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January 28, 1992


The opinion of the court was delivered by: JOHN GARRETT PENN

 The defendant is charged in a one count indictment filed on October 5, 1989, with unlawful possession with intent to distribute heroin, 21 U.S.C. ยง 841(a)(1), (b)(1)(C). He filed a motion to suppress evidence which the court orally denied. He moved for reconsideration and after a further argument, the Court granted his motion for reconsideration and granted his motion to suppress. See Memorandum filed March 23, 1990. The Government appealed that decision and the Court of Appeals vacated the Court's Order filed on March 23, 1990 and remanded to this Court for further proceedings consistent with Florida v. Bostick, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991) and United States v. Lewis, 287 U.S. App. D.C. 306, 921 F.2d 1294 (1990). United States v. Fields, 292 App. D.C. 87, 946 F.2d 1567 (D.C. Cir. 1991). The Court heard further arguments on November 18, 1991. *fn1"


 The Court will not set forth the underlying facts since those facts are described in the Court's Memorandum filed on March 23, 1990. Suffice it to note that the defendant, who was arrested at the Greyhound-Trailways bus station on September 8, 1989, consented to speak with officers of the Morals Division Interdiction Unit of the Metropolitan Police Department. In response to questions from the officers, he showed them his ticket and his Connecticut driver's license. The officers then asked whether the suitcase in the overhead rack belonged to him. He responded in the negative and stated that he did not have any luggage. At the time there was a total of only four passengers including the defendant on the bus and the officers asked the remaining passengers whether the suitcase belonged to them. All three passengers replied in the negative. One of the officers then took the bag down, opened it and began a search. Inside he discovered several bags containing a white powder, glassine envelopes, a screen, a spoon, and a rubber identifier stamp. The officer also found two prescription bottles in the bag that were in the name of the defendant and a bus ticket showing travel from Stanford, Connecticut, the defendant's home. At that point, the defendant was arrested.

 The Court granted the motion to reconsider based upon two, then recent, decisions by judges of this court, United States v. Cothran, 729 F.Supp. 153 (D.D.C. 1990) (Judge Gesell) and United States v. Lewis, 728 F.Supp. 784 (D.D.C. 1990) (Judge Sporkin). Those judges granted motions to suppress evidence under similar circumstances but those decisions were reversed. See United States v. Lewis, supra.


 In Bostick, the Supreme Court observed that:

 Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free 'to disregard the police and go about his business,' the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.

 111 S. Ct. at 2386 (citations omitted). With respect to the nature of the 'reasonable person', the Supreme Court noted that:

 We do reject, however, Bostick's argument that he must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the 'reasonable person' test presupposes an innocent person.

 111 S. Ct. at 2388 (emphasis in the original, citations omitted). In Bostick, the Supreme Court also addressed the "free to leave" issue. The Supreme Court observed:

 Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were 'confined' in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive. 111 S. Ct. at 2387. The Supreme Court went on to state:

 Like the workers in that case [ INS v. Delgado, 466 U.S. 210, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984)], Bostick's freedom of movement was restricted by a factor independent of police conduct - i.e., by his being a passenger on a bus. Accordingly, the 'free to leave' analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. This formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated ...

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