The opinion of the court was delivered by: COSTANTINO
MEMORANDUM OF DECISION AND ORDER
Defendant, Jean Luc-Thirion, is charged with violating the federal narcotics laws.
Defendant has moved to suppress the physical evidence obtained as a result of an alleged illegal search.
A hearing was held on September 22 and 23, 1980. On September 23, 1980 this court rendered an oral opinion in which defendant's motion to suppress was denied. The decision which follows is offered to elaborate upon the court's ruling.
On July 13, 1979, defendant arrived at JFK International Airport on a Braniff flight from Peru, South America. Thereafter, the defendant entered the customs area, picked up his luggage and underwent the initial customs inspection. Customs Patrol Officer Marchesano ("Marchesano") testified in court that his attention was drawn to Thirion because of a multiplicity of factors. Specifically, Thirion proceeded from the inspection belt area at a very rapid pace, he was perspiring profusely and he appeared apprehensive.
The court, having the opportunity to study Marchesano's demeanor, finds his testimony to be fully credible. Marchesano, a trained Customs Officer, testified that South America is a "source" country and thus passengers arriving from this area warrant special scrutiny. Further, the court is aware that Thirion, at one point, was inches away from Marchesano. Thus, Marchesano could clearly detect any evidence of perspiration and could witness facial contortions which might indicate nervousness.
On the basis of Marchesano's suspicions, the officer, while positioned in the Custom's area of the airport, stopped the defendant several feet from the inspection belt area.
Marchesano requested general information and examined Thirion's passport, airline ticket and custom's declaration form. As a consequence of this routine questioning, the officer learned that the defendant was in transit to Canada from a "source" country.
Based upon his training, Marchesano's suspicions were further aroused by this additional information.
At this stage, Marchesano and Thirion were in close proximity to one another and to the routine inspection belt. Marchesano testified that Thirion was perspiring. Further, the officer stated that during his routine questioning, the defendant appeared to become more apprehensive and to perspire more profusely. While in close contact with the defendant, Marchesano also noticed a slight bulge under Thirion's vest.
The defendant, in his own behalf, took the witness stand and testified to the events of July 13, 1979. Much of his testimony paralleled the testimony of Officer Marchesano. The defendant explained that, after his luggage was examined by the regular customs inspector, he walked only a short distance before he was stopped by a second individual, Officer Marchesano. In contradistinction to Marchesano's testimony, however, Thirion claimed that he was neither nervous and perspiring, nor walking quickly.
The court finds that this latter testimony is incredible. Significantly, while the defendant was on the witness stand he appeared to be quite nervous. Further, Thirion testified that this was the first time that he acted as a drug carrier. It therefore stands to reason that the defendant would be apprehensive until his delivery was completed.
Marchesano testified that after the initial routine questioning his suspicions were further aroused. Thereafter, Thirion was asked to accompany the officer to a private customs area where a routine search could be conducted. Marchesano stated that he asked Thirion to follow him so that the customs inspection could be continued. Marchesano displayed no weapons and used no force. Significantly, the defendant testified that he voluntarily went to the private search room.
Once inside the room, the officer followed acceptable procedures for a routine border inspection. The officer asked the defendant to empty his pockets and to remove his jacket. Thirion testified that he freely consented to the search of his person and his luggage.
Marchesano then described the details of the personal search which transpired. The officer conducted a pat down of the defendant. He felt Thirion's left and right sides and then touched his legs. As Marchesano reached for Thirion's left hip, the defendant jumped aside. The defendant again jumped when Marchesano merely reached for Thirion's right hip. In light of the foregoing steps followed by Marchesano, the court finds that such procedures were acceptable and routine.
At this point, Marchesano became extremely suspicious. Specifically, the officer questioned Thirion's reaction to the routine procedure of reaching for the defendant's hip. The court finds that this suspicion was justified under the circumstances. Marchesano then proceeded to touch the defendant's back. Upon placing his hand upon the small of the defendant's back, the officer felt a large protrusion. The defendant became perceptibly vexed and explained that the protrusion was a back brace. Yet, as Officer Marchesano testified, the defendant carried no medication. The officer then asked Thirion to touch the floor. The defendant did so without showing signs of pain. Based upon the testimony, the court finds that once Marchesano felt the protrusion and once a suitable explanation was not forthcoming, the officer was justified in housing serious reservations about the circumstances surrounding the protrusion.
Thereafter, Officer Marchesano asked the defendant to remove his vest and shirt. Once the shirt was removed, Marchesano saw two packages draped around the defendant. The packages contained cocaine. The defendant was then ...