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June 11, 1981

Jose PENALO, a/k/a "Jose Cruz", and Daniel Enrique Mena, Defendants

The opinion of the court was delivered by: NEAHER


On the morning of March 8, 1979, defendants Jose Penalo and Daniel Mena were arrested at LaGuardia Airport in Queens, New York, following the discovery of more than a pound of cocaine in a suitcase claimed by Mena. The two had arrived at LaGuardia on a flight from Miami, Florida, and were questioned, and subsequently arrested, after an investigatory "stop" made by agents of the Drug Enforcement Administration (DEA). Defendants moved to suppress the tangible evidence seized and the statements they made to the agents, and a hearing was held concerning the events preceding their arrest. Based on the following findings of fact and conclusions of law, the motions are denied.

 On the morning in question, DEA Special Agent Robert K. Sears, with his partner Special Agent Alfredo Iglesias, established surveillance at the Eastern Airlines Terminal at LaGuardia awaiting the arrival of flight 892 from Miami. At that time, Sears had already had seven and a half years experience as a DEA agent which included more than a year detailed to LaGuardia. Positioning himself opposite the "jetway" for deplaning passengers, Sears observed defendant Mena walk at a rapid pace along the passengers' hallway approximately 45 feet into the terminal and then abruptly stop. Mena then turned around and for several moments stared at the people seated nearby in the outgoing passengers' area and at those passengers behind him who were also deplaning from flight 892. Also turning to view those coming off flight 892, agent Sears observed defendant Penalo walk off the jetway. At that point, Penalo and Mena established eye contact, which they maintained as Penalo walked along the hallway towards Mena. When Penalo approached to within eight or ten feet of Mena, without either making any overt sign of recognition of the other, Mena turned around and proceeded forward toward the terminal exit. Penalo followed, approximately eight to ten feet behind, quickening and slowing his pace to match Mena's. Agent Sears observed that "several times Mr. Mena looked back over his shoulder as if looking for surveillance." H 13. *fn1"

 After they had proceeded a distance in this manner, Mena stopped, Penalo came up to him and the two engaged in a very brief conversation. They then separated with Penalo, after a short hesitation, proceeding towards the baggage claim area, and Mena walking over to a nearby bank of pay telephones. Without depositing any coins, Mena dialed a telephone number and put the receiver to his ear. Mena did not speak or move his lips, but stood holding the receiver and looking back at the people who were coming off the plane after him. After about a half minute's surveillance of Mena at the telephone, Sears proceeded to the baggage claim area where he observed Penalo. In a few moments Mena appeared, joined Penalo and the two again had a short conversation and then immediately separated.

 At this point Penalo and Mena again engaged in a maneuver that Sears termed "follow the leader." H 16. For at least two minutes Mena walked "aimlessly" around the baggage area while Penalo followed his pattern and watched the people outside who could look back into the baggage area. Mena then went to the baggage carousel that held the luggage coming off flight 892 and approached a gray Samsonite suitcase. Reaching into his rear pocket, Mena withdrew a handkerchief and used it to grasp the handle of the suitcase. The two then gave their ticket stubs to security personnel and, with Mena carrying the suitcase as described above, passed through the terminal doors to the curbside taxi area.

 Mena placed the suitcase on the sidewalk between himself and Penalo. Sears, now joined by agent Iglesias, observed the two from inside the terminal for approximately a minute. Sears testified that Mena turned around and appeared to be staring at the agents. At this point, Sears and Iglesias approached defendants and identified themselves as federal officers. Sears testified that "at that time, Mr. Mena became extremely nervous. His jaw muscles seemed to tighten up, and his hands started to tremble." H 17.

 Sears asked Mena if he had arrived on a flight from Florida, and Mena responded that he had. The agent requested identification and Mena produced a Florida driver's license and an Eastern Airlines ticket, both in his own name. At that point, Sears looked down and noticed that the airline identification sticker on the suitcase bore the name "Rafael Soto." In response to Sears' question whether the suitcase belonged to him, Mena stepped away from the luggage and said,

"No, the bag doesn't belong to me. Check it out, check it out for my fingerprints." H 18.

 In addition, Mena stated that Penalo had not arrived with him on the flight from Miami, but had come to the airport in a car to pick up Mena. Sears then conferred briefly with agent Iglesias, who had been speaking with Penalo. Penalo had stated to Iglesias that he had no identification and had come to the airport to pick up Mena.

 At that point, the agents requested that Penalo and Mena step inside the terminal doors to a public area near a bank of telephones. The two complied and, although they were not so advised, Sears testified that at that time they were still free to leave. Sears then stated that he wished to search the suitcase but that he had no authority to do so without a warrant unless they gave their consent. In response to this, both Penalo and Mena repeated their denials of ownership and Mena took a step back, "as if to flee." H 23. Sears held his arm and escorted him to a less exposed yet still public hallway nearby. In the face of defendants' reiterated statements that they knew nothing about the suitcase, Iglesias took a Samsonite passkey from his pocket and opened the bag. Upon the discovery inside of approximately 496 grams of cocaine, Penalo and Mena were placed under arrest and advised of their constitutional rights. All of the events from the moment the agents approached defendants at curbside until the opening of the suitcase transpired within the space of a few minutes. *fn2"

 The Fourth Amendment requires that investigatory stops, such as the one involved here, be justified by specific and articulable facts which support a reasonable suspicion that the person stopped is engaged in criminal activity. *fn3" United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Forero-Rincon, 626 F.2d 218 (2d Cir. 1980). In elaborating the requirements of this standard, the courts have repeatedly stressed that the observations of law enforcement officers must be viewed as a whole, not as discrete and separate facts, in the final determination of whether they add up to a reasonable suspicion sufficient to uphold the stop. United States v. Forero-Rincon, supra, 626 F.2d at 221. See United States v. Vasquez, 612 F.2d 1338, 1342 (2d Cir. 1979), cert. denied, 447 U.S. 907, 100 S. Ct. 2991, 64 L. Ed. 2d 857 (1980); United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977). Indeed, the Supreme Court has most recently stated:

"The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions inferences and deductions that might well elude an untrained person.
"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
"The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in ...

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