The opinion of the court was delivered by: PLATT
Defendant has been indicted for knowingly and intentionally possessing with intent to distribute approximately 507 grams of cocaine and for falsely and wilfully representing himself to be a citizen of the United States, both offenses allegedly occurring on July 27, 1980 at JFK International Airport, Queens, New York. He has moved to suppress the evidence seized and statements taken from him by members of the Immigration and Naturalization Service ("INS") on that occasion.
On Sunday morning, July 27, 1980, Thomas Flood, Maurice Bressler and Richard Nocella, three INS Criminal Investigators, were observing passengers deplaning from American Airlines Flight No. 10 upon its arrival at the airport from Los Angeles. The purpose of such surveillance was to apprehend illegal aliens from Mexico and South America.
Before spotting the defendant, the investigators stopped and detained a number of persons suspected of being illegal aliens. Mr. Flood then observed a well dressed, Hispanic man who, after seeing Inspector Bressler questioning the suspected group, veered off to the left and away from the general flow of the deplaning passengers. This individual then attempted to avoid a confrontation by walking away at an increased pace. After observing this conduct, Investigator Flood "called to Investigator Bressler, Investigator Bressler waved his hand to me indicating to me that he had seen ... something also" and the defendant was stopped.
Thereafter, Investigator Flood asked the defendant where he was born, to which he replied "Puerto Rico." Mr. Flood then inquired about defendant's citizenship, and he replied that he was a citizen of the United States and showed Investigator Flood a Puerto Rican birth certificate. However, Investigator Flood noticed that there was no validating signature on the bottom line and corner. Defendant was then asked a number of questions concerning the Puerto Rican variants for "nickel" and "dime". Investigator Flood's suspicions were aroused when defendant did not reply "Vellon" for nickel and "La Ficha" for dime. These suspicions were heightened when defendant was asked what his mother's maiden name was and he couldn't remember.
Believing, at that point, the defendant to be an alien illegally in the United States, Investigator Flood placed him under administrative arrest under and pursuant to 8 U.S.C. § 1357(a)(2).
Having placed the defendant under administrative arrest, Investigator Flood searched his person and found a baggage claim ticket in his wallet which was given to Investigator Bressler who obtained defendant's bag and gave it to Investigator Flood. Mr. Flood then went over to the defendant and asked him whether he had his permission to open the bag. Defendant answered in the affirmative and Investigator Flood opened the bag and found several articles of clothing and a brown briefcase with a double combination lock. He brought the latter to the defendant and "asked him was he willing to open up the briefcase. He told me yes. He (defendant') then proceeded to work the two combination locks and opened the briefcase." (Tr. 21).
Investigator Flood took the now open briefcase from the defendant and found a brown paper bag wrapped with some rubber bands which contained a white plastic bag with a white powdery substance. At that point Investigator Nocella took the paper bag, showed it to the defendant and asked him what it was, to which the defendant replied "cocaine". (Tr. 22).
Investigator Flood then advised the defendant that he was under arrest for possession of drugs and Investigator Nocella gave him his Miranda warnings. After that defendant was transported to the Immigration Office where he was again given his Miranda warnings.
In support of the motion to suppress, defendant claims that (i) the "stop and subsequent arrest of the defendant were impermissible"; (ii) "the search of the defendant's wallet was improper"; (iii) "the seizure of the suitcase by Federal employees violated defendant's Fourth Amendment rights and was an impermissible search of the baggage"; and (iv) "the Government did not meet its burden of showing that the defendant voluntarily and knowingly consented to a search of the baggage or the briefcase at the airport."
As indicated in footnote 1, supra, § 1357(a)(1) of Title 8 of the United States Code authorizes any INS officer "to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States."
In the case at bar, Investigator Flood, who has been employed as a criminal investigator for the INS for seven years and has made approximately 2500 arrests of illegal aliens (a thousand of which have been made at airports under domestic flight stops), testified that he stopped the defendant because (i) he looked Hispanic; (ii) he was wearing a suit; (iii) he reacted "to the presence of Investigator Bressler who was in the process of standing there with his badge up in the air identifying himself to other people that he had stopped"; and (iv) he broke "the line of people coming off and veer(ed) to the left." (Tr. 33-34). Under very similar circumstances, we held in United States v. Hernandez-Rojas, 470 F. Supp. 1212, affirmed without opinion, 615 F.2d ...