The opinion of the court was delivered by: PLATT
Defendants, both of whom have been indicted for conspiracy to distribute heroin (Count 1) and possession with intent to distribute heroin (Count 2) in violation of 21 U.S.C. §§ 846 and 841(a)(1), have moved for suppression of all physical evidence seized on April 4, 1978, on the grounds that the arresting officers did not have a sufficient basis for an investigative stop of the defendants and did not have probable cause or consent to search the defendants' luggage or probable cause to detain or arrest the defendants.
The facts are as follows:
On April 4, 1978, Special Agent Gerard Whitmore and two fellow agents of the Drug Enforcement Administration ("DEA"), Special Agents Sears and Trustey, were watching arrivals at LaGuardia Airport of flights from Chicago, a known "source" city from which narcotics are brought to New York by airplane. They started their surveillances with the 9:30 a.m. flight and were continuing the same when American Airlines Flight No. 552 arrived at 3:50 p.m. from O'Hare Airport in Chicago at LaGuardia Airport, New York.
Defendants were the last two passengers disembarking from the plane; they came off the ramp conversing together; and they stopped when they reached the juncture of the hallway and the waiting room and separated, the defendant Flores proceeding toward the baggage area and the defendant Vasquez looking back and around, apparently to determine whether anyone might be following them. The defendant Vasquez then followed Flores making at least one and possibly two similar stops and several checks over her shoulder as she proceeded past the security area and down to the baggage area.
On arrival in the latter area, defendant Flores went to the furthermost corner where the baggage first appeared on the carousel and stood approximately ten feet away from the same whereas the defendant Vasquez took up a position alongside the carousel some twenty feet away from Flores. As will be noted hereinafter this fact is of some significance in these proceedings.
In their five minute wait for the luggage to arrive, defendants were observed looking at each other several times and defendant Vasquez was seen looking around at other persons.
When the bags arrived defendant Flores effortlessly removed two brand new unmarked (i. e., no identification other than the baggage check) bags from the carousel, one of which bags had a small metal padlock
which secured two zipper parts in a fashion which Special Agent Whitmore had seen on a prior narcotics shipment. Flores then summoned a skycap by the name of David Smith. While the latter testified that he only heard the defendant Flores respond to his destination question with "the Bronx", Special Agent Whitmore overheard said defendant first say "Brooklyn" and thereafter heard the defendant Vasquez correct him with "No, No, the Bronx" and defendant Flores then corrected his response to "the Bronx". The two versions are not necessarily inconsistent and in this case the Court credits both witnesses as well as Mr. Smith's statement that he heard no more which, of course, does not mean that no more was said.
Mr. Smith then proceeded to the taxi stand with Flores close behind or alongside, Vasquez some distance behind and the DEA agents bringing up the rear.
Special Agent Whitmore stopped Messrs. Smith and Flores at the taxi stand for the questioning indicated below and Special Agents Trustey and Sears stopped Vasquez for the same purpose.
Special Agent Whitmore identified himself and asked Flores whether he spoke English to which he received an affirmative reply. Special Agent Whitmore then asked for his airline ticket and identification to which Flores responded by saying that he did not have an airline ticket and gave him a Puerto Rican drivers license. Special Agent Whitmore then asked Flores whether the two bags were his and Flores did not reply; whereupon Mr. Smith gave Special Agent Whitmore the two baggage claim tickets. In the meanwhile, Mrs. Vasquez had failed to produce any identification but had furnished her name to Special Agents Trustey and Sears, had denied having anything to do with the luggage and said that Flores had her airplane ticket and their boarding passes, all of which facts were relayed by Special Agent Sears to Special Agent Whitmore. The latter then turned to Flores and said you have the tickets and boarding passes in response to which Flores exhibited two consecutively numbered tickets in the name of Mr. and Mrs. Alcaide, both one way from O'Hare, Chicago to LaGuardia, New York, purchased for cash on that day, i. e., April 4th, and two boarding passes with seat numbers 26E and 26F.
Special Agent Whitmore then asked whether the luggage belonged to Flores, to which Flores replied that the bags were his but that he did not know what was in them and that they had been packed by someone in Chicago. He added that the luggage had been delivered to him in a locked condition at O'Hare Airport and he had never looked inside the bags and had been told to deliver the same to a George Hotel in the Metropolitan area.
According to Special Agent Whitmore, Flores' hands were shaking, he appeared very nervous and he was speaking in chopped up phrases.
Special Agent Whitmore told Flores that he had reason to believe that he had narcotics and that he (Whitmore) could go to the Federal court and get a warrant to search the luggage or he (Flores) could give him permission to search the luggage. In response to this Flores said that Whitmore should check it out because that was his job. Special Agent Whitmore then asked if he had the keys to the locked luggage, to which Flores replied "No". Special Agent Whitmore then asked if he would mind stepping inside the terminal to permit him to attempt to open the luggage, whereupon Flores took one bag and Whitmore took the other and they proceeded into the terminal followed by the defendant Vasquez and Special Agents Trustey and Sears.
In the meanwhile, in response to questions posed to her by Special Agents Trustey and Sears, the defendant Vasquez acknowledged that she understood English, that she had just been on American Airlines Flight 552; that she had no identification; that she did not have the tickets but that Flores did; that she had been traveling with Flores; that they had come from Chicago; that he was not her husband, just a friend whom she had met yesterday; that the bags did not belong to her but to Flores, and that she did not know what was in the bags; that she was going to the Bronx and that Flores was not going to the same place as she was; that she was married and had children and that she had been visiting people at a California street address in Chicago and that Flores was going to see a lawyer in New York. When they were all inside the terminal the special agents asked the defendants whether they had keys to the luggage and both of them denied having any keys to the bags, whereupon Special Agent Whitmore went into another office and got a set of master keys and found keys that would fit both bags. At this point Special Agent Whitmore advised the defendants that he did not have the authority to open the bags without their consent and that without such consent he would have to obtain a search warrant from the Federal Court. And, in particular, he advised the defendant Flores that he would have to physically open each bag. To this the defendant Flores responded affirmatively and after Special Agent Whitmore unlocked each bag the defendant Flores physically opened each bag.
In the first bag the agents discovered a package under a newspaper which had a vinegar smell and which, when Special Agent Whitmore poked a small hole in the same, revealed a brown powdery substance. On seeing the package Flores is reported to have exclaimed "Oh my God, it ...