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August 28, 2002


The opinion of the court was delivered by: James Munley, United States District Judge


Before the court for disposition is the motion to suppress filed by defendant, Marcus Anthony Wilmington. This Court held a suppression hearing on June 24-25, 2002. The parties have briefed their respective positions, and the matter is ripe for decision. For the reasons that follow, the motion to suppress will be denied.


The facts underlying the instant criminal case are as follows: Kirk Schwartz, a detective with the Monroe County District Attorney's Office, and Ronald Paret, an agent with the Pennsylvania Office of the Attorney General, Bureau of Narcotics, boarded and searched a Greyhound Bus stopped at the Delaware Water Gap Toll Plaza. The defendant, Marcus Anthony Wilmington, was a passenger on the bus. The authorities allegedly searched a bag on the bus and found three kilograms of cocaine. No one on the bus, including the defendant, claimed the bag in which the cocaine was found. The defendant claimed to have one bag, and he allowed the officials to search it. The officials connected the bag containing the cocaine to Wilmington based upon the contents of the bag that Wilmington claimed and allowed them to search. The officials arrested the defendant. He is charged with distribution of a controlled substance, specifically in excess of 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). The defendant is free on bail pending trial. He has filed the instant suppression motion. Where appropriate, the facts will be addressed with more particularity below.

Defendant claim s that both the original stopping of the bus and the search and seizure of the defendant him self are unconstitutional because valid consent was not provided. Defendant also argues that the search and seizure of the bus is an unconstitutional state action violating the federal government's power to regulate interstate commerce. Lastly, the defendant avers that the actions of the authorities in the instant case amount to an unconstitutional drug interdiction roadblock under City of Indianapolis v. Edmond, 531 U.S. 32 (2000). We find no merit to any of the defendant's arguments, but shall address them seriatim.


The Fourth Amendment of the United States Constitution specifically guarantees "(t)he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. . . ." Governmental searches conducted pursuant to a validly obtained warrant or reasonably incident to a valid arrest do not violate this guarantee. In the instant case, however, no search warrant was obtained. The government contends that the search and seizure are not unreasonable because consent was provided.

It is well settled that the government may undertake a search without a warrant or probable cause if an individual freely and voluntarily consents to the search. Kerns v. Chalfont-New Britain Twp. Joint Sewage Authority, 263 F.3d 61, 65 (3d Cir. 2001). Any evidence discovered during a validly consented to search may be seized and admitted at trial. United States v. Kim, 27 F.3d 947, 955 (citing Schneckloth v. Busta monte, 412 U.S. 218 (1973)).

The question for us, therefore, is whether consent to search in the instant case was given freely and voluntarily. The Third Circuit Court of Appeals has explained voluntary consent as follows:

As the Supreme Court instructed, "[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Schneck loth, 412 U.S. at 222, 93 S.Ct. at 2045 (internal quotation marks and citations omitted). "[W]hether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Id. at 227, 93 S.Ct. at 2047-48. Thus whether consent was given is to be resolved by examining all relevant factors, without giving dispositive effect to any single criterion. Certain factors that courts consider in determining whether confessions were voluntary, such as the age of the accused, his education, his intelligence, whether he was advised of his constitutional rights, and whether the questioning was repeated and prolonged, id. at 226, 93 S.Ct. at 2047, are relevant to our examination. See United States v. Velasquez, 885 F.2d 1076, 1081-83 (3d Cir. 1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 497 (1990).


A) Bus Search

The first matter addressed by the defendant is whether the bus driver provided valid consent for a search of the bus. The law provides that the driver of a vehicle has authority to provide consent for search of that vehicle. United States v. Morales, 861 F.2d 396, 399 (3d Cir. 1988). In the instant case, the bus driver testified that he voluntarily pulled to the side of the road. Notes of Testimony of Suppression Hearing (here inafter "N.T.") 6/24/02 at 9. Nonetheless, the defendant claims that a reason able person in the driver's position would have concluded that he was not at liberty to ignore the police presence and go about his business, and therefore, the consent was not freely and voluntarily provided.

Defendant indicates that several factors demonstrate that the search violated the Fourth Amendment. The first factor that the defendant finds relevant is the location of the stop. He argues that the encounter took place in a restricted area that gave law enforcement a significant advantage in controlling the travel of the bus. According to ...

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