The opinion of the court was delivered by: Arcara, District Judge.
Defendant, Rocio Ramos, has moved to suppress all evidence taken and
statements made at the time of her arrest on September 19, 1989.
The defendant was observed by Agents Daniel Allman and Paul Terranova
of the Airport Task Force,*fn1 who were assigned to the Buffalo bus
terminal, as she disembarked from an express bus arriving from New York
City. Agent Allman testified that the express bus is routinely observed
by agents concerned with enforcing drug laws because New York City is a
known source city for narcotics. He also stated that they had arrested a
number of persons who were illegally in this country, after observing
them leaving the express bus. The agents had also been advised,
approximately six months prior, that drug couriers used this bus
frequently, at least in part, because police coverage is reduced at the
times the bus leaves and arrives.
The bus left New York City at approximately midnight, and arrived at
the Buffalo terminal at approximately 7:10 a.m. The defendant and another
passenger left the bus, which was parked at Gate 6, with about 25 to 35
other passengers and proceeded toward Gate 11 or 12. Those gates are the
usual location for the bus to Toronto, Ontario, Canada. Both the
defendant and her companion were carrying duffel type bags, large enough
to hold clothing, and did not pick up any luggage from the underside of
the bus. The agents noted that the defendant was nicely, although
casually dressed, while her companion wore jeans and a jacket.
At the time the agents first observed the two they were stationed
inside the terminal. The defendant and her companion never entered the
terminal and the agents continued to observe them through the glass wall
of the terminal until their line of sight was blocked by the parked
Agent Allman, a thirteen year veteran of the Border Patrol, found the
defendants' conduct in not entering the terminal suspicious, because most
passengers enter the terminal to arrange other transportation or to meet
someone. He did admit on cross-examination that the majority of persons
arrested are stopped inside the terminal. He further testified that he
believed the two looked Hispanic because they had light brown skin. Agent
Allman testified that he did not know either person, had no knowledge of
their addresses, did not know if they were familiar with Buffalo, and
could not hear them speaking. Allman decided to follow them and Agent
Terranova, alerted by Allman's conduct, also followed.
While Allman proceeded directly out of the terminal and around the
buses toward Oak Street, Agent Terranova stopped near Gate 12 where a
third Task Force Agent, June Bradley, was assigned. He alerted her that
he and Allman had two persons under surveillance. She then proceeded
toward the North Division Street side of the terminal in case the two had
changed their direction.
When she did not see anyone come to that side of the terminal, and did
not see the agents, she proceeded toward the Oak Street side of the
terminal. On the Oak Street side, she observed Agents Allman and
Terranova at a Liberty Cab apparently questioning the occupants of the
cab, and she joined the other agents at the cab.
Agent Allman testified that when he approached the cab he identified
himself, in English, as a border patrol agent and told the driver he
wanted to speak to the two passengers. He asked the driver why he had
picked up these passengers at this location, which is on the opposite side
of the terminal from the cab stand. The driver told him that he had just
dropped off passengers at that point and the defendant and her companion
had flagged him down.
Allman testified that when he saw that they had gotten into a cab at a
location other than the cab stand, his suspicions of illegal activity
were heightened, because he believed that the cab had been prearranged.
On cross-examination, he admitted that once he heard the cab driver's
story, his suspicion was reduced to his original concern over their
citizenship and status in this country. On direct examination, the
government had established that as a border patrol agent, his duty on
patrol was to be concerned about the citizenship and right to be in the
United States of persons he observes. He stated he had been trained to
look for certain characteristics, such as appearance, address, kind of
luggage, other buses they arranged to take, and their speech.
He then began questioning them. The defendant's companion first stated
he was born in Puerto Rico, but shortly thereafter changed his story to
indicate that he was born in the Dominican Republic, but was the son of a
Puerto Rican. During this questioning he appeared nervous and had trouble
catching his breath. But the defendant did not appear anxious and
answered without hesitation that she was born in the Dominican Republic
but did not have any form of identification on her at that time. Most of
this questioning, according to Agent Bradley who was observing and speaks
some Spanish, was conducted in Spanish.*fn2
Having determined that their status in the United States was in
question, Allman directed them to leave the cab and accompany him and the
other agents to the Border Patrol office inside the terminal. He
testified that once he stopped the cab, they were not free to go, and he
held the defendant's companion by the arm on the walk back to the
Once inside the terminal, Agent Allman took biographical information
from both, and placed a call to the Border Patrol Office, asking that the
names given by the persons now in his custody be put through the
Immigration and Naturalization computer. Neither name was registered in
the computer, a process which took at least fifteen minutes.
While Agent Allman was checking the immigration status of the two
persons, Agent Bradley asked the defendant if she could look in her bag or
bags.*fn3 Bradley testified that her conversations with the defendant
were partly in Spanish and partly in English, although the defendant
could speak little, if any, English.
The defendant handed Bradley her purse. The search of her purse
revealed identification, which Bradley believed to be false. Without
further discussion, Bradley then took the duffel bag, which was on the
floor next to the chair where the defendant was sitting, and examined its
contents. In the duffel bag she discovered a plastic bag containing a
mustard smelling liquid and asked the defendant what was in the bag. The