The opinion of the court was delivered by: CAROL E. HECKMAN
REPORT AND RECOMMENDATION
The defendant has moved to suppress evidence seized from his person and his traveling companion, Joanne Lisa Cedeno, at the time of his arrest. This motion was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, defendant's motion should be denied.
The defendant has been charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846.
The charges stem from the discovery of one-half pound of cocaine in the bag of Ms. Cedeno, after the two arrived together in Buffalo on the express bus from New York City. The government consented to a hearing on the admissibility of statements made by the defendant and of evidence obtained from his person, but maintained that the defendant lacked standing to challenge the search of Ms. Cedeno.
The standing issue was fully briefed prior to the suppression hearing (see Items 7, 10, 11). Relying on U.S. v. Padilla, U.S. , 113 S. Ct. 1936 (1993), the court ruled that, the defendant lacked standing to challenge the search of his travelling companion, absent some threshold showing that the defendant had a legitimate expectation of privacy in Ms. Cedeno's bag.
A hearing was held on September 9, 22 and 29, 1993. Following the hearing, additional briefs were submitted and argument was held.
At the hearing, Niagara County Deputy Sheriff Randy Fry and Border Patrol Agent Patrick Norton testified. The hearing testimony established that the defendant arrived at the NFTA bus terminal in Buffalo on May 20, 1993 at 7:45 a.m. on an express bus from New York City. He left the bus with a woman later identified as Cedeno, and proceeded through the terminal and to the cab stand on Division Street. Deputy Fry questioned the two briefly, learned that the defendant was born in the Dominican Republic and had a green card. In response to a question about when he had ever been arrested, the defendant stated he had been arrested for possession of drugs. Because this might make the defendant excludable, Deputy Fry asked Cedeno and the defendant to accompany him to the NFTA police office (within the bus station) to talk to a border patrol agent. Both agreed to accompany Deputy Fry.
At the NFTA office, defendant and Cedeno spoke to Agent Norton. Norton confirmed that the defendant was a legal alien with a prior conviction for possession of a dangerous drug. He advised the defendant that he was going to serve deportation papers on defendant and then release him.
I. DEFENDANT'S STANDING TO CONTEST THE SEARCH OF CEDENO'S BAG
Defendant argues that he has standing to contest the search of Ms. Cedeno's bag and the seizure of cocaine contained therein. Defense counsel asserts in his brief:
We contend that the shopping bag belonged to Raul Morfe-Sanchez and the item inside, namely a Spanish-English dictionary, belonged to Mr. Sanchez. Also, the affidavit by the co-defendant, Cedeno, states that the drugs found in the bag ...