The opinion of the court was delivered by: PLATT
Defendant, Felix Gustavo Hernandez-Rojas, has been indicted for possession with intent to distribute one half (1/2) kilogram of cocaine, a Schedule II controlled substance, in violation of Section 841(a)(1) of Title 21, United States Code. Defendant has moved to suppress evidence seized from him upon his arrest at John F. Kennedy Airport on December 4, 1978, on the grounds that his arrest and the subsequent frisk and inspection of his suitcase which revealed the cocaine and several bundles of money were unlawful and violative of his Fourth Amendment rights. In opposing defendant's motion, the Government contends that his initial detention and subsequent arrest by an investigative officer of the Immigration and Naturalization Service ("INS") were supported by reasonable suspicion and probable cause, that the search of his person was incidental to a lawful arrest, and that the search of his suitcase was either permissible as a search for evidence of defendant's status as an illegal alien, as a weapon search, as a consent search, or as an inventory search.
Since the reasonableness of an investigative stop and of a warrantless arrest, search and seizure must be evaluated in light of all the attendant circumstances, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Magda, 547 F.2d 756 (2d Cir. 1976), Cert. denied, 434 U.S. 878, 98 S. Ct. 230, 54 L. Ed. 2d 157 (1977); United States v. Hall, 174 U.S.App.D.C. 13, 525 F.2d 857 (1976), the facts adduced at the hearing held January 12, 1979 on defendant's motion to suppress are set forth below in some detail.
The only witness called at the hearing was Thomas Flood, a criminal investigator for the INS. He testified that he had been a criminal investigator for the INS for a little over five years; that since November 1974 he has been assigned to the surveillance of domestic flights arriving from Los Angeles at New York City for the purpose of apprehending illegal aliens; that since 1974 the INS has apprehended over one thousand illegal aliens deplaning domestic flights from Los Angeles; that the surveillance program has focused on four particular flights, two on Trans World Airlines and two on American Airlines, which leave Los Angeles at ten o'clock at night and arrive in New York City between five and six o'clock in the morning and which illegal aliens, especially Hispanic aliens from Central and South America, commonly use "because they feel that there is less chance of them being detected in traveling at these off hours;" and that, whereas one out of every three persons stopped at the inception of the domestic flight surveillance program were illegal aliens, now two out of every three persons stopped are illegal aliens (Tr. 3-5).
At about five o'clock in the morning of December 4, 1978, Investigators Thomas Flood and Maurice Bressler stationed themselves outside Gate No. 11 of the American Airlines terminal in the corridor linking it to the terminal lobby and baggage claim area. At approximately six o'clock, American Airlines Flight No. 10 from Los Angeles arrived at Gate No. 11 and began deplaning passengers. As they observed people come off the plane, Investigators Flood and Bressler were positioned some fifteen feet apart in the corridor immediately outside the gate area and paid "particular attention to the physical characteristics of (an) individual, the type of clothes (an) individual (was) wearing, and any actions that he (made) which we (thought were) suspicious" (Tr. 6).
At the hearing, Investigator Flood identified the defendant as an individual he had apprehended on this occasion and described the circumstances leading to the defendant's initial detention, as follows:
"At this time the defendant my partner, Investigator Bressler, stopped an individual who came out of the plane. As he was identifying himself to this individual the defendant came off the plane. I noticed that he was Hispanic. I noticed that his appearance was similar to other people that we had apprehended off that flight. I noticed that he was wearing a pin-striped suit and I also noticed as he came off the plane he spied Investigator Bressler identifying himself to another individual who came off the plane before the defendant. As he saw this he veered to his left, rushing by a couple of people, and began walking very fast, looking out of the corner of his eye as if waiting for Investigator Bressler to catch up with him. Investigator Bressler at the same time noticed the defendant's actions, called my name and pointed to him. As Investigator Bressler was doing this I was already moving towards the defendant, who at this time began to walk very fast." (Tr. 8-9).
Investigator Flood testified that, suspecting that defendant was an alien, he followed customary procedure by approaching defendant to ask the latter a question in English:
"As the defendant was still walking, I asked him from where did this flight originate in English. He replied in Spanish that he didn't speak English. I then asked him I then identified myself as a criminal investigator of the United States Immigration and Naturalization Service, and asked him (in Spanish) what country he was a citizen of." (Tr. 10)
Defendant replied that he was a citizen of Colombia. Since an alien is required to carry with him at all times evidence of his right to be in the United States (8 U.S.C. § 1304(e) (Tr. 6-7):
"I then asked him: Did he have any evidence of his right to be in the United States? He told me no. I asked him if he had any identification with him, or any papers which showed his permission to be in the United States. He then displayed to me a driver's license and social security card." (Tr. 10).
Investigator Flood testified that when he saw these documents he "thought right away that they were typed with the same typewriter" (Tr. 11-12). He then asked the suspect "if he had any other papers of identification." When the suspect responded in the negative, he was placed under arrest as an illegal alien (Tr. 12).
When first approached by Investigator Flood, defendant was carrying a black suitcase made of "heavy-duty plastic" which was "bigger than a briefcase (or attache case), smaller than a large suitcase" (Tr. 23). Defendant put his suitcase on the floor when he took from his person the papers he showed to Investigator Flood (Tr. 26), but retained physical possession of the suitcase upon being arrested (Tr. 12). In the meantime, Investigator Bressler had arrested from the same flight two other aliens from Mexico. The INS investigators "instructed the two Mexicans and the defendant to sit in the seated area across from Gate No. 11, until all of the passengers had deplaned" (Tr. 12). While Investigator Bressler searched the two Mexicans, Investigator Flood searched defendant's person (Tr. 12 and 26). Investigator Flood testified as to what happened next:
"I asked him if he would open up the suitcase.
"Question: Did he say anything as ...