The opinion of the court was delivered by: CAROL E. HECKMAN
Defendants have moved to suppress evidence obtained by the Government as a result of a stop of the Defendant at the Amtrak train station in Buffalo, New York on January 30, 1992. This motion was referred to the undersigned for report and recommendation.
A suppression hearing was held on November 30, December 3 and December 22, 1992. Testifying at the hearing were the five police officers involved in the arrest, as well as the Defendant and his great-grandmother. Thereafter, the parties requested and were given an opportunity to file additional briefs.
For the reasons set forth below, it is recommended that Defendant's motion be denied.
Defendant was indicted on August 6, 1992 in a one-count indictment alleging a violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The indictment arose out of the stop of the Defendant at the Amtrak train station in Buffalo, New Your on January 30, 1992.
The testimony at the suppression hearing established the following. On January 30, 1992, United States Border Patrol Agents Daniel F. Allman and Patrick Norton were present at the Amtrak station on Exchange Street in downtown Buffalo, New York, observing passengers getting off the afternoon train from New York City. They were working in conjunction with Drug Enforcement Agency Task Force Agents Daniel Fritton and Paul Terranova (T1 at 4-6).
The train arrived at approximately 4:20 p.m. (T1 at 37). Agent Allman, who was not in uniform, and Agent Norton, who was wearing his uniform, were standing near their marked Border Patrol car in the Amtrak station parking lot when they observed Defendant get off the train and walk in their direction (T1 at 7-8, 39). Defendant took two or three steps toward the agents. He then looked in their direction, turned to his right, and walked toward the track-side entrance to the Amtrak station (T1 at 8, 40).
Agents Terranova and Fritton were standing near the track-side (rear) entrance to the Amtrak station. They were not in uniform. Agent Fritton observed Defendant get off the train, walk toward the parking lot, change direction and walk toward the station entrance. As he walked past the track-side entrance, Defendant looked in the direction of Agents Fritton and Terranova. He then turned around and entered the Amtrak station through the track-side door (T1 at 40-41). He walked directly through the station and exited through the front doors (T1 at 9).
As Defendant left the station, Agent Allman approached him, identified himself as a Border Patrol agent, and showed him identification. He asked Defendant if he could ask him a few questions, to which Defendant answered "yes, what do you want" (T-1, p. 9). Allman asked Defendant if he was a United States citizen, where he was born, where he lived and where he was coming from. Defendant responded that he was a citizen of the United States, was born in Buffalo, lived on Northland Street and was coming from New York City (T1 at 9; T2 at 78). Defendant was unable to produce any identification (T1 at 17, 45-46). He stated that he was in New York City for three days to attend his grandmother's funeral (T1 at 11,44).
During this conversation, Agents Fritton and Terranova approached. Agent Allman introduced Agent Fritton to Defendant as a Drug Enforcement Agent concerned with narcotics being brought into the Buffalo area (T1 at 43-44). Allman asked Defendant if he was carrying any narcotics in his luggage, to which Defendant responded "no" (T1 at 44). Allman then asked Defendant if the agents could look in his luggage, to which Defendant responded "do I have to? I'm kind of tired" (T1 at 45). Agent Fritton explained to Defendant that he did not have to allow the agents to look in his luggage, upon which Defendant said "I'd rather you didn't then" (id.).
Agent Fritton then asked Defendant if there were any outstanding warrants for his arrest, and whether Defendant had ever been arrested in the past (T1 at 46). Defendant responded that there were no outstanding warrants, but that he had previously been arrested for "drugs" (id.). Fritton then asked Defendant if there was anyone they could call to verify his identity, to which Defendant stated that his mother could (id.).
Fritton also asked Defendant if he would be willing to accompany the agents to the Niagara Frontier Transit Authority ("NFTA") bus terminal police office to verify his identity and explained that once they had verified his identity, the agents would be happy to bring him back to the Amtrak station or take him wherever he wanted to go. According to Fritton, Defendant responded "no, that's all right, I'll get to where I'm going on my own" (T1 at 46). According to Agent Allman, Defendant agreed to go to the NFTA office with Agent Fritton (T1 at 12). According to the Defendant, Agent Terranova told him he was not free to leave until they verified his identification, and that he "had" to go with the agents to the NFTA office to do so (T2 at 80-81). According to Terranova, Agent Fritton asked Defendant if he would mind accompanying the agents to the NFTA terminal, Fritton offered to bring Defendant back to the Amtrak station or take him wherever he was going, and Defendant responded "okay, but I could get to where I am going on my own" (T2 at 34).
Defendant then accompanied Agents Terranova and Fritton to their unmarked vehicle. Agent Terranova opened the back door of the vehicle and Defendant got in, carrying his own luggage (T2 at 35-36). Terranova drove the vehicle about three blocks to the NFTA terminal. During the ride, which took "[a] couple of minutes" (T2 at 37), Terranova and Fritton asked Defendant to provide further details about his grandmother's funeral in New York, but he was unable to do so (T2 at 36-37). Defendant also told the agents that his mother would not be able to confirm his New York trip since she knew nothing about it (T1 at 50; T2 at 37).
Upon arrival at the NFTA terminal, Defendant and Agent Fritton went into the police office where they met Special DEA Agent Bruce R. Johnson (T2 at 52). Fritton explained the situation to Johnson, and Johnson asked Defendant similar questions about the funeral and obtained similar answers (T2 at 53). Defendant then provided Johnson with a telephone number, which he first said was his mother's, then his grandmother's, then his great-grandmother's (T2 at 54). Johnson called the number, and spoke to a woman who identified herself as Mariah Jemison, Defendant's great grandmother (T2 at 54-55, 129). Mrs. Jemison identified Defendant as her great-grandson, and told Johnson that Defendant's grandmother had lived in New York, but had died five years ago (T2 at 56, 130).
Based on this information, Agent Johnson advised Defendant that his luggage was going to be detained temporarily for a check by a narcotics-sniffing dog. Johnson offered Defendant the option of staying to observe the dog sniff, or leaving the office with a receipt for his luggage. Defendant signed the ...