The opinion of the court was delivered by: Elfvin, District Judge.
The abovenamed individual, by his assigned attorney, moved
to suppress as trial evidence a quantity of cocaine found in
his personal luggage and statements made by him. Involved is
the scenario which has been often dealt with by the
undersigned and other judges of this Court. See, U.S. v. St.
Kitts, 742 F. Supp. 1218 (W.D.N.Y. 1990), U.S. v. Montilla,
733 F. Supp. 579 (W.D.N.Y.), reconsideration denied, 739 F. Supp. 143
(W.D.N.Y. 1990), United States v. Murguia-Rodriguez,
unpublished opinion, CR-89-219A (W.D.N.Y. July 11, 1990) and
United States v. Ramos, unpublished opinion, CR-89-166A
(W.D.N.Y. April 23, 1990).
A drug and drug-money interdiction team, comprised of Border
Patrol officers and Drug Enforcement Agency agents in plain
clothes, surveils an interstate bus terminal in downtown
Buffalo, the Buffalo International Airport and the local
railroad station or stations. The listed cases and the instant
one stem from such operations at the bus terminal and,
particularly, the arrival there early each morning of an
express bus from New York City. Attention is directed at this
bus because, it is said, it leaves New York City in the late
evening when the police patrol and other enforcement activity
is at an ebb and the operations are carried out with skeleton
On February 7, 1990 Special Agent Johnson of the Drug
Enforcement Agency and Border Patrolman Allman were at the bus
terminal when the bus arrived. Both watched as the passengers
disembarked. Johnson noted that Springer was looking at others
and glancing over his shoulder and appeared to be
apprehensive. He carried one bag from the bus and secured
another from the bus's luggage compartment. Springer remained
outside the terminal for a couple of minutes before he entered
the terminal and watched as Allman led an arrested man to two
uniformed policemen. Springer paced back and forth and then
left the terminal building, going away from the curb and to a
taxi stand. Johnson followed him, identified himself as a
police officer and asked Springer if he would mind stepping
back to and away from the curb. Johnson admitted, at the
evidentiary hearing which was convened pursuant to the motion,
that Springer had not totally met the aspects of a "drug
courier profile" in which Johnson had received training but
did arouse his suspicions that he might have been a drug
courier. Johnson had no "profile material" other than that
Springer had come to Buffalo from a source city and his
actions as aforesaid. Springer's answers to certain questions
concerning a cousin were ambiguous and aroused Johnson's
suspicion a little more. Johnson, however, flatly testified
that Springer did not meet the drug courier profile and never
did actually fit the profile. Johnson explained that "so many
things" enter into the drug courier profile and lamented that,
at the bus station as compared with the airport, one doesn't
have anything near what you would have for a drug courier
profile. At the airport one would have access to airline
records reflecting whether an individual was travelling under
an assumed name, had paid for his ticket by cash or by credit
card and had left a viable telephone number. Johnson testified
that the drug courier profile had little usefulness at the bus
station where one has to base everything on the interview. He
admitted that one does not get to the point of an interview
without having stopped the individual unless the individual is
told fairly straight out at the outset that he neither need
interrupt whatever he was in the course of doing nor had to
respond in any fashion to an agent's questions.
An illegal stop had occurred at the point when Johnson asked
Springer to step away from the taxi stand and the curb. There
was at that point no justification to stop Springer and the
drugs subsequently found in his baggage and the statements
later made are not admissible on trial.
Such determination hews to the decisional law outlined in
the aforecited cases and such is not repeated here.
However and aside from such law, the undersigned strongly
feels that drugs and drug trafficking is such a present-day
scourge and so difficult to control that drug enforcement
agents should be allowed greater leeway in stopping
individuals and in searching them and their belongings. If
Congress were to enact legislation allowing such, the
undersigned would not foresee any Constitutional impediment.
See, e.g., Michigan Dept. of State Police v. Sitz, ___ U.S.
___, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).
© 1992-2003 VersusLaw ...