, *fn1" and conversed with the defendants in English.

 Sgt. Lawson explained that his purpose in visiting the train compartment was drug interdiction, and he asked the defendants if they understood this purpose; both responded that they did. Sgt. Lawson then asked the defendants if either was carrying drugs, and both said they were not. He asked if they had any luggage, and Mr. Mendoza identified a green duffel bag on the floor. Sgt. Lawson asked if he could search the bag, and Mr. Mendoza said he could. Sgt. Lawson did not inform Mr. Mendoza that he had a right to refuse the search. Sergeant Lawson entered the 6-1/2 x 6-1/2 foot bedroom, rummaged through the green duffel bag and felt within it, among other things, a plastic garbage bag that was taped shut and contained both soft, pliable packages and firm-textured, paper-wrapped blocks that he believed contained narcotics. While the officer searched, Mr. Mendoza commented that his girlfriend had asked him to take some books back to New York; Sgt. Lawson replied to this that some objects in the bag did feel like books.

 Mr. Clarke then identified a black duffel bag in the bedroom as belonging to him and, when asked for permission to search it, consented and handed the duffel bag to Sgt. Lawson. Mr. Clarke was also not told that he might refuse the search. Sgt. Lawson felt a plastic bag in the black duffel bag that contained packages similar to those he had felt in the green duffel bag, and during this search Mr. Clarke also commented that he was carrying books for Mr. Mendoza's girlfriend.

 Having detected the plastic bags and the bundles they contained, the officers escorted the defendants and their bags from the train to an office at Union Station, where Det. Bernier cut into the bundles and found white power in both bags that he field-tested and found to be cocaine. At this time, the officers formally arrested the defendants and advised them of their Miranda rights before taking them to the Metropolitan Police morals division, where the duffel bags were unpacked.

 Discussion

 No evidence was offered to contest Sgt. Lawson's account at the October 23 hearing. Mr. Clarke argues that his consent to be searched should not be deemed voluntary because Sgt. Lawson did not advise the defendants of their right to refuse the search and because their will to refuse without this advice was, under the confining circumstances in the sleeping cabin, overborne by the police presence there. Mr. Clarke further contends that probable cause arising from the search of Mr. Mendoza's bag *fn2" imposed a duty on the officers to formally charge Mr. Clarke and provide him with Miranda warnings before seeking his consent to search the black duffel bag. In support of this contention, Mr. Clarke points to his susceptibility to constructive possession charges once Mr. Mendoza's narcotics were found, and to Sgt. Lawson's testimony that, after searching the green duffel bag, he would not have allowed Mr. Clarke to leave the train car "without further questioning."

 In its decision this summer in Florida v. Bostick, the Supreme Court reaffirmed that, even when police have no basis for suspecting an individual, they may (1) generally ask questions of him, (2) ask to examine his identification, and (3) request to search his luggage, "so long as the police do not convey a message that compliance with their requests is required." *fn3" 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991). Bostick reiterated that the Fourth Amendment inquiry to be applied to persons confronted on public carriers remains the same as that to be applied to a person walking on the street; i.e.,

 whether a reasonable person *fn4" would have felt free to decline the officers' requests or otherwise terminate the encounter. . . . taking into account all of the circumstances surrounding the encounter. . . . ...


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