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August 7, 1990


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.

Findings of Fact

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. Tr. 41.

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.

At approximately 12:50 P.M., the bus began to board. At that time, Canale approached Danese to receive a report that Madison had

  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 ...

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