Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. MONTILLA

March 22, 1990

UNITED STATES OF AMERICA,
v.
MARCOS MONTILLA AND NITZA COLON, DEFENDANTS.



The opinion of the court was delivered by: Curtin, District Judge.

INTRODUCTION

Defendants Marcos Montilla and Nitza Colon are charged with possession with intent to distribute a Schedule II controlled substance and conspiracy and agreement to possess with intent to distribute a Schedule II controlled substance, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and 21 U.S.C. § 846.

At the hearing on October 30, 1989, testimony was heard from Drug Enforcement Administration [DEA] Agent Bruce Johnson; Paul Terranova, an Erie County Deputy Sheriff assigned to the DEA; and Border Patrol Agent John Crocitto. The defendants did not testify.

FACTS

On August 3, 1989, agents of the United States Drug Enforcement Agency Task Force ("DEA") were assigned to observe passengers disembark from the New York City express bus at the Niagara Frontier Transportation Authority Bus Terminal ("NFTA Terminal") (T. 8-9). Because this express bus was considered to be a major source for the flow of narcotics into this area, the agents watched it regularly. They testified that on the average, they stopped about 80 disembarking passengers a month meeting a "drug profile," and three to four arrests resulted (T. 37).

On August 3, 1989, at approximately 7:30 a.m., the agents saw two individuals, later identified as the defendants, leave the bus, enter the terminal, and walk toward the North Division Street exit. DEA Agent Bruce Johnson testified:

  A Number, 1 they were very nervous when they
    entered the terminal, they were constantly
    looking around, and I'm not saying in a general
    look around manner. It was very quick glances
    back and forth. They were talking very, very
    quietly with each other. As they walked through
    the terminal they kept looking back over their
    shoulder and again scanning the terminal. At
    one particular point as they approached
    Investigator Terranova's position, which was
    about midway in the terminal, they walked
    towards him, they looked right at him and
    immediately did a turn and walked very, very
    briskly away, again constantly looking over
    their shoulder as they walked away from him.
  Q When you made these observations as you have
    just testified to about their nervous character
    and change of direction, et cetera, were either
    of the individuals carrying anything with them?
  A Yes, sir. They were both carrying what I call
    either overnight bags or duffel bags. As I
    recall, the male was carrying a red duffel bag
    and the female was carrying a blue duffel bag.

(T. 12-13)

A signal to stop the defendants was given by eye contact. This decision was based upon defendants' nervous reactions, the use of the express bus from New York City, and their pace through the terminal. The agents testified that they did not base their decision upon the fact that the defendants appeared to be Puerto Rican (T. 52, 54, 101).

The defendants were stopped initially by Agent Bruce Johnson, who spoke to them in English. Johnson said that Montilla spoke in somewhat broken English, but it was understandable, and Ms. Colon spoke very good English. None of the agents at the scene spoke Spanish. Johnson said that both defendants told him that they understood English, and they responded to him in English. The defendants consistently spoke between themselves in Spanish (T. 55-58).

When Agent Johnson asked for identification, defendant Colon produced an Erie County Social Services card, said that she lived on Mariner Street in Buffalo and had been in New York for two weeks. Referring to her blue duffel bag one of the agents said to her, "That doesn't seem to be much ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.