US v. Lewis, Crim. No. 89-437.

• Decision Date: 17 January 1990
• Docket Number: Crim. No. 89-437.
• Citation: 728 F. Supp. 784
• Parties: UNITED STATES of America v. Dennis S. LEWIS, Defendant.
• Court: U.S. District Court — District of Columbia

728 F. Supp. 784

UNITED STATES of America v. Dennis S. LEWIS, Defendant.

Crim. No. 89-437.

United States District Court, District of Columbia.

January 17, 1990.

John P. Gidez, Asst. U.S. Atty., Washington, D.C., for plaintiff.

Thomas Abbenante, Washington, D.C., for defendant.

Memorandum Opinion

SPORKIN, District Judge.

This case is before the Court on defendant Dennis Lewis' motion to suppress evidence seized by officers assigned to the Narcotics Interdiction Unit of the District of Columbia's Metropolitan Police Department. Defendant contends that the actions taken by the officers violated his constitutional rights.

The Government opposes defendant's motion maintaining that the encounter between the police officers and the defendant did not constitute a seizure under the Fourth Amendment. The Government contends that the defendant consented to the body search that was performed by the officers.

FINDINGS OF FACT

Officer Edward Hanson, a detective assigned to the Metropolitan Police Narcotic Interdiction Unit, was the only witness who testified at the hearing held by this Court on December 14, 1989. No testimony or other evidence was offered by the defendant. According to Detective Hanson, the primary function of the Interdiction Unit is to intercept narcotics which are being brought into Washington, D.C., via public transportation systems. Suppression Hearing Trans. at 5 (Dec. 14, 1989).

A central component of the interdiction effort is the random interviewing of travelers who are utilizing public transportation systems such as the bus or train. Detective Hanson testified that when conducting such interviews he approaches an individual who he intends to question. Upon initially coming into contact with a traveler, Detective Hanson identifies himself as a police officer and shows his identification. He then proceeds to ask that individual if he or she minds being asked some questions. Id. Detective Hanson further testified that if the individual who was approached agrees to be interviewed Detective Hanson then proceeds to ask questions about his or her travel plans, tickets, and personal identification. Id. Detective Hanson testified that if after the interview "I've decided I wish to attempt to search the person, I will ask his permission to either search his luggage or his person." Id. When engaging in these interviews, Detective Hanson is always accompanied by other officers.

Turning to the specific facts of this case, Detective Hanson testified that on October 19, 1989, he and two other officers, Sergeant Brennan and Detective Zattau, were on duty at the Greyhound Bus Terminal at Union Station in Washington, D.C. Id. at 6. At approximately 12:30 p.m., Detective Hanson and the two other officers boarded bus No. 1662 which had just arrived from New York City. Id. at 6-7. All the officers were in plain clothes and their weapons were not visible. Id. at 9. According to Detective Hanson, he, on a strictly random basis, then approached the defendant Lewis identified himself as a police officer and asked Mr. Lewis if he would answer some questions. Detective Hanson stated that the defendant agreed to respond to his questions.¹ During the course of this interview, Mr. Lewis provided Detective Hanson with his bus ticket which reflected travel from New York to Richmond. Mr. Lewis also indicated that he had been visiting his mother in New York and was returning home. At Detective Hanson's further request, Mr. Lewis showed the Detective his Virginia driver's license and advised Detective Hanson that he was not carrying any luggage.

Detective Hanson next asked Mr. Lewis if he was carrying any narcotics or weapons. Mr. Lewis responded that he was not. Despite this response, and without any basis for making a request, Detective Hanson sought permission from Mr. Lewis to conduct a complete body search. Detective Hanson testified that Mr. Lewis acceded to this request. Mr. Lewis stood up and Detective Hanson began a pat-down search of his person. While conducting this search, Detective Hanson felt a lump in Mr. Lewis' left sock. Detective Hanson then removed from the sock a packet which contained white powder. This white powder field tested positive for cocaine and it weighed approximately 20 to 22 grams. Id. at 8.

Once this packet was discovered, Mr. Lewis was placed under arrest. Subsequently, a small packet, which field tested positive for marijuana, was found in Mr. Lewis' jacket pocket. Detective Hanson further testified that a search of the area beneath or in front of Mr. Lewis' seat resulted in the recovery of a McDonald's bag which was found to contain approximately 781 vials of white rock substance, 50 packets of heroin and other drug-related paraphernalia. Id. at 8.

Detective Hanson testified that there is no articulable profile that he uses when determining who to interview. As he stated, "Sometimes I'll just walk up to anyone who may be on the bus and ask to talk to them." Id. at 16. When asked by this Court why he had chosen to interview Mr. Lewis, a young black male, Detective Hanson conceded that, "There was nothing in particular that I saw in that man, no articulable thing that I saw that I just walked up to him and asked him if I could search him after identifying myself." Id.

CONCLUSIONS OF LAW

A. Fourth Amendment Analysis

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The Supreme Court has declared that "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). In this case, where the arresting officer testified that he lacked any basis for initially approaching Mr. Lewis on the bus, the issue is whether this contact and questioning amounted to a "seizure" under the Fourth Amendment. The Court of Appeals for this Circuit has recently spoken on the constitutional propriety of citizen and police encounters that are based on something less than probable cause or even articulable suspicion. See United States v. Winston, 892 F.2d 112 (D.C.Cir.1989); United States v. Baskin, 886 F.2d 383 (D.C.Cir.1989). These cases stand for the proposition that "the Fourth Amendment is not necessarily implicated when a police officer initiates an encounter with a citizen he has no articulable reason to suspect of a crime." Winston, 892 F.2d at 117. However, both Winston and Baskin involved situations where the police approached and questioned individuals who had already exited their chosen mode of transport — train or bus. In both of these cases the individuals involved were not subjected to a body search, only their baggage was inspected. Winston was approached by officers outside of Union Station, and Baskin was approached as he was walking through the open and public concourse of Union Station. In concluding that these citizen and police encounters did not constitute a seizure, the Court of Appeals placed a great deal of emphasis upon the fact that an ordinary citizen, when confronted in a public place by police officers who conduct themselves in a polite and nonaggressive manner, would not feel constrained from walking away. Thus, the crucial question is whether or not "in view of all the circumstances surrounding the incident, a reasonable person in Mr. Lewis' position would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980).

Unlike the individuals involved in Baskin and Winston, defendant Lewis was not approached by police officers in an open and public area. Here, Detective Hanson accompanied by two other officers boarded a Greyhound bus that had temporarily stopped in Washington, D.C., while en route to Richmond, Virginia. Upon entering the bus, Detective Hanson approached Mr. Lewis and identified himself as a police officer. Detective Hanson then began to make inquiries of Mr. Lewis. During the entire course of this questioning, Mr. Lewis was seated and Detective Hanson stood in the narrow bus aisle immediately to the side of the row in which Mr. Lewis was located. Mr. Lewis responded to all of Detective Hanson's questions. In addition, Mr. Lewis showed Detective Hanson his travel ticket and Virginia driver's license. By Detective Hanson's own admission, nothing whatsoever about Mr. Lewis' responses or his identification papers was suspicious. Despite this fact, Detective Hanson proceeded to ask Mr. Lewis if he would submit to a body search.

Although the Court of Appeals has determined that an encounter between the police and a citizen in an open and public space where the citizen is free to walk away or to ignore questions addressed to him does not constitute an improper seizure, the facts and circumstances involved in this case merit a different conclusion. Because of the cramped nature of the interior of a Greyhound bus and the narrow width of the exit aisle, this Court is convinced that a reasonable passenger who is suddenly confronted by police officers who board the vehicle, begin to ask questions, and review identification papers would not feel free to walk away. The very nature of the encounter between Detective Hanson and Mr. Lewis placed the latter in a position in which he could reasonably believe that he was not free to walk away. To walk away from this encounter, Mr. Lewis, who was waiting for the bus to depart for his Richmond destination, would have had to stand up from his seat, work his way out of the narrow row in which he was situated, and then negotiate his way past Detective Hanson, who was positioned in the narrow exit aisle.² In effect, he would have had to leave the bus, give up his seat, and lose his ability to travel to Richmond according to his travel plans. To suggest that Mr. Lewis was objectively free to leave in such circumstances is to stretch reality...