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December 2, 1994

MARCUS LAND, Defendant.

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


 The defendant is charged in a two-count indictment with possession of 50 grams or more of cocaine base with intent to distribute and simple possession, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A) and 844(a). The charges are based on the defendant's arrest at the NFTA bus terminal in Buffalo, New York on May 6, 1994.

 Following indictment, the defendant moved to suppress drugs seized upon his arrest as well as oral statements made at the time of his arrest on the basis that he was unlawfully seized at the bus station. On October 18, 1994, a suppression hearing was held on defendant's motion. Following the suppression hearing, both counsel were given an opportunity to submit additional case law authorities to the court. The motion was taken under advisement as of November 2, 1994.

 For the reasons set forth below, it is recommended that the defendant's motion be denied.


 DEA Agent Bruce Johnson and Niagara County Sheriff's Deputy Randy Fry testified at the suppression hearing.

 1. The Testimony of Agent Johnson.

 Agent Johnson testified that on May 6, 1994, he was present at the bus station when a Trailways bus arrived from New York City at approximately 5:50 a.m. Johnson was wearing plain clothes and was inside the terminal in the vicinity of Gate 19 looking through the glass vestibule area. He observed the defendant and an individual later identified as Arthur Woods getting off the bus together as a few of the last passengers. They had no checked baggage, but Woods was carrying a backpack. The bus arrived at Gate 21. The defendant stopped and waited while Woods started walking toward the Gate 19 entrance, where Agent Johnson was standing inside the glass partition. As Woods approached Johnson's location, he stopped, made eye contact with Johnson, and then abruptly turned and went to Gate 17 where he entered the terminal. At the same time, defendant entered the terminal at Gate 21 and followed Woods approximately 25 feet behind him. As both individuals walked through the terminal, they frequently turned around and looked back toward Agent Johnson. They both exited the terminal through the North Division Street exit.

 Johnson and Deputy Fry, who was also in plain clothes, followed the individuals through the terminal and approached them as they exited the building. Both agents displayed their badges and announced that they were police officers. Johnson asked to talk to them. Johnson then began talking to Woods and Fry began talking to defendant. They were standing in an opening between the sidewalk and a wind break outside the terminal. The defendant and Fry were approximately 3-4 feet away from Johnson and Woods.

 Once they approached and identified themselves, Woods told the defendant, "Here, take your bag," and handed the backpack to the defendant. The defendant took the bag into his hands. The agents then questioned both individuals as to the purpose of their travel. Woods advised Johnson that he knew the defendant from Buffalo and that he happened to run into him on the bus from New York City. Johnson asked Woods why he was carrying the defendant's bag and he said that he was doing him a favor since both of them would be taking a cab.

 Johnson then talked to Fry and learned that the defendant had given different information to Fry. Fry advised Johnson that the defendant claimed to be in New York City for a few days to shop, that Woods was his cousin and that they were traveling together. Agent Johnson then asked Woods if the black bag was Woods' bag and Woods responded by pointing toward defendant and saying, "No, that's his bag." Fry then asked the defendant if the bag he was now holding was his and he responded, "Yeah, it's my bag."

 Fry then advised defendant that he and Johnson were narcotics officers concerned with drugs being brought into the Buffalo area and asked for permission to search the bag. The defendant was also told that he was not under arrest and did not have to allow Fry to examine the bag. The defendant responded, "Okay, sure." Fry then again asked for permission to search the bag and defendant again said, "Yes." Defendant then handed the bag to Fry. Fry unzipped the bag, removed a large plastic bag and said, "There's some crack in here." Meanwhile, Woods had asked Johnson if he could sit down against the cement wall and Johnson had said, "Go ahead." Johnson had then asked Woods to stand up and come into the NFTA police office at the bus station. Fry asked defendant to do the same thing. Both came into the office.

 At the NFTA police office, two uniformed police officers were present, a border patrol agent and an NFTA police officer. The contents of the plastic bag were field-tested and the result was positive for cocaine. The defendant was read his Miranda rights. Johnson again asked the defendant if this was his bag and he replied, "I'll take the bag." Johnson then said, "I didn't ask you if you'd take it but is it yours?" Defendant replied, "Yes."

 Woods was patted down and a computer check was run to see if there were outstanding warrants, which there were not. He was then allowed to leave.

 The defendant was then interviewed by the agents. He was asked how much the crack cost. He said that he did not recall. He was asked if Woods would know and he said, "Probably." A search of the bag revealed two Continental Airline tickets from Buffalo to New Jersey which had already been used, two ticket receipts, a set of keys and the drugs already referred to.

 Woods was described as approximately 6' to 6'1" in height, African-American, approximately 200 lbs. Defendant stands 5'4" to 5'5" and is approximately 135 lbs. On cross examination, Johnson admitted that he had suspected that Woods was involved in the transaction because he was carrying the bag initially but once the defendant admitted owning the bag he felt he had no choice but to let Woods go and to press charges against defendant. That is why he asked defendant again inside the NFTA police office whether it was his bag. When the defendant again stated it was, Johnson felt he had no choice. It was also brought out on cross examination that Woods had a lengthy criminal history whereas the defendant had no prior arrests, that Woods had more cash in his possession than the defendant and that Woods gave two addresses to the police.

 2. The Testimony of Deputy Fry.

 Randy Fry testified that he assisted Johnson on May 6, 1994 in the questioning of defendant and Woods and the ultimate arrest of defendant. He testified to essentially the same facts as Johnson.

 Fry spoke to Land and Johnson spoke to Woods when they stopped the two travelers. As soon as they identified themselves, Woods gave the backpack to the defendant and said, "Here, here's your backpack." The defendant just took the bag. Fry then asked the defendant where he had been and he advised that he had been in New York City. He asked how long he had been there and he replied, "A couple of days." Fry asked him his purpose and defendant said, "Shopping." As far as Woods goes, defendant said he was traveling with Woods and that Woods was his cousin. Fry asked him whether the backpack was his and defendant replied that it was. He then conferred with Johnson who ...

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