attempt to stop Kinsella from inspecting the shaving kit and
Kinsella then reached into the travel bag again and grasped a
shirt. Kinsella felt an object through the shirt. As Kinsella
began to withdraw the shirt from the bag, Burzinski, who was
standing across from her kneeling partner, could see a clear
plastic bag containing white powder wrapped in the folds of the
shirt. The plastic bag containing the powder was itself wrapped
in a torn paper bag. Because of the way the bag containing the
white powder was wrapped in the folds of the shirt it was not
visible to Kinsella as he brought the shirt to the top of the
open travel bag. Just as Kinsella's hand reached the top of the
travel bag, Black grabbed Kinsella's wrist and while pulling
Kinsella's hand out of the travel bag, told Kinsella not to
search any further. As Black yanked Kinsella's hand out of the
travel bag, the bag containing the mixture fell out of the
shirt to the bottom of the travel bag. Kinsella saw the plastic
bag containing the white powder in plain view on the bottom of
the travel bag and told Black he was under arrest.
At no time during this sequence of events did either of the
officers display their weapons, raise their voices, or
otherwise threaten or coerce Black. The entire incident, from
the time the officers identified themselves to Black until the
defendant's arrest, lasted no more than a few minutes. The
incident took place entirely in a well-lit and spacious public
concourse with other travelers present.
Nothing about the circumstances surrounding the officers'
contact with the defendant indicates that the defendant was
coerced or that he was not free to refuse the officers' request
for identification or to refuse to give his consent to a search
of the travel bag.
Black appeared to this court to be an articulate, intelligent
young man. He is 24 years old and a college graduate. After
viewing the defendant on the stand, and seeing the manner in
which he testified, this court does not believe that Mr. Black
could reasonably have felt coerced in any way by the officers'
conduct. I can only conclude that he voluntarily produced his
identification and gave his consent to the search of his travel
bag. As Kinsella's questions led to the request for Black's
consent to a search of the travel bag, Black became visibly
shaken, but Black's nervousness does not indicate that the
officers' conduct was coercive. Rather, Black's increasing
nervousness indicates that he realized that his strategy of
cooperation was failing to allay the officers' suspicions. It
is not surprising that Kinsella asked Black for permission to
search the travel bag after hearing Black's tale of picking
coconuts in Florida to earn money to return to Hawaii. I
believe it is safe to say that Kinsella probably found Black's
response as odd as the court did when Mr. Black lied under oath
as the prosecution questioned him regarding his stay in
Florida. It is not within the common experience of this
fact-finder that a young person who is allegedly forced to pick
coconuts to earn money for a return ticket to Hawaii decides to
This court believes that Black made a quick but calculated
judgment as to how he could best avoid detection. Not until it
was too late, that is, not until Burzinski had already seen the
white powder and Kinsella was about to uncover it did Black
withdraw his consent to the search. Unfortunately for Black,
the manner in which he withdrew his consent caused the cocaine
to come into Kinsella's view.
Based on these facts the court concludes that the government
has met its burden of showing that the discovery of the cocaine
was not the result of an unreasonable search and seizure in
violation of the fourth amendment, but rather was the result of
both Black's initial voluntary consent, Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)
and his clumsy attempt to revoke his consent.
The initial question that must be answered in this
case is whether the officers' initial request to speak to Mr.
Black constituted a seizure of his person. I must conclude that
it did not. The officers merely identified themselves in a
tone of voice as Black was walking past them and asked if they
could speak to him. I conclude, in light of all the
circumstances surrounding the initial contact, that no
reasonable person would have believed that he was not free to
disregard this request and walk away. United States v.
Mendenhall, 446 U.S. 544, 552-54, 100 S.Ct. 1870, 1876, 64
L.Ed.2d 497 (1980). See also Terry v. Ohio, 392 U.S. 1 at
32-33, 88 S.Ct. 1868, at 1885-1886, 20 L.Ed.2d 889 (1968)
(Harlan, J., concurring); id. at 34 (White, J., concurring).
"Obviously, not all personal intercourse between
policemen and citizens involves `seizures' of
persons. Only when the officer, by means of physical
force or show of authority, has in some way
restrained the liberty of a citizen may we conclude
that a `seizure' has occurred." (emphasis added).
Terry v. Ohio, 392 U.S. at 19, n. 16, 88 S.Ct. at 1878