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
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.
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 ...