The opinion of the court was delivered by: Curtin, District Judge.
Currently before the court is the government's motion for
reconsideration of the court's decision granting suppression of
evidence seized from the defendants in this case (Item 19).
733 F. Supp. 579. In its memorandum in support of motion for
reconsideration (Item 22), the government suggests that there
is no difference between the government's view of the facts, as
set forth in their original memo, and the court's view, as set
forth in its decision. That may be generally true, but it is
not correct as to certain very essential facts which will be
discussed. The facts of this case are set down in a detailed
fashion in our earlier decision and will only be repeated here
Before discussing the government's motion, several
observations ought to be made. These observations are obvious,
but basic and fundamental to the decision before the court. It
is fundamental that simply because narcotics are found in a
search, that cannot justify an illegal search. Further, the
court is aware of the heavy burdens put on agents and the
difficulty of enforcing the drug laws. But the approval of
shortcuts and evasions of the law will only lead to disrespect
for it. Other techniques are available for enforcement other
than illegal searches. The judicial system has the
responsibility to ensure that enforcement of the law does not
fail to respect individuals' rights. An educated guess is not
a substitute for cause or reasonable suspicion.
In this application for reconsideration, the government urges
several points. First, it is claimed that the court misapplied
the drug courier analysis, as explained by United States v.
Sokolow, ___ U.S. ___, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989),
and similar cases, in finding the agents had no reasonable
suspicion to justify the initial investigatory stop. Secondly,
the government urges that both defendants gave consent — Colon
by uttering a single word, "yes," to a series of questions, and
by unzipping both bags of luggage (Item 22, p. 5).
Additionally, the government asserts a lack of standing
argument and urges that Mr. Montilla's post-Miranda statements
For the reasons given below, the court will stand by its
initial determination to suppress the evidence seized. In the
first round of briefing, the government argued that the initial
questioning was justified under the drug profile cases. I have
discussed the drug profile cases in my original decision and
will adhere to that decision for the reasons given. In the
second round, although mentioning the drug profile theory, the
main position taken by the government is that the search was
justified under the theory advanced in cases such as United
States v. Winston, 892 F.2d 112 (D.C. Cir. 1989) petition for
cert. filed, (April 23, 1990) (No. 89-7306); United States v.
Maragh, 894 F.2d 415 (D.C. Cir. 1990) petition for cert. filed,
(March 14, 1990) (No. 89-6935); and United States v. Lloyd,
868 F.2d 447, 451 (D.C. Cir. 1989).
The more relaxed standard was not urged by the government on
the first round and, in fairness, should not be considered
now.*fn1 I believe that scant attention should be given to the
government's new theory. In view of Reid v. Georgia,
448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), I believe these
cases were wrongly decided. See also United States v. Gonzalez,
728 F. Supp. 185 (S.D.N.Y. 1989). Furthermore, considering all
of the circumstances in this case, it would be reasonable for
the defendants to assume that they were not free to leave. The
agents had Montilla's identification, they had identified
themselves as federal agents, they never told the defendants
that they were free to leave, and they had the bags under
Other cases such as Michigan v. Chesternut, 486 U.S. 567, 108
S.Ct. 1975, 100 L.Ed.2d 565 (1988); United States v. Patrick,
899 F.2d 169 (2d Cir. 1990); United States v. Barrios-Moriera,
872 F.2d 12 (2d Cir. 1989) cert. denied, ___ U.S. ___, 110
S.Ct. 364, 107 L.Ed.2d 350 (1989), now called to the attention
of the court, are all distinguishable.
The agents maintain that Colon gave them consent to search
the bags when she answered "yes" to the series of questions put
to her. In my original decision, I found that she did not give
consent and, after reconsideration, adhere to that finding. A
more detailed explanation follows.
The transcript at the hearing in pertinent part reads:
[Agent Johnson answering:]
A. It was at that point that I asked the 2 people
if they would mind if we took a quick look
through their duffle bags.
Q. All right. What words did you use when you
asked them if they would mind if you took a
look through their duffle bags?
A. I explained that we were members of the Drug
Enforcement Task Force and we were looking for
narcotics, and I said, would you mind if we