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August 23, 1990


The opinion of the court was delivered by: Elfvin, District Judge.


  This is one of several recent federal prosecutions in this
Court involving a motion to suppress evidence recovered during
an ongoing interdiction operation by the federal

Drug Enforcement Administration ("DEA") at the interstate bus
terminal in downtown Buffalo, N.Y.*fn1 See also United States
v. Murguia-Rodriguez, unpublished opinion, CR-89-219A (W.D.N Y
July 11, 1990) (motion denied); U.S. v. Montilla, 733 F. Supp. 579
 (motion granted), reconsideration denied, 739 F. Supp. 143
(W.D.N.Y. 1990), appeal pending, No. 90-1446 (2d Cir.);
United States v. Ramos, unpublished opinion, CR-89-166A
(W.D.N.Y. April 23, 1990) (motion granted); United States v.
Anderson, unpublished opinion, CR-89-210E (W.D.N.Y. April 6,
1990) (plea taken prior to resolution of the motion).*fn2

The abovenamed individual ("the defendant") is charged in a one-count Indictment with unlawful possession of cocaine with the intent to distribute the same — see 21 U.S.C. § 841(a)(1) — and has presently challenged the lawfulness of his encounter with federal agents at the bus terminal. A suppression hearing was held June 18, 1990, at which testimony was received from DEA Special Agent Bruce R. Johnson and Senior Border Patrol Agent Daniel F. Allman of the Immigration and Naturalization Service ("INS"). The defendant did not testify. Argument on the motion was heard the same day and the matter was taken under advisement July 13, 1990, upon receipt of all submissions by counsel needed to decide the motion.*fn3

According to Johnson's and Allman's testimony at the hearing,*fn4 on the morning of March 21, 1990 they were in the bus terminal awaiting the arrival of the daily Greyhound morning express bus from New York City. Both agents were plainclothed. They saw the defendant disembark from the bus carrying a gray shoulder bag, retrieve a blue nylon bag from under the bus and then head for the Greyhound ticket counter. Johnson testified that the defendant was looking around "nervously" during this time but not enough to excite his interest. Allman was near the ticket counter and listened to detect if two "Hispanic-looking" individuals in line behind the defendant spoke with an accent. While so positioned, Allman heard the defendant speak to the ticket agent with what Allman regarded to be a West Indies accent.

After the defendant had left the ticket counter, Allman followed him for a short distance inside the terminal, displayed his identification, asked if he could pose some questions and, the defendant having stopped and agreed, asked him about his citizenship. The defendant said that he was a citizen of Guyana and was in this country on business. He said he had no passport or immigration document on his person, however, so Allman requested that the defendant accompany him to an office in the terminal to verify his immigration status. Johnson went along to the office as well. At this point, Allman acknowledged that, although the defendant was not "under arrest" and had not been told that he was being detained, he was nevertheless not free to leave. Both agents noticed that the defendant had become increasingly nervous and that he had made clicking noises when he spoke.

Johnson's search of the bags continued in the meantime. Ultimately, in a concealed compartment within the gray shoulder bag, he discovered two bags containing a white powder which he suspected was cocaine. Without field-testing the powder, Johnson also placed the defendant under arrest. Allman then informed the defendant of his rights, which he read from a prepared card. See Government Exhibit 1 (copy of card).*fn6 The defendant responded that he understood these rights. There is no indication from the agents' testimony that he had expressly waived such rights, however.

Subsequently, Johnson performed a field test of the powder and received a positive indication for cocaine. The defendant was then transported to the federal courthouse and, enroute, told the agents that he had been given the shoulder bag by an unidentified person in New York City for delivery to another unidentified person in Cincinnati.*fn7 He admitted, however, that the clothes in the bag were his.

In evaluating the constitutionality of the defendant's encounter with agents Allman and Johnson, the first question to be addressed concerns the point in time at which the defendant was first detained and, thereby, at which the Fourth Amendment first became implicated. A "seizure" of a person within the contemplation of the Constitution may occur (even in the absence of an arrest) upon his simply being questioned by law enforcement agents, but "`only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.'" Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting from United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart J., plurality opinion, joined in pertinent part only by Rehnquist J.)); see also INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (White, J., plurality opinion); e.g., U.S. v. Winston, 892 F.2d 112, 115-117 (D.C. Cir. 1989).*fn8 Here, it is manifest (and Allman conceded at the hearing) that, once the defendant had been asked to accompany Allman to the office inside the terminal for purposes of verifying the defendant's immigration status, the defendant was at the point not free to leave and was therefore detained or "seized" within the meaning of the Fourth Amendment. What is less clear is whether a reasonable person in the defendant's place would have felt unfree to disregard Allman's inquiries even before such time.

In view of all of the circumstances, this Court concludes that a reasonable person would have felt that he might freely disregard and walk away from Allman's initial request to question him. "`[T]he presence of [an] officer as a figure of governmental authority does not, by itself, constitute the "show of authority" necessary to make a reasonable person feel unfree to leave.'" U.S. v. Winston, supra, at 116 (quoting from Gomez v. Turner, 672 F.2d 134, 142 (D.C. Cir. 1982)). And there is nothing in this case aside from Allman's display of his credentials to the defendant which would suggest that there was a coercive environment at the very outset of their encounter.*fn9

Inasmuch as this Court finds that the Fourth Amendment had not been implicated before the point of Allman's requesting the defendant to accompany him to the office to verify his immigration status, at which point the defendant was "seized," the constitutional sufficiency of Allman's suspicions regarding the defendant must therefore be evaluated only as of such moment. It is evident that Allman had at that point in time sufficient suspicion to detain the defendant. A brief investigatory detention of an individual is constitutionally permissible "if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'" U.S. v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); see also INS v. Delgado, supra (upholding "factory surveys" in search of illegal aliens based upon a reasonable individualized suspicion); United States v. Brignoni-Ponce, 422 U.S. 873, 874, 95 S.Ct. 2574, 2577, 45 L.Ed.2d 607 (1975) (allowing roving patrol stops of vehicles reasonably suspected of harboring illegal aliens). Here, Allman admitted on cross-examination that the only factor which had initially prompted him to single out the defendant for questioning was that the defendant had spoken with what he considered to be a West Indies accent. Such does not "`raise the complex of conduct to a level justifying reasonable suspicion of criminal activity.'" See United States v. Buenaventura-Ariza, 615 F.2d 29, 36 & fn. 11 (2d Cir. 1980). Yet, by incorporating additional factors which later became known to Allman, after he had begun questioning the defendant but before he had requested that he accompany him to the office, the result differs.*fn10 Allman learned from the instant defendant that he was a citizen of another country and that he was without documentation of current valid immigration status. This was enough to justify a reasonable suspicion on Allman's part that the defendant was in this country illegally. Such sufficed for seizure or detention and, once this suspicion had been confirmed by Allman's telephone call, he had probable cause to arrest the defendant.

Finally, it is plain that both the defendant's consent to a search of his two bags by agent Johnson and his statements made under interrogation following the recital of his Miranda rights were proffered knowingly and voluntarily, and thus that these statements and the contents of the bags properly will be admissible into evidence against him.*fn11 As above discussed, Johnson had identified himself to the defendant and had asked to be permitted to search his bags and the defendant had said that he could. There is no indication whatsoever that the defendant's will was overborne or that he lacked the education or intelligence necessary to understand what a search of the bags would entail and that thereby his consent was involuntary or unknowing. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Similarly, the defendant's affirmative response to a contemporaneous question regarding whether he had understood his recited rights satisfies the government's burden of showing that the defendant had knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. See Tague v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980) (per curiam); North Carolina v. Butler, 441 U.S. 369, 372-373, 99 S.Ct. 1755, 1756-57, 60 L.Ed.2d 286 (1979). Although the defendant never expressly waived his rights, he tacitly did so by his continued answering of the agents' questions in light of his understanding. Again, there is nothing before this Court which would tend to show that the defendant had been coerced or confused.*fn12

Accordingly, it is hereby ORDERED that the defendant's motion to ...

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