The opinion of the court was delivered by: CAROL E. HECKMAN
REPORT AND RECOMMENDATION
Defendants have moved to dismiss evidence obtained by the Government as a result of the stop of the Defendants at the NFTA Bus Terminal on June 11, 1992. This motion was referred to the undersigned for report and recommendation.
A suppression hearing was held on October 29, 1992. Following the hearing, the Defendants requested and were given an opportunity to file additional briefs in support of their motion, with the Government to respond and oral argument to take place on December 2, 1992.
The Defendants waived their right to file additional papers. Their motion was argued before this Court on December 9, 1992. For the reasons set forth below, it is recommended that the motion be denied.
The following constitutes the undersigned's proposed findings of fact and conclusions of law.
The Defendants were indicted on August 28, 1992 in a one-count indictment alleging a violation of Title 21 U.S.C. § 841(a)(1) and Title 18 U.S.C. § 2. The indictment arose out of the stop of the Defendants at the NFTA Bus Terminal at 181 Ellicott Street in Buffalo, New York on June 11, 1992.
Testifying at the suppression hearing was Special Agent Bruce Johnson of the Drug Enforcement Agency ("DEA"). Agent Johnson testified that he regularly observes the arrival of express buses from New York City because it is a source city for narcotics brought into the Western New York area. Agent Johnson also testified that he has made numerous narcotics-related arrests of persons traveling into Buffalo on this particular express bus in the past.
On June 11, 1992 at approximately 6:00 a.m., Agent Johnson observed from the inside glass doors to the NFTA Bus Terminal passengers disembarking from the express bus, including Defendant Crichlow. Johnson saw Crichlow get off the bus carrying a black nylon bag. A few moments later, Johnson watched Defendant O'Donnell step out of the bus and meet with Crichlow. O'Donnell, who was carrying a black purse, walked with Crichlow toward the terminal entrance.
Agent Johnson testified that Crichlow started to open the door, but looked up and saw Johnson, at which point he turned around and walked south along the west wall of the terminal. O'Donnell went with Crichlow. Johnson continued watching the Defendants through the windows of the terminal as they walked around the outside of the building in an apparent effort to avoid a confrontation. As they walked, both Crichlow and O'Donnell turned around to look at Johnson, and Crichlow handed the black nylon bag to O'Donnell. The Defendants continued walking toward the corner of Ellicott and North Division Streets. They then turned left on North Division Street going east around the terminal to the taxi stand. Johnson walked out of the other side of the terminal and approached the Defendants. He was in plain clothes and did not display a weapon. He identified himself as a police officer and asked the Defendants if they could answer a few questions regarding their identity and the purpose of their travel. The Defendants agreed to this request. Johnson noted that Crichlow began to sweat profusely as they talked.
In response to questions from Johnson, the Defendants stated that they both lived in Buffalo and had traveled together to and from New York City. When questioned as to the length of their stay in New York, O'Donnell replied three days, while Crichlow simultaneously replied a week. During this conversation, Johnson was joined by Officer Fritton. Johnson testified that Crichlow was nervous and sweating, his eyes were darting and he was shuffling on his feet.
At Johnson's request, both Defendants produced identification documents. Crichlow opened O'Donnell's purse, took out a wallet and removed a New York license and a student identification card. Agent Johnson handed this identification to Officer Fritton. Officer Fritton copied down the name and address and handed the identification back to Crichlow.
O'Donnell took a wallet out of her purse and removed two identifications, one of which purported to be a student I.D. from the University of Miami and one of which was a laminated card entitled "Certified Identification." Johnson noted that the student I.D. card lacked the usual student identification number and had poor quality lamination. Johnson, who suspected that the card was not authentic, asked O'Donnell questions regarding the street location of the University of Miami. O'Donnell was unable to answer Johnson's questions.
After hearing the Defendants' conflicting statements, Johnson further identified himself as a narcotics officer, and asked if he could inspect the Defendants' bags. He also advised the Defendants that they were not under arrest, and they were not required to allow the search. O'Donnell opened her purse and Johnson felt around inside. He then asked who the nylon bag belonged to. Crichlow said that "it's hers," referring to O'Donnell. Johnson then asked O'Donnell if he could look inside. She asked him "Am I required"? Johnson indicated that he was merely asking for her permission. Johnson further explained that because of their suspicious behavior, inconsistent answers regarding their travel and the questionable identification card, he had a basis to detain the duffle bag in order to subject it to a test by a drug detection dog. Johnson further informed the Defendants that it would take about 45 minutes to complete the dog sniff and that they were free to leave. Johnson stated that they would be issued a receipt for the ...