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