United States District Court, Western District of New York
July 3, 1990
UNITED STATES OF AMERICA,
MARCOS MONTILLA AND NITZA COLON, DEFENDANTS.
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.
A. Ms. Colon
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
took a quick look through your bags.
Q. All right. And did you receive responses when
you made that inquiry?
A. Well, I told her at the same time, I said,
you're not under arrest, you
don't have to if you don't want to. At that
point the female said, yes. . . .
T. at 23.
[Page 82, Agent Terranova answering:]
Q. What exactly did you say?
A. That we were there looking for narcotics and
Q. All right. And after you advised them of your
purpose, what was done?
A. We asked if we could look in the subjects'
travel bags that they had been carrying when
they got off the bus.
Q. All right. And what was done after the request
was made to examine the bags?
A. We asked if we could look in their bags. Ms.
Colon said, yes.
The government relies upon the single statement made by Ms.
Colon that she said yes to the series of questions. It should
be kept in mind that her "yes" followed a series of statements
of who the agents were, that she was not under arrest, that
they were looking for narcotics, and finally, "[w]e asked if we
could look in [their] bags." Clearly, this encounter between
agents and defendants took only a minute or so, and only the
briefest explanation was made by the agents. In interpreting
what the word "yes" means in this context, it is fair to
consider that individuals use the word "yes" in many different
ways. Quite often, the word "yes" is used simply as an
acknowledgement of what the person had to say and that the
listener is waiting for more details. Furthermore, although Ms.
Colon could speak and understand English, she was primarily a
Spanish-speaking individual, and we have no evidence as to how
the word "yes" is used in that language.*fn2
Keep in mind that the government has the burden of proving
that the consent to search the bag was given voluntarily and
with knowledge. I find that under these circumstances,
defendant Colon's "yes" did not constitute informed consent.
The government has simply failed in its burden. Ms. Colon did
not freely and knowledgeably give her consent to the agents to
search her bag. Schneckloth v. Bustamonte, 412 U.S. 218, 227,
93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973).
The government now advances the argument that "the conduct by
Mr. Montilla in unzipping both bags demonstrate[d] his
acknowledgement of the voluntary consent as provided by Ms.
Colon." (Item 22, p. 5.) I find no merit to that argument.
There appears to be no reason to find that Mr. Montilla had the
consent of Ms. Colon to act for her. Although, apparently
traveling together, the agents had no knowledge of the
relationship between the two individuals. Furthermore, I have
determined and adhere to the determination that Mr. Montilla
did not understand English well and, under the circumstances,
could not give knowledgeable consent to the search. And, as I
have already indicated in the original order, it is not clear
whether Montilla opened the bags or whether they were opened by
one of the agents. Neither Ms. Colon nor Mr. Montilla gave
informed consent to search the bags.
B. Mr. Montilla
For the reasons expressed in my original decision, I find
that Mr. Montilla did not consent to the search of the bag. I
adhere to that decision.
In a brief statement in its memorandum in support of the
motion for reconsideration (Item 22, p. 9), the government
requests the court to reconsider its ruling based on the
question of each defendant's individual standing. No argument
is made in support of this statement. This argument was not
raised during the time of the original hearing, and the court
sees no need to consider it at the present time. The contraband
was found in Ms. Colon's bag. I have determined that she did
not give informed consent for the search and that Montilla
could not give the consent to
search her bag by his action in unzipping it. As to his bag,
nothing was found, and therefore, there is nothing to suppress.
III. STATEMENTS MADE BY DEFENDANTS
In my original decision, I had held that any statements made
by either defendant after the bags were opened but before
Miranda warnings were given had to be suppressed. I adhere to
Because the question as to whether Miranda warnings were
given was not addressed in the original briefing, I requested
the parties to brief that question. From a review of the record
I find that John Crocitto, Border Patrol Agent, gave
appropriate Miranda warnings to both defendants in English and
in Spanish. Any statements made to him were made voluntarily.
Therefore, any statements made to him following the giving of
the Miranda warnings may be admitted into evidence. Oregon v.
Elstad, 470 U.S. 298, 309, 318, 105 S.Ct. 1285, 1293, 1297-98,
84 L.Ed.2d 222 (1984).
To summarize, the motion to suppress the contraband found in
the bag is granted. Statements made between the time the bags
were unzipped until the time Miranda warnings were given are
suppressed. Statements made after Miranda warnings were given
may be received into evidence.