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UNITED STATES v. MABIE

February 24, 1984

UNITED STATES OF AMERICA against JACK LEE MABIE, Defendant.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 This is a motion, pursuant to Fed. R. Crim. P. 12(b)(3), to suppress physical evidence seized from and statements made by the defendant.

 Facts

 The credible evidence adduced by the Government at the suppression hearing established the following facts:

 On August 24, 1983, at approximately 6:30 p.m., defendant arrived at JFK Interenational Airport aboard Avianca Airlines Flight No. 007 from Cartagena, Columbia. In the Customs area of the airport he was observed by Customs inspectors, who noticed that he walked with a limp. Accordingly, defendant was stopped and asked a series of questions about his trip to Colombia and its purpose. Although defendant appeared to be alone at the airport, he told Customs that he had gone to Colombia on a tour. He also stated that he went to "check things out." As this questioning proceeded, defendant grew increasingly nervous and begin to fidget.

 Defendant was then asked to collect his luggage and follow Customs inspectors into a private room adjacent to the main Customs area, where a pat-down search of the surface of his clothing and boots was conducted. The Customs inspector who conducted the pat-down, Inspector Lynch, felt an abnormal bulge on the outer side of each boot. Inspector Lynch asked defendant to raise his pant legs enough to clear the tops of his boots. When defendant did so, Inspector Lynch saw white powder wrapped in plastic bulging out of the open zipper of both boots. Inspector Lynch asked defendant to take off his boots. The powder, contained in two packages, was removed and immediately field-tested. The results of the test were positive for cocaine.

 Inspector Lynch then arrested defendant, at approximately 7:40 p.m., and read him his Miranda rights from a card. When Inspector Lynch asked defendant if he wanted to waive his Miranda rights, defendant stated that he did not, and questioning ceased.Inspector Lynch then searched defendant's travel bag in detail. Removal of a false side of the bag revealed additional packages of white powder, which also proved to be cocaine.

 During the course of his search of the bag Inspector Lynch asked defendant, in substance, why he had "done it." Defendant responded, in substance, that he had an "old lady" to take care of, as well as numerous bills to pay. This statement occurred approximately five minutes after defendant had told Inspector Lynch that he did not wish to waive his Miranda rights. These rights were not repeated to him during this conversation.

 DEA agents arrived at the Customs area at approximately 8:00 p.m. and were informed that defendant had been advised of his Miranda rights. One of the DEA agents asked defendant if he would like to say anything about the white powder found in his boots and his bag. When defendant responded that he did not want to make a statement, he was asked no further questions.

 Defendant was then taken for processing by Inspector Lynch and a DEA agent to the DEA Office in the airport. En route, Inspector Lynch and defendant struck up a conversation. At one point Inspector Lynch asked defendant, in reference to his earlier statement about his "old lady," if he was taking care of his mother. Defendant responded in substance that he had been married several times and also had a girl friend and family to support. This conversation occurred roughly 15 minutes after defendant had declined to make a statement to the DEA agents.

 On the following day, August 25, defendant was escorted to arraignment before United States Magistrate John L. Caden by two DEA agents, neither one of whom had prior contact with defendant or was aware of his prior statements. On the way to court small talk ensued concerning, among other things, defendant's employment. One of the agents then asked defendant, in substance, "why he had done such a dumb thing." Defendant responded, in substance, that he was divorced and also had children, relatives and a girl friend to support. Defendant also stated that "everybody wants money from me." No Miranda warnings were given by the agents during this conversation.

 Discussion

 Defendant's motion is three-fold. First, he argues that the cocaine found in his boots and travel bag by Customs inspectors must be suppressed as the fruit of a warrantless search which was unsupported by exigent circumstances. Second, he argues that the statements made to Inspector Lynch at JFK must be suppressed as the fruit of the illegal search and seizure and as a violation of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Third, he argues that the statement made ...


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