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indicating that as long as bus aisle was not blocked by officers, that reasonable person would feel free to leave
Summary of this case from U.S. v. WheelerOpinion
No. C-CR-89-97.
November 14, 1989.
David Alan Graham, Asst. U.S. Atty., Charlotte, N.C., for U.S.
P. Kevin Carwile, Charlotte, N.C., for Flowers.
ORDER
THIS MATTER is before the Court on a Memorandum and Recommendation ("M R"), filed by United States Magistrate Paul B. Taylor on October 23, 1989. The M R is in response to Defendant's Motion to Suppress, filed on September 5, 1989. The Magistrate held a hearing on September 27, 1989 to consider this matter. On November 1, 1989, the Government filed an Objection to the M R but no objection was filed by Defendant.
This matter is properly before the Court pursuant to Title 28 United States Code, Section 636(b). That statute permits the Court to designate a magistrate to hear any pretrial motion. However, when the matter is a motion to suppress, the District Court is required to make a de novo determination of those portions of the M R to which objection is made. The Court may accept, reject or modify the findings or recommendations made by the magistrate.
In this case, the Court has carefully reviewed the entire record in this matter. The Court has reviewed the file, read the M R and the Government's Objection, examined transcripts from the hearing on this matter, as well as, the detention and probable cause hearing of July 28, 1989, reviewed the file from United States v. Patt Rembert, Jr., C-CR-88-40, and studied the applicable law. Based on that review, the Court concludes that the facts of this case are virtually identical to the facts of United States v. Rembert, 694 F. Supp. 163 (W.D.N.C. 1988).
The Court believes Rembert was a correct decision and is controlling law in this District. Thus, the Court will not overrule the Rembert decision and finds no factual basis to distinguish this matter from Rembert.
I. FINDINGS OF FACT
The Government does not argue that any of the Magistrate's Findings of Fact are erroneous. Rather, the Government asserts that the Magistrate omitted certain significant parts of uncontradicted testimony of several witnesses. The Court agrees with the Government and will highlight those portions of testimony that should be included in the Findings of Fact.The Court believes that the M R fails to clearly state that Officers Sennett and Gehrke in no way blocked the aisle of the bus, so as to impede Defendant's access to the exit from the bus. Both officers stood behind the Defendant when they first engaged him in conversation. While talking to Defendant, Officer Sennett stood over Defendant's left shoulder. See Transcript from Detention and Probable Cause Hearing of July 28, 1989, at 29 (hereinafter "Tr. # 1"). During the entire duration of the conversation, the aisle in front of Defendant was clear. See Tr. # 1 at 53 and 56. The Court finds that if Defendant had chosen at anytime to get up and exit the bus, the officer's position would not have impeded his access to the exit. See Transcript from the Motion to Suppress Hearing of September 27, 1989, at 13 and 114 (hereinafter "Tr. # 2").
The Court finds Officer Sennett's testimony persuasive that passengers on other buses exited the bus during prior narcotics investigations. See Tr. # 1 at 57. Moreover, the officers did not in any manner touch or intimidate Defendant. See Tr. # 2 at 9-12. Therefore, the Court concludes as a matter of fact that Defendant was not physically restrained from leaving the bus.
The Court also believes that the officers' actions did not coerce Defendant into answering the officers' questions through a display of authority. The officers spoke to Defendant in a friendly and casual tone of voice. See Tr. # 2 at 9. The officers wore casual clothes. Defendant stated in his own testimony that, "you really couldn't tell he [Officer Sennett] was a police officer." See Tr. # 2 at 85. The only piece of clothing indicating that the men were police officers was a jacket with police emblems. However, any possible coercive impact of the jacket is diminished by Defendant's testimony that he did not remember that the officers wore jackets.
COUNSEL'S QUESTION: Is it the other one [the officer] had the police jacket on, is that correct?
DEFENDANT'S ANSWER: One of them had — one of them didn't have it on.
QUESTION: Well, I'm saying — You said one of them didn't have it on and had it balled up. Did the other one have it on?
ANSWER: No.
See Tr. # 2 at 85-86.
The Court also finds as a matter of fact that Defendant abandoned his suitcase by failing to identify it when asked to do so by the officers.
It is the Court's opinion that the M R is grossly incorrect in finding that the officers' actions delayed the bus. Although the bus departed 15 minutes later than scheduled, the schedule did not provide an accurate estimation of the length of time needed at the Charlotte stop. Mr. Michael Crites, the Greyhound Transportation Manager, testified that it was rare for the bus to leave within 15 minutes. See Tr. # 2 at 51. The normal rest period in Charlotte is thirty minutes and a request has been made that the schedule be adjusted to reflect a thirty minute layover. Because the bus left within 30 minutes, the Court finds as a matter of fact that any delay in the bus leaving Charlotte is attributable to the bus company and not the officers' actions. See Tr. # 2 at 59-60 (terminal manager gave officers permission to enter bus and he did not recall officers delayed bus).
In conclusion, the Court finds that the officers did not block the aisle and Defendant's access to the exit. Nor did the officers physically force or intimidate Defendant through a display of authority to answer their questions. Defendant was free and able to leave the bus if he had chosen not to talk with the officers. Moreover, the officers did not delay the bus through their actions. The bus left after the normal thirty-minute layover.
II. CONCLUSIONS OF LAW
The Court believes that this case is remarkably similar to the Rembert case. Just as the defendant in the Rembert case, Defendant Flowers was a passenger on a bus. Narcotics officers asked passengers brief questions. Both Defendants consented to answer the officers' questions. Both Defendants failed to identify luggage and thus abandoned it. The luggage was seized by officers and contained incriminating evidence leading to both Defendants' arrest.
In this case, the Magistrate attempted to distinguish Rembert by finding that the officers delayed the bus. According to the Magistrate, this delay amounted to an unlawful Terry stop. The Court has already found as a matter of fact that the officers' actions did not delay the bus.
Even if the bus was delayed for several minutes, the Court does not believe Rembert leads to the conclusion that an unlawful Terry stop occurred. In Rembert, the Court rejected the Magistrate's position that a delay in the bus leaving was of special importance. See Rembert, 694 F. Supp. at 175. The key factor in determining whether the Defendant's Fourth Amendment rights were violated in Rembert and this case is whether the defendants were "free to leave" the bus. See INS v. Delgado, 466 U.S. 210, 216-17, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984); United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); United States v. Whitehead, 849 F.2d 849, 853 (4th Cir. 1988).
The Court concludes that this case is on all fours with the undersigned's previous holding in Rembert. Furthermore, the Court finds support in its position from a recent Eleventh Circuit case. See United States v. Hammock, 860 F.2d 390 (11th Cir. 1988). The court in that case found no Fourth Amendment violation where police officers entered a bus and asked the defendant several questions. When the defendant failed to identify luggage, the officers seized it and found cocaine. The court held that the defendant's path to the exit was not obstructed nor did the police act in a threatening manner. Thus, a reasonable person would have felt free to leave the bus. Id. at 393; see also United States v. Carrasquillo, 877 F.2d 73, 76 (D.C. Cir. 1989) (holding that it was reasonable for officers to approach defendant on train and ask him questions because defendant was free to leave the train or refuse to answer questions); State v. Turner, 94 N.C. App. 584, 380 S.E.2d 619 (N.C.Ct.App. 1989) (upholding legality of search and seizure on bus). This Court agrees with the Eleventh Circuit's analysis and will decline to adopt the Magistrate's recommendation to over-rule Rembert or distinguish this case from Rembert. The Court is simply unable to find that a reasonable person in Defendant's situation would not feel free to leave a bus when the aisle is clear and the officers ask questions in a non-threatening manner.
III. CONCLUSION
For the reasons stated herein, as well as those cited in the Order entered in United States v. Rembert, supra, the Court concludes that Defendant's Fourth Amendment rights were not violated. The Court affirms its earlier holding in Rembert and incorporates that decision in this matter.
NOW, THEREFORE, IT IS ORDERED that the Magistrate's M R, filed October 23, 1989, is REVERSED and REJECTED.
IT IS FURTHER ORDERED that Defendant's Motion to Suppress, filed September 5, 1989, is DENIED.