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March 23, 1990


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

Defendants Archibald J. MacKenzie and Eldon R. Head have been charged in a two-count indictment with possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute, pursuant to 21 U.S.C. § 841(a)(1) and 846.

A suppression hearing was held, and briefs and oral argument have been considered. The following constitutes the court's findings of facts and conclusions of law.


On September 13, 1989, a vehicle registered in Nova Scotia and driven by defendant MacKenzie passed through the primary inspection area at the Lewiston-Queenston Bridge. The officer at the primary station did not send the vehicle for further screening to the secondary-inspection area.

At that time, Inspector John Knox of the United States Customs Service was in a marked customs vehicle with two other officers not far from the primary inspection line, and he was able to see MacKenzie's car leave the primary inspection area. As MacKenzie's car left the customs area and began to enter the New York State Thruway, it appeared to Inspector Knox that the car "took off real quick." (Transcript ("Tr.") at 7). They followed the vehicle onto the thruway which, at that point, skirts the City of Niagara Falls and eventually crosses the Niagara River at the North Grand Island Bridge.

Knox testified that as they followed the vehicle it speeded up and changed lanes, and that the driver was tapping his fingers on the back of his seat and adjusting his position behind the wheel. Knox and his fellow officers eventually made a judgment that the vehicle should have been "secondaried" back at the Lewiston-Queenston Bridge (Tr. at 8). A license-plate check revealed that the border crossing they had witnessed was the first for this vehicle and that the car was registered to a "Mr. MacKenzie," a person that Knox assumed was defendant MacKenzie's father (Tr. at 8-9, 29-30). At no time before the defendants were arrested did any of the several law-enforcement officers involved in surveillance of MacKenzie's car check with the primary-inspection station to determine why the vehicle had not been sent for a secondary inspection. Furthermore, Knox did not claim that the car was being driven at an excessive speed or in a reckless manner.

Finally, as the vehicle approached the toll booth at the North Grand Island Bridge, about eleven or twelve miles from the Lewiston-Queenston Bridge, the agents pulled the car over for the purpose of conducting a secondary inspection. At that time, they learned that the driver of the car was Archibald MacKenzie, who produced a driver's license. They were then able to make a further identification check and learned that MacKenzie previously had been arrested on a drug-related offense in Canada. Knox testified that the agents believed that this fact rendered MacKenzie excludable from the United States (Tr. at 8-12, 51-54). Knox testified that he had no information indicating that MacKenzie had any convictions (Tr. at 30-31, 49-50).

MacKenzie told the officers that he was on his way to pick up his mother at the Buffalo International Airport or the Days Inn near the airport (Tr. at 12-16, 33-34, 51-52). In addition to questioning MacKenzie about the purpose of the visit, the agents also made an extensive search of his vehicle. Inspector Knox described it as follows:

  A We looked underneath the dashboard, reached up
    underneath the dashboard, opened the glove box,
    went through the glove box, checked to see if it
    was loose, pulled the ash tray out, checked that
    area, went underneath the seats, saw that the rugs
    were loose, checked underneath the rugs. Went to
    the back of the vehicle. There was some kind of a
    curtain made there to block view, so we lifted that
    up, got it out of the way. In the back of the
    vehicle the rug was loose, we pulled the rug up all
    over, checked underneath,

    checked in the wheel-well on all sides of the
    vehicle and looked underneath to see if there was a
    new gas tank or any evidence that the gas tank had
    been tampered with, opened the hood, went
    underneath the hood, checked all the areas that can
    fit contraband, checked the air cleaner.

Q That general area?

A Did a very thorough search.

Q How long did the search take, Mr. Knox?

A I would say upwards of 15 minutes.

(Tr. at 46.) They also searched MacKenzie's person (Tr. at 33). No contraband was ...

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