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July 3, 1990


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 as necessary.

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 Montilla 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 be admitted.

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 control.

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

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