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May 6, 1976


The opinion of the court was delivered by: PLATT



 Defendant was indicted on December 5, 1975, for knowingly and intentionally possessing with intent to distribute almost a kilogram (927 grams) of heroin on November 16, 1975 in violation of Title 21 U.S.C. § 841(a)(1).

 By notice of motion with an affidavit of his attorney and a memorandum of law annexed, defendant moved to suppress "as evidence in any criminal proceeding the fruits of his unlawful detention by agents of the United States Government on November 16, 1975, including but not limited to all physical evidence seized from his person and any oral or written statement made by the defendant at or subsequent to his unlawful detention." A hearing was held on this motion on February 13, 1976 during the course of which testimony was taken from Thomas Flood, a criminal investigator of the Immigration and Naturalization Service.


 The following facts were stipulated and agreed to for the purposes of the hearing and the motion:

"[On] the morning of November 16, 1975 the defendant LUIS LOPEZ-BARAJAS was stopped and detained by agents of the United States Immigration and Naturalization Service moments after he disembarked at Gate No. 9 after a flight from Los Angeles to New York's Kennedy Airport on Trans-World Airlines Flight No. 702. Gate No. 9 is located in Flight Wing No. 2 of the Trans-World Airlines Terminal which is the flight wing used for domestic arrivals.
"All passengers arriving on TWA International flights disembark in Flight Wing No. 1 where the United States Customs Service maintains its airport operations. There is a large arrival-departure board and numerous smaller monitors in both wings of the terminal which give TWA flight information and which would in the normal course of business have indicated that the Los Angeles to New York flight would be landing at Gate No. 9 on November 16, 1975."

 Mr. Flood testified that he had been a criminal investigator for the INS since November of 1973; that during his tour of duty he had apprehended and arrested over a thousand illegal aliens; that he spoke Spanish; that since March of 1974 he had been assigned to investigate, on a five day a week basis, four domestic flights from Los Angeles to New York, to wit: TWA Flight Nos. 702 and 16, and American Airline Flight Nos. 38 and 10; that all such flights left Los Angeles at or about 10:00 PM and arrived in New York at or about 6:00 AM; that during the period from March 1975 to November 16, 1975 over 400 illegal aliens disembarking from such flights had been arrested, 95% of the aliens being of Hispanic origin; and that during the period October 1, 1975 to November 16, 1975 approximately 135 illegal aliens had been arrested from such flights, 75 of whom had been arrested by him.

 On cross-examination, Mr. Flood testified that during the period from March 1975 to the date of the hearing there had been approximately 1800 "stops" of disembarking passengers; that 95% of such stops involved aliens; that two-thirds of such stops involved legal aliens and one-third or approximately 600 of such stops involved illegal aliens.

 These four flights had been selected by the INS for observation because experience had shown that illegal aliens with contraband chose off-business hour flights such as these on which to travel, presumably with the thought that there would be less chance of their being observed.

 Mr. Flood testified that on Sunday morning, November 16, 1975, at 7:00 o'clock, he was on duty at Gate No. 9 of TWA's terminal when approximately 60 passengers disembarked from Flight No. 702, a non-stop flight from Los Angeles. Working with him observing the passengers were INS Agents Levenisky and Pangia. The three of them were stationed approximately 10 feet apart along an area which each passenger had to traverse to reach the main portion of the terminal building.

 Mr. Flood saw the defendant coming out of the Gate 9 area. His attention was attracted to him because (i) he was Hispanic, (ii) he wore shoes with two to three inch heels, (iii) he had on dark green pants with a blue and red check shirt, and (iv) he was carrying a light blue suit without a plastic or other covering bag on a hanger over his shoulder.

 Mr. Flood stated further that he made "eye contact" with the defendant; the defendant stopped; they stared at each other for about 15 seconds; the defendant gave the appearance of looking for a way out; the defendant turned around and took a step towards the plane; he was confronted by the remaining ...

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