US v. St. Kitts, CR-90-52E.

• Decision Date: 23 August 1990
• Docket Number: No. CR-90-52E.,CR-90-52E.
• Parties: The UNITED STATES of America v. Gavin R. ST. KITTS.
• Court: U.S. District Court — Western District of New York

742 F. Supp. 1218

The UNITED STATES of America v. Gavin R. ST. KITTS.

No. CR-90-52E.

United States District Court, W.D. New York.

August 23, 1990.

Asst. U.S. Atty., Thomas S. Duszkiewicz Buffalo, N.Y., for government.

Robert J. Riordan, Kenmore, N.Y., for defendant.

MEMORANDUM and ORDER

ELFVIN, District Judge.

This is one of several recent federal prosecutions in this Court involving a motion to suppress evidence recovered during an ongoing interdiction operation by the federal Drug Enforcement Administration ("DEA") at the interstate bus terminal in downtown Buffalo, N.Y.¹See also United States v. Murguia-Rodriguez, unpublished opinion, CR-89-219A (W.D.N.Y. July 11, 1990) (motion denied); U.S. v. Montilla, 733 F.Supp. 579 (motion granted), reconsideration denied, 739 F.Supp. 143 (W.D.N.Y. 1990), appeal pending, No. 90-1446 (2d Cir.); United States v. Ramos, unpublished opinion, CR-89-166A (W.D.N.Y. April 23, 1990) (motion granted); United States v. Anderson, unpublished opinion, CR-89-210E (W.D.N.Y. April 6, 1990) (plea taken prior to resolution of the motion).²

The abovenamed individual ("the defendant") is charged in a one-count Indictment with unlawful possession of cocaine with the intent to distribute the same — see 21 U.S.C. § 841(a)(1) — and has presently challenged the lawfulness of his encounter with federal agents at the bus terminal. A suppression hearing was held June 18, 1990, at which testimony was received from DEA Special Agent Bruce R. Johnson and Senior Border Patrol Agent Daniel F. Allman of the Immigration and Naturalization Service ("INS"). The defendant did not testify. Argument on the motion was heard the same day and the matter was taken under advisement July 13, 1990, upon receipt of all submissions by counsel needed to decide the motion.³

According to Johnson's and Allman's testimony at the hearing,⁴ on the morning of March 21, 1990 they were in the bus terminal awaiting the arrival of the daily Greyhound morning express bus from New York City. Both agents were plainclothed. They saw the defendant disembark from the bus carrying a gray shoulder bag, retrieve a blue nylon bag from under the bus and then head for the Greyhound ticket counter. Johnson testified that the defendant was looking around "nervously" during this time but not enough to excite his interest. Allman was near the ticket counter and listened to detect if two "Hispanic-looking" individuals in line behind the defendant spoke with an accent. While so positioned, Allman heard the defendant speak to the ticket agent with what Allman regarded to be a West Indies accent.

After the defendant had left the ticket counter, Allman followed him for a short distance inside the terminal, displayed his identification, asked if he could pose some questions and, the defendant having stopped and agreed, asked him about his citizenship. The defendant said that he was a citizen of Guyana and was in this country on business. He said he had no passport or immigration document on his person, however, so Allman requested that the defendant accompany him to an office in the terminal to verify his immigration status. Johnson went along to the office as well. At this point, Allman acknowledged that, although the defendant was not "under arrest" and had not been told that he was being detained, he was nevertheless not free to leave. Both agents noticed that the defendant had become increasingly nervous and that he had made clicking noises when he spoke.

Inside the office, Johnson identified himself to the defendant and asked if he could search his two bags. The defendant replied "OK." Johnson unzipped the blue bag and, while rummaging through it, Allman again asked for any immigration papers the defendant might have. The defendant replied that he had a letter concerning a drug arrest in New York City in 1987. He produced an envelope from one of the bags, the contents of which envelope included an immigration document permitting him to remain in the United States through November 27, 1987. The defendant admitted to Allman that he had never obtained any extension of the departure date. Allman placed a telephone call to Border Patrol officials and received a response which, he said, confirmed the defendant's illegal immigration status and his prior arrest (for marijuana possession at the John F. Kennedy International Airport in October 1987). Allman then arrested the defendant, but did not read him his socalled "Miranda rights"⁵ at such point, however.

Johnson's search of the bags continued in the meantime. Ultimately, in a concealed compartment within the gray shoulder bag, he discovered two bags containing a white powder which he suspected was cocaine. Without field-testing the powder, Johnson also placed the defendant under arrest. Allman then informed the defendant of his rights, which he read from a prepared card. See Government Exhibit 1 (copy of card).⁶ The defendant responded that he understood these rights. There is no indication from the agents' testimony that he had expressly waived such rights, however.

Subsequently, Johnson performed a field test of the powder and received a positive indication for cocaine. The defendant was then transported to the federal courthouse and, enroute, told the agents that he had been given the shoulder bag by an unidentified person in New York City for delivery to another unidentified person in Cincinnati.⁷ He admitted, however, that the clothes in the bag were his.

In evaluating the constitutionality of the defendant's encounter with agents Allman and Johnson, the first question to be addressed concerns the point in time at which the defendant was first detained and, thereby, at which the Fourth Amendment first became implicated. A "seizure" of a person within the contemplation of the Constitution may occur (even in the absence of an arrest) upon his simply being questioned by law enforcement agents, but "`only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.'" Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting from United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart J., plurality opinion, joined in pertinent part only by Rehnquist J.)); see also INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (White, J., plurality opinion); e.g., U.S. v. Winston, 892 F.2d 112, 115-117 (D.C.Cir. 1989).⁸ Here, it is manifest (and Allman conceded at the hearing) that, once the defendant had been asked to accompany Allman to the office inside the terminal for purposes of verifying the defendant's immigration status, the defendant was at the point not free to leave and was therefore detained or "seized" within the meaning of the Fourth Amendment. What is less clear is whether a reasonable person in the defendant's place would have felt unfree to disregard Allman's inquiries even before such time.

In view of all of the circumstances, this Court concludes that a reasonable person would have felt that he might freely disregard and walk away from Allman's initial request to question him. "`The presence of an officer as a figure of governmental authority does not, by itself, constitute the "show of authority" necessary to make a reasonable person feel unfree to leave.'" U.S. v. Winston, supra, at 116 (quoting from Gomez v. Turner, 672 F.2d 134, 142 (D.C.Cir.1982)). And there is nothing in this case aside from Allman's display of his credentials to the defendant which would suggest that there was a coercive environment at the very outset of their encounter.⁹

Inasmuch as this Court finds that the Fourth Amendment had not been implicated before the point of Allman's requesting the defendant to accompany him to the office to verify his immigration status, at which point the defendant was "seized," the constitutional sufficiency of Allman's suspicions regarding the defendant must therefore be evaluated only as of such moment. It is evident that Allman had at that point in time sufficient suspicion to detain the defendant. A brief investigatory detention of an individual is constitutionally permissible "if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'" U.S. v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); see also INS v. Delgado, supra (upholding "factory surveys" in search of illegal aliens based upon a reasonable individualized suspicion); United States v. Brignoni-Ponce, 422 U.S. 873, 874, 95 S.Ct. 2574, 2577, 45 L.Ed.2d 607 (1975) (allowing roving patrol stops of vehicles reasonably suspected of harboring illegal aliens). Here, Allman admitted on cross-examination that the only factor which had initially prompted him to single out the defendant for questioning was that the defendant had spoken with what he considered to be a West Indies accent. Such does not "`raise the complex of conduct to a level justifying reasonable suspicion of criminal activity.'" See United States v. Buenaventura-Ariza, 615 F.2d 29, 36 & fn. 11 (2d Cir.1980). Yet, by incorporating additional factors which later became known to Allman, after he had begun questioning the defendant but before he had requested that he accompany him to the office, the result differs.¹⁰ Allman learned from the instant defendant that he was a citizen of another country and that he was without documentation of current valid immigration status. This was enough to justify a reasonable suspicion on Allman's part that the defendant was in this country illegally. Such sufficed for seizure or detention and, once this suspicion had been confirmed by Allman's telephone call, he had probable cause to arrest the defendant.

Finally, it is plain that both the defendant's consent to a search of his...