The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J.
Defendant Jose Luis Marquez ("Marquez") moves to suppress physical evidence (heroin and cocaine) and post-arrest statements pursuant to Rule 12 of the Federal Rules of Criminal Procedure. The Court held an evidentiary hearing on July 12, 1996. Both the Government and the Defendant filed post-hearing briefs on July 31, 1996; reply briefs were served on August 16, 1996. For the reasons set forth below, the motion to suppress is denied.
On November 10, 1995, Marquez was at Penn Station in order to travel to Vermont after visiting friends and/or family in New York. Two Amtrak plain clothes police officers, Jay Cody and Stephen Steinecke, watched Marquez purchase his ticket. They believed that he became aware of their surveillance while in the ticket line because he glanced repeatedly in their direction as he walked away from the ticket window. Tr. 18-19.
They then watched as he sat in the concourse eating some food. Tr. 19. When Marquez' train was announced, the officers believed that he hesitated to join the ticket holders' line on the train platform. Tr. 21-22. Finally, the officers believed that Marquez spotted them again and therefore deliberately changed his position in line. Tr. 22-23. Marquez' only luggage was a backpack. Tr. 18.
The officers then approached Marquez, identified themselves and asked to speak to him. He agreed. Tr. 23-24. Marquez first told the officers he had been in New York for a couple of days visiting friends but later told them he had been in New York for six days visiting his grandfather. Tr. 26. At this point, the officers explained that they were looking for illegal narcotics and asked if they could "look in" his bag. Marquez again agreed. Tr. 27, 121. The officers proceeded to "search" or "look through" the backpack. Tr. 30-31; 122. Approximately 25 grams of heroin and 7 grams of cocaine were seized from a paper bag found within the backpack. See Gov't Ex. 2. Marquez was then arrested. After being advised of his Miranda rights, Marquez told the officers that he had paid $ 500 for the bag of heroin, which he had purchased from a friend. Tr. 36-38.
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). ...