US v. Maragh

• Decision Date: 01 February 1991
• Docket Number: Cr. No. 88-0322-LFO.
• Citation: 756 F. Supp. 18
• Parties: UNITED STATES of America v. Mark A. MARAGH, Defendant.
• Court: U.S. District Court — District of Columbia

756 F. Supp. 18

UNITED STATES of America v. Mark A. MARAGH, Defendant.

Cr. No. 88-0322-LFO.

United States District Court, District of Columbia.

February 1, 1991.

Theodore Shmanda, Asst. U.S. Atty., Washington, D.C., for U.S.

James E. McCollum, Jr., College Park, Md., for defendant.

MEMORANDUM ON REMAND

OBERDORFER, District Judge.

This matter is before the Court on remand from the Court of Appeals' determination that a reasonable person in defendant's position would have felt free to leave when interviewed in Union Station by Detective Beard while Detective Hansen backed him up, with Detective Cassidy "downfield." On the basis of that finding, the Court of Appeals majority concluded that defendant was not under any restraint until Detective Hansen literally seized defendant after Detective Beard found drugs in defendant's luggage. The remand leaves me the task of determining whether Maragh, being free to leave, voluntarily consented to Beard's search of the bag. United States v. Maragh, 894 F.2d 415 (D.C.Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990), rev'g 695 F.Supp. 1223 (D.D.C.1988). I find that he consented involuntarily.

I.

On remand, at an evidentiary hearing held on January 11, 1991, the government supplemented the record with the following testimony of Detective Beard and former Detective Cassidy.¹ Beard, a detective in the Narcotics Branch for 21 years, has been a member of the interdiction squad since its formation in 1987. The squad was originally made up of six police officers. After the first two and a half years, four members were added, bringing the squad to a total of ten officers. Beard received twenty hours of training relevant to the squad's activities before joining the squad and in the early days of the squad's activities. The officers of the squad wear plain clothes, speak to interviewees in a conversational tone, and do not display their weapons or handcuffs. Rather than displaying a badge, the officers display an ID folder. They do not stand so as to block an interviewee's path. The interdiction squad conducts one on one interviews, i.e., a single detective interviews a single subject. (In contrast, Beard noted, the Drug Enforcement Agency conducts two on one interviews.) Each officer uses his own set of interview questions. In Beard's three years of approaching interviewees, no person has ever walked away from him on initial contact.

Beard's normal practice is to ask whether the interviewee just disembarked from a train or bus. If the answer is "yes," he asks to see the person's ticket. He checks the ticket, then hands it back to the person. He asks where the person lives. He inquires about the person's travel. Then he asks: "You're not carrying drugs in your bag, are you?" He has never had an interviewee admit to carrying drugs in response to that question. Following these questions, Beard sometimes, but not always, asks if he may search the person and his or her bags. His decision whether to request a search depends on his mood and various indicators such as the time the person has been away or plans to travel and whether the number and size of the person's bags are consistent with the amount of luggage normally carried on the type of trip the person has described.

Beard estimated that, in the three years that he has worked with the interdiction squad, he has conducted about 1,500 interviews. Beard has conducted more interviews than any other officer on the squad. He roughly estimated that the entire interdiction squad has conducted between four and five thousand interviews. The squad has made approximately 600 arrests. Beard has participated in half, or about 300, of those arrests. Beard has considered making a record (i.e., a paper notation—not a tape recording) of interviews. At one time, he recorded interviews for a period of two months. However, he found he could not keep it up. Beard estimated that he requests a search in two-thirds of the interviews that he conducts. Accordingly, he acknowledged that he has asked approximately 1,000 persons if he could search them and their bags. Of all of the persons Beard has asked to submit to a search, exactly eleven have declined his request to search them. Beard did not estimate this number, because he keeps count. No other officer on the squad has experienced more refusals than Beard. Other officers, he said, have four, or seven, refusals.

Beard's testimony on remand regarding the interview and search of Maragh was essentially consistent with his earlier testimony at an evidentiary hearing held on September 23, 1988. On August 2, 1988, Beard was at Union Station with four other officers of the interdiction squad. The officers observed Maragh and two other persons exit the gate where a train from New York had arrived. When the three subjects began walking toward the exit, the squad "deployed." Beard approached Maragh. Nearby, Officer Centrella interviewed one of the other two persons who had arrived with Maragh. Both officers faced the gates in Union Station. Both interviewees faced the exit of the station. Behind the interviewees, about fifteen feet away and forming a triangle with the two interview pairs, Officer Hansen stood as backup.² At that time, due to construction, the exit from Union Station was a long narrow tunnel. Beard does not remember observing the position or activities of Detective Buss.

At the January 11, 1991 hearing, Beard testified that at one point he observed Detective Cassidy standing by the exit of the station. At the September 23, 1988 hearing, however, Beard testified that:

A: Cassidy walked past me, past Mr. Maragh and the other two, and he was, at the time I made my approach to Mr. Maragh, by the baggage area where construction is under way. He was already there.

Q: Do you know for what purpose he was going in that direction?

A: Yes, sir.

Q: What purpose was that?

A: To — should anybody run for any reason, he was there to catch up with them.

Q: To intercept them?

A: Yes.

Transcript of Hearing on Motions (September 23, 1988) at 40-41.

After the initial questioning, Beard asked if Maragh was carrying drugs. Maragh said "no." Beard asked if he could search the bag Maragh was carrying. Maragh said "yes." Maragh then set his bag on the floor and unzipped it. Beard asked Maragh if he (Beard) could search the bag. Maragh stood up and stepped away from the bag.³ Beard then reached in the bag. Inside the bag, Beard found men's swimming trunks. In the pocket of the trunks, Beard found cocaine base.

Detective Cassidy also testified. Cassidy was a very tall (six feet four), 205 lb., lean, long-legged, long-armed (36 inch sleeve), formidable policeman.⁴ He is a powerful man who could move swiftly. Cassidy testified that on August 2, 1988, he was at Union Station as a member of the interdiction squad. When the squad observed Maragh and his companions and deployed, Cassidy walked past Maragh and Beard, and Centrella and his interviewee, towards the exit to the station. Cassidy, backed up by Detective Buss, interviewed Maragh's third travelling companion, closer to the exit of the station. Cassidy did not observe the entire interview between Maragh and Beard. However, he remembers observing Hansen standing approximately five feet behind Maragh while Maragh was being questioned by Beard. According to Cassidy, Centrella and his interviewee stood further away. Cassidy's testimony as to the positions of Beard, Maragh, Hansen, Centrella, and Centrella's interviewee thus differed somewhat from Beard's testimony. In addition, though Cassidy was not questioned a second time about whether he was positioned by the exit in case anyone should run, he noted that there was only one legitimate exit from the train station, that the squad had had people escape, that he walked towards the exit, and that he may have stood in front of the baggage area by the exit.⁵

In contrast to the testimony of Beard and Cassidy, Maragh testified to the following:⁶ On August 2, 1988, Maragh was a 20 year old student of Electrical Engineering in his third year at Brooklyn College. He was born in Jamaica. At the time of the search he had been in the United States for five years. When he was approached by Beard, he observed one of his companions being approached and questioned by Detective Centrella nearby. During the interview, his arm was held from behind by Hansen while Beard held the strap of his bag, which hung from his shoulder by a shoulder strap. When Beard asked if he could search the bag, Maragh believed that he could not refuse because Hansen was holding his arm and Beard was holding his bag. Maragh believed at that time that he was under arrest. He did not verbally assent to the search. Rather, when Beard asked to search Maragh let the bag fall off his shoulder and onto the ground. According to Maragh, he was about to unzip the bag when Beard asked if he (Beard) could search it. Maragh didn't say anything. Beard told him to step away from the bag. Maragh did so. Then Beard searched the bag and found cocaine base.

In light of the reputation, training, and experience of these officers in contrast with Maragh's obvious self-interest, I find that Maragh verbally or silently consented to the search and that neither Beard nor Hansen laid hands on Maragh's person until after Beard opened the bag and discovered the contraband. However, I also find that Hansen stood between five and fifteen feet behind Maragh during the interview and that Maragh knew that Hansen was there in support of Beard. No officer advised Maragh that he had a right to refuse to consent to or permit a search of his bag. It was more likely than not likely that Maragh, without knowing the technical definition of an arrest, considered himself to be under arrest in the lay sense that he believed himself to be under police control when Beard asked to, or commenced to, search the bag. Maragh was intimidated by Beard's show of his police...