The opinion of the court was delivered by: PLATT
Mr. David Waltzer, charged with possession of cocaine, with intent to distribute, has moved to suppress certain statements and items of physical evidence taken from him by DEA agents on June 2, 1981 at Kennedy Airport. This Court conducted a hearing on October 19, 1981 and tentatively denied defendant's pre-trial motion to suppress the evidence in question pursuant to Rule 12(e) of the Federal Rules of Criminal Procedure. This Court, after renewal of the motion after trial by Mr. Waltzer, now finds the following facts and attendant conclusions of law:
In the early afternoon of June 2, 1981, Deputy Sheriff Carl, a narcotics agent in Broward County, Florida, observed Mr. Waltzer enter the Delta Airlines Terminal at Fort Lauderdale Airport, a known narcotics source city (Tr. 6) and stand in a rather long line at the ticket counter. Agent Carl noticed that the defendant was extremely nervous, continually shifting his weight from one foot to the other, (Tr. 15) and looking from side to side, scanning the area. He turned around to look in the agent's direction "a couple of times at least." (Tr. 6-7).
After 15 or 20 minutes, Agent Carl approached the ticket counter. He observed the defendant identify himself as Mr. Walker to the ticket agent, and purchase with cash a reserved first class one way ticket on a 1:55 pm Delta Flight 1052 to Kennedy Airport. (Tr. 9). After the defendant checked his two suitcases, Agent Carl went to the outside baggage loading area and positioned himself on top of the baggage conveyor belt on which the two bags were placed. He made detailed notes as to the description of the two bags, their claim numbers, and their identification stickers, one reading R. Walker, the other reading D. Walker. (Tr. 24-25). Agent Carl subsequently contacted Agent Williams of the DEA in New York, informing him of the defendant's imminent arrival at Kennedy Airport. He described to Agent Williams his observations of the defendant's behavior, physical characteristics and dress, as well as all the information he had noted about the two suitcases. (Tr. 10-11).
Based on this information, several DEA agents and a drug enforcement dog went to the Delta Airlines Terminal at Kennedy Airport. One of the agents, Darrell Smith, had trained the dog, Kane, to detect the presence of narcotics in closed containers. (Tr. 32-33).
Upon the arrival of defendant's flight at 4:35 pm (Tr. 63), Kane was taken to the Delta baggage area for Flight 1052. He jumped up on the conveyor belt and began sniffing each of the 100 to 150 suitcases (Tr. 37-38), "alerting" to the presence of narcotics in two bags, which Agent Smith eventually determined matched the description of the bags provided by Agent Carl in Florida. (Tr. 39-40, 42-43).
Meanwhile, DEA Agent Terry Valentine was stationed at Gate 7A, also in the Delta Airlines Terminal, where passengers were disembarking from Flight 1052. The first person off the plane was the defendant, who bolted through the doorway of Gate 7A (Tr. 62-63), walking very fast. He slowed his pace suddenly, scanned the area, and entered a men's room. (Tr. 64). Agent Valentine, who was following a few yards behind, waited outside and two minutes later the defendant emerged, looked around again, and walked toward the stairs to the baggage claim area. (Tr. 64). Agent Valentine followed.
Before reaching the stairs, the defendant suddenly veered off to the left out of the flow of traffic and along a glass partition perpendicular to the stairs. At the next exit gate he turned, doubling back on the other side of the glass partition, all the while eyeing Agent Valentine. (Tr. 64-65). At the top of the stairs, he stopped, looked to the left and then proceeded down the stairs at a very slow pace. Hesitating at the first unused baggage carousel, he moved to Flight 1052's baggage carousel, hesitating again. (Tr. 66-67). He then walked over to a bank of telephones, and appeared to make a call, turning around towards Agent Valentine while doing so. (Tr. 67).
Thereafter, Mr. Waltzer continued his intricate and "curious ballet." United States v. Place, 498 F. Supp. 1217, 1219 (E.D.N.Y.1980), rev'd, 660 F.2d 44 (2d Cir. 1981), petition for rehearing and en banc review denied. Walking toward the baggage carousels, he looked around and disappeared around a corner. As Agent Valentine followed, he re-appeared, stared at Agent Valentine and walked back to the carousel. (Tr. 67). Mr. Waltzer again went to the bank of telephones, appeared to make another call and returned to the baggage carousel for Flight 1052, looking again at the agent. Then, Mr. Waltzer went up the escalator. The agent followed, and as he reached the upper level, the defendant doubled back once again along the glass partition, reversed course and disappeared. (Tr. 67-68).
Agent Valentine went back downstairs to the baggage carousel where he saw Mr. Waltzer retrieve two suitcases. (Tr. 68). After being informed by the other agents that the dog Kane had "alerted" on these two suitcases, Agent Valentine and two other agents, Agent Murphy and Agent Mulhearn, approached the defendant, identified themselves and asked to speak with him. He agreed and when the agents asked if they could step out of people's way, he said, "Sure," walking with them to a spot a few yards away near the telephones. (Tr. 69, 113).
After giving his name and a New York State vehicle registration card to the agents, with noticeably trembling hands Agent Mulhearn asked Mr. Waltzer if he had baggage claim checks for his suitcases. He replied "No," and Agent Mulhearn then asked "What did you do with them?" whereupon Mr. Waltzer shrugged. (Tr. 70). When Agent Mulhearn asked him if he had his airline ticket, he said "No," and when asked what he did with it, Mr. Waltzer again shrugged. (Tr. 70).
At that point, the agent, having noticed something in the defendant's hand pointed to it, and said "what's that?" "What?" replied the defendant. "What's that in your hand?" the agent persisted. "I don't know," replied the defendant. (Tr. 70).
Agent Mulhearn then reached over and took the two baggage claim tickets from the defendant's left hand. (Tr. 70).
The inquiry continued. The agent asked what name the defendant was traveling under and the defendant replied "Huh?" The agent repeated the question. Mr. Waltzer said, "I don't know." (Tr. 72).
The agent asked if he was using the name Gary Walker, the name he had used to purchase his ticket in Florida. (Tr. 72).
"I don't know, what difference does it make?" The question was repeated and he answered, "Yes."
The agent asked why he had used an incorrect name and again received the same answer, "I don't know, what difference does it make?" (Tr. 72).
Mr. Waltzer was asked how long he had been in Fort Lauderdale.
"Why did you bring two big suitcases with you for a two day trip?"
"Well, that's all I have." (Tr. 72).
The defendant was then asked where he had stayed in ...