The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
On September 20, 1994, a grand jury sitting in the Middle District of Pennsylvania returned a one-count indictment charging defendant Ted Russell Perkins II with distributing and possession with intent to distribute a controlled substance.
Before the court is defendant's motion to suppress evidence seized at a bus station by members of the Pennsylvania State Police. Defendant contends that the seizure violated his rights under the Fourth Amendment. A hearing on the motion commenced December 29, 1994, and concluded January 3, 1995, after jury selection. Presentation of the case to the jury is scheduled to begin January 12, 1995.
I. STANDARD UNDER THE FOURTH AMENDMENT: ABANDONMENT
In order to challenge evidence as the fruit of an unlawful search, the defendant must have a constitutionally protected, reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). The inquiry is a two-pronged, "subjective-objective" test: (1) Has the defendant manifested a subjective expectation of privacy in the object of the challenged search? (2) Is the defendant's expectation one which society is willing to recognize as reasonable? California v. Ciraolo, 476 U.S. 207, 211, 90 L. Ed. 2d 210, 106 S. Ct. 1809 (1986) (citing Katz, supra).
The Fourth Amendment does not protect abandoned property. Abel v. United States, 362 U.S. 217, 241, 4 L. Ed. 2d 668, 80 S. Ct. 683, reh'g denied, 362 U.S. 984, 4 L. Ed. 2d 1019, 80 S. Ct. 1056 (1960). The test for abandonment is the obverse of the objective prong of the reasonable expectation test:
The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. This determination is to be made by objective standards. An expectation of privacy is a question of intent which "may be inferred from the words spoken, acts done, and other objective facts."
United States v. Rem, 984 F.2d 806, 810 (7th Cir.)(citations omitted), cert. denied, 126 L. Ed. 2d 248, 114 S. Ct. 300 (1993). See also United States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990) ("When a person voluntarily abandons property ... he forfeits any reasonable expectation of privacy that he might have had in the property."). The objective facts known to law enforcement officers at the time of the search determine whether there is a reasonable continued expectation of privacy, i.e., whether the property has been abandoned. Rem, 984 F.2d at 811.
Abandonment must be voluntary in fact; it is not voluntary if it is the result of a preceding Fourth Amendment violation or other illegal police conduct. United States v. Ward, 961 F.2d 1526, 1535 (10th Cir. 1992). In Ward, the Tenth Circuit held that the abandonment was not voluntary because of a per se rule that police presence in a confined area, such as a train roomette, is coercive. Ward has been overruled to this extent, since the Supreme Court held in Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991), that no such per se rule exists, and established a totality of the circumstances test:
...No seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage--so long as the officers do not convey a message that compliance with their requests is required.
We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.
115 L. Ed. 2d at 400, 401-402.
Although the Supreme Court in Bostick was reviewing the voluntariness of consent, 115 L. Ed. 2d at 400, while the Tenth Circuit in Ward was reviewing the voluntariness of abandonment, the Tenth Circuit held that the same test applies in each instance. 961 F.2d at 1535. This part of the holding of Ward is unaffected by Bostick. See United States v. Little, 18 F.3d 1499, 1503-1504 and 1504 n. 5 (10th Cir. 1994).
There are, then, two separate, objective tests. As to abandonment, the test is whether a reasonable person with knowledge of the facts and circumstances known to the police officer at the time of the purported abandonment would believe that the owner had relinquished all interest in the privacy of the property. As to whether the abandonment was voluntary, the test is whether the police conduct was so coercive that a reasonable person would believe that he had no choice but to act as he did, i.e. to abandon the property.
1. The Bestway Truckstop is located near the Milesburg exit (Exit 23) of Interstate Highway 80 (I-80), at the intersection of Pennsylvania Routes 150 and 220, about one mile north of Milesburg.
2. The Bestway Truckstop is used by Greyhound buses travelling on I-80, though its primary use is by truck drivers.
3. The Bestway Truckstop consists of a restaurant, game room, convenience store, motel rooms, and shower facilities.
4. Also in the vicinity of the Bestway Truckstop is a Days Inn and the Buckhorn stop.
5. Other than those facilities, the Bestway Truckstop is isolated, being surrounded by open fields, corn fields, and a wooded area.
6. On September 1, 1994, a Greyhound bus bound from New York City, New York, to Cleveland, Ohio, made a scheduled stop at the Bestway Truckstop.
7. On September 1, 1994, troopers of the Pennsylvania State Police, Bureau of Drug Law Enforcement, Tactical Narcotics Team, were engaged in narcotics interdiction efforts at the Bestway Truckstop.
8. The bus bound for Cleveland arrived at the Bestway Truckstop at approximately 9:45 p.m.
9. When a bus stops at the Bestway Truckstop, the bus driver and passengers generally leave the bus to use the restaurant, convenience store, restrooms, or other facilities at the Truckstop.
10. Members of the Tactical Narcotics Team routinely observe the passengers as they leave the bus for the purpose of observing their reaction to the presence of troopers, to see which passengers have bags and where the bags are placed, etc.
11. When engaged in drug interdiction efforts, members of the Tactical Narcotics Team display some emblem of their authority and position, such as hats, jackets, or badges worn on a chain around the neck.
12. On September 1, 1994, defendant Ted Russell Perkins II was a passenger on the bus which stopped at the Bestway Truckstop at 9:45 p.m.
13. Perkins had boarded the bus at Newark, New Jersey.
14. Both New York city and Newark are known to the Tactical Narcotics Team as source cities for the flow of narcotics through Pennsylvania to ...