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UNITED STATES v. BRISBANE

June 26, 1996

UNITED STATES OF AMERICA against MARVIN BRISBANE, Defendant.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Defendant Marvin Brisbane moves to suppress physical evidence and statements pursuant to Rule 12 of the Federal Rules of Criminal Procedure. The Court held an evidentiary hearing on April 15, 1996. The Government and the Defendant each filed post-hearing briefs on May 17, 1996.

 BACKGROUND

 On the afternoon of September 5, 1995, Amtrak police investigators John Cody and Christopher Faletta were assigned to the drug enforcement unit in Penn Station when they observed Defendant, Marvin Brisbane, standing in the ticket line. (Tr. at 4-5.) Brisbane, a young black male carrying a knapsack and a white paper food bag, looked over the crowd as he waited in line before purchasing a ticket with cash at the ticket window. (Tr. at 5-6.)

 After purchasing his ticket, Brisbane entered the waiting area and took a seat on a three-seat bench. (Tr. at 7-8.) He sat in an end seat and placed his knapsack and his food bag on the middle seat. (Tr. at 8.) Investigator Cody then entered the waiting area and sat down in the third seat, while Investigator Faletta took a position about fifteen feet away. (Tr. at 8.) Investigator Cody identified himself as a police officer and asked Brisbane if he could talk to him. (Tr. at 8.)

 Brisbane responded affirmatively, and a conversation ensued in which Brisbane explained that he was travelling to New London, Connecticut, his place of residence, following a Labor Day weekend visit to see his family in Coney Island, Brooklyn. Brisbane also explained, in response to Cody's questioning, that he worked in fast food in a casino in Connecticut. (Tr. at 9-10.)

 As Investigator Cody and Brisbane talked, Brisbane was eating chicken and throwing the bones into the open white paper bag, which still rested on the seat between the two men. (Tr. at 10.) Brisbane then asked what the problem was, in response to which Cody explained that he was a narcotics investigator and that "we had a big problem with people transporting drugs on Amtrak trains." (Tr. at 10.) According to Cody, Brisbane became a little more nervous, and "began moving in his seat a little bit." (Tr. at 10.)

 Investigator Cody then sought consent to search Brisbane's knapsack and consent was granted. (Brisbane Aff. P 2; Tr. at 11.) On direct examination, Investigator Cody testified that Brisbane "granted me consent by saying something to the effect of [']yeah, sure, go ahead.[']" (Tr. at 11.) On cross-examination, counsel brought out that in response to the request to search the knapsack, Brisbane picked up the knapsack, handed it to Investigator Cody, and said something to the effect of, "Go ahead, look all you want." (Tr. at 17.) According to Investigator Cody, this left no doubt that Brisbane was granting consent to search the knapsack. (Tr. at 17.)

 At this point, Officer Cody testified that he sat up in his seat, looked into the white paper bag, pointed, and then asked Brisbane if he could "look in the paper bag." (Tr. at 12.) On direct, Cody testified that Brisbane "responded again something to the effect of [']yeah, sure, go ahead.[']" (Tr. at 12.) On cross-examination, Cody testified that Brisbane did not say, "sure, you can look all you want" in response to this request. (Tr. at 19.) Cody further testified that Brisbane did not hand Cody the paper bag. (Tr. at 19.) Brisbane testified by affidavit that he never gave consent to Investigator Cody to search the white paper bag. (Brisbane Aff. P 3.)

 Investigator Cody testified that after asking for consent to search the white paper bag, he put his hand into the bag and pulled out a package wrapped in a paper towel with rubber bands around it. (Tr. at 12.) When Investigator Cody removed the package from the bag, he held it out to Brisbane and asked, "Marvin, what's this?" (Tr. at 13.) Brisbane responded, by standing up, taking the package from Investigator Cody, and saying, "That's my biscuit." (Tr. at 14.) Investigator Cody then requested that Brisbane hand him the package, to which Brisbane responded, "If you want my biscuit, you're going to have to lock me up for it." (Tr. at 14.)

 Investigator Cody proceeded to take Brisbane into custody, and take him to a processing center in Penn Station. (Tr. at 15; Brisbane Aff. P 4.) Brisbane was placed in a holding cell, at which time the package was opened, and found to contain a white powdery substance, which Investigator Cody believed to be cocaine. (Tr. at 14-15.) Investigator Cody next searched Brisbane, recovering three small bags of marijuana from Brisbane's shoe. *fn1" (Tr. at 15.) Investigator Cody testified that following the search and recovery of the marijuana, Cody read Defendant Brisbane his Miranda rights, and then asked Brisbane what he had. (Tr. at 15.) According to Cody, Brisbane responded that he had "coke." *fn2" (Tr. at 15.) Contrary to Cody's testimony that the admission regarding "coke" came after the appropriate warnings, Brisbane stated that the Miranda warning was read only after he had responded to some of Investigator Cody's questions. (Brisbane Aff. P 4.)

 On cross-examination, Investigator Cody admitted that, during the time he has served as a narcotics enforcement officer for Amtrak, he has never obtained a search warrant, though he is familiar with the mechanics for obtaining one. (Tr. at 20-21.) Cody testified that if ...


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