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UNITED STATES v. SANCHEZ

December 29, 1993

UNITED STATES OF AMERICA,
v.
RAUL MORFE SANCHEZ, Defendant.



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.

 BACKGROUND

 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.

 Cedeno asked for permission to leave the office to make a phone call, which was granted. Cedeno then left the bus terminal and Agents Fry and Johnson left to look for her. The defendant remained with Agent Norton awaiting preparation of the immigration papers. Cedeno was found in a taxicab in the vicinity of Porter Avenue and Busti Street, and transported back to the NFTA office where she was searched and one-half pound of cocaine was discovered in her bag. Cedeno told the agents that the defendant had given her the narcotics. At that point, the agents at the DEA office called Agent Norton at the NFTA office, and the defendant was placed under arrest. The defendant was transported to the DEA office where he was booked and searched. Three items were recovered from defendant's person, which defendant seeks to suppress: a greyhound bus ticket, a business card and an address book. Defendant also seeks to suppress his statement to the agents about his prior arrest for possession of drugs and the cocaine found in Ms. Cedeno's bag.

 DISCUSSION

 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 ...

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