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UNITED STATES v. WESTERBANN-MARTINEZ

July 19, 1977.

UNITED STATES of America
v.
Carlos WESTERBANN-MARTINEZ and Luis Angel Torres, Defendants.



The opinion of the court was delivered by: COSTANTINO

COSTANTINO, District Judge.

It was a maxim with Foxey... "Always suspect everybody."

 Dickens, The Old Curiosity Shop. (1841)

 The motions to suppress in this case provide an opportunity to re-emphasize that something more than reliance on "Foxey's maxim" is necessary to sustain the propriety of an investigative stop.

 American Airlines Flight 492 originates in Chicago and terminates in New York LaGuardia Airport after a stop in Cincinnati. When they deplaned from Flight 492 at LaGuardia, on March 29, 1977, Carlos Westerbann-Martinez (hereinafter Westerbann) and Luis Angel Torres, two casually dressed Hispanics, glanced about the airport. It was the way in which they were looking around that first attracted the attention of Agent Arthur Rose and led him to conclude that they were nervous. Agent Rose had been assigned to LaGuardia Airport as part of a Drug Enforcement Administration narcotics detection program. Rose and his partner were there to observe passengers in order to "look for any suspicious traits... which we believe are traits that are exhibited by narcotics couriers." (Tr. 1.7). Among the factors that Rose was looking for are those contained in a Drug Courier Profile compiled by the Drug Enforcement Administration. *fn1" According to Agent Rose, these factors include (1) people travelling from a source city, *fn2" (2) people who are Hispanics (especially Mexicans), (3) people travelling long distances with little luggage, (4) people who are together but appear not to be together, and (5) people who are nervous (and look around the airport in a suspicious manner). (Tr. 2.5, 2.58).

 Having first noticed Torres and Westerbann as a result of their nervous "scanning" of the arrival area, Rose then decided that their Hispanic appearance and casual dress made them worth watching. Although Rose felt that they might be together, they did not converse. Nor did Torres, who had exited the plane after Westerbann, ever draw abreast of Westerbann during the 3-4 minute walk to the outside of the terminal. According to Rose, both defendants "repeatedly looked behind them during this walk." (Tr. 1.9). After the defendants reached the outside of the terminal Torres drew abreast of Westerbann and they began conversing while they waited in the taxi line.

 Based on their observations of the defendants up to this point, Rose and his partner apparently concluded that there was a reasonable basis for suspecting that defendants were drug couriers. The agents therefore approached defendants, identified themselves, and asked the defendants where they had come from. The defendants truthfully replied that they had come from Chicago. Defendants were then asked for their tickets, which they produced and which confirmed that they had indeed arrived from Chicago. Both tickets were made out in defendants' own names. Rose noticed however that both tickets were paid for by Torres with an expired American Airlines credit card. Rose then asked both men for identification. Westerbann replied that he had no identification with him; Torres produced serveral valid forms of identification. At this time, Rose noticed needle tracks and tatoos (similar to those sometimes used by addicts to hide needle tracks) on Torres' hands. Torres appeared to Rose to be "shaking visibly."

 Agent Rose testified that in order to remove Torres and Westerbann from blocking the taxi line, he then asked them to accompany him back into the terminal. He further testified that at that point he intended to inquire further into the fact that the tickets were paid for with an expired credit card and the fact that Westerbann had no identification. Rose however did nothing to check into the expired credit card once inside the terminal, *fn3" but continued to press Westerbann concerning his lack of identification. In point of fact he asked Westerbann several times whether Westerbann had any identification and each time Westerbann replied in the negative. Despite these replies, Rose asked Westerbann if he had any identification in the bag he was carrying. According to Rose, Westerbann replied "You can look if you want." (Tr. 1.17). Rose testified that while he was looking through the bag, his partner again asked Westerbann for identification. In response, Westerbann reached into his pocket, withdrew what appeared to be a marijuana cigarette and then quickly replaced it.

 When Agent Rose opened Westerbann's bag, he found it stuffed with several white towels. He reached into the bag and beneath the towels he touched a paper bag which felt as if it contained a powdery substance. He testified that he knew that the paper did not contain identification. Rose nevertheless took the paper bag from the luggage, opened it and found a plastic bag inside which appeared to contain heroin. At that point both defendants were placed under arrest. The defendants were then taken to the Port Authority police office at LaGuardia Airport where Torres was given his Miranda warnings *fn4" and both defendants were searched. The search revealed that Torres was carrying an additional quantity of heroin and Westerbann was carrying marijuana. Subsequently, Torres made a statement detailing his involvement and that of Westerbann in the transportation of the heroin.

 Defendants contend that the heroin seized must be suppressed since (1) the original stop of Torres and Westerbann violated the Fourth Amendment, and (2) Westerbann's consent to search his bag was limited, and in any event not voluntarily given. They also contend that Torres' incriminating statement must be suppressed as "fruit of the poisonous tree."

 The government initially contends that Torres lacks standing to object to evidence seized from Westerbann. In addition the government argues that the initial stop was a proper investigative stop in accordance with the rationable of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and its progeny; furthermore the government contends that defendant Westerbann's consent to the search of his bag and defendant Torres' statement were both voluntarily given and purged the taint of any illegality which might have arisen out of the initial stop.

 I. STANDING

 The government argues that Torres lacks automatic standing to object to the seizure of the heroin from Westerbann on the grounds that none of the charges in the indictment include possession as an "essential" element of the crime charged. See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973).

 As to the first count, the government's contention is without merit. *fn5" One who is charged with aiding and abetting the commission of a substantive offense is in the same position for purposes of determining standing to suppress as one who is directly charged with the substantive offense. United States v. Oates, 560 F.2d 45, 55 (2d Cir. 1977).The substantive crime charged in Count One includes possession as an essential element of the offense. See United States v. Mapp, 476 F.2d 67 (2d Cir. 1973). Therefore Torres has automatic standing to object to the introduction of the heroin seized from Westerbann. See Jones v. United States, supra; Brown v. United States, supra.

 Torres does not, however, have automatic standing on Count Two *fn6" (the conspiracy count) to object to the seizure from Westerbann, since possession is neither a sufficient nor a necessary element of the conspiracy offense.United States v. Oates, supra, n.6, 55 - 56; United States v. Galante, 547 F.2d 733 (2d Cir. 1976); United States v. Sacco, 436 F.2d 780 (2d Cir.), cert. denied, 404 U.S. 834, 92 S. Ct. 116, 30 L. Ed. 2d 64 (1971). For the same reasons, it would appear that Torres lacks automatic standing under Count Three *fn7" (the Interstate Travel Act). Cf. United States v. Colacurcio, 499 F.2d 1401 (9th Cir. 1974) (where, however, unlike the charge in this case, the underlying act charged did not bear any relation whatsoever to a possessory offense). *fn8"

 Although he does not have automatic standing on those counts, defendant Torres does have actual standing on Counts Two and Three to object to the seizure. Standing to object to a search and seizure may be based upon presence at the time of the search. United States v. Galante, 547 F.2d 733, 739; cf. Brown v. United States, supra, 411 U.S. at 229, 93 S. Ct. 1565, and there is no dispute that Torres was present during the search of Westerbann. The government argues, however, that since the search occurred in a public airline terminal, Torres had no reasonable expectation of privacy. This argument ignores the fact that the Fourth Amendment protects "people not places." Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Constitutional protection of privacy under the Fourth Amendment is not lost "even in an area accessible to the public." Id. 351-352, 88 S. Ct. 507, 19 L. Ed. 2d 576. The "inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." Terry v. Ohio, supra, 392 U.S. at 8-9, 88 S. Ct. at 1873.

 Furthermore, Torres has actual standing on Counts Two and Three for other reasons. When Rose stopped Torres and Westerbann for questioning, he restrained their freedom to walk away, and thereby "seized" both defendants within the meaning of the Fourth Amendment. Terry v. Ohio, supra at 16-19, 88 S. Ct. 1868; United States v. Brignoni Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); United States v. Chamblis, 425 F. Supp. 1330, 1332 (E.D.Mich.1977); United States v. Pruss, 5-81244 (E.D.Mich. Jan.14, 1976), aff'd, 542 F.2d 1177 (6th Cir. 1976).

 Both Torres and Westerbann were "seized" simulaneously. That "seizure" was based to a large extent upon Agent Rose's interpretation of the interaction of Torres and Westerbann including what Rose thought to be their desire to avoid the appearance of being together in the terminal, followed by their conversation once outside the terminal. Both Torres and Westerbann were questioned together. And it was the search of Westerrann's bag and seizure of heroin therefrom, that led immediately and directly to Torres' arrest. It is clear that Rose did not view Torres and Westerbann individually or separately but rather collectively - in a certain sense he viewed them as a unit. Therefore, Torres was the "victim of an invasion of privacy", Jones v. United States, supra 362 U.S. at 261, 80 S Ct. at 731; Alderman v. United States, 394 U.S. 165, 173, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), and therefore has standing to object to the "seizure" itself and the introduction into evidence of any "fruits of its poisonous tree" including the heroin seized from Westerbann's bag. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). *fn9"

 II. FOURTH AMENDMENT ISSUES

 The mere fact that defendants were "seized" within the meaning of the Fourth Amendment does not, of course, automatically entitle them to a grant of their suppression motion. The Fourth Amendment does not prohibit all searches and seizures but merely unreasonable searches and seizures. Harris v. United States, 331 U.S. 145, 150, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947). The Second Circuit Court of Appeals has recently articulated the factors to be considered in determining the reasonableness of an investigative stop:

 It is now axiomatic that a law enforcement officer has the power, indeed the obligation, to detain a person temporarily for the purpose of interrogating him if the officer reasonably suspects that the detainee has committed or is about to commit a crime. [citations omitted] To establish the constitutionality of the stop, however, the "officer [must be able to] point to specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant that intrusion." [citations omitted] Inasmuch as "[the] reasonableness of [the officer's] conduct must be determined by balancing the need for the stop against the gravity of the intrusion which the stop entailed," [citations omitted], it is readily apparent that the "specific and articulable facts" and the inferences that can be drawn from these facts relate to the need for the stop. "Need," in turn, depends on factors such as the seriousness of the offense and the likelihood of the detainee's involvement in the known or suspected criminal activity. [citations omitted] Obviously, if the offense is minor and there is substantial uncertainty that the detainee is involved, only a minimally intrusive stop would be proper. On the other hand, when the police officer knows or suspects that an offense with serious societal consequences is being committed and there is some reasonable possibility that the person he detains is involved, a more substantial detention is justified. Between these two extremes lie the great majority of cases; those in which the offense is minor but there is strong suspicion that the detainee is involved, or those in which the offense is egregious but the suspicion that the prospective detainee is involved amounts to little more than a visceral feeling on the part of the police officer.

 United States v. Oates, supra, at 58. The circumstances must be "viewed through the eyes of a reasonable and cautions police officer on the scene, guided by his own experience and training." United States v. Hall, 174 U.S.App.D.C. 13, 525 F.2d 857 (1976). Despite the "inherent odiousness and gravity of the [heroin] offense *fn10" the agent must still rely on "specific and articulable facts" logically indicating the possibility that defendants were involved in narcotics trafficking. United States v. Oates, supra at 59.

 While the inquiry into "reasonable suspicion" must necessarily be pursued on a case-by-case basis, United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973), it will be helpful to examine the approach taken by the Second Circuit Court of Appeals in two recent cases - ...


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