and are anxious to be on their journey after a long bus ride.
Further, the government makes too much of the manner in which
the defendants approached Terranova and turned abruptly away.
Terranova was not in uniform and his back was to a wall. As
the defendants approached his place in the terminal, they and
other passengers had to walk between rows of chairs. When they
arrived in the area where he was standing, it was necessary
for them to turn left if they wanted to proceed to the North
Division Street exit. Many other passengers followed the same
path and made the same turn in order to exit the building.
In every case relied upon by the government, there is a
greater factual basis for the initial stop. In Terry, supra,
Detective McFadden observed two individuals walking back and
forth staring into a store window about 24 times, and stopping
for a conference at a nearby corner with a third man.
Eventually, the Detective McFadden stopped them and an arrest
followed. In Sokolow, supra, the court continued the rationale
of Terry putting down the rule that "police can stop and
briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable
facts that criminal activity `may be afoot' even if the officer
lacks probable cause." Sokolow, ___ U.S. at ___, 109 S.Ct. at
1585. In this case, there is the additional difficulty that it
is highly questionable whether Montilla clearly understood what
the agents were talking about. It was Agent Crocitto's opinion
that he did not understand English at all. Perhaps Montilla is
a good actor and his understanding is more than he makes out.
But there was clearly no attempt made by the officers at the
initial meeting to determine whether he understood them or not.
They simply proceeded, assuming that he did after a very brief
conversation. Rather than make assumptions as to this important
consideration of whether the defendant understood, it would be
much better for the agents to take some time at the outset to
be certain that the individual stopped understood what is being
said to him.
In Florida v. Royer, supra, a stop was approved when the
agents knew that the defendant had purchased a one-way airline
ticket at Miami to New York City under an assumed name and
checked his suitcases bearing identification tags with the same
In Sokolow, supra, when the agents stopped the defendant,
they knew that he had paid $2,100.00 for two round-trip plane
tickets from a roll of twenty-dollar bills, that he had
traveled under a name that did not match the name under which
his telephone number was listed, and that his original
destination was Miami, a source city for illicit drugs. He was
in Miami for only 48 hours even though a round-trip flight from
Honolulu to Miami takes 20 hours. He appeared nervous during
his trip, and he checked none of his luggage. The Supreme Court
found that there was reasonable suspicion that respondent was
transporting illegal drugs when he was stopped. The court
relied upon Terry but pointed out that reasonable suspicion
means something more than an inchoate and unparticularized
suspicion or "hunch," but less than the level of suspicion
required for probable cause.
In United States v. Mendenhall, supra, the defendant was
stopped at the Detroit airport after arriving on a flight from
Los Angeles, a source city for drugs. She was the last person
to leave the plane, appeared to be very nervous and completely
scanned the whole area where the agents were standing. She
proceeded past the baggage area without claiming any luggage,
and then changed airlines for a flight out of Detroit. When the
agents approached her and asked for identification she produced
airline tickets in the name of Ford and an operator's license
in the name of Mendenhall. She said that she had been in
California for two days. When she learned that her questioners
were narcotics agents she became quite shaken, extremely
nervous and had a hard time speaking. The court held the stop
justified under Terry.
In every one of these cases the agents were aware of a
number of additional reasons to persuade them that the
acts were suspicious. The Supreme Court case most similar to
ours is Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65
L.Ed.2d 890 (1980). In that case, when the petitioner arrived
at the Atlanta airport, he kept looking backward at a second
man. He had a shoulder bag but no other luggage. When the two
men left the terminal, the agent asked them for identification.
After they consented to a search, the petitioner tried to run
away. In doing this, he abandoned his bag, which was later
found to contain cocaine.
The Supreme Court held that the agent could not have
reasonably suspected petitioner of criminal activity on these
facts. The fact that the petitioner preceded another person
and occasionally looked backward as he walked through the
concourse was not sufficient. His actions were similar to
those of many innocent travelers. The fact that the agent
believed that they were attempting to conceal the fact that
they were traveling together was insufficient. The Court said:
"While the Court has recognized that in some circumstances a
person may be detained briefly, without probable cause to
arrest him, any curtailment of a person's liberty by the
police must be supported at least by a reasonable and
articulable suspicion that the person seized is engaged in
criminal activity." Id. at 440, 100 S.Ct. at 2754.
Under all of the circumstances presented in this case, I
find that the officers were not justified in stopping the
individual defendants, seeking identification and asking to
examine their baggage. The information available was not
sufficient to consider that the defendants met a drug courier
profile. Assuming, however, there was justification for the
initial stop and that the agents were entitled to ask the
defendants some questions, the problem of whether they had the
right to request an examination of the baggage and whether the
defendants freely consented, must be discussed. Separate
consideration should be given to the merits of stopping each
defendant. United States v. Moreno, Libreros, 897 F.2d 26 (2nd
Cir. 1990). Ms. Colon presented identification giving a local
Buffalo address, was not nervous, and the agents had no other
information to question her behavior. The fact that she
shrugged her shoulders when asked about sparsity of the luggage
is a slender reed to warrant a request to open her bags.
Although Johnson said she answered "Yes" when he made the
request to examine the bag in and of itself is not sufficient
to meet the standard of knowledgeable assent required for a
search. Considering all the circumstances I do not find that
her consent was knowledgeable and freely given. Schneckloth v.
Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36
L.Ed.2d 854 (1973). The request was made in a studied, offhand
manner designed to convince the defendants that the look in the
bag was routine and would not lead to serious consequences.
Johnson did not use the word "search" since the use of that
word may have put the defendants on guard and made it possible
that they might say "no". (T. 59). The agents held the
defendants' identification when the request to search was made.
(T. 80) Furthermore, she did not open the bag. It was opened
either by Agent Johnson or Mr. Montilla.
In the case of defendant Montilla, assuming for the moment
that he spoke and understood English, again the offhand manner
in which Johnson put the question makes questionable whether
appropriate consent was given. Further, I find no reason to
support a finding that defendant Montilla had the right to
open the Colon bag. Assuming that he assented to open his bag,
there was nothing found and therefore nothing to suppress.
There remains open the question as to whether the statements
made by Mr. Montilla to Crocitto after he was advised of his
rights in Spanish should be admitted. That question was not
addressed during argument or briefing. The government and
Montilla's attorney shall supply a memorandum on this question
not later than April 4, 1990. The motion to suppress the
search of the Colon bag is granted. It does not appear that
Ms. Colon made any statements to the officers and if she or
Montilla did before the meeting with Crocitto that was before
any Miranda rights were given.
Any statements made to Officer Johnson or Terranova after the
bags were opened, but before the Miranda warnings, must be
suppressed because neither defendant was free to leave at that
time. The court will meet with counsel on March 27, 1990 at
11:00 A.M. to set a further schedule.
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