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UNITED STATES v. DURAN

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


March 3, 1994

UNITED STATES OF AMERICA
v.
FELIPE DURAN, Defendant.

SKRETNY

The opinion of the court was delivered by: WILLIAM M. SKRETNY

DECISION AND ORDER

INTRODUCTION

 Presently before this Court are the objections of defendant Felipe Duran to the Report and Recommendation ("R & R") of Hon. Carol E. Heckman, United States Magistrate Judge for the Western District of New York, filed on November 8, 1993, denying defendant's motion to suppress narcotics seized from him on March 21, 1993 after his arrival on a Greyhound bus from New York City. For the reasons discussed below, this Court will accept the Report and Recommendation of Magistrate Judge Heckman, and will deny defendant's suppression motion.

 FACTS

 The parties do not object to the recitation of the facts contained in the Report and Recommendation. Therefore, the facts will not be repeated here. On November 8, 1993 Magistrate Judge Heckman filed a Report and Recommendation, recommending that defendant's present motion be denied. On November 18, 1993 defendant filed Objections to Magistrate Judge's Report and Recommendation ("Objections"). Defendant objects to the Report and Recommendation in four respects. First, defendant objects to the Magistrate Judge's finding that "[DEA] Agent Johnson had reasonable suspicion to believe that the defendant may be unlawfully in the United States." (R & R, p. 11). Defendant argues that the factors cited by the Magistrate Judge were insufficient to give rise to reasonable suspicion. Second, defendant argues that, even if Agent Johnson had reasonable suspicion to suspect that defendant was in violation of immigration laws, the subsequent joint DEA and Border Patrol investigation was not sufficiently limited in scope to justify the continued detention of defendant and the search of his sneakers. Third, defendant objects to the Magistrate Judge's finding that defendant voluntarily consented to the search of his sneakers. Finally, defendant argues that the Magistrate Judge failed to address his argument that the scope of the sneaker search exceeded the scope of any consent that was obtained from him.

 On December 16, 1993 the government filed an Affidavit of Leibert F. Coppola ("Coppola Affid.") in opposition to defendant's Objections. Although invited to do so by an Order of this Court entered on December 6, 1993, defendant failed to submit a reply.

 Upon receiving defendant's Objections, this Court recognized that it had not yet entered an Order referring to Magistrate Judge Heckman motions for hearing and preparation of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). Whereas neither party has raised this issue in motion papers and no objection has been expressed, this Court will make the appropriate referral below, nunc pro tunc.

 DISCUSSION

 Reasonable Suspicion Supporting Initial Investigatory Stop

 Magistrate Judge Heckman determined that Agent Johnson objectively had sufficient reasonable suspicion to support his request that defendant accompany him and Deputy Frye into the NFTA security office for further questioning. (R & R, p. 10). Magistrate Judge Heckman wrote:

 

Agent Johnson had reasonable suspicion to believe that the defendant may be unlawfully in the United States. The defendant spoke broken English with a Hispanic accent, gave somewhat vague and inconsistent information about where he was going, and claimed to be born in New York but produced a Dominican Republic identification card. Agent Johnson was therefore entitled to detain Duran for a brief period of time to determine his identity and alienage. Florida v. Royer, supra, 460 U.S. at 500.

 (R & R, p. 11). Defendant objects to this determination, arguing that the facts indicated by Magistrate Judge Heckman "simply do not provide reason to believe that the defendant was unlawfully in the United States." (Objections, P 2). Defendant relies on the fact that Agent Johnson did not ask defendant for his "green card", (Ibid.), and cites a number of cases, including this Court's decision in United States v. Reyes, 1992 U.S. Dist. LEXIS 10574, 1992 WL 170885 (W.D.N.Y. 1992), aff'd, 999 F.2d 536 (2d Cir. 1993), for the proposition that a finding of reasonable suspicion may be premised, in part, upon a criminal suspect's failure to produce proper immigration documents. See also Ojeda-Vinales v. INS, 523 F.2d 286 (2d Cir. 1975); United States v. Hernandez-Rojas, 470 F. Supp. 1212, aff'd, 615 F.2d 1351 (2d Cir. 1979).

 This Court believes that Magistrate Judge Heckman correctly determined that the facts and circumstances presented to Agent Johnson provided reasonable suspicion for the investigatory stop. Defendant cites absolutely no authority indicating that an officer's decision whether to ask to see a suspect's green card is a sine qua non of a finding of reasonable suspicion. As the government notes in its responsive affidavit, the standard for reasonable suspicion is objective, not subjective. (Coppola Affid. P 3). See Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The question is whether the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion (footnote omitted)." Id. at 21, 88 S. Ct. at 1880. Here, the facts and circumstances of Johnson's encounter with defendant warranted the limited intrusion. Johnson noticed defendant alighting from the overnight express bus from New York City (T1, p. 7) and acting suspiciously in the bus terminal. (T1, pp. 10, 24). *fn1" Defendant spoke broken English, and told the officers that he had come from New York City, where he travelled to pick up clothes. (T1, p. 12). Johnson then asked defendant where he lived. Defendant responded, "New York City" and then quickly changed his answer to "Buffalo" (T1, pp. 13, 18). Although defendant told Johnson that defendant lived on the west side of Buffalo, defendant handed Johnson a piece of paper indicating defendant's address. Johnson knew that the street listed was actually on the east side of Buffalo. Although defendant indicated that he was born in New York, which would have made him a United States citizen, defendant showed Johnson an identification card issued by the Consulate for the Dominican Republic.

 These facts and circumstances supported a reasonable suspicion that defendant was in the United States illegally. Therefore, Agent Johnson properly detained defendant for a short time to determine his identity and alienage. Here, as in the cases cited by defendant, reasonable suspicion fails to hinge upon whether the officer asked the suspect to produce a green card. The additional factors, when considered together, see United States v. Hall, 174 U.S. App. D.C. 13, 525 F.2d 857, 859 (D.C.Cir. 1976), justified the investigatory stop.

 Scope of the Detention

 Magistrate Judge Heckman found that the officers did not exceed the permissible scope of the investigatory stop by verifying defendant's address before releasing him, even though defendant had by that time satisfied the officers that he was legally entitled to remain in the United States.

 Defendant objects to this conclusion, arguing that once the officers determined that defendant was legally permitted to remain in the United States, they were obligated immediately to release him, and to ask no further questions.

 This Court finds that the officers did not exceed the scope of a permissible investigatory stop by their limited questioning. Indeed, the "scope of the detention must be carefully tailored to its underlying justification." Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983). However, considering the very short time period involved, and the reasonableness of the inquiry about defendant's address, this Court believes that the "nature and quality of the intrusion" were not unreasonable, and did not effect a violation of defendant's Fourth Amendment rights. Terry, 392 U.S. at 24, 88 S. Ct. at 1881. Although Agent Norton recognized defendant at the NFTA terminal, defendant was nonetheless known to the officers as an illegal alien, and defendant provided questionable information about his Buffalo address. The officers' brief inquiry into defendant's true address did not extend beyond the purposes for which the stop was made, and no Fourth Amendment violation occurred.

 Consent to the Search of Sneakers

 Magistrate Judge Heckman concluded that defendant voluntarily consented to the search of his sneakers while in the NFTA terminal, writing:

 

. . . I refuse to find that the defendant's will was overcome, rendering his verbal consent to search involuntary. The search of the sneaker took place in the course of a limited and legal detention. The defendant was not handcuffed, the questioning had not been prolonged, and the defendant had not been physically touched or abused in any way. The record shows that when Agent Barbegallo requested permission to examine defendant's sneaker, the defendant willingly removed first his right sneaker and then his left.

 

Viewing the totality of circumstances, I find that the defendant consented to the search of his left sneaker.

 (R & R, p. 13). Defendant argues that this conclusion is inconsistent with what he believes to be a factual finding of Magistrate Judge Heckman contained at page 4 of her Report and Recommendation. The passage at issue states, "Defendant's behavior indicates submission to authority rather than voluntary consent." However, this sentence is part of a paragraph in which Magistrate Judge Heckman is outlining the arguments of defense counsel. The sentence is not, as defendant believes, a factual finding. It is a summary of counsels' arguments, which is immediately followed by a discussion of the applicable standards of law and the ultimate conclusion on page 13 of the Report and Recommendation. This Court agrees with that conclusion, and defendant raises no additional arguments in opposition to it. Therefore, this Court will adopt the Magistrate Judge's finding that the search of defendant's sneakers was effected with the voluntary consent of defendant.

 Scope of the Search of Sneakers

 Finally, defendant argues that the Magistrate Judge failed to find that the scope of the sneaker search exceeded the scope of the consent that was provided by defendant. This argument is unsupported in the record. The transcript of the suppression hearing shows that Agent Barbagallo asked defendant, in Spanish, for permission to examine defendant's sneakers. Defendant removed his right sneaker, handed it to Barbagallo, and proceeded to remove his left sneaker as well. (T2, p. 11). This behavior is reasonably interpreted to indicate that defendant consented to a search of both sneakers. Barbagallo noticed something inside the left sneaker, and handed the sneaker to Agent Johnson. Johnson searched the left sneaker and removed blue tissue paper from the insole. Below the tissue paper, Johnson found cocaine base. Johnson tested the substance for the presence of cocaine, and then placed defendant under arrest. Agent Barbagallo read defendant his Miranda rights. (T2, p. 30).

 On the basis of these facts, this Court believes that the scope of the sneaker search did not exceed the scope of the consent provided by defendant. Defendant's act of removing both sneakers indicates his consent, and the actions the officers took in connection with the search were not unreasonable. Therefore, this Court finds that defendant's Fourth Amendment rights were not violated by the sneaker search.

 CONCLUSION

 After carefully reviewing the Report and Recommendation of Magistrate Judge Heckman, as well as the objections and other materials submitted by the parties, and after considering de novo the matters raised by defendant, this Court will accept the Report and Recommendation, including the authorities cited and the reasons provided therein. Therefore, this Court will deny defendant's suppression motion in all respects.

 ORDER

 IT HEREBY IS ORDERED that, nunc pro tunc as of April 20, 1993, all pretrial matters in this case are referred to the Hon. Carol E. Heckman, United States Magistrate Judge for the Western District of New York, including all pretrial matters that a Magistrate Judge may hear and determine pursuant to 28 U.S.C. § 636(b)(1)(A), and those which a Magistrate Judge may hear and thereafter file a report and recommendation for disposition pursuant to § 636(b)(1)(B).

 FURTHER, that this Court ACCEPTS the Report and Recommendation of Magistrate Judge Heckman filed on November 8, 1993, including the authorities cited and the reasons provided therein.

 FURTHER, that defendant's motion to suppress evidence is DENIED.

 SO ORDERED.

 Dated: March 3, 1994

 Buffalo, New York

 WILLIAM M. SKRETNY

 United States District Judge


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