Full opinion text
MEMORANDUM OPINION AND ORDER PARKER, District Judge. Trains: Icons of American folklore; venerated objects of our nation’s songs. One of them, Amtrak Train No. 4, the august “Southwest Chief”, which has been traveling the rails through Albuquerque since 1939, provided the stories that unfolded in these seven criminal cases. The defendant in each case arrived in Albuquerque, New Mexico aboard the Southwest Chief possessing contraband, which he now asks be suppressed as evidence in his case. Disposition of the motions to suppress is controlled by the recent opinions of the United States Court of Appeals for the Tenth Circuit in United States v. Hall, 978 F.2d 616 (10th Cir.1992), United States v. Bloom, 975 F.2d 1447 (10th Cir.1992), and United States v. Ward, 961 F.2d 1526 (10th Cir.1992), each of which also involved a defendant who chose the Southwest Chief as a means to cross the country. A synthesis of Ward, Bloom, and Hall dictates that in each of these seven cases the evidence seized must be suppressed. 1. INTRODUCTION These cases all arise as a result of the routine practice of the Drug Enforcement Administration (DEA) Albuquerque Metro Narcotics Task Force. In efforts to reduce the flow of narcotics from west to east, law enforcement officers routinely accost and question passengers traveling on Amtrak Train No. 4 when it makes its regular station stop in Albuquerque, New Mexico. In most cases the agents choose which passengers to question by reviewing the manifest for Train No. 4 prior to its arrival in Albuquerque. An agent can, and often does, request a printout of an individual reservation when a particular name on the manifest piques the agent’s interest. Alternatively, an agent sometimes receives a “tip” from an Amtrak employee suggesting that a certain passenger might be worth “checking out.” The evidence in the cases before me showed that solo travel, cash payment, the purchase of a one-way ticket, the purchase of the ticket one or two days before departure, and the use of a sleeper roomette, were factors used by individual agents, as well as the train employees in determining which passengers would be questioned. The root issue of all the suppression motions is whether the encounters which occurred between defendants and the law enforcement agents on or around Amtrak Train No. 4 were consensual encounters or investigative detentions. If a particular encounter was an investigative detention, then the agent involved must have had reasonable suspicion of criminal activity at the time of the seizure to constitutionally detain the defendant. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). Absent reasonable suspicion for an investigative detention, I must suppress any items seized as a result of the detention. Wong Sun v. United States, 371 U.S. 471, 484-488, 83 S.Ct. 407, 415-418, 9 L.Ed.2d 441 (1963). While I find in each case before me that the defendant’s Fourth Amendment rights were violated because he was subjected to an investigative detention unsupported by reasonable suspicion, in several cases, my inquiry cannot end there. In some cases the defendant allegedly consented to a detention and/or search of his luggage which contained contraband. The law is clear that luggage may be detained or searched if the detention or search is conducted pursuant to a voluntary consent. United States v. Guglielmo, 834 F.2d 866, 868 (10th Cir.1987), citing to Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In making a determination of the voluntary nature of consent the Tenth Circuit employs a two part test: 1. there must be clear and positive testimony that the consent was unequivocable and specific and freely given; and, 2. the government must prove the consent was given without duress or coercion. Guglielmo, 834 F.2d at 868; United States v. Price, 925 F.2d 1268 (10th Cir.1991) (eliminating the presumption against waiver of fundamental constitutional rights in the context of consent to search cases). The voluntariness of the consent is a factual determination to be made from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Where a Fourth Amendment violation has occurred prior to the defendant purportedly giving consent, I must also decide whether that consent was “sufficiently an act of free will to purge the primary taint of the [Fourth Amendment violation].” United States v. Maez, 872 F.2d 1444, 1453 (10th Cir.1989). “When attempting to establish that there was voluntary consent after an illegal stop ... the Government has a heavier burden to carry than when the consent is given after a permissible stop.” United States v. Recalde, 761 F.2d 1448, 1457 (10th Cir.1985) (citations omitted). I must consider the “[t]emporal proximity of the arrest and the [consent], the presence of intervening circumstances, and, particularly, the purpose and the flagrancy of the official misconduct....” Maez, 872 F.2d at 1454, quoting Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 2261-2262, 45 L.Ed.2d 416 (1975). If there is no break in the causal connection between the initial Fourth Amendment illegality and the consent, any evidence seized as a result of the consent must be suppressed as tainted fruit of the poisonous tree. Maez, 872 F.2d at 1453— 1454; Brown, 422 U.S. at 601, 95 S.Ct. at 2260. II. SEIZURE OR CONSENSUAL ENCOUNTER In Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) the Supreme Court clarified the standard to be used in determining whether an encounter between a law enforcement officer and a citizen amounts to an investigative detention where factors other than the officer’s presence would have made the defendant not feel free to leave. In such a case the Court directed that the “crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” Bostick, — U.S. at -, 111 S.Ct. at 2387, quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988); see also Ward, 961 F.2d at 1530. In Ward, the Tenth Circuit concluded that an encounter between two law enforcement officers and a person in the confines of his private train compartment constituted an investigative detention when an officer asked incriminating questions and failed to advise the person of his right to terminate the encounter. Under the factual circumstances presented in Ward the Tenth Circuit concluded that defendant was seized “during the initial encounter in the train roomette, specifically at the time when, without informing defendant of his right to terminate the encounter, the detective first began to ask defendant potentially incriminating questions.” Ward, 961 F.2d at 1534. In Bloom, faced with a factual situation almost identical to that in Ward, the court confirmed, clarified and extended its earlier holding. The Bloom court implied that, in the absence of an advice of rights, an encounter between police and a lone individual in a private train compartment almost per se amounts to an investigative detention for which reasonable suspicion must be present. In Bloom, unlike in Ward, the officers did not enter the defendant's compartment but remained standing in the doorway. Moreover, for most of the encounter there was only one, not two officers present. However, the Bloom court still found that because of the nonpublic nature of the compartment and the surrounding area “the agents’ conduct would likely communicate to a reasonable person that he was unable to decline the agents’ request or otherwise terminate the encounter.” Bloom, 975 F.2d at 1453. Additionally, as in Ward, the nature of the questioning was “focused” and “potentially incriminating.” Finally, neither agent ever indicated to defendant that he was free to ignore their presence or terminate the encounter. In Bloom the Tenth Circuit ruled that the seizure occurred precisely “when Agents Small and Ochoa questioned defendant about whether he was transporting narcotics while he was confined in a private train compartment without advising him that he was free to decline the agents’ request or terminate the encounter.” Bloom, 975 F.2d at 1455-1456. Applying the test outlined by the Supreme Court in Bostick for determining whether a seizure had occurred, the three-judge panel which decided Ward emphasized the following factors, among the totality of circumstances, as establishing a seizure for purposes of the Fourth Amendment: 1. The physical circumstances of the place of the encounter. The encounter occurred in a confined area in a nonpublic setting. The defendant’s roomette was a small private compartment with a narrow doorway that opened into a narrow aisle. Ward, 961 F.2d at 1530-1531. 2. Aloneness during encounter. While being questioned, the defendant was alone except for the officers. “A reasonable innocent person who is alone when approached by law enforcement officers is more likely to feel that he or she was the specific object of the officers’ inquiry.” Id. at 1532. 3. A roomette traveler has a higher expectation of privacy. The panel of the Tenth Circuit which decided Ward noted that “an individual traveling in a private train roomette has a higher expectation of privacy than an individual traveling in a public passenger car of the train.” Id. at 1531-32. However, in Bloom, a different panel of the Tenth Circuit stated that the higher expectation of privacy of a roomette traveler “has limited relevance to the question of whether a reasonable person would believe that he or she is unable to terminate the encounter” although “it would have some relevance if we were reviewing a search of the compartment.” Bloom, 975 F.2d at 1453, n. 6. Since some of the cases I am considering in this opinion involve searches within a roomette, in those cases I will assign this factor some relevance, but I will consider this factor to have limited relevance, without ignoring it completely, in the other cases where the search occurred outside the roomette. 4. Nature of questions. In Ward, the Tenth Circuit stated that a person’s feeling that he or she was the specific object of an officer’s inquiry “would be heightened when the officers make not just general inquiries, but ask focused, potentially incriminating questions.” Ward, 961 F.2d at 1532. Although the court in Ward was not specific as to what would constitute “focused, potentially incriminating questions”, the court in Bloom made it clear that this definitely occurs when an officer asks a person whether he or she is carrying drugs after informing the person that the officer was on the train to interdict drug traffickers. Bloom, 975 F.2d at 1454-1456. 5. Manner of Questioning. The court in Ward commented on the officer’s “blunt” and “direct” manner of questioning. The opinions in both Ward and Bloom cite United States v. Savage, 889 F.2d 1113, 1115, 1117 (D.C.Cir.1989) regarding the “direct and probably forceful” character of the questioning. Ward, 961 F.2d at 1533; Bloom, 975 F.2d at 1454. 6. Failure to advise that the defendant had the right to decline the officers’ request or terminate the encounter. In Ward, the court expressed the view that “the officers’ failure to advise defendant of his right to terminate the encounter should be given even greater weight” when the encounter is in a “confined, non-public area.” Ward, 961 F.2d at 1533. In Bloom, the court seemed to broaden the scope of advice that might be necessary to avoid seizure by stating, “the officers never advised the defendant that he was free to decline their requests or otherwise terminate the encounter”, instead of referring simply to “the right to terminate the encounter” discussed in Ward. Bloom, 975 F.2d at 1454. 7. Number and attire of officers. In Ward, the court stated that “the presence of more than one officer increases the coerciveness of an encounter.” Ward, 961 F.2d at 1533. In Bloom, the court reiterated the significance of a defendant knowing that he was outnumbered by law enforcement officers. Although the officers in Ward were not in uniform or visibly armed, the court instructed that courts in the Tenth Circuit must assume that a reasonable person would believe a police officer is armed regardless of whether a weapon is visible. Ward, 961 F.2d at 1526, n. 6. Bloom teaches that if an officer is in uniform and visibly armed the coercive effect is greatly enhanced. Bloom, 975 F.2d at 1454. 8. Personal traits of defendant. The Ward opinion discussed the defendant’s small stature and the fact that he recently had undergone surgery for which he was still taking medication. The court cited United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir.1985) for the proposition that personal traits are relevant to whether a person would feel free to terminate an encounter and stated that “defendant’s slight physique and health problems would tend to suggest that defendant was more easily intimidated than some other persons; the personal traits of an individual are relevant to the issue of coercion.” Ward, 961 F.2d at 1533. However, the panel which decided Bloom stated that “whether a person has been seized is a legal question governed by the ‘reasonable person’ standard which by definition precludes consideration of the defendant’s subjective characteristics and perceptions.” Bloom, 975 F.2d at 1455, n. 9. In Bostick and California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) the Supreme Court announced in rather lucid language that an objective “reasonable person” test is to be applied in determining whether a seizure has occurred under the Fourth Amendment. Bostick, — U.S. at - - -, 111 S.Ct. at 2387-2388; Hodari, — U.S. at -, 111 S.Ct. at 1551 (objective test for determining whether a person is “seized” asks “not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person”). Consequently, the panel which decided Bloom read Ward restrictively, stating that personal traits are not “relevant in applying Bostick’s reasonable person test, other than to the extent they may have been known to the officer and influenced his conduct.” Bloom, 975 F.2d at 1455, n. 9. Nevertheless, the panel in Ward, which issued its opinion a year after Bostick and Hodari, indicated quite clearly that personal traits of a defendant are relevant in deciding whether the defendant would feel unable to terminate an encounter with law enforcement officers. Moreover, the Ward opinion specifically states that the appeal in that case “tests the limits of Bostick.” Ward, 961 F.2d at 1528. Under these circumstances, being uncertain as to how the issue ultimately will be resolved, I will (1) make factual findings regarding personal traits of the defendants in the cases before me so those factual determinations will be available to whichever panel or panels may revisit the issue on appeal, but I will (2) apply an objective “reasonable person” test in determining whether and when a seizure has occurred, since that is my understanding of the messages of Bostick and Hodari; and I will therefore attribute no significance to a defendant’s personal traits that I find to be established by the evidence unless they were known to and influenced the conduct of the law enforcement officer., III. REASONABLE SUSPICION The Ward and Bloom decisions also provide guidance concerning factors .which may form a basis for reasonable suspicion. In Ward the court held that the following factors, known to the agents at the point of seizure, were insufficient, in sum, to establish reasonable suspicion because they were consistent with innocent travel: (1) defendant’s real name was different from the name on his ticket; (2) defendant had paid $600.00 cash which he pulled out of his boot for a one-way ticket from Flagstaff, Arizona to Kansas City, Missouri; (3) defendant had reserved the largest private roomette which accommodated six people even though he was traveling alone; (4) defendant left a call back number with a Tucson, instead of a Flagstaff, prefix when the reservation was made; and (5) Tucson was known as a drug origination point and Flagstaff as a connecting point. In Bloom, prior to seizing defendant the agents knew that (1) defendant was traveling alone in a private train compartment; (2) he had paid $679 cash for a one-way ticket from Flagstaff, Arizona to New York City; (3) he purchased the ticket shortly before departure; (4) he kept his luggage, which was a type commonly used by drug-traffickers, in his private compartment; (5) he had asked a train attendant why the DEA agents were on the train; (6) he appeared to be “very nervous” and “somewhat excited”; and (7) Arizona is an origination point for marijuana, and New York City is a major distribution point. The Bloom court found that certain of these factors were “wholly consistent with innocent travel” and other factors were “not inconsistent with innocent travel.” Bloom, 975 F.2d at 1457-1458. In addition, the court noted that defendant’s nervousness and excitement were not a proper basis for reasonable suspicion because they involved a “subjective evaluation” of the defendant’s behavior and not the requisite objective facts necessary to support reasonable suspicion. United States v. Hall, 978 F.2d 616 (10th Cir.1992) also bears on this issue. Although Hall involved the seizure of luggage and not the seizure of a person, the Hall court made clear that “[t]he same degree or quantum of reasonable suspicion is required to detain a person as is required to detain a person’s luggage” and that “in determining whether an officer has reasonable suspicion to detain a traveler and his luggage ... this court applies] the same test.” Hall, 978 F.2d at 620-621. Moreover, Hall is important because it provides the Tenth Circuit’s most recent refinement of the definition of reasonable suspicion raised by Ward and Bloom. In Hall prior to seizing defendant’s luggage the agents were aware of the following facts: (1) defendant boarded the train in Flagstaff even though she was from Reno, Nevada; (2) defendant was traveling to Harrisburg, Pennsylvania; (3) defendant was traveling alone in a private compartment; (4) defendant paid cash for a one-way ticket; (5) defendant left a call-back number of a California travel agency; (6) defendant was traveling with heavy suitcases; and (7) defendant appeared to be nervous. As in Ward and Bloom, the court found that “these factors [were] entirely consistent with innocent travel and therefore raise only a minimum degree of suspicion.” Hall, 978 F.2d at 621. The court’s finding that the factors indicative of “innocent travel” “raise only a minimal degree of suspicion” confirmed the almost minuscule weight to be accorded these indicia of “innocent travel” as set forth in Bloom; “while factors consistent with innocent travel can, when taken together rise to reasonable suspicion, the degree of suspicion that attached to these particular factors is minimal.” Bloom, 975 F.2d at 1458, citing to United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 1586-1587, 104 L.Ed.2d 1 (1989). Ward gives some indication of what, in the context presented by the cases before me, may be sufficient to constitute reasonable suspicion. In Ward, the Tenth Circuit found that once the agents discovered evidence unequivocally indicating that defendant was lying as to significant matters, reasonable suspicion existed. Ward, 961 F.2d at 1530. During questioning, the defendant in Ward had explained the discrepancy between the name on his ticket and the name on his picture ID by informing the agents that a friend had made the reservation for him in the friend’s name. In response to a direct question the defendant had also stated that his only luggage was his shoulder bag. Sometime after receiving this information, Agent Small left defendant’s roomette and independently confirmed that both of these statements were untrue. However, because the agents did not have this information prior to seizing defendant, it could not be used to establish the reasonable suspicion necessary to validate defendant’s seizure. Ward, 961 F.2d at 1530. IV. THE SEVEN CASES With the above law in mind I now turn to the facts in each of these seven cases, as I find them to be from the evidence presented for my consideration. United States of America v. Martin Kelly Miller, Cr. No. 90-261 JP On June 6, 1990, Amtrak Train No. 4 eastbound from Los Angeles arrived late in Albuquerque. DEA Agent Kevin Small, who is a lawyer and an experienced narcotics task force officer (by then he had been involved in approximately 130 seizures of contraband from Amtrak trains) was working the drug interdiction program at the Albuquerque train station that day. Small did not have a train manifest, but he spoke to two senior train attendants who in Small’s experience had been very reliable in giving tips about passengers traveling with drugs. They told Small that a passenger named Mark Kelly had extremely heavy luggage, including a very heavy footlocker, and that Kelly had told them he was taking books to his brother who lived in Chicago. The train attendants also advised Small that they did not believe Kelly’s story and they showed Small Kelly’s footlocker which was on the lower level in the common luggage area. In addition, the attendants told Small that Kelly was in roomette A of car 431, the last roomette on the last car of the train. Roomette A is a deluxe sleeper roomette which is 5 feet 8 inches wide and 7 feet 2 inches long. The deluxe roomette sleeps 2 people and has a private sink, toilet and shower. The adjoining hallway and the entrance from the hallway into the roomette are approximately 26 inches wide. All of the roomettes on car 431 are private roomettes similar to roomette A; there are no public seating areas on that car. In his experience, Small had observed a certain pattern of drug runners which caused him to focus on (1) eastbound travelers on Train No. 4 going from Los Angeles to Chicago (because Los Angeles was the leading source city in the United States for drugs and Chicago was a large drug distribution point), (2) passengers who traveled in sleeper cars (because they could keep their suitcases there without being exposed to dog sniffs or the possibility of someone “ripping them off”), (3) passengers who traveled alone (because drug couriers strive for privacy to keep their conduct secret), (4) travelers who purchased tickets shortly before departure (because in the drug trade there are tight delivery deadlines and couriers do not want to be in possession of the contraband for long periods of time), (5) people who pay cash for their tickets (because cash purchasers leave no paper trails that can be traced), (6) passengers who buy one-way tickets, (7) passengers who leave false or no call-back numbers and (8) people traveling under aliases. In Small’s experience, a majority of these factors was present in each of the cases in which he had seized drugs being transported on Train No. 4 by couriers. To Small it was like piecing together the parts of a jig-saw puzzle. When Small approached roomette A, he could see through the open curtain on the door that defendant was seated alone in the roomette. Small was in plainclothes and carried a gun concealed in a fannypack. He displayed his badge through the door window and asked defendant “May I talk to you?” Defendant unlocked the door and motioned for Small to enter the roomette. Once the door was opened, Small identified himself as a police officer and again asked if he could speak to defendant. Defendant agreed and asked Small to sit. However, Small at all times remained standing peering down on defendant, who remained seated, through the ensuing conversation. The testimony of Small and of defendant differed as to where Small stood in the roomette and whether the door were closed. Small testified that he stood by the sink and the door remained opened. Defendant testified that Small closed the door and stood with his back to the door. Under either scenario, the questioning that followed took place when defendant was alone in a small roomette with a police officer who asked direct, pointed questions that focused on defendant’s activities without any other persons in close proximity. At no time did Small advise defendant that he did not have to talk to Small, that he could terminate their meeting or that he did not have to consent to a search of his luggage. Defendant is 5 feet 10 inches tall and weighed 165 pounds; Small, alas, is smaller. In response to Small’s questions, defendant related that he had boarded in San Bernardino, California and was headed to Chicago to go fishing. Small believed the San Bernardino origin to be suspicious because in his experience San Bernardino was an origination point for marijuana, in particular. He believed the fishing story to be fishy because Small knew Kelly had previously told the train attendants he was taking books to his brother in Chicago. Next, Small asked to see defendant’s ticket and identification. Defendant provided a ticket issued to a “Martin Kelly” and a California driver’s license issued to a “Martin Kelly Miller.” Defendant explained that the difference resulted from an Amtrak employee’s error when issuing the ticket. (At this moment, Small did not know what name was on the footlocker in the common luggage area which the attendants had stated belonged to defendant.) At this point in the conversation Small told defendant that he worked a drug interdiction program and was looking for people carrying drugs on Amtrak. Small’s next question was whether defendant was carrying drugs to which defendant responded that he was not. After the focused question about whether defendant was carrying drugs, Small asked defendant what luggage he had. Defendant responded that the large bag and the American Tourister suitcase with him in the roomette were his only luggage. Defendant then declined Small’s request to search the two pieces of luggage in his room and Small left the roomette. In his testimony Small admitted that, based on what he had developed by this time, he had insufficient information to detain defendant. After leaving defendant’s roomette, Small went to the common luggage area to examine the footlocker and discovered it had a name tag reading “Martin Kelly.” This was significant to Small because defendant had just laid out a story that the only reason his ticket was issued in the name “Martin Kelly” instead of “Martin Kelly Miller” was because of an Amtrak employee’s mistake. Another suspicious feature of the footlocker was the San Diego address on it since Kelly’s driver’s license listed a Santa Cruz, California address. Hence, by this time, Small was aware that Kelly had not claimed the footlocker as a part of his luggage and Small was aware of two different names and addresses for defendant. Small remained on the train as it headed for the next stop, Lamy, New Mexico. While still on the train, Small contacted the Amtrak ticket office in Albuquerque, New Mexico and learned that defendant had made his reservation on May 29, 1990 and had purchased his ticket on May 30, 1990 with cash, the day before departure. Small had no further contact with defendant until the train was about 20 miles away from Lamy, at which time Small went back to defendant’s roomette, knocked on the door, showed his badge, identified himself as a police officer and again asked to talk to defendant. Both Small and defendant testified that, although Small entered and was alone with defendant in the roomette, this time the door to the roomette remained opened. Small began to interrogate defendant further. While questioning defendant, Small picked up and shook a box which had been located on the upper berth in the roomette and heard what sounded like a scale inside. When Small mentioned the footlocker and what he had seen on it to defendant, he observed that defendant exhibited an excited reaction. Small thereupon informed defendant, at 6:11 p.m., that Small was going to take defendant’s luggage and footlocker to be sniffed by a trained narcotics detecting dog. With the assistance of the train attendant, Small seized the luggage and box in defendant’s roomette and the footlocker when the train stopped in Lamy at 6:25 p.m. Small then drove the luggage, box and footlocker to the state penitentiary where a canine handler placed the luggage and footlocker in a kennel with three trained drug sniffing dogs, two of which alerted to contraband. Subsequently, Small drove to Albuquerque, New Mexico and obtained a federal search warrant after which he opened the luggage, footlocker and box at approximately 11:30 p.m. He discovered 86.1 pounds of marijuana in the footlocker and a scale in the box. Defendant worked as a traveling salesman. Defendant testified that he had been arrested previously but that no one had advised him of his constitutional rights in connection with that arrest. Further, defendant testified that when Small first came to his roomette and began to question him, defendant was under the impression that he could not leave and that he was not free to decline to answer Small’s questions. Defendant was beaten by a police officer when he was 16 years of age and he fears police officers. Defendant believed that Small would not leave unless and until defendant answered Small’s questions. The second time Small came to defendant’s roomette, defendant was terrified, especially since Small’s demeanor had changed and he was much more aggressive. In view of the foregoing facts, I conclude that Small seized the defendant without reasonable suspicion when Small first approached defendant in roomette A and asked him potentially incriminating questions. Under Ward, the seizure probably occurred as soon as Small inquired about defendant’s point of origin and destination. As of that time, Small possessed the following information about defendant: 1. Reliable informants, senior train attendants, had told Small that in their opinion, the defendant was suspicious and not credible. 2. Defendant was traveling alone in a small roomette. 3. Defendant was eastbound from a narcotics source area headed for Chicago, a major drug distribution city. 4. The train attendants had informed Small that defendant had a very heavy footlocker located in the common luggage area and extremely heavy luggage and defendant said he was taking books to his brother in Chicago. Based on the discussions in Ward, Bloom, and Hall about these factors being attributes of innocent travelers, they do not add up to reasonable suspicion of criminal activity as of the point Small began his focused questioning of defendant. At the very latest, under the ruling in Bloom, Small seized defendant at the point when he told defendant he worked the drug interdiction program, looked for people traveling with drugs, and asked defendant if defendant was carrying any drugs. By this time, the only information Small had assembled in addition to that set forth above, was: 5. Defendant had boarded in San Bernardino, California which Small knew to be a major source city for marijuana. However, this adds nothing to the already mentioned factor that drug runners travel eastbound from Los Angeles, a major source area. San Bernardino is simply a part of that general region. 6. Defendant had told the train attendants that he had books that he was delivering to his brother in Chicago, but told Small he was going to Chicago to go fishing. The information defendant provided to the train attendants apparently was in response to a question about why his luggage was so heavy. The answer that defendant was headed for Chicago to go fishing was in response to Small’s question asking why defendant was going to Chicago. These different answers to different questions are not inconsistent; innocent travelers may well have answered the two separate, distinct questions in the same way. 7. The train ticket showed the name “Martin Kelly” and the driver’s license bore the name “Martin Kelly Miller.” When asked about the discrepancy, defendant provided a plausible explanation that an Amtrak employee had simply erred in omitting the last name “Miller.” Although in hindsight it appears that defendant was lying to Small when he said this, Small at that moment possessed no information that would suggest defendant was being untruthful. It was only after defendant was seized under the Bloom analysis that Small realized on checking the name on the footlocker that defendant’s story about the Amtrak employee making a mistake was probably at least a fib. I acknowledge and credit defendant’s position, argued by his counsel with a remarkably serious, unflinching countenance, that train personnel can (the same as judges often do) err in their work. One would have to say that it is not inconceivable that a train company employee could inadvertently drop from an innocent traveler’s ticket the last name of a moniker such as “Martin Kelly Miller.” Moving counsel’s argument a step forward and extrapolating a little, but not much, from the reasoning of Ward, Bloom and Hall about the nature of innocent travel, I find that if and when a hapless worker omits part of a name from a ticket, this would as likely happen to a blameless passenger as it would to one embarking on criminal pursuits. Therefore, I am constrained to conclude that these additional factors, 5 through 7, even when added to the original factors 1 through 4, do not total reasonable suspicion of criminal activity under Ward, Bloom and Hall. All of the additional suspicious information developed by Small is of no import because Small had already seized the defendant by the time he garnered it. This includes Small finding out that the footlocker had a different address from that shown on defendant’s driver’s license, discovering that defendant had purchased a one-way ticket for cash the day before departure without leaving a call-back number, realizing that defendant had told an additional lie about making his train reservation and buying his ticket a week to ten days earlier, and much later determining that defendant had lied about not being in possession of drugs. Defendant never consented to a search of his luggage. Since Small seized defendant without reasonable suspicion, information subsequently developed from questioning defendant after he had been illegally seized cannot support detention of defendant’s luggage, box and footlocker and the evidence discovered therein must, therefore, be suppressed. Since my granting of defendant’s motion to suppress will likely, as a practical matter, be dispositive of the case against him, I will not address defendant’s motion to dismiss for alleged unreasonable delay in arresting him. United States of America v. Grigory Donskikh, Cr. No. 92-275 JP On January 16, 1992, Sam Candelaria and Kevin Small, experienced narcotics law enforcement officers, and U.S. Border Patrol Agent Hector Ochoa met Amtrak Train No. 4 eastbound from Los Angeles to Chicago when it stopped at the Albuquerque, New Mexico train station. On numerous prior occasions, Candelaria and other officers had interdicted drugs, and sometimes weapons, being carried on the eastbound Amtrak train. From his experience, Candelaria knew Los Angeles to be a source city for drugs. After the train arrived at the Albuquerque station, an Amtrak employee advised Candelaria that he believed it to be unusual that a couple traveling together under the name “Edward Martin” in a deluxe sleeper roomette (roomette 4 in car 431) had never left the roomette together. The Amtrak employee gave descriptions of the “Martins”. Candelaria went to the public platform outside the train where he saw a man fitting the description of “Edward Martin”. Small and Ochoa went to roomette 4 of car 431. Candelaria approached defendant on the public platform. Approximately thirty other passengers were on the platform, some looking at the Indian jewelry for sale. Candelaria was dressed in plainclothes, not in a uniform, and carried a gun concealed in a fannypack. Candelaria displayed his badge, identified himself to defendant as a police officer and asked permission to speak to him. Defendant responded in English, with an accent, that he would agree to talk to Candelaria. Defendant stated that he had boarded the train in Los Angeles and was destined for New York. At Candelaria’s request, defendant produced his ticket which showed a party of two traveling under the name “Edward Martin” and then a New York driver’s license issued to “Edward Martin” with a photograph that, according to Candelaria, “looked like an earlier picture” and did not closely resemble defendant. Defendant retained possession of both his train ticket and his driver’s license. Next, Candelaria explained to defendant that he works with a drug interdiction program, speaks to train travelers eastbound from the west coast, and looks for persons with narcotics. Candelaria then asked if defendant was in a sleeper roomette or in the coach section and whether defendant had any luggage. Defendant said he was in a sleeper and had luggage. The testimony of Candelaria and defendant conflicts as to whether Candelaria requested and whether defendant gave consent while on the platform to a search of the luggage in defendant’s sleeper roomette. I find that because of the language barrier and defendant’s inability to comprehend all that is said to him in English, defendant did not understand that Candelaria was asking permission to search defendant’s luggage while he and Candelaria were still on the public platform. Defendant and Candelaria began walking toward car 431 with defendant leading and Candelaria following. Meanwhile, Small and Ochoa had gone to roomette 4 where Small knocked on the door which defendant’s wife, Irina Richkevitch, opened. Small stood in the narrow doorway to the roomette, showed his badge and identified himself as a police officer to Ms. Richkevitch. Small was wearing plainclothes and carried a gun concealed in a fannypack. Ochoa stood in the narrow train aisle immediately behind Small in Ms. Richkevitch’s view. Ms. Richkevitch, who was not fully dressed, told Small in an extremely heavy accent that she was from Lithuania. Small turned to Ochoa and reported that Ms. Richkevitch was from Lithuania and appeared to be very nervous. Ochoa then stepped to the entrance to the roomette, identified himself as an immigration officer and asked Ms. Richkevitch her nationality and requested her passport and immigration documents. Ms. Richkevitch became highly agitated, a condition that soon changed to outright hysteria. Ms. Richkevitch, at the time, could speak and understand only a few words of English. Ms. Richkevitch was able to comprehend that Ochoa was inquiring about her passport which happened to be in her husband’s possession on the train platform. Consequently, Ms. Richkevitch began pounding on the train window attempting to attract her husband’s attention. However, because the window was tinted, apparently defendant could not see her. Ms. Richkevitch became hysterical. Defendant boarded the train followed by Candelaria and walked to roomette 4 where he encountered his less than fully clad wife, in an hysterical state, in the custody of Small and Ochoa. At this point, defendant and his wife went into their sleeper roomette, which is quite small even though designated “deluxe”. The three law enforcement officers, the only other persons present, were in the narrow adjoining hallway surrounding the doorway to the roomette. Defendant rummaged through a bag and produced Lithuanian passports in his and his wife’s names, Grigory Donskikh and Irina Richkevitch. Defendant also displayed his valid resident alien card, but none for his wife. Hence, Ochoa questioned defendant about his wife’s status and eventually arrested her when Ochoa did not receive information or documents to his satisfaction. Agent Small testified that upon observing the documents, Agent Ochoa commented to Small that Ms. Richkevitch “was here illegally” and in Small’s opinion she no longer was free to leave. While defendant and his wife were in the confines of their sleeper roomette with the three officers immediately outside the room in the aisle, Candelaria explained that they work the drug interdiction program on the Amtrak train, that they talk to people traveling eastward from California, and that they look for people traveling with drugs. Immediately thereafter, Candelaria asked for consent to search the couple’s luggage. Defendant understood Candelaria to say that “I have to see your luggage.” Defendant and his wife stepped out of the roomette and into the cramped aisle. While doing this defendant made a sweeping gesture with his arm which the officers interpreted as consent to search. Candelaria then entered the roomette. Candelaria searched the sleeper roomette and among other luggage found a nylon duffle bag hidden by the mattress, and not in plain or open view, on the upper berth. Inside the duffle bag, Candelaria found a paper grocery sack that contained a RPB Industries M10, .45 caliber machine gun, with a fully loaded clip. Defendant was arrested for possession of this weapon. Defendant’s Exhibit A. The search unveiled no narcotics. None of the law enforcement officers told defendant or his wife that they did not have to talk to the officers, that they could terminate the encounter at any time or that they did not have to consent to a search of their roomette or luggage. Candelaria is 5 feet 7V2 inches tall and weighs 150 pounds. Defendant is 6 feet 1 inch tall and by my observation at trial weighs over 200 pounds. Small and Ochoa are considerably smaller than defendant. Both defendant and his wife appeared to be in robust health at the time of the hearing and there was no evidence presented that either was suffering from an infirmity on January 16, 1992. On that date, defendant was 31 years old and his wife was 29. Defendant testified that “I finished institute like mechanic in my country, and I know mechanics, but I manage a body shop.” Defendant managed both a body shop and a car wash in New York before leaving on the trip to California. Defendant seems to be very bright. He has a fecund imagination and obvious thespian talents. Ward and Bloom dictate a conclusion that defendant was detained after he and Candelaria returned to roomette 4 from the public platform. Under the language in Bloom the officers seized defendant at the latest when, while defendant and his wife were in their small roomette with the three law enforcement officers immediately outside in the narrow aisle, Candelaria announced that they work the drug interdiction program, talk to people traveling eastward from California, and look for people traveling with drugs and then immediately asked to search their luggage. The Ward opinion indicates that the detention of defendant likely occurred earlier at the time defendant was asked to produce passports and evidence of legal residence status for himself and his wife. At that moment, it would have appeared to a reasonable person in defendant’s position that his wife was already under detention, that they were suspected of immigration violations, and that they were the focus of an ongoing inquiry. However, once defendant proved he was legally in the country, the officers lacked reasonable suspicion under Ward, Bloom and Hall to further detain defendant to investigate possible crimes other than immigration offenses. I also conclude that defendant did not clearly consent to a search of the luggage in his roomette while he and Candelaria were still on the public platform because defendant did not comprehend that Candelaria, at that point, was requesting the right to look through defendant’s luggage. Considering the circumstances that existed when defendant returned to his roomette — finding his hysterical, less than fully clothed wife, in the company of two other law enforcement officers and then being questioned rapidly, forcefully and directly in succession first about possible immigration violations and second about examining the contents of his luggage, after being told that the law enforcement officers looked for narcotics — I believe that defendant did not freely and voluntarily consent to a search of the luggage or the couple’s sleeper roomette even though defendant may have made gestures which indicated to the officers that they could search. Initially, I decide that because of language difficulties, defendant did not consent to a search of his luggage because he interpreted Candelaria’s statements to be a demand to see the luggage instead of a request to search it. Alternatively, I conclude that even if defendant had an understanding that Candelaria was asking to see inside the luggage, defendant was in a situation such that he believed he had no choice but to permit a search, and he did not do so voluntarily. It does not make much sense to conclude that a reasonable husband in defendant’s position, on seeing his wife under detention in the setting defendant observed upon returning to his roomette, would have a belief that he was free to terminate his personal encounter with the law enforcement officers, which necessarily would mean leaving his wife to fend for herself. Although I found defendant to be an accomplished actor, I did not size him up as a comedian, and I would not expect him, unlike Henny Youngman, to say “Take my wife — please!” Because of Ms. Richkevitch’s emotional state and lack of understanding of English at the time Candelaria asked both defendant and his wife for consent to search their roomette, I also decide that Ms. Richkevitch did not voluntarily, intelligently or knowingly consent to a search of their luggage and roomette. Since defendant was detained without reasonable suspicion following production of a valid resident alien card, and neither he nor his wife voluntarily consented to a search of their roomette before Candelaria discovered the hidden submachine gun, there is no alternative but to suppress that evidence. United States of America v. Bruce Bedrick, Cr. No. 92-285 JP On May 21, 1992 prior to the arrival in Albuquerque of Amtrak Train No. 4 eastbound from Los Angeles, DEA Agent Kevin Small, an experienced drug enforcement officer, received information from a train employee, known to Small to be a reliable informant, that there was a train passenger Small might want to “check out”. The train employee relayed that the passenger was traveling under the name of “Bergman” and had purchased with cash a one-way ticket from Flagstaff to Syracuse the day before departure. Small estimated that in the preceding five years he had arrested 100 to 110 drug couriers, approximately eighty percent of whom had purchased one way tickets with cash and one hundred percent of whom had purchased the ticket within two days of departure. Small knew that Flagstaff was not a source city for drugs, but he considered defendant’s boarding there to be significant because Flagstaff was the location in the Arizona area which afforded, daily, the quickest travel by train eastbound to Chicago. In Small’s estimate approximately 50 of the 110 drug couriers Small had arrested had boarded in Flagstaff. Small received a description of defendant and the number of the roomette (roomette 1, car 431) in which he was traveling. When the train stopped in Albuquerque, Small, who was dressed in plainclothes with his weapon and handcuffs concealed in a fannypack, failed to locate defendant in his compartment. Small returned to the public platform and waited next to the exit door where, with the aid of a train employee, (presumably the “reliable informant”), Small located defendant descending the train steps to the platform. Immediately after defendant deboarded and stepped onto the platform, Small approached, displayed his badge and asked to speak with defendant who consented. Several other people were in the area at this time. Small never informed defendant, either on the platform or later on board the train, that he did not have to speak with Small, that he could terminate the encounter at any time or that defendant did not have to consent to a search of his luggage or a sniff of the luggage by a trained dog. While on the platform Small inquired about defendant’s destination and where he had boarded the train. Defendant said he was traveling to Syracuse and had boarded the train at Tucson. Small then asked defendant whether he had his ticket with him. Defendant responded that the ticket was in his room and that he would get it. Defendant did not ask or invite Small to accompany him to his roomette, but Small nonetheless followed at defendant’s heels to his compartment where Small “peeked” inside. Defendant retrieved his ticket from a bag in his roomette and closed the door to his roomette behind him. The ensuing conversation took place in the hallway immediately outside defendant’s roomette with Small at times partly in the roomette across the hall from defendant’s which Small described as “unoccupied.” Small testified that the hallway between the two roomettes is approximately two feet wide and that Small was approximately three feet from defendant throughout the encounter. Car 431 has only private roomettes, such as defendant’s. There are no public seating areas in the car. No testimony was offered concerning the relative sizes of Small and defendant, but by observation I note that defendant is of slight physique and probably somewhat smaller than Small. There was no evidence that defendant, at the time of the encounter, was suffering from any infirmities. While Small was the only agent visible to defendant prior to the appearance of the dog handler, Agent Candelaria was waiting “down the hall.” Defendant testified that Small informed him soon after arrival at defendant’s roomette, that Small’s partner was present and that when defendant asked “where”, defendant heard a voice say “here” and saw an arm wave from the confines of a compartment down the hall. However, the tape recording of the conversation, government’s Exhibit 1, does not include this exchange at the point defendant testified it occurred. Since the tape does not appear to have been altered I reject defendant’s testimony that Agent Candelaria’s presence and whereabouts were revealed to him at such an early point in the encounter. Rather, from the transcript of the conversation it appears that Candelaria’s presence was made known following arrival of the dog handler when Small stated “That’s my partner right back there in the next room.” Accordingly, I find that prior to the arrival of the dog handler, which was subsequent to the seizure of defendant’s bags, defendant was alone with Agent Small and no other officer was visible or “showed himself” to defendant. No other passengers were in the vicinity of defendant and Small during their conversation in front of defendant’s roomette; they remained alone until the dog handler arrived. After reviewing defendant’s ticket, which Small returned to defendant, Small questioned defendant further in a firm, assertive, rapid and direct manner; he asked whether defendant had a “picture ID”, how long defendant had been in Arizona, how he got there and where he lived. Defendant responded that he didn’t think he had a picture ID, that he had been in Arizona only a couple of days, that he lived in New York and. that he had flown out to Arizona to visit a friend, but had to return because he had been notified by his parents that his cousin had leukemia. Despite these seemingly innocuous answers, Small was unrelenting and pressed on. Small next proceeded to inform defendant that he was with the DEA which had a problem with people coming from California and Arizona on the Amtrak trains with drugs in their luggage; Small then asked defendant point blank if he had “any drugs in ... [his] luggage today.” Defendant responded “No.” After this exchange Small immediately tried to obtain defendant’s permission to search his luggage. Defendant refused consent and asked Small why he was “being picked out.” In response, Small simply pointed to the fact that defendant was traveling alone. Small did not give up seeking defendant’s consent to search, which defendant again declined, and subsequently Small asked defendant “[w]ould you mind if a narcotics dog smelled your bag?” Defendant asked “Why?” Small replied “Just to make sure there’s nothing inside the bags.” Defendant responded “You are picking me out of nowhere. That’s not fair to me.” Small pressed on, and after much hesitation, defendant reluctantly agreed to have a dog smell his bags. Defendant testified he felt at that point he had no choice — he either had to let Small search his bags or consent to a trained dog smelling the bags. A dog was brought to defendant’s compartment where it eventually alerted to one of defendant’s luggage pieces, in which Small discovered marijuana after Small obtained a search warrant. While defendant’s initial encounter with Small on the platform did not amount to a seizure, when Small, without an invitation, followed defendant to his private roomette and began asking defendant direct and pointed questions, the encounter escalated to an investigative detention for which there was no reasonable suspicion. Under the language of Ward this probably occurred when Small asked defendant for photographic identification. Although at this point defendant was not within the confines of his compartment, Small had identified himself as a police officer and had followed defendant uninvited back to his roomette which contained defendant’s personal belongings and had continued to question him in the tight confines of the hallway of the train car which housed only private roomettes in a setting where no one else was present. In fact, the lack of space between Small and defendant may have accentuated defendant’s feeling of constraint because they were standing in the narrow aisle very close together and not in defendant’s roomette where there could have been more space between them. Within the confines of this “quasi-public” space it would have been apparent to a reasonable person in defendant’s position that he was being singled out for questioning by a police officer who was positioned close to him and who said nothing about defendant’s right not to speak or to end the encounter. When Small continued to press defendant with rapid, pointed questions and ultimately asked him directly whether he had “any drugs in [his] luggage”, at that moment defendant unquestionably was seized under the ruling in Bloom. Regardless of whether defendant was seized when Small requested photographic identification or shortly thereafter when Small asked defendant if he had drugs in his luggage, I find that Small lacked reasonable suspicion to subject defendant to an investigative detention at either point. When Small asked defendant for a photographic identification Small knew only that defendant was traveling alone in a private roomette en route from Flagstaff to Syracuse, that he had paid cash for his one way ticket, and that the name on defendant’s ticket was Lawrence Bergman. While defendant said that he “got on at Tucson” in response to Small’s question of “where [he got] on the train at,” defendant explained in his testimony that he may have been confused by the question and thought that Small desired to know his point of origin which indeed had been Tucson. However, even if defendant did not have a plausible explanation for answering “Tucson” when Small knew for a fact that the truthful answer could only be Flagstaff, because the train originating in Tucson did not stop in Albuquerque, I find that under prevailing Tenth Circuit law, the facts known by Small prior to seizing defendant failed to establish the requisite reasonable suspicion. At the point Small asked defendant whether he was transporting drugs, Small had discovered in addition to the facts laid out above that defendant did not “think” he had a photographic identification, that defendant had been in Arizona for two days visiting a friend and had been called back by his parents because a cousin was ill, and that he flew to Arizona on a round trip open return ticket which would be more expensive to use for return than train travel. Here again, under prevailing Tenth Circuit law, Small lacked sufficient factual information, including untrue statements known by Small to be lies, to establish the necessary reasonable suspicion to subject defendant to an investigative detention. Accordingly, because Small seized defendant without reasonable suspicion, any subsequent statements by defendant were the tainted fruit of the unlawful seizure of defendant’s person. These statements cannot then be used to support a subsequent seizure of defendant’s luggage. However, the lack of reasonable suspicion for defendant’s detention does not end the inquiry in this case. I must still determine whether, despite the lack of reasonable suspicion for his detention, defendant nevertheless voluntarily consented to the subsequent taking of his luggage and its examination by the drug sniffing dog. Under the totality of the circumstances I find that defendant’s consent to the holding of his luggage for a dog sniff was not voluntary. The government failed to provide clear and positive testimony that defendant’s consent was “unequivocable and specific and freely given” and that the consent was given without duress or coercion. In regard to Small changing the questioning from asking for consent to search, which defendant repeatedly refused, to asking to have a dog smell defendant’s bags, defendant testified that at that point he felt trapped and that he by then felt he had no choice but to consent either to Small searching his bags or to a dog smelling them. Defendant expressed many times to Small that he felt picked “out of nowhere” yet Small forged ahead with his questioning and requests for consent offering defendant as an explanation only the fact that defendant was traveling alone. Moreover, the close temporal proximity of defendant’s unlawful detention, the lack of any intervening circumstances between the detention and the consent, and the fact that the purpose of defendant’s illegal detention (to find drugs) was directly related to his subsequent consent to detain his luggage for a dog sniff, indicate that defendant’s consent was tainted by his unlawful detention. Accordingly, the contraband discovered as a result of defendant grudgingly agreeing to let Small hold his luggage for a canine sniff must be suppressed. United States of America v. Carno Ian Payne, Cr. No. 92-292 JP On May 29, 1992, Sam Candelaria, an experienced narcotics law enforcement officer working with the DEA Task Force, met Amtrak Train No. 4 en route from Los Angeles, California eastbound for Chicago at the Albuquerque, New Mexico station. Prior to the arrival of Amtrak Train No. 4, Candelaria had checked its manifest and had made telephone calls to obtain additional information. Candelaria became interested in defendant because the information Candelaria derived from the manifest and the calls reflected that defendant (1) had purchased a one-way ticket (which in Candelaria’s experience was typical of drug couriers), (2) had paid cash for the ticket (in Candelaria’s experience drug traffickers usually pay cash), (3) had rented a roomette (in Candelaria’s experience, traffickers prefer the privacy of a roomette), (4) had purchased t