United States District Court, Western District of New York
August 23, 1990
THE UNITED STATES OF AMERICA
GAVIN R. ST. KITTS.
The opinion of the court was delivered by: Elfvin, District Judge.
MEMORANDUM and ORDER
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v. Murguia-Rodriguez, unpublished opinion, CR-89-219A (W.D.N Y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United States v. Ramos, unpublished opinion, CR-89-166A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Anderson, unpublished opinion, CR-89-210E (W.D.N.Y. April 6,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.
Inside the office, Johnson identified himself to the
defendant and asked if he could search his two bags. The
defendant replied "OK." Johnson unzipped the blue bag and,
while rummaging through it, Allman again asked for any
the defendant might have. The defendant replied that he had a
letter concerning a drug arrest in New York City in 1987. He
produced an envelope from one of the bags, the contents of
which envelope included an immigration document permitting him
to remain in the United States through November 27, 1987. The
defendant admitted to Allman that he had never obtained any
extension of the departure date. Allman placed a telephone call
to Border Patrol officials and received a response which, he
said, confirmed the defendant's illegal immigration status and
his prior arrest (for marijuana possession at the John F.
Kennedy International Airport in October 1987). Allman then
arrested the defendant, but did not read him his so-called
"Miranda rights"*fn5 at such point, however.
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
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
Accordingly, it is hereby ORDERED that the defendant's motion
to suppress is denied.