US v. Walker

• Decision Date: 10 November 1992
• Docket Number: No. 92 Cr. 320 (MBM).,92 Cr. 320 (MBM).
• Citation: 805 F. Supp. 1112
• Parties: UNITED STATES of America v. Trevis WALKER, Defendant.
• Court: U.S. District Court — Southern District of New York

805 F. Supp. 1112

UNITED STATES of America v. Trevis WALKER, Defendant.

No. 92 Cr. 320 (MBM).

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

November 10, 1992.

Celeste L. Koeleveld, Asst. U.S. Atty., Southern District of New York, New York City, for U.S.

Inga L. Parsons, Federal Defender Services Unit, New York City, for defendant.

OPINION AND ORDER

MUKASEY, District Judge.

Defendant Trevis Walker has moved pursuant to Fed.R.Crim.P. 12(b) to suppress guns and ammunition seized from his luggage and statements he made on April 8, 1992 after he got off an Amtrak train at New York's Pennsylvania Station. He argues that the facts available to the Amtrak officers who made the seizure were insufficient to justify detaining him pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For the reasons set forth below, the motion is denied.

I.

The evidence developed at a suppression hearing showed that at about 10:15 on the morning of April 8, an Amtrak police desk sergeant received an anonymous call from a male adult "stating that a male adult was coming from the south on one of our trains that day and he was to be carrying automatic weapons." (Tr. 9)¹ That information was consistent with the experience of the Amtrak police, who were aware that guns often are transported to New York from Virginia. (Complaint ¶ 2; see Def. Mem. 2) The caller described the suspect as follows: "a male black adult, approximately five-eight to five-nine, he said very large male adult, huge and fat, something to that effect, he had short close-cropped hair, clean shaven," and approximately 25 years old. (Id.)

Sergeant Robert Collins of the Amtrak police received the report, wrote the description on a piece of paper, checked his schedule for the next train arriving from the south, and determined that train 88 would arrive at about 11:35 a.m. He distributed the description to three other officers and deployed them on the platform with instructions to raise a hand high in the air if any of them spotted a man fitting the description he had received. (Tr. 10-11) After the train arrived and passengers began to alight, one officer raised his hand and drew Collins' attention to "a very large male, black adult, very clean shaven and short hair and approximately it looked to me 24 to 25 years old," who stood "about five-ten." Collins identified the defendant as that person. (Tr. 12) The defendant stands 5'11" and weighs 470 pounds. (Tr. 49)

Collins and the other officers approached Walker. Collins asked Walker if he could talk to him away from the path of the passengers streaming toward the exits, and motioned to a nearby elevator bank. Walker was carrying two bags. Collins asked Walker whether he had just gotten off the train, and Walker said he had. The officer then asked Walker whether he was carrying any automatic weapons. When Walker said he was not, Collins showed him the piece of paper on which he had written the description received from the anonymous caller, told him that he matched the description and that the caller had said the person in question was carrying automatic weapons, and asked Walker whether he could pat him down. Walker agreed, and the pat-down disclosed nothing remarkable.

Collins then asked Walker for identification. When Walker produced "a New York State ID card," Collins handed it to one of the other officers. (Tr. 14) Collins then turned his attention to Walker's two bags, which were resting on the ground, and asked Walker whether they were his. When Walker replied that they were, Collins asked whether he could search them. Collins testified that Walker refused: "He said no. And he said, `Why are you harassing me?'" (Tr. 15)

In an affidavit submitted before the hearing, Collins reported that during his conversation with the defendant, "Walker became paler and began sweating profusely." (Collins Aff. ¶ 5) His testimony at the hearing was that the defendant "appeared to be sweating a little bit more than he had been and he seemed to be turning paler." (Tr. 15)

However, a report Collins filed on April 11, three days after the incident, made no mention of either perspiration or pallor. (GX 3500B)² Collins conceded at the hearing that he was trained to observe the demeanor of subjects during confrontations like the one at issue here; he was aware that demeanor — particularly such arguably damning stigmata as sweating and pallor — can be relied on to help justify a Terry stop. (Tr. 37, 44). Although he insisted that he could recall seeing Walker perspiring and turning pale, Collins could not explain why he had omitted that observation from his report. That report was four pages long, single-spaced. It included a detailed account of events on April 8, beginning with receipt of the tip and including more than a page about Collins' conversation with Walker; the report attributed both paraphrased and quoted statements to the defendant.

Collins told Walker that he intended to seize his bags and hold them at the Amtrak police command center until a dog trained to detect firearms and ammunition could be brought to sniff the bags. He said that if the dog reacted in a way that showed contraband was present, he would take steps to secure both a search warrant for the bags and an arrest warrant for Walker if the defendant had elected to leave before the procedure was complete. He said that if the dog did not detect contraband, and Walker was not present, he would arrange to have the bags delivered to the defendant's home. Walker lived in the Bronx. Collins estimated then that it would take less than two hours to secure a dog. (Tr. 15-16)

Walker elected to leave. As the officers and Walker were riding up the escalator from the platform, Collins asked how he intended to get home and the defendant responded that he would take a taxi. Collins then pointed to the exit at 31st Street and Eighth Avenue as the best location to get a taxi to the Bronx, and sent two officers with Walker, allegedly to "insure that he got in his taxi safely." (Tr. 33; see also Tr. 17-18)

When Collins returned to the command center he learned in a series of calls by telephone and two-way radio that the anonymous caller had called a second time and in addition to reiterating the earlier message had disclosed that he was calling from New York, that another officer had been told by an Assistant U.S. Attorney that the Amtrak police could have detained not only Walker's bags but also the defendant himself for up to an hour, and that Walker was on his way to the command center to talk to Collins. (Tr. 18-20)

Walker then entered the command center and told Collins that he did not think the sergeant had the right to search his bags. Collins responded that he had learned he had the right not only to seize the bags but also to detain Walker, and told the defendant to sit down. He then placed a call to Metro North, which had the necessary canine unit, and repeated aloud in the defendant's presence that he was being transferred to the canine unit. At that point, Walker said he would agree to permit his bags to be searched. (Tr. 20-23)

Collins then summoned two other officers, placed Walker's bags on the table, and asked again whether Walker was giving him permission to search the bags. When Walker said he was, the sergeant asked again whether he had automatic weapons in his luggage. Walker said he had a 9-millimeter weapon in the larger of the two bags. When Collins opened that bag he found two 9-millimeter pistols. His report discloses that he found also 102 rounds of 9-millimeter ammunition and 19 shotgun shells. At that point the officers placed Walker under arrest. (Tr. 23-24; GX 3500B p. 3) The elapsed time between the confrontation on the platform and Walker's arrest was about 20 minutes. (Tr. 24)

A search incident to Walker's arrest disclosed that he had a bill of sale for one of the weapons from a South Carolina gun dealer. Walker said he had used a South Carolina motor vehicle identification card, obtained two days before, to buy the weapon from the dealer, and that he had bought the other weapon on the street from a crack dealer. He said he had bought the weapons for his own protection and had thought that if he registered them in South Carolina under his own name it would not be unlawful to transport them to New York. (GX 3500B p. 4)

Walker submitted an affidavit but did not testify at the hearing. His averments about the conversation on the platform conformed generally to Collins', except that he denied sweating profusely or turning pale. (Walker Dec. ¶ 2) He said he returned to the command center after he noticed that officers were following him:

I approached the officers and asked them why they were following me if I was free to go. They told me to talk about it inside and come back down with them.

(Walker Dec. ¶ 3) He stated that he was told the officers "had probable cause to hold me there." (Id.) He said he agreed to the search only after he concluded from the conversation he overheard that the officers were having difficulty getting a dog to sniff his luggage "and it appeared that it was going to be a long time before they could get a dog if at all." (Id.)

II.

Walker makes two arguments. First, he argues that when he returned to the Amtrak command center and was told he was not free to leave, he was then in fact under arrest rather than merely detained pursuant to a Terry stop because he was in a police facility surrounded by all the indicia of authority and was not free to leave. That, in turn, would have required the arresting officers to have had probable cause rather than merely the reasonable suspicion needed to effect a Terry stop. That argument has little substance. Even on his own account, Walker returned voluntarily to the command center, albeit to protest what he thought was improper police conduct in following him. Walker chose the venue.

Further, Walker does not aver that he was told at any time before he...