The opinion of the court was delivered by: CURTIN
Defendants Patrick Mire and Andre Camel were indicted on April 27, 1993, in a two-count indictment alleging conspiracy to distribute cocaine and unlawful possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and 18 U.S.C. § 2. By order dated May 7, 1993, I referred all pretrial matters to the Hon. Leslie G. Foschio, United States Magistrate Judge, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B). On January 5, 1994, following a two-day evidentiary hearing held on July 1, 1993 and July 15, 1993, the Magistrate Judge filed a report recommending denial of defendants' motions to suppress physical evidence and statements obtained as a result of their encounter with law enforcement agents at the Buffalo Niagara Frontier Transportation Authority ("NFTA") bus terminal on April 16, 1993. Both defendants have made objection to the Magistrate Judge's recommendations.
For the reasons given below, I reject the recommendations and grant defendants' motions.
The Magistrate Judge made detailed findings of fact. Item 22, pp. 3-9. These findings are set forth below, more or less verbatim (with references to the record omitted). I have reviewed them carefully and accept them, with certain additions and exceptions as noted in the discussion that follows.
On April 16, 1993, at approximately 6:50 a.m., Drug Enforcement Administration ("DEA") Special Agent Bruce Johnson and Niagara County Sheriff's Deputy Randy Fry were on duty at the Buffalo NFTA bus terminal. A Greyhound bus from New York City arrived at the terminal at approximately 6:50 a.m. Agent Johnson and Deputy Fry observed two male individuals, later identified as defendants Mire and Camel, disembark from the bus.
Agent Johnson observed that Mire was carrying a small black and white shoulder-type bag, while Camel was carrying a small brown overnight suitcase. Neither Mire nor Camel retrieved any luggage from under the Greyhound bus on which they had been riding. After Mire and Camel exited the bus, they stood outside the terminal talking for approximately two to three minutes, and then walked into the terminal and separated, an action which attracted the attention of Agent Johnson.
Upon entering the terminal, Mire began to walk in a southerly direction through the building along a glass wall which separated the interior of the terminal from the loading area for the buses. Camel walked through to the center of the terminal, and then began walking in the same direction as Mire. Deputy Fry and Officer Fred Jones, a uniformed NFTA police officer, were standing in the terminal. As Camel approached Deputy Fry and Officer Jones, he looked right at them, and then came to a complete stop and immediately did an "about face," i.e. he made a hundred and eighty degree turn and retraced his steps, walking completely around the concession area. After cutting through an area where there were banks of pay telephones, Camel went over and sat down one seat away from Mire, who had taken a seat in the area of Gate 8, waiting to board a bus to Cleveland, Ohio. Both Mire and Camel then repeatedly turned around and looked back at Deputy Fry and Officer Jones.
At 7:00 a.m. another bus, which was continuing on to Cleveland, arrived at the terminal. Some type of disturbance had broken out during the trip, and the altercation continued as the bus unloaded. At that point Officer Jones, Officer Jarvis, another uniformed NFTA officer, and Agent Johnson went outside to the loading area to render any necessary assistance. While Agent Johnson was outside, Deputy Fry and Detective Paul Terranova of the Erie County Sheriff's Department, who was also stationed at the NFTA terminal with the DEA, continued surveillance of Mire and Camel for a five or ten minute period. Deputy Fry observed Camel make a telephone call from a pay telephone, and then return to his seat. After the bus disturbance was quelled, Agent Johnson reentered the terminal, and approached Deputy Fry, informing him that he intended to speak with Mire and Camel.
Agent Johnson and Deputy Fry approached Mire and Camel and asked to speak with them. Both officers were casually dressed and did not display any weapons. Mire and Camel agreed to the conversation. Agent Johnson identified himself as a police officer and began questioning Mire. Deputy Fry did not actively question either Mire or Camel at that point. Agent Johnson asked Mire where he was from, and Mire, speaking with a "Caribbean type accent," responded that he was from New York. Johnson then asked Mire where he was born, and Mire replied that he had been born in Jamaica. In response to further questions, Mire indicated that he was travelling with Camel, and that their destination was Cleveland, Ohio. Mire, who stated that he was not a United States citizen, was unable to provide Johnson with a green card or any other type of immigration document to show his lawful status in the United States, representing only that he was in the United States pursuant to a visa, which he could not locate. At that point, Agent Johnson asked Mire to accompany him to the NFTA police office while Johnson contacted the United States Border Patrol. Agent Johnson told Camel that he could come to the NFTA office with Mire, or he could wait outside in the terminal. Camel chose to accompany Mire to the NFTA office. Detective Terranova, who had been approximately three to four feet away while the questioning was taking place, followed the officers into the NFTA office, standing near the door but leaving it open.
Once in the NFTA office, Agent Johnson contacted the Border Patrol, advising that Mire might be an illegal alien. The dispatcher stated that a Border Patrol agent was en route to the NFTA terminal. Agent Johnson then asked Mire if he had any type of identification with him, or in his carry-on bag, to which Mire responded that he had no identification on his person, but that Johnson could look in his bag. Agent Johnson asked Mire if there was anything in the bag which should not be there, and Mire responded no, picking up the bag from the floor and placing it on top of the desk. At that time, neither Mire nor Camel knew that Agent Johnson or Deputy Fry were narcotics agents. Agent Johnson went through the bag, finding various articles of clothing and a new pair of men's sneakers. Upon a closer observation of the sneakers, Johnson noticed that one had a much thicker inner sole than the other. Agent Johnson, who had previous experience with an individual who had secreted narcotics within the soles of his shoes, examined the sneaker more closely, and upon finding an area where the sneaker appeared to have been taken apart and put back together again, peeled the two sections apart, finding a bag containing a white powder in chunks.
At the same time as Agent Johnson was questioning Mire in the NFTA office, Deputy Fry proceeded to question Camel. When Camel indicated that he did not possess any identification, Detective Terranova noticed a wallet in Camel's back pocket, and asked Camel if he had a wallet there. Camel then removed the wallet from his pocket and produced three identifications, all in the name of Juliet Campbell, Camel's aunt in Cleveland. Deputy Fry returned the identifications to Camel, and then told him that the officers were all narcotics agents, and asked him if he could look in his carry-on bag. Camel consented to the search, picking his bag up off the floor and putting it on a cabinet. Agent Johnson, having discovered a powdery white substance in Mire's luggage, told Fry to look for a pair of sneakers in the bag. Fry discovered a pair of sneakers, and checked underneath the inner sole, finding a clear plastic bag containing a white powder and chunks in each sneaker. Also in one of Camel's sneakers was an Ohio State driver's license bearing the name of "Andre Camel," with a photograph bearing a strong likeness to Camel.
Agent Johnson field tested the contents of one of the clear plastic bags, and the test revealed the presence of cocaine. Mire and Camel were then placed under arrest, and were advised of their Miranda rights. The agents shut the door of the NFTA office and conducted a body search of Mire and Camel, finding clear plastic bags containing a white powdery substance within the soles of the sneakers that both were wearing. Deputy Fry looked at Camel's wallet a second time, discovering a picture of Mire inside the wallet. After examining the wallet, Deputy Fry then had a conversation with Mire and Camel in which they expressed an interest in cooperating. They indicated that the cocaine had come from New York City from a "Raymond" (last name unknown), and was going to Cleveland to a "Roderick" (last name unknown), who was the overseer of the drug operation located in New York City. They stated that they were going to be paid two thousand dollars to deliver the cocaine to Cleveland, and they then provided the agents with "Roderick's" pager number. They also stated that they had made such trips to deliver cocaine in the past.
1. Initial Questioning of Defendants, and Search of Their Bags
The Second Circuit has made it clear that there are three types of encounters between law enforcement officers and individuals, each with different ramifications under the Fourth Amendment. United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992); United States v. Hooper, 935 F.2d 484, 490 (2d Cir.), cert. denied U.S. , 112 S. Ct. 663 (1991). The first is a consensual encounter, where an individual agrees to speak to law enforcement personnel in the absence of any duress or coercion. Hooper, 935 F.2d at 490. Such an encounter may be initiated by the police without any objective level of suspicion, and does not, without more, amount to a "seizure" implicating Fourth Amendment protections. Glover, 957 U.S. at 1008. The second involves a limited investigative stop based on "'a reasonable suspicion supported by articulable facts that criminal activity may be afoot.'" Id. (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989)); Hooper, 935 F.2d at 490. The third is an arrest, which must be based upon probable cause that a crime has been committed. Id. Both the second and the third types of encounter are "seizures" within the meaning of the Fourth Amendment. Id.
In determining whether an individual was "seized" during the course of an encounter, triggering Fourth Amendment protections, the Court must consider "if, in view of all of the circumstances surrounding the [encounter], a reasonable person would have believed that he [or she] was not free to leave." Glover, 957 F.2d at 1008 (citations omitted). The "reasonable person" test is an objective one, involving an essentially legal assessment of whether the particular circumstances would warrant the belief that a person has been detained. United States v. Montilla, 928 F.2d 583, 588 (2d Cir. 1991). Whether reasonable suspicion existed to justify the seizure is, similarly, an objective question, unrelated to the intentions or motivations of the particular detaining officer. Glover, 957 F.2d at 1010.