The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
This is a motion to suppress statements made by defendant
Marc A. Madison ("Madison") and evidence alleged to have been
in the possession of Madison on March 9, 1990 when he was
approached by detectives from the Port Authority Police
Department on board a bus at the Port Authority Terminal ("the
Terminal") in Manhattan, New York. The motion, brought on the
grounds that Madison's Fourth Amendment rights were violated,
is opposed by the government.
The Court held hearings on June 15, 1990 and June 22, 1990 at
which Detective Sergeant Richard Canale ("Canale") and
Detective Elizabeth Danese ("Danese") testified, respectively.
Madison decided not to testify. The motion is supported by an
affidavit from Madison, and the Court has received memoranda of
law from both sides. Oral argument was heard on July 3, 1990.
The Port Authority Police Department's Drug Interdiction
Program is conducted in cooperation with the federal Drug
Enforcement Agency to stem the flow of drugs from New York City
to outlying areas by buses leaving from the Terminal. On March
9, 1990, a team of Port Authority police detectives, consisting
of Canale, Danese, and Sergeant Rullo, entered the Terminal at
approximately 12:30 P.M. to begin a day of narcotics
interdiction. The officers were all dressed in plain clothes
with their guns concealed.
The standard operating procedure for the team is for its
leader, Canale, to select an individual for observation. Canale
has patrolled the Terminal for approximately thirteen years and
is well-known among many individuals at the Terminal as a law
enforcement figure; therefore, he often assigns another member
of the team to conduct the observations of the individual whom
he has selected. After the subordinate detective reports his or
her observations, Canale then decides whether or not to
approach and interview the individual. When Canale approaches
an individual he identifies himself as a police officer, asks
whether the individual would be willing to talk with him, and,
if so, attempts to start a conversation about the person's
residence and travel plans. If the individual had been observed
carrying luggage and assents to conversation, Canale will
ultimately ask about that luggage. Often the individual will
deny ownership of the luggage he or she had been seen carrying
and Canale will then proceed to search the luggage. Tr. 96.
The evidence is that all decisions with regard to the
approach of Madison were made exclusively by Canale and that
the only role played by others was in providing information to
Canale. The issue of whether there was a constitutionally
adequate degree of suspicion to conduct any searches or
seizures thus depends upon an objective review of the
perspective of Canale, the detective who decided to conduct the
search or seizure. See United States v. Oakes, 560 F.2d 45, 61
(2d Cir. 1977). Accordingly the findings of fact focus on the
information of which Canale was aware.
Slightly after 12:30 P.M. on March 9, 1990, Canale noticed
Madison, a 21 year old African American male, holding a small
black knapsack while standing in a line of approximately twelve
to fifteen people at Gate 420 in the Terminal. Canale was aware
that the line was for the bus scheduled to board between 12:50
P.M. and 12:55 P.M. and then to depart at 1:00 P.M. for New
Brunswick, New Jersey. He also knew that, according to the
schedule, a bus had just departed at 12:30 on that same route.
Canale testified that Madison attracted his attention because
he "was rocking back and forth in his place on line, and, as
people passed him by, [Madison] would appear to be turning his
head to look at those people." Tr. 14 (June 15, 1990). Canale
observed this behavior for two to three minutes from a distance
of approximately fifteen to twenty feet. Tr. 14, 16. During
those two to three minutes Canale again saw that Madison
had actually turned his head, and actually
followed with his head, people passing down the
bus terminal corridor almost until they were out
of sight, almost looking over his shoulder as they
Tr. 14, 56-57. Canale then assigned Danese to observe Madison.
While Danese observed Madison from a distance of approximately
fifteen feet, Canale stepped into a position from where he
could neither be seen by Madison nor make observations of
Madison, but from where he could see when Madison's bus would
begin to board.
continued the action that he was involved in, the
shifting of the weight and looking at people while
he was in line. He began to hold the bag behind
him with both hands, and there came a time when an
individual wearing a windbreaker with a New Jersey
state police emblem on it. . . . walked by him,
and Mr. Madison, according to Detective Danese,
appeared to look at him and looked away very
quickly. . . . . The person [wearing the
windbreaker] passed him again and sat down. Just
at that time, a uniformed police officer passed
Mr. Madison. . . . Mr. Madison saw him, stared at
him, and stared at him until he was out of sight,
looking over his shoulder, and at that time she
said he became even more animated, his motions
became more amplified basically.
Tr. 18-20.*fn1 Madison's bus began to board approximately
thirty seconds after the man wearing the windbreaker and the
uniformed officer passed him. Tr. 116, 147.
Danese and Canale had their conversation at the front of the
outside of the bus, while Madison boarded. Canale then inserted
himself in the line and boarded the bus. The bus is divided by
a narrow aisle with rows of two seats on each side of the
aisle. Canale spotted Madison sitting in a window seat
approximately two-thirds of the way back in the bus. Canale
then walked toward Madison. When Canale was "[t]o his
[Madison's] side in the aisle," he took out his police shield,
identified himself and asked Madison if he would speak to him.
Tr. 26. Canale then utilized the aisle seat in the row directly
behind Madison. Canale explained that he continued his
conversation by having "the top of my head leaning over into
the [aisle] seat" in Madison's row, Tr. 68, 72, 124, so that he
could face Madison, who remained in the window seat in the row
in front of Canale. Tr. 73. Throughout Canale's ensuing
conversation with Madison there were other passengers boarding
and the testimony of the detectives is that the aisle was not
consistently clear. Tr. 34, 125, 175. Detective Danese followed
Canale on board the bus and placed herself two rows in front of
Madison, on the opposite side of the aisle, standing with one
knee resting on the aisle seat, "looking straight back" at
Madison and Canale. Tr. 178, 179.
In a "conversational and polite," Tr. 27, tone, Canale then
asked Madison what his destination was. Madison replied New
Brunswick, New Jersey, the destination of the bus. Canale
inquired next about where Madison had stayed in New York.
Madison answered that he had stayed in Manhattan with friends.
Canale then proceeded to ask Madison if he had any luggage.
Madison denied having luggage and in response to Canale's
follow up questions denied ownership of the black knapsack,
which had been placed under Madison's coat on the aisle seat
next to Madison. After asking several other passengers if they
owned the knapsack, Canale then displayed his police shield to
the entire bus and in a loud voice asked if anybody owned the
knapsack. After again asking Madison if he owned the knapsack
and again receiving a denial, Canale opened the bag and ...