The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:
Defendants Lorne Coates and Michelle A. Dillard are charged
with (1) conspiracy to possess with intent to distribute 500
grams or more of cocaine, and (2) possessing with intent to
distribute 4,018 grams of cocaine, within 1,000 feet of a
school, in violation of 21 U.S.C. ** 812, 841(a)(1),
841(b)(1)(B), and 845a(a). The defendants were arrested in the
Amtrak section of Pennsylvania Station in Manhattan. Coates and
Dillard both move to suppress all evidence and property,
including the cocaine, obtained by the Government in this case,
as fruits of an allegedly unlawful investigatory stop and
subsequent search of their travelling bags and persons in
violation of the Fourth Amendment. Both Dillard and Coates also
seek to dismiss that part of count two of the indictment, the
"schoolhouse" charge, that arises from the presence, within
1,000 feet of their arrest, of the Taylor Business School, a
vocational school located at One Penn Plaza, New York, New
A one-day suppression hearing was held on May 8, 1990, and I
reserved judgment at that time. Both suppression motions are
now denied. Coates' and Dillard's motion to dismiss the
schoolhouse charge in count two of the indictment, however, is
On January 25, 1990, Captain Steven Goldstein of the Drug
Enforcement Unit of the Amtrak Police Department was working
with Officer Louis Coiro on the upper-level concourse of Penn
Station. Both were in plainclothes and carried guns in shoulder
holsters concealed beneath their jackets. Goldstein testified
that at approximately 11:50 a.m., he and Coiro observed Coates
and Dillard standing "around one of the gates", about twenty to
thirty feet away. They were engaged in conversation. Coates was
carrying a tweed shoulder bag and Dillard was carrying a
matching tweed garment bag. Goldstein further testified that he
observed Coates looking around "furtively," appearing nervous,
as if surveilling the station. Coates glanced at the officers,
and then quickly away. Goldstein observed Coates and Dillard in
this manner for approximately three to five minutes.
When the gate for a departing train was announced, Coates and
Dillard walked together towards the down escalator for gate
13-14. The announced train, bound for Washington D.C., was
scheduled for a stop in New Carrollton, Maryland. Just prior to
reaching the gate, Coates looked back at the officers and then
away. Goldstein then went to the railing by the gate and
watched them descend the escalator toward the train. Again,
Coates looked up in Goldstein's direction, and then quickly
away. Coates then leaned over to say something to Dillard.
Goldstein summoned Coiro and decided to investigate further.
The officers observed Coates and Dillard board the train,
entering through the rear door of the railway car. The officers
entered the front end of the car. It was a regular Metroliner
car, with no reserved seating. Coates and Dillard were not
seated together, although there were adjoining seats available.
Dillard was seated across the aisle from Coates, approximately
five rows in front of him. Both pieces of luggage, the tweed
shoulder bag that had been carried by Coates and the tweed
garment bag carried by Dillard, were stored in the luggage rack
above Coates' head.
The officers walked down the aisle, passing both Coates and
Dillard. Coiro told Goldstein that Dillard turned her head and
watched Goldstein walk by. Based on these circumstances,
Goldstein testified that he decided to approach Coates to see
if he would consent to speak with him. Goldstein walked up to
Coates, identified himself as a police officer, but not as
someone involved with the drug interdiction program, and asked
Coates if he would mind speaking to him. Coates consented to
Goldstein asked Coates where he was going, and Coates told
him to New Carrollton. Goldstein asked to see his ticket, and
Coates produced it. The ticket was issued in the name of Kim
Jones, and indicated that it had been paid for in cash.
Goldstein then asked Coates for the identity of "Kim Jones."
Coates responded that it was his wife. Goldstein asked Coates
for identification, and Coates said he had none. When Goldstein
asked him if he was travelling with anyone, Coates said no.
Goldstein then asked him if the luggage above his head, which
at that point appeared only to be the garment bag, on top of
and covering the shoulder bag, was his. Coates replied that it
was. Goldstein then told Coates that he was with the drug
enforcement agency working in Penn Station, and with that in
mind, would he consent to a search of his bag. Coates refused,
stating that Goldstein needed a warrant.
Goldstein then approached Dillard, identified himself, and
requested permission to speak to her. Dillard also consented to
the interview. Goldstein asked her if she was travelling with
anyone, and she said no. He then asked to see her ticket, and
she produced a ticket that was also in the name of Kim Jones
and identical to the one produced by Coates. When Goldstein
asked her if she was Kim Jones, she replied that she was not.
Goldstein then asked for her identification, and she produced
a driver's license in the name of Michelle A. Dillard.
Goldstein asked her if she had any luggage, and she pointed to
only her handbag and bookbag. He asked her again if she was
travelling with anyone, and then pointed to Coates and stated
that both of them had tickets issued under the same name.
Dillard responded that she knew Coates but that they were not
Goldstein then walked back to Coates and reached up to the
garment bag. Upon moving it he noticed the shoulder bag, which
Coates had been carrying when he entered the train. Goldstein
asked Coates if the shoulder bag was his, and Coates responded
that it was not. He then asked Dillard if it was hers, and she
said it was not. Goldstein then held the shoulder bag aloft and
asked aloud whether anyone in the car owned the bag. After
receiving no response, Goldstein opened the shoulder bag and
discovered a heavily wrapped brown package inside. Goldstein
made a slit in the package and found white powder. Two more
similar packages were in the bag. Goldstein closed the shoulder
bag and told Coiro to place Coates under arrest.
Once Coates was secured by Coiro, Goldstein took the unopened
garment bag over to Dillard. Dillard, although not under
arrest, told Goldstein that she wanted to go with him to Amtrak
Police headquarters to see if Coates was all right. At that
point, Goldstein testified, Dillard was not under arrest and
was free to go, but that he intended to hold on to the garment
bag. At police headquarters, one level above the train
platform, Goldstein conducted an inventory search of Coates'
property, including the garment bag that Coates had identified
as his while still on the train, but that had originally been
carried by Dillard onto the train. Inside the garment bag,
Goldstein discovered a similar brown package of cocaine.
Dillard was then placed under arrest.
Both Coates and Dillard were read their Miranda rights and
searched, and all their personal belongings were collected.
Coates had on him approximately $122.60 and a beeper. Dillard
had, among other things, a wallet, a checkbook, a 1988-89
monthly academic calendar, and a 1989-90 weekly minder.
Coates testified at the hearing that Goldstein stood in close
proximity to him during the interview on the train. According
to Coates, Goldstein leaned down within six inches of his face
as he was questioned. Coiro stood directly behind Goldstein in
the aisle. Coates also testified that Coiro had his hand in his
jacket, and that he could see a gun handle sticking out. Coates
further stated that Goldstein told him to show him his ticket
or Goldstein would throw him off the train. He averred that
when he tried to stand up, he was told to sit back down.
Furthermore, Coates testified that he told Goldstein that he
owned both bags, and that Goldstein never held the shoulder bag
up to ask others in the car if it was theirs. Coates added that
Goldstein never asked with whom Coates was travelling. Finally,
he stated that Goldstein told him "I can do what I want"
because he worked for the drug enforcement agency of Amtrak,
and proceeded to open the shoulder bag. On ...