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.
During the course of a lawful encounter between an individual and a law enforcement officer, the officer may request the individual's permission to conduct a search of his or her person or property. The government is required to show that consent "'was in fact voluntarily given, and not the result of duress or coercion, express or implied.'" United States v. Arango-Correa, 851 F.2d 54, 57 (2d Cir. 1988) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973)). The test of voluntariness is whether the consent was the product of an essentially free and unconstrained choice by its maker, and is a question of fact to be determined from all of the surrounding circumstances. Id.
If consent to a search was obtained during the course of, or following, an illegal seizure, the government bears the burden of showing that the taint of the unlawful seizure had dissipated before the consent was given. Montilla, 928 F.2d at 590, n. 3; see also, Babwah v. United States, 972 F.2d 30, 34 (2d Cir. 1992).
Where an individual has voluntarily given consent to a search, the search must not have exceeded the scope of the consent given. The standard for determining the scope of consent is that of "'objective reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect?" United States v. Davis, 967 F.2d 84, 87 (2d Cir.) (quoting Florida v. Jimeno, 500 U.S. 248, 111 S. Ct. 1801, 1803-1804, 114 L. Ed. 2d 297 (1991)), cert. denied, U.S. , 113 S. Ct. 356 (1992).
The Magistrate Judge found that the initial encounter between Mire and agent Johnson was consensual, not an unlawful investigative stop. Item 22, p. 11. He found further that at the time Johnson requested that Mire accompany him to the NFTA office, there was reasonable suspicion to believe that Mire may not have been in the United States lawfully. Id. Without making any explicit ruling that Mire had been "seized" at that time, he cited United Statesv. St. Kitts, 742 F. Supp. 1218, 1220-1221 (W.D.N.Y. 1990) in support of the proposition that under such circumstances, a defendant is seized within the meaning of the Fourth Amendment. Id. at 11-12.
He went on to find that Mire had consented voluntarily to the search of his bags, Id. at 13-15; that Mire had not sought to limit the scope of the search; that Johnson had given sufficient warning to Mire that if there was contraband in the bag it would be discovered; and that Johnson's actions in peeling apart the soles of Mire's sneakers was within the scope of the consent given. Id. at 15-16.
In his objections, Mire makes two arguments. First, he maintains that the consent that he allegedly gave to the search of his bag was not freely and voluntarily given. Item 24, pp. 1-6. Second, he argues that the consent was strictly limited to a search for identification, and that Johnson's actions in minutely examining the clothing and sneakers in the bag, and peeling up the inner soles of the sneakers, exceeded the scope of that consent. Id. at 6-13.
I find that the search of Mire's bag exceeded the scope of the consent given. The entire thrust of Johnson's encounter with Mire was directed towards establishing Mire's immigration status in the United States. When Johnson first approached Mire and Camel in the public area within the NFTA terminal, he questioned Mire about where he was from, and where he had been born. Mire admitted that he was not a United States citizen, but could provide no immigration document to establish that he was in this country legally. Johnson asked Mire to accompany him to the NFTA office, advising him that he was "going to contact Border Patrol and see what they wanted to do." (T.II. 36).
Once in the NFTA office, Johnson contacted the Border Patrol, advising that Mire might be an illegal alien. He then proceeded again to question Mire about whether he had any identification on him. When Johnson asked if he had any identification in his bag, Mire replied "no, you can take a look if you want," (T.I. 42), and picked up the bag and placed it in front of Johnson. Johnson had not told Mire that he was a DEA agent, or indicated that he would be searching for narcotics as well as for identification. He did, however, ask Mire whether there was anything in the bag that shouldn't be there. Mire responded that there was not, and that Johnson could take a look. (T.I. 42).
Under the standard set forth by the Supreme Court in Florida v. Jimeno, 111 S. Ct. at 1803-1804, the question to be asked is whether it would have been reasonable for Johnson to consider Mire's consent to search his bag for identification to include consent to conduct a minute examination of the insides of his sneakers and peel apart their soles.
I find that it would not. The space between the inner and the outer sole of a sneaker is not one that is widely used by reasonable people as a place to carry documents or other objects by which they might be identified. It is inconceivable that the "typical reasonable person" would have understood from the exchange between Johnson and Mire that Johnson would go so far as to remove the sneakers' inner soles.
This conclusion is not altered by the fact that Johnson asked Mire whether there was anything in the bag that should not be there, or that Mire replied that there was not. A reasonable person would have interpreted Johnson's question as a warning that his search for identification might incidentally reveal the presence of any contraband that might be in the bag, not as a request for consent to conduct a detailed examination of articles that would be most unlikely to assist in revealing identity.
Since the cocaine in Mire's sneakers was found only after the search of his bag had exceeded the scope of consent, it is unnecessary for the Court to consider whether that consent was freely and voluntarily given.
The Magistrate Judge found that Camel entered the NFTA office voluntarily to accompany Mire, his travelling companion, and that Camel's initial encounter with Deputy Fry within the NFTA office was consensual. Item 22, p. 12. He found further that Camel's consent to the search of his bag had not been coerced, Id. at 13-15; and that the search did not exceed the scope of the consent given. Id. at 15-16.
It seems clear enough that Camel entered the NFTA office voluntarily. I find, however, that during the course of Fry's questioning of Camel the encounter ripened into a seizure, and that the seizure was an unlawful one. I find further that Camel's consent to the search of his bag was tainted by the illegal seizure, and was not sufficient to justify the search.
The Second Circuit has enumerated certain factors that may guide the determination of whether a seizure has taken place, including:
the threatening presence of several officers; the display of a weapon; the physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person's personal effects such as airplane tickets or identification; and a request by the officer to accompany him to the police station or a police room.
Glover, 957 F.2d at 1008 (quoting United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990)). These factors are not, of course, the only ones that may be considered. The court must decide whether, under all of the circumstances surrounding the encounter, a reasonable person would have believed that he or she was free to leave. Id.
In the present case, we clearly have the first of the factors enumerated in Lee and Glover --the threatening presence of three officers. In addition, the officers' questioning of Camel took place in a police office. While it is true that he had not been asked to accompany the officers into the NFTA office, the circumstances were quite different from those of the usual consensual encounter occurring in a public place. And a third factor must also be considered--the coercive effect of the officers' persistent questioning of Camel when his travelling companion, Mire, was under suspicion, was being questioned, and had consented to a search of his bag.
Johnson and Fry acknowledge that Camel had not been required to come into the NFTA office, and that he entered only to accompany Mire. (T.I. 86; T.I. 19, 87). Nevertheless, at the same time that Johnson was questioning Mire, who was clearly suspected of being in the United States illegally, Fry began to question Camel. When Camel told Fry that he was carrying no identification, Detective Terranova, who was positioned near the doorway (T.I. 41), apparently observed a wallet in Camel's back pocket and asked him if it contained any identification. (T.II. 25). Camel removed the wallet from his pocket, produced three IDs, and handed them to Fry. All were in the name of Juliet Campbell, Camel's aunt. By the time Fry was inspecting the IDs, Johnson had already obtained consent to search Mire's bag. (T.I. 27). After returning the IDs to Camel, Fry announced that the officers were all narcotics agents "concerned with drugs being brought into the City," (T.I. 27-28), and asked Camel if he could search his bag.
Considering all of the circumstances, I find that by this point any reasonable person in Camel's position would have believed that he was not free to leave. Camel was in a police office, not a public place. Three officers were present and focusing their attention on him and his travelling companion, Mire. One of the officers, Terranova, was positioned close to the doorway while the other two agents were questioning Camel and Mire. Johnson had indicated to Camel that he was not required to enter the NFTA office, but when he did come in, Fry and Terranova had made it clear that they were anxious to establish who he was, and were dissatisfied with his failure to produce identification. Mire was under suspicion of being in the United States illegally; like Camel, he had been unable to produce any identification, and as a result had been subjected to questioning, and had given consent to a search of his bag. After Camel had told Fry that he had no identification, Terranova had continued to pursue the matter by asking whether he had a wallet in his pocket, and if the wallet contained any ID. By so doing, Terranova had clearly signalled that Camel was expected to produce the wallet or its contents for inspection. Fry had identified himself and the other officers as narcotics agents and had expressed an interest in searching his bag. None of the officers had given Camel any indication that he was free to leave. Both the Supreme Court and the Second Circuit have held that under substantially similar circumstances, defendants had been effectively seized for purposes of the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 501-507, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983); Glover, 957 F.2d at 1009 (supra, n. 4).
Our inquiry may not end, however, with a determination that Camel had been seized by the time that Deputy Fry requested consent to search his bag. We must consider next whether there existed a reasonable suspicion that Camel was carrying narcotics, sufficient to justify a limited investigative detention. Glover, 957 F.2d at 1009. In cases of suspected narcotics trafficking:
an officer's suspicion will be reasonable if, considering the totality of the circumstances surrounding the stop, "the conduct would appear suspect to one familiar with the practices of narcotics couriers, albeit the pattern of behavior is innocuous to the untrained observer."