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UNITED STATES v. SORLA GARCIA

May 3, 1978

UNITED STATES OF AMERICA, Plaintiff,
v.
CARLOS SORLA GARCIA, Defendant



The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

 NICKERSON, District Judge

 Defendant, charged with possession, with intent to distribute, of heroin hydrochloride in violation of 21 U.S.C. § 841(a)(1), moves to suppress evidence seized from and statements made by him on January 6, 1978.

 At the hearing the sole witness was Gerard Whitmore, a special agent of the Drug Enforcement Administration ("DEA"). This testimony, which the court finds thoroughly credible, established the following facts.

 Whitmore, who had been a DEA agent for some four years, and DEA agent Robert Sears were detailed to LaGuardia Airport on January 6, 1978 to monitor "domestic flights" bringing narcotics to the New York area from "source cities." By late afternoon of that day they had monitored nine flights from Chicago but had neither stopped nor arrested any passenger.

 At about 4:50 P.M. they had been sitting for some twenty minutes in a waiting area when an American Airlines flight from Chicago arrived. About eighty passengers disembarked, and after it appeared that all passengers had departed the agents saw defendant "dart out." He was slightly bent over in a "running position", had his hands in the pockets of his raincoat which was "pulled around tightly in front of him" with the collar turned up, and had "an unordinary bulge" in the middle of his back.

 Defendant came into the waiting area, looked about, and immediately started "darting" toward the exit faster than other people. The agents decided to "surveil" him but had to run to catch up with him because he was walking at such an extremely fast pace, "a double step, very quick."

 After hurrying down the American Airlines wing defendant passed through the baggage claim area without picking up any luggage, went outside so rapidly that he missed the sign for taxis closest to American Airlines, looked behind him to see if anyone was following, saw the taxis at United Airlines some distance away, and walked very rapidly in that direction. At the United Airlines taxi line he stopped, and the agents approached him, identified themselves as federal narcotics officers, and asked him if he would mind showing identification and his airline ticket.

 Defendant produced an Armed Forces Service card and responded that he had not taken a flight but had been waiting all day at LaGuardia Airport for his brother who was flying in from Puerto Rico. The agents knew, of course, that there were no flights from Puerto Rico to LaGuardia Airport. Defendant also indicated that there was some urgency for him to leave the airport. He appeared extremely nervous, with his hands trembling and his speech "fluttery". When asked for his "service number" defendant gave a completely different number from that on the Armed Forces Service card.

 Whitmore then asked defendant in a quiet tone of voice if to avoid embarrassment he would kindly accompany the agents inside the terminal, as the lighting outside was poor and people were looking at them. Defendant responded "Sure, let's go in." As they proceeded into a hallway adjacent to the public telephone area and within public view Sears inquired if defendant was wearing a back brace, and he replied that he was.

 In the terminal Whitmore took from his own pocket a card and read defendant his " Miranda " warnings, and defendant said he understood his rights. In response to Whitmore's questions defendant reiterated that he had not taken a flight but had been waiting all day for his brother to fly in from Puerto Rico. With that Whitmore stated that he believed it was possible defendant was carrying narcotics and that Whitmore would like to search him but could not do so without his permission or obtaining a warrant from the courts.

 Defendant replied that he had nothing to hide and proceeded to remove both his raincoat and his sports jacket. Sears, who was standing behind defendant, motioned to defendant's back. Whitmore then said he knew that defendant had just arrived on a flight from Chicago and that Whitmore had seen a ticket in defendant's jacket and knew he had something on his back.

 With that defendant became very excited and yelled, "You got it, you know it" and "take it, take it." When Whitmore asked "What do we have?" defendant said "narcotics." To Whitmore's question as to what kind of narcotics defendant answered "that's it" and reached up under the back of his turtle neck shirt and pulled out a package. ...


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