consent was limited, only allowing the officers to "look in" (gaze into) the bag, but not permitting them to search through objects found within the backpack.
A. Voluntariness of Consent
In order to determine whether a consent to search is voluntary, the Court must assess the "totality of all the surrounding circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Marquez claims that he was "coerced by intimidation." When asked at the hearing why he felt intimidated, Marquez testified only that he feared the prospect of going to jail for drug possession, and that he understood that the officers were "cops" who possessed guns. Tr. 163. Marquez also stated that he believed the officers would search his bag whether he consented or not. Tr. 161.
On the other hand, Marquez did not describe any particular action taken by either officer which intimidated him. The officers approached Marquez in mid-morning on an open train platform among passengers who were boarding the same train Marquez intended to board. Tr. 24-26. The officers had no physical contact with Marquez and never displayed their weapons. Tr. 123, 166. There is no testimony that either officer raised his voice or threatened Marquez verbally or physically. Finally, Marquez' knowledge that he was speaking to police officers does not, in itself, vitiate his consent. Cf. United States v. Mire, 51 F.3d 349, 352-53 (2d Cir. 1995) ("mere presence" of officers in a police office did not establish coercive detention, where officers neither prevented defendant from leaving nor displayed weapons).
The evidence in the record compels a finding that Marquez' consent was not coerced but rather was voluntarily given. The Second Circuit has upheld the voluntariness of searches in circumstances that might raise a legitimate question of coercion. See, e.g., United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995) (consent to search found despite formal arrest and presence of officers threatening to obtain search warrant if consent withheld); United States v. Ceballos, 812 F.2d 42, 51 (2d Cir. 1987) (consent to search voluntary when defendant was removed from workplace in handcuffs, interrogated at Secret Service field office and warned of disruption that would result from court-ordered search). Unlike these cases, where consents were upheld, there are no circumstances in this case even hinting at coercion. Accordingly, I find that Marquez consented to the search of his bag.
B. Scope of Consent
Marquez argues that his consent did not permit the officers to search the backpack and its contents. It is now well settled that the scope of consent is that of "'objective' reasonableness," namely what the "typical reasonable person [would] have understood by the exchange between the officer and the suspect." Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991). Defendant's argument is semantic, creative, and, I suspect, based on hindsight. Defendant now argues that the officers asked if they could "look in" his bag. In agreeing that they could, he did not mean that they could search his bag, but only that they could "gaze into" his bag. Under the circumstances, it was objectively reasonable for the officers to conclude that they were given permission to search the bag, including its contents.
Determining objective reasonableness is a question of law. But the determination is based on the facts. Here, there is no real dispute concerning the facts. The officers testified that they told the defendant they were looking for narcotics. Tr. 27, 121. Defendant did not dispute this testimony. Defendant and the government agree that the officers asked to "look in" the bag as opposed to "look through" the bag or "search" the bag. Tr. 17, 121, 160. Finally, there is no evidence that the defendant ever asked the officers to stop "searching" his bag once they had begun to do so.
Defendant believes that the choice of words is critical. He argues that Amtrak has developed a nationwide script urging its officers to use the phrase "look in" rather than "search" because these words will mislead the suspect into believing that the officers will not, in fact, search the bag. I cannot agree. Despite the dictionary definitions quoted by defendant in his post-hearing memorandum, I believe that it is objectively reasonable for an officer to conclude that permission to "look in" something is the same as permission to "search." Several courts have so held. See, e.g., United States v. Rich, 992 F.2d 502, 506 (5th Cir.), cert. denied, 510 U.S. 933, 126 L. Ed. 2d 312, 114 S. Ct. 348 (1993) ("Several other circuits [in addition to this one] have held that a request to 'look in' or 'look through' a vehicle is the equivalent of a request to 'search the vehicle.'"); United States v. Harris, 928 F.2d 1113, 1117 (11th Cir. 1991) (upholding search of luggage found in trunk after permission was given to 'look in' vehicle).
This precise issue was addressed by the Fifth Circuit in Rich. While this Court is not bound by the decision of a different circuit, this case provides persuasive reasoning, which I hereby adopt.
We decline the defendant's invitation to establish a list of specific terms from which an officer must select the most appropriate for each individual situation and/or defendant. To so hamper law enforcement officials in their everyday duties would be an unjustifiable extension of the Fourth Amendment's requirement that searches be 'reasonable.'. . . We take this opportunity to establish a similar rule for our circuit: it is not necessary for an officer specifically to use the term 'search' when he requests consent from an individual to search a vehicle. We hold that any words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to examine the vehicle and its contents constitute a valid search request for Fourth Amendment purposes.