The opinion of the court was delivered by: CURTIN
Defendant Winston Weston is charged with bringing Poorshotam Moti, an illegal alien, across the Rainbow Bridge from Niagara Falls, Canada, to Niagara Falls, New York, in violation of 8 U.S.C. § 1324, 18 U.S.C. § 2, and 18 U.S.C. § 371. Defendant has moved to suppress certain evidence against him. A hearing on defendant's motion took place on March 20, 1981. The facts revealed at that hearing are as follows.
On December 21, 1980, at 1:30 a.m., a white male drove his car up to Immigration and Naturalization Inspection Station on the Rainbow Bridge. Immigration Inspector Barbara Hale was in the booth. As the car approached the inspector, she recorded the license number of the car on her "TEX" machine, as is the standard procedure. When the driver's window pulled parallel to Inspector Hale, the driver rolled down his window only between three inches and halfway. The inspector asked several routine questions, including where he had been in Canada, how long he had been there, and the reason for his trip. The inspector testified that the driver spoke softly and with a nervous stammer. She said she had to ask him to look at her when she asked questions. In addition, she said she had to bend down close to him, less than a foot separating their faces, to hear him. She also testified that she asked him to roll down the window. She said she was able to see him clearly because the area was well lit and her view unobstructed. Although most border interviews that night lasted only 30 seconds, this interview lasted 11/2 to 2 minutes because the driver's stated purpose of his visit was atypical given the other traffic that night and because she thought the driver might have an accent.
As the inspector asked the driver to open the trunk, the vehicle began to roll forward, at first slowly, and then at much greater speed. The inspector shouted at the car as it began to drive off, but to no avail. She stated that she shouted because some people who are asked to open their trunks believe they should bring the trunk parallel to the inspection window or that they should immediately drive to the secondary inspection area. Her shouting was intended to avoid any misunderstanding. As the car sped away, the inspector again checked the license plate and took note that the vehicle was a brown Ford car. She immediately closed her booth and reported what had happened to her supervisor. The inspector also notified the Border Patrol and the New York State Park Police. The time was approximately 1:30 a.m.
A description of the vehicle was broadcast on various police radios, along with the information that the car had run through the border without completing inspection. Although it is not entirely clear, the broadcast evidently described the car as a brown Ford containing a single white male with dark hair, gave the license number, and stated that the incident had just occurred.
Border Patrol Agents John T. Attanasio and Thomas P. Haggerty took up a surveillance position in their car on the Grand Island Bridge, approximately four miles south of the Rainbow Bridge. There they waited from 1:40 a.m. until 3:05 a.m., at which time they returned to their station. Soon after returning to the station, the agents received word that the car had just passed through the Williamsville toll barrier on the New York State Thruway, heading east toward Albany. They contacted the New York State Police and asked them to detain the vehicle until the agents could get there, which the State Police did. Just as the information came over the agents' car radio that the vehicle had been stopped, and as Agent Attanasio was requesting the location of the car, the agents crested a hill spotting the stopped car.
Two New York State Police officers were questioning the defendant at the rear of his car. The defendant was wearing handcuffs. Another individual, later identified as Poorshotam Moti, was still in the car. After checking that the license plate number matched that broadcast, the Border Patrol agents interviewed Moti. They opened the car door, asked him to step out, and asked him his citizenship. Agent Attanasio testified that Moti had an "East Indian" accent, medium dark skin, but claimed to have been born in Brooklyn, New York. Agent Attanasio responded by saying, "I don't believe you are from Brooklyn, New York." Mr. Moti was told to take a seat in the backseat of the Border Patrol cruiser. The two agents got in the front seat and advised Moti of his constitutional rights. Upon further questioning, Moti said he was from Guiana but was in the United States legally, had been hitchhiking, and had been picked up by the defendant.
Agent Attanasio next joined the two State Policemen and the defendant. By this time, they were seated in the other police car. Agent Attanasio testified that defendant, who was wearing handcuffs, was not free to leave. The agent got in the back seat with the defendant and questioned him as to where he was born, what his citizenship was, and where he had picked up Moti. The defendant replied that he picked him up hitchhiking on the Thruway. The agent responded by saying that he did not believe him inasmuch as Moti had admitted that he was from Guiana and had come into the country in the trunk of defendant's car. The latter, of course, was false. Defendant reportedly at that point confirmed that Moti had been in the trunk. The officer told the defendant that he was under arrest. Questioning ceased. After a short discussion between the Border Patrol agents and the State Police officers, the agents substituted their handcuffs on the defendant for those of the State Police, and both individuals were taken by the Border Patrol from Pembroke, where they were stopped, to their station in Tonawanda. They were asked not to speak to each other during the 45-minute drive back to the station in the backseat of the Border Patrol car.
Once at the station, they were taken to separate interview rooms. At approximately 5 a.m., soon after arrival, Agents Attanasio and Haggerty read the defendant his rights. The defendant reportedly said that he understood his rights, but he refused to sign a form to that effect.
Instead, he asked to call his wife and was allowed to do so. Thereafter, he reportedly agreed to talk with the agents. After some questioning, the defendant at 7 a.m. made a statement which was recorded on tape. After some further questioning, the defendant made a second taped statement, beginning at 8:55 a.m. This one mentions that Lomas Sharma, the defendant's brother-in-law, arranged for Moti to travel with the defendant. The tape ran out before defendant completed his second statement, and a written report was prepared. It was signed by defendant, and both agents witnessed his signature. The court has listened to both tapes.
In short, the substance of the statement makes clear that defendant admitted having picked up Moti in Toronto by prearrangement and having transported him to the bridge. When they approached the bridge, Moti got in the trunk. He admitted that Inspector Hale's order that the defendant open his trunk at the inspection station scared him, with the result that he sped off without completing the inspection.
In the course of the second statement, the written report reflects the following exchange took place:
Q. Do you wish to have a lawyer or any other person present to advise you?
A. Yes, my wife and my brother-in-law.
Q. Are you willing to answer my questions at this time? Without ...