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December 6, 1993


The opinion of the court was delivered by: CAROL E. HECKMAN


 This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendant has moved to suppress evidence obtained as a result of a warrantless search of his luggage. A hearing was held before this court on September 28, 1993. For the following reasons, it is recommended that defendant's motion be granted.


 At the suppression hearing, the government called Niagara County Sheriff's Deputy Randy Fry and United States Border Patrol Agent Daniel Allman as witnesses, and defendant testified on his own behalf. The testimony of each witness is summarized below.

 I. The Testimony of Deputy Fry

 Deputy Fry testified that on the morning of July 14, 1993, he was working at the bus terminal in downtown Buffalo as part of the United States Drug Enforcement Agency ("DEA") Task Force Transportation Unit. He had been assigned to that unit for approximately one year at the time of the hearing. On July 14, 1993, he was not in uniform (T. at 3-5). *fn1"

 At approximately 7:20 a.m. Deputy Fry observed the arrival of the "express" bus from New York City. *fn2" He testified that defendant was the first person to get off the bus, and that defendant "looked around repeatedly" as he entered the terminal (T. at 5.) According to Fry, once defendant was inside the terminal, he appeared to make eye contact with Agent Allman, who was in uniform with a holstered weapon visible and was also observing the passengers disembarking from the express bus. Defendant then turned left and walked along the glass-encased corridor toward the North Division Street exit on the south side of the terminal. Deputy Fry followed defendant outside, and observed defendant turn right on North Division and walk west down the sidewalk toward Main Street (T. at 5-8).

 Fry then spoke with Agent Allman, who had come outside of the terminal to speak with another person. Fry and Allman got in Allman's marked Border Patrol car and proceeded west along North division Street in the same direction as defendant. Fry observed defendant turn and look in the direction of the patrol car two or three times (T. at 42). The car eventually passed defendant, turned right onto Main Street, and parked approximately thirty feet past the intersection of North Division and Main. Fry then observed defendant stop on Main Street at Metro Rail ticket machine and purchase a ticket (T. at 8-11).

 Fry testified that he approached defendant at the ticket machine, and displayed his badge. Defendant responded "yeah." Fry then asked defendant where he was coming from. Defendant responded "New York." Fry asked him where he was going, and defendant responded "Busti." Fry said, "you mean Busti Street?" Defendant respondent "yes." Fry then asked him who he was going to visit, and defendant responded "Earl." Fry asked him what "Earl's" last name was. According to Fry, defendant hesitated, and then said, "I don't know, I forgot." When Fry asked defendant how long he was going to be in Buffalo, defendant responded approximately two weeks, and that he was thinking about relocating to Buffalo (T. at 11-12).

 Deputy Fry then asked defendant for identification. Defendant produced a Florida license and a Social Security card from his wallet. Fry testified that he examined the identification documents for about ten or fifteen seconds, found nothing suspicious, and then returned them to defendant. Upon further questioning by Fry, defendant stated that he was still living in Florida, and had flown from Florida to New York City two days earlier (T. at 13-14).

 After examining the identification documents, Fry advised defendant the he was a narcotics officer and was concerned with the transportation of drugs into Buffalo. Fry then asked defendant if he was carrying any drugs, to which defendant responded "no." Fry testified that he then asked defendant if he could look in the black duffle bag he was carrying, and advised defendant that he did not have to let Fry look in the bag because he was not under arrest. According to Fry, defendant said "go ahead" (T. at 14-15). Fry testified that he then reached into his "fanny pack," took out a pair of dark leather gloves, and put them on in preparation for his search of defendant's bag. No search took place at that time, however, because Agent Allman approached and began questioning defendant about his citizenship (T. at 49-60).

 Fry testified that Allman had previously walked along with Fry as Fry initially approached defendant at the Metro Rail ticket machine, but that Allman had continued walking to a point about twenty or thirty feet past where Fry and defendant were standing. Upon approaching, Allman asked defendant if he was a resident or a citizen of the United States. Defendant asked, "how do you mean that?" Allman then asked defendant where he was born, and defendant replied "Jamaica." According to Fry, Allman then asked defendant if he had a permit or a green card. Defendant stated that he had a green card, but did not have it with him. Allman then told defendant that the officers were going to take him back to the Niagara Frontier Transit Authority ("NFTA") Police office at the bus terminal to check on his citizenship status. Fry testified that defendant was "placed in the back of" the border patrol car, and that he continued to carry his bag with him in the back seat. Fry testified that the officers did not conduct any type of "pat down" or other search of defendant, nor did they place him in handcuffs, touch him in any way, or display any weapons prior to placing defendant in the patrol car (T. at 15-19).

 Deputy Fry testified that when Agent Allman told defendant to accompany the officers to the NFTA terminal, defendant was no longer free to leave the scene but was being administratively detained. Fry testified that he did not have probable cause to arrest defendant for any crime at that point, but that he did have reasonable suspicion that defendant was engaged in some kind of criminal activity based on the way defendant appeared to avoid contact with Agent Allman after looking in his general direction in the bus terminal, the way he looked at the patrol car while walking on North Division Street, and the way his answers to Fry's questions "wandered" (T. at 62-66).

 Deputy Fry further testified that when they got in the patrol car, Agent Allman immediately called the Border Patrol office on the car radio to check on defendant's status. They proceeded to the NFTA bus terminal, which was only a couple of minutes away. When they arrived at the terminal, the officers and defendant exited the vehicle and proceeded inside the NFTA police office. According to Fry, defendant was not restrained in any way, and still had his bag with him. They entered the office, where the only other person present was DEA Special Agent Bruce Johnson who was wearing plain clothes and was seated at a desk (T. at 19-22).

 Once inside the police office, Deputy Fry again asked defendant if he could take a look in defendant's bag. However, Fry did not advise defendant while they were in the police office that defendant was free to decline Fry's request to search the bag (T. at 71-72). According to Fry, defendant said "go ahead," and placed the bag on the desk. Fry unzipped the bag and began removing its contents, placing the items on the desk. He removed items of clothing and a Minute Maid fruit juice container. He shook the juice container and placed it on the desk. According to Fry, Agent Johnson noticed that the juice container had been opened and then resealed somehow. Agent Johnson picked up the juice container, opened it, and removed a plastic bag. Inside the plastic bag were two smaller plastic bags containing chunks of a beige-colored substance which Fry recognized as crack cocaine base. Agent Johnson asked defendant "what is this?" Defendant responded that he did not know, and that he had merely bought the juice at a store. At that point, Deputy Fry placed defendant under arrest and read him his Miranda rights. The substance in the bags was subsequently tested and found to consist of approximately fifty-six grams of cocaine base. The entire encounter, from the arrival of the express bus to the arrest of defendant, lasted less than thirty minutes (T. at 22-27).

 After defendant was placed under arrest, but while defendant was still present in the NFTA police office, Agent Allman received information over the telephone that defendant was a legal resident alien (T. at 73-75). The initial information received by Agent Allman indicated that defendant has previously been arrested in New York City on a weapons charge, and an immigration detainer was placed on defendant. However, it was subsequently determined on approximately July 19, 1993, after Allman had conducted a fingerprint check, that it was not defendant but another individual with the same name who had been arrested on the weapons charge, and the detainer was lifted (T. at 75-76; 114-15).

 II. The Testimony of Border Patrol Agent Allman

 Agent Allman testified that he was standing directly in front of defendant as he entered the terminal through Gate Number 8. Defendant looked at Allman and turned and walked through the North Division Street exit. Allman then observed Deputy Fry, who appeared to follow defendant through the exit. He then followed defendant and Fry outside where he encountered another individual and questioned him about his citizenship. He then spoke to Fry, who indicated that he was interested in talking to defendant. (T. at 82-84).

 Allman further testified that he approached Fry and defendant on Main Street after he observed them talking for approximately a minute. As he approached, he noticed that defendant was speaking with a West Indies accent, but did not recall hearing the substance of the conversation between Fry and defendant. Allman introduced himself as an Immigration officer with the United States Border Patrol, and asked defendant if he was a citizen or resident of the United States. When defendant asked "how do you mean that?", Allman asked defendant where he was born. Defendant replied that he was born in Jamaica. Allman asked him if he had a passport or an alien registration card. Defendant responded that he had a green card, but had left it home. Allman then told defendant that he wanted him to accompany him back to the office in the bus terminal where he could check on his immigration status (T. at 91-94).

 Allman testified that defendant and the two officers walked over to the patrol car, and that defendant got in the back seat and Fry got in the front passenger's seat. Allman got in the driver's seat and immediately called his office on the car radio and requested a record check through the Immigration computer, based on the identification given to him by defendant (T. at 95-96).

 Allman testified that based on his training, experience and familiarity with the immigration laws, resident aliens are required to carry their green cards and could be subject to a fine or imprisonment for failure to do so. He stated that he had detained people on numerous occasions for the purpose of determining their immigration status, and that this was the reason he detained defendant (T. at 102-04).

 According to Allman, after they entered the NFTA office, defendant sat down at the desk, which takes up most of the room in the office. Allman could not recall if Agent Johnson was present in the office when they arrived, or if Johnson came in a short while after they arrived. In any event, Allman testified that the three officers and defendant were the only persons present during the entire time, and that only he had a visibly displayed weapon. Allman stated that he immediately used the telephone to call his office in order to determine if any response had been made to his radio request for an immigration computer search. He also testified that, although he was still on the telephone at the time, he heard Deputy Fry ask defendant for permission to search his bag, and he heard defendant consent to the search (T. at 104-06).

 Agent Allman testified that although he routinely detains persons in order to determine their resident alien or immigration status, to his knowledge such person are not regularly prosecuted for violation of the immigration laws based on their failure to produce a green card. Allman further testified that when defendant did not produce a green card, Allman did not give defendant the option of going with him back to the police office at the bus terminal, but simply told defendant that he was going to do so. According to Allman, at that point defendant was no longer free to leave (T. 128-31).

 III. The Testimony of the Defendant

 Defendant testified that when the bus arrived at the Buffalo terminal, he helped a young woman with her luggage as she got off the bus before him, and that he opened the doors to the terminal for her. As he entered the terminal after the woman, he observed Agent Allman in his green Border Patrol uniform standing directly in front of him, at a distance. Defendant testified that he had been to the Buffalo bus terminal approximately twice before, and knew where the exit was. He proceeded to the exit, and turned right toward Main Street. As he crossed the second of two intersections between the terminal and Main Street, he noticed the Border Patrol car driving alongside him on North Division Street. The patrol car pulled into a "buses only" lane near the corner of North Division and Main. As he reached Main Street, defendant proceeded to a ticket machine directly in front of him to buy a ticket for the Metro Rail. As he approached the ticket machine, he saw the bus pull out from the "buses only" lane and the Border Patrol car pull out behind the bus. He observed the patrol car turn right on Main Street and pull onto the Metro Rail tracks. According to defendant, the patrol car stopped directly in front of the ticket machine, and Deputy Fry and Agent Allman got out (T. at 146-52).

 Defendant testified that both Fry and Allman approached him and stood approximately three feet from him during the entire encounter. Defendant observed Allman's holstered weapon. Fry identified himself as a DEA agent, and asked defendant where he was going. Defendant responded that he was going to Busti Avenue or Street. Fry then asked him for identification, and defendant produced his Florida license. According to defendant, Fry looked at the license and continued to hold it while he "asked" defendant if he could look in his bag. The defendant testified:

Then he said to me -- he didn't so much ask me to look in my luggage although the words he used were words that he would equate with a question, but the tone of voice and the manner in which he used his words were as if he is going to search it anyway.

 (T. at 155). Defendant also stated that Fry never told him that he could refuse the request to search the bag (T. at 159). Defendant testified that he did not give Fry ...

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