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UNITED STATES v. POLITANO

June 6, 1980

UNITED STATES OF AMERICA Plaintiff
v.
PASQUALE POLITANO, WILLIAM C. STANBRIDGE, DENISE SMITH Defendants



The opinion of the court was delivered by: CURTIN

On April 15, 1980, the court issued an order briefly summarizing the court's decision on the defendant Denise Smith's motion to dismiss and indicating that a decision would follow which would explain the result. In the meantime, counsel for the defendant Denise Smith made a motion for reconsideration. As my explanatory decision reveals, I believe this motion has merit and that the order of April 15 should be modified. As a result, the order of the court is as follows: (1) all evidence obtained in connection with the search at the airport security checkpoint is suppressed; (2) all evidence obtained during the investigative stop and in the search of defendant's bag in the airport office is suppressed; and (3) all evidence obtained in the search of her automobile on the day of her arrest is suppressed. The reasons for this order are explained below.

Prior to June 2, 1979, agents of the United States Drug Enforcement Administration ("DEA") had been conducting an investigation of the suspected narcotics activities of Pasquale Politano for some time. Shortly before June 2, arrangements were made by DEA agents for an undercover informant and agent to purchase eight ounces of heroin from Politano at his residence on that day. Other agents conducted a simultaneous surveillance in the vicinity of his home at 234 Prospect Avenue, Buffalo, New York. Late in the afternoon of June 2, the agents observed Mrs. Politano arrive at the home with a male and a white female who was later identified as the defendant Denise Smith. Shortly thereafter, the agents learned that contact had been made between the undercover agents and Politano and that the sale of heroin would take place that afternoon. The undercover agents proceeded to the Politano residence. At approximately 5:20 p.m., these agents were observed leaving it. A short time later, the female and male individuals who had arrived earlier with Mrs. Politano were observed leaving with Politano. Politano drove them to the Buffalo International Airport. DEA agents followed them.

 Upon arrival at the airport, one of the agents talked to the United Airlines and American Airlines security personnel and told them that a narcotics investigation was in progress. He gave them a description of the two individuals in question and asked that, if possible, they should obtain identification from them. He told them that one may be carrying a large sum of money, and that it would be helpful if the security personnel could get a serial number from the money. The agents also contacted the Cheektowaga police officers on duty and gave them the same information and asked them if they could get identification. This request was passed on to Officer Eugene Leahy.

 After defendant Smith went to the ticket counter, the agent learned from the airline employee that she was traveling under the name of "M. Gagliardi," and was leaving on a flight to New York. The ticket also showed that she had arrived in Buffalo on a flight from New York earlier that same afternoon. While defendant Smith and her male companion, who was later identified as the defendant William C. Stanbridge, were waiting for the flight, the agents noticed that she changed her dress and hairstyle. At about 6:30 p.m., Agent Peterson, not then on the scene, was advised by the other DEA agents that eight ounces of heroin had been purchased from Politano for about $ 44,000 and that the individuals who had been in the Politano home immediately before the sale were now at the Buffalo Airport ready to travel to New York on the 7:20 p.m. American Airlines flight. Peterson then proceeded to the airport.

 In the meantime, the male person who had been followed to the airport went through the airport security checkpoint first. When he did so, the magnetometer rang but, after a hand scan by Officer Leahy, the man was allowed to proceed to the departure gate because, according to the testimony of the officer, he felt that he had no basis for requesting further identification. When defendant Smith's shoulder bag passed through the X-ray device, one of the operators noticed a "large mass" in the bottom of her shoulder bag. Smith was advised that the bag would have to be opened if she wanted to board the plane. Defendant Smith made no reply but simply nodded affirmatively. The reason since given for examining the bag further was that it was an unidentified mass, that it had the shape and density of a plastic explosive, and that the operator was instructed to check all unidentifiable objects further. Upon opening and searching the bag, a large roll of money was observed at the bottom. When Smith was asked why she was carrying such a large amount of money, she said that it was a personal matter. She was referred by Susan Helwig, one of the airport security personnel, to Officer Leahy, who was standing close by.

 The officer and defendant Smith went to a table which was off to the side, and Leahy asked her several questions about the money. He explained that when individuals go through the security area carrying large sums of money, this same procedure or questioning is followed. Defendant Smith told Leahy that the bag contained about $ 30,000 and that the money was an inheritance. She also told him her name was Maria Gagliardi and that her birthdate was May 31, 1951. She said that she was traveling alone and had no identification with her, and she refused Leahy's offer to escort her to the plane and to call ahead to LaGuardia to have a security person assist her when she departed from the plane. When she told him that she wanted to leave, she was allowed to proceed to the boarding gate.

 Helwig and Leahy told the DEA agents what information they had obtained. It was later decided that Agent Peterson would board the plane to attempt to get further information from defendant Smith. Peterson was dressed casually and was not in uniform. When he reached her seat in the plane, Peterson identified himself and asked her if she would accompany him off the plane while he asked her some brief questions. As they were proceeding down the jetway, he showed her his DEA credentials. When she asked whether she was under arrest, he told her that she was not. He said that he just wanted to ask her some questions about the money and that, in view of the crowded conditions where they were, it would be better if they stepped into a nearby room in the terminal. He assured her that she would not miss her flight, and they went to a room just off of the jetpath. It was a small room and, in addition to Peterson and Smith, there were two other DEA agents present. She told Peterson the money was an inheritance, that her name was Maria Gagliardi, that she lived in New Jersey, and that her birthdate was May 31, 1951. She refused to tell him from whom she had inherited the money, and told him that it was none of his business. He asked her if he could look at the money. She dumped the contents of her purse on the table, and Peterson noted that the money was in denominations of $ 20, $ 50, and $ 100 bills and was wrapped in eight to ten bundles. He wrote down the serial numbers of some of the bills and noted that there were white pieces of paper affixed to some of the bundles. The money was returned to the bag, and defendant Smith was permitted to go back to the plane after about a five-minute meeting with the agents. Later, when the serial numbers of the bills in the possession of Smith were compared with the serial numbers of the bills that the DEA informant had passed to Politano, it was found that the numbers corresponded.

 The next event requiring discussion occurred on July 8, 1979, when Denise Smith and others were arrested at 234 Prospect Avenue in Buffalo by DEA agents and officers of the Buffalo and Amherst, New York Police Departments. The arrest occurred after DEA agents had obtained warrants for the arrest of Smith and the others. She was arrested at about 1:00 p.m. Agent Iwinski of the DEA testified that she was advised of her constitutional rights at the time of her arrest. After making the arrests, the agents conducted a search of the Politano house pursuant to a search warrant. During this period, or until approximately 3:30 p.m., the defendant was handcuffed and seated at the kitchen table with the other persons who had been arrested, Mrs. Politano and William Stanbridge. Agent Iwinski testified that at about 3:30 p.m. he approached Denise Smith and the other persons at the kitchen table and asked them who owned a green Volkswagen with New Jersey license plates. Denise Smith stated that it was hers. Iwinski testified that in answer to his question as to the vehicle registration, the defendant replied that it was in the glove compartment. Iwinski then obtained a consent to search form and showed it to Denise Smith. Iwinski testified that he asked her whether he could search her car, that he told her she was under no obligation to permit the search, and that he asked her whether she understood her rights. He further testified that the defendant stated, "Well, you are going to do it anyway, aren't you," to which he replied, "No, that's not the question I posed." According to Iwinski's testimony, he then had her read the consent form, after which she signed the form. The resulting search of the defendant's car turned up a plastic bag containing heroin, which was found under the dashboard.

 Denise Smith's testimony reveals additional circumstances relevant to the signing of the consent form. She testified that during the time she was under arrest in the Politano residence she was extremely scared, enough so that she urinated in her pants. She also testified that during the time when Agent Iwinski had gone to obtain the form, she talked with Agent Teresi. According to her, Teresi was directing other officers to prepare to take those arrested, including herself, downtown to the holding center, but to leave Mrs. Politano at the Politano residence until a relative arrived. Smith stated that, because she was frightened and did not want to go downtown by herself, she asked Teresi whether she could stay and wait until Mrs. Politano went down. Agent Teresi responded, "Why should I do you any favors, you are not helping us at all." Smith testified that when she asked him what he expected her to do, he said, "Why don't you just sign the consent form?" She asked, "What if I don't sign the consent form," to which Teresi replied, "We would search it anyway." The defendant also testified that Teresi told her that if she signed the form he would see what he could do about her staying with Mrs. Politano until she went downtown to the holding center. She testified, moreover, that when Iwinski came back with the consent form she signed it, but felt she had no choice but to sign it. She stated that she believed that the extent of the search was to be limited to the glove compartment to obtain her vehicle registration. Teresi did not testify and her testimony about her conversation with him stands uncontradicted. I see no reason not to accept it.

 AIRPORT SEARCHES

 Defendant Smith's motion to suppress physical and testimonial evidence obtained by the DEA agents at the Buffalo airport can be summarized briefly. First, the defendant claims that the search of her bag at the security checkpoint violated her fourth amendment rights because of the suggestive prior involvement of the DEA agents with the participating airport security personnel. Therefore, it is said that any evidence and information obtained or statements made as a result of that search must be suppressed. Second, the defendant contends that the later search of her bag, after she was taken from the airplane, was also an unconstitutional search. Relying on the Supreme Court's recent decision in Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979), the defendant argues that this search is not authorized by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), because it is not within the narrow exception to the general requirement of probable cause pronounced in Terry, which permits a limited search or pat-down only for weapons. For any search to be justified in this case, therefore, defendant claims it must be based on probable cause to arrest the defendant. Defendant argues that probable cause was lacking in this case because the information conveyed by the airport security personnel to the DEA agents, confirming the fact that she was carrying a large amount of money, cannot be included in such a determination because it must be suppressed. In conjunction with this argument, defendant contends that even if probable cause existed, a warrant to search her bag was required.

 Looking first to defendant's claim as to the checkpoint search, the burden is on the government to prove the reasonableness of the search under fourth amendment standards. The airport search which follows the triggering of a device for screening passengers and baggage is ordinarily justified by the public's paramount concern for air safety. The great danger to life and property which hijacking poses to society meets the test of reasonableness for a search if it is "conducted in good faith for the purpose of preventing hijacking . . . ." United States v. Bell, 464 F.2d 667, 675 (2d Cir. 1972); United States v. Mitchell, 352 F. Supp. 38, 42-43 (E.D.N.Y.1972), aff'd mem., 486 F.2d 1397 (2d Cir. 1973). The existence of the airport security checkpoint, however, cannot be exploited by government agents for purposes other than flight safety. The warrantless intrusion into the privacy of airline passengers can be justified only by the limited purpose of air safety and this justification and its legitimacy would be undermined if government law enforcement agents were allowed to abuse the airport search procedure. The court agrees with the statement in Mitchell, supra, at 43, that "(a)ny indication of any exploitation of the airport occasion for other than flight safety purposes would warrant inquiry and suppression of evidence that could with any degree of confidence be attributed to that kind of conduct." See United States v. Scott, 406 F. Supp. 443, 444 (E.D.Mich.1976). *fn1"

 In this case the court believes that there was inexcusable exploitation of the airport security occasion. The government does not contest that a DEA agent requested the assistance of both the airport security personnel and the Cheektowaga police: he requested that they obtain identification from Denise Smith and her male companion and obtain the serial numbers from the money which he suspected was being carried by one of them. Such advance warning with respect to a particular person inevitably would influence the judgment of the security personnel in deciding whether or not to search a passenger.

 The government contends, however, that the security personnel had an independent basis to search Denise Smith because of the large, unidentifiable mass in her shoulder bag which appeared on the X-ray scanning device at the checkpoint. In making this argument, the government relies on Scott, supra. In that case, the court declined to apply a per se rule invalidating all searches by security personnel conducted subsequent to warnings by officers investigating crimes collateral to airport security. Id., at 445. Rather, the court, in order to sustain the constitutionality of the search, would inquire into whether there was "an independent and adequate basis for the security search in its own right." Id. Given the clear responsibility of security personnel for preventing weapons or similar devices from being carried aboard airplanes, this approach has merit. Nonetheless, in this case the "independent basis" for the search proffered by the government is not sufficient. Such a basis, when abuse of the limited purpose of the security checkpoint has been shown, must be fairly compelling. The fact that there was a large, unidentifiable mass ...


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