Agent Bradley then cut the bag open with a knife and inside found
several other plastic bags, the innermost of which contained a white
powdery substance. A field test was conducted by Agent Terranova and the
powder tested positive for cocaine. After the field test, Agent Allman
asked the defendant what was in the bag and she replied cocaine. She also
stated that the cocaine belonged to her.
It was not until after all these events had transpired that the
defendant was told she was under arrest and read Miranda rights in
Spanish by Agent Allman. About one-half hour later, she was taken to the
offices of the Drug Enforcement Administration and charged with
possession with the intent to distribute cocaine.
On September 27, 1989, an indictment was returned charging her with the
same crime. Her companion was not charged because he disavowed any
knowledge of the cocaine and stated that they were not traveling
together, although once alone at DEA headquarters, she stated they were
together and he had purchased their tickets.
The primary concern presented by this case is whether the agents acted
appropriately under the dictates of the Fourth Amendment when they stopped
the taxicab and detained the defendant and her companion. Also raised by
the defendant is whether the consent to search her luggage was knowingly
and voluntarily given.
The Supreme Court has made clear that the Fourth Amendment requires
reasonable suspicion of criminal activity before a person can be
stopped, and that it applies to all seizures of a person, even those
involving brief detention, which do not constitute an arrest. Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Whenever a
police officer accosts an individual and restrains his freedom to walk
away, he has `seized' that person and the Fourth Amendment required that
the seizure be `reasonable'." United States v. Brignoni-Ponce,
422 U.S. 873, 876, 878, 95 S.Ct. 2574, 2577, 2578, 45 L.Ed.2d 607
In this case, both Agent Allman's testimony and the situation at the
cab, as described by both agents, shows that the defendant had been
`seized' within the meaning of the Fourth Amendment.
It is a concern that Allman was primarily focusing on their status as
aliens, but in Brignoni-Ponce, the Court considered whether the statutory
authorization given the Border Patrol to question aliens or persons
believed to be aliens about their right to be in the United States
(8 U.S.C. § 1357(a)(1)), is sufficient to dispense with the
requirement that the officer have some reasonable suspicion, based on
articulable facts, to justify stopping a vehicle near the Mexican border
to question the occupants about their status in the United States. The
only basis the officers had for stopping the car in Brignoni-Ponce, and
questioning the occupants was that they appeared to be Mexican. The Court
held that appearing Mexican,*fn5 even in fairly close proximity to the
Mexican border, was not sufficient to constitute a reasonable suspicion
that immigration laws were being violated.
The case now under consideration is very similar. Agent Allman's
testimony regarding his concerns about their citizenship is limited to
their appearing Hispanic, according to his testimony, because they had
light brown skin, and their failure to enter the terminal. This alone is
insufficient to establish a reasonable suspicion adequate to justify a
stop. Terry v. Ohio, supra; United States v. Brignoni-Ponce, supra;
United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1
Keeping in mind that the stop must be supported by articulable facts
related to on-going, or about to be committed criminal activity, it
cannot be said that having a light brown complexion, and seeking a cab on
the street after arriving in a strange city, should alert anyone, even a
trained and suspicious officer, that criminal activity was afoot. Terry
v. Ohio, supra.
But, the Supreme Court has also held that the totality of the
be evaluated to determine the probability of criminal activity and there
must be "some objective manifestation that the person stopped is, or is
about to be, engaged in criminal activity." United States v. Cortez,
449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). In Cortez,
the Supreme Court stated that in considering the totality of the
circumstances, the reasonable inferences which can be drawn from those
circumstances by a trained officer, should be evaluated to determine if
that whole picture gives rise to a "particularized suspicion" of criminal
activity by the person stopped and questioned. United States v. Cortez,
supra, at 418, 101 S.Ct. at 695.
Considering all the evidence in order to determine the totality of the
circumstances, the agents relied on four factors before Agents Allman and
Terranova stopped the cab and began their questions: (1) that the two
persons walking away from the bus appeared Hispanic; (2) that the
defendant was dressed better than her companion; (3) that they did not
enter the bus terminal but walked around the outside of the terminal
and; (4) they were on the express bus from New York City.
These factors, evaluated against the criteria set out in Terry,
Cortez, and Brignoni-Ponce, cannot be said to formulate a reasonable
suspicion of criminal activity prior to the time the agents stopped the
defendant and her companion in the cab and began questioning them.
Although Agent Allman's testimony is unclear, it appears that his
primary justification for stopping and questioning them was his concern
over their immigration status. The only basis for this was that they
looked Hispanic. Looking Hispanic is comparable to looking Mexican, and
cannot alone justify a stop for a potential immigration violation. United
States v. Brignoni-Ponce, supra. More significantly, it cannot then
formulate the justification for either a search or questioning not "tied
to and justified by the circumstances which rendered its initiation
permissible." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325,
75 L.Ed.2d 229 (1983).
The other factors (that they did not enter the terminal, that they were
dressed somewhat differently, and that they were on the express bus from
New York City) do not raise suspicion that they were illegal aliens. If
anything, as the testimony developed, these have been factors which may
raise suspicion that they were carrying either drugs or money. But even
then, evaluating the totality of the circumstances, I do not believe that
the agents had sufficient articulable reasons to constitute the
reasonable suspicion necessary to stop the defendant and her companion.
This case is somewhat complicated by the fact that Agent Allman
testified that his primary concern was their immigration status, but that
he had limited authority from DEA to make arrests in drug cases and had
training regarding drug courier profiles.*fn6 The testimony taken,
however, despite questioning from the Court, did not establish the
officer's basis for making the stop. He testified that he suspected they
were illegal aliens while the United States Attorney elicited testimony
concerning their possible status as drug couriers. It was only on the
Court's own questioning that it was established that the agent was
concerned over their Hispanic appearance.
Allman also testified that one of the main factors he considered
indicative of criminal activity was that the pair did not enter the bus
terminal. That, he stated, along with their looks and the fact that they
were disembarking from the express bus from New York City, a known source
city for narcotics, indicated the possibility that they were involved
with drugs. But the totality of those circumstances does not provide
sufficient basis to believe the agents had a reasonable suspicion that
criminal activity was a foot. Terry v. Ohio, supra; United States v.
It is not unreasonable to find that an express bus, which makes the
trip from New York to Buffalo without stops would be preferable to
travelers destined for Buffalo, than a longer trip making stops in many
upstate towns. The two were not dressed in an unreasonable manner for an
overnight trip and carried luggage of the type carried by many travelers
on short trips to visit friends. As for the agent's concern that they
failed to enter the terminal, it would be just as reasonable to assume
that persons unfamiliar with the bus terminal might start looking for a
cab on any street rather than entering the terminal.*fn7
There is no testimony involving the defendant with large sums of
money, false identification, or travel plans which were uniquely short or
inconsistent with a social or sightseeing trip. United States v.
Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
It may have been that had the agent overheard them speaking Spanish,
his suspicions would be better founded, but until he stopped the cab, he
was never in a position to hear either the defendant or her companion
Even if there was sufficient basis for the initial stop it would be
necessary to suppress the defendant's statements and the cocaine found in
her luggage because the government has failed to show that her consent to
the search of the duffel bag was knowing and voluntarily given.
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973), Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d
797 (1968). The record is unclear whether Agent Bradley asked her for
permission to search the luggage after she searched the purse handed over
by the defendant. But the government never established that she knew she
had the right to refuse the search or that she was given any indication
of her rights until after the cocaine was found. The government has the
burden of proving that consent was obtained freely and that burden "is
not satisfied by showing a mere submission to a claim of lawful
authority." Florida v. Royer, supra, and cases cited therein.
As stated in Royer, "without a warrant and in the absence of probable
cause and exigent circumstances, the validity of the search depended on
Royer's purported consent." Florida v. Royer, supra, 460 U.S. at 497, 103
S.Ct. at 1323-24. The government, in this case, has failed to show either
probable cause or exigent circumstances. The defendant, in her early
twenties, offered no resistance and showed no concern about the officers'
questions. There is absolutely no reason to believe her bag was searched
because the agents were in any way afraid of the defendant. Nor has the
government established that any probable cause of a crime which would
justify a search of luggage was established.
Based on the totality of the circumstances, the only conclusion that
can be reached is that the defendant was stopped because she appears
Hispanic and was traveling from a known source city, New York. That alone
does not entitle a federal agent to stop a person for questioning and
then conduct a search of her personal possessions. Florida v. Royer,
For the reasons stated, the defendant's motion to suppress is granted.
ON MOTION FOR RECONSIDERATION
The government has moved for reconsideration of this Court's order
granting the defendant's motion to suppress evidence taken and statements
made at the time of her arrest at the Buffalo bus terminal.
The defendant was detained after exiting the express bus from New York
City and entering a cab outside the bus terminal. A subsequent search of
her luggage revealed a quantity of cocaine. The testimony of the agents
established that the defendant was detained at the time they initiated
questioning of the defendant and her
companion at the taxicab. The primary argument put forth by the
government at the time of the suppression hearing and subsequent
argument, after briefing, was that the agents had reasonable suspicion as
required under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968), to justify the stop. The government also relied on Agent Allman's
suspicions that the defendant was illegally in this country. Given the
facts of this case and in light of the Fourth Amendment and the
applicable case law, both arguments were found to be insufficient to
justify the stop.
The Agent's testimony clearly established that once he and Agent
Terranova approached the cab, the defendants were not free to leave.
Prior to that time, the testimony and arguments offered simply do not
provide adequate basis for a stop.
No new evidence was presented at the time the motion for
reconsideration was heard. No argument previously raised and considered
now convince this Court that it's initial decision was in error.
On this motion for reconsideration, the government also argues that
there was no seizure, but rather an encounter between the defendant and
the government agents in which the defendant consented to communicate
with Agent Allman. The facts as described in this Court's prior decision
belie this description of the events surrounding the stop of the taxicab
and the detention of the defendant.
It was after careful consideration of both the testimony offered and
the briefing provided that I determined a seizure of the defendant
occurred at the taxicab. Even considering the line of cases cited by the
government arising out of the D.C. Circuit, there is nothing in this
record to demonstrate any consent on the part of this defendant. The
agent testified that once he began questioning at the taxicab, the
defendant and her companion were not free to leave. There is no evidence
to support any theory that this defendant or any reasonable person would
have any belief that they were free to leave, once the agents began their
Significantly though, the government did not raise the issue of consent
at the time of the initial hearing, or at the time of oral argument. It
is not appropriate for the government to raise new issues on a motion for
reconsideration. Rule 12(f) specifically provides that the failure by
either party "to raise defenses or to make requests" constitutes a
waiver. The commentary makes clear that this provision applies to both
the defendant and the government.
Even if consent could be shown, the government chose not to raise this
issue at the time set for the filing of briefs and oral argument.
Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38
(1981). The concept of a consensual exchange between agents of the
government and citizens is not new despite the reliance of the United
States Attorney on the recent cases of the D.C. Circuit. The government
overlooked this argument in the first instance. It chose to proceed on
the basis of a valid stop and should not, under Rule 12, be allowed to
raise new arguments once it is determined that the stop was not valid.
For the reasons stated, the government's motion for reconsideration is
denied and the order of this Court dated April 23, 1990 remains in full
force and effect.