The opinion of the court was delivered by: CAROL E. HECKMAN
Defendant has moved to suppress evidence seized from her at the time of her arrest, as well as statements made following her arrest. A suppression hearing was held on February 14 and 15, 1994. For the reasons set forth below, defendant's motion should be denied.
The first witness to testify was Paul Terranova, an investigator with the Erie County Sheriff's Department. Deputy Terranova testified that on November 4, 1993, he was on duty at the airport in the upper concourse of the terminal servicing USAir. The DEA Task Force, of which he was a member, had previously received a tip about a subject who had taken an 8:30 a.m. flight to New York City that day and was carrying a large amount of cash. According to the tip, that subject was due to fly back into Buffalo at approximately 12:00 p.m. on a USAir Flight.
Deputy Terranova testified that the flight was delayed and arrived at approximately 1:10 p.m. He and three other officers (Fry, Gerace and Capezola) observed the passengers getting off the plane. He observed a person meeting the physical description of the subject leaving the plane. A young black woman who was later identified as the defendant was walking alongside and a little bit to the rear of the subject. She was carrying a small baby. The two walked together for 15 to 20 feet, at which time the defendant sat down in a chair facing the wall. She was holding the baby, a diaper bag and a purse. The subject continued through the terminal. The defendant kept looking at the subject as he went through the concourse by turning around and looking over her shoulder.
After observing the defendant for several minutes, Deputy Terranova then went down to the lower concourse and talked to Agent Johnson. He learned that Gerace and Fry were talking to the male subject in the lower concourse, and that the subject was using an alias but had no cash and no drugs. Deputy Terranova felt that the defendant was acting suspiciously. She appeared nervous, she was sitting with her face toward a wall away from other people and she continued looking over her shoulder at the male suspect. He therefore returned to the upper concourse with Agent Torre. The defendant made eye contact with Terranova and Torre, who were approximately 20 to 30 feet away. She then got up to make a telephone call, which was very brief, and then went toward the exit of the upper concourse. Torre and Terranova followed the defendant. Terranova testified that she appeared nervous, looked over her shoulder, quickened and then slowed her pace several times and averted her eyes from their watch.
At the escalator, Terranova approached the defendant. He showed the defendant his credentials. Torre was behind him. Terranova asked to speak to the defendant and she replied, "sure." The group then came to a halt and a conversation ensued.
Deputy Terranova asked the defendant if she had just gotten off a flight from New York City and she indicated that she had. He advised her that he was a narcotics officer looking for drugs entering the area from New York City. He asked if she would mind if he checked her bag and her purse. She indicated she would not mind and handed both to Deputy Terranova. He placed them on a chair and looked through them and found no drugs. Agent Torre then asked the defendant for identification. She produced a Florida driver's license as identification, and an airplane ticket. The agents asked her about her travel plans. Deputy Terranova did not recall a specific answer. They then asked if she minded if they checked her luggage. She indicated she did not mind. Deputy Terranova then gave the claim check to Agent Torre and asked if it was okay to go get the bag and check it. She again stated that she did not mind. Torre turned over the claim check to Gerace. Gerace went to get the bag. In a few minutes, he returned with a bag and asked for permission to look through it. She said, "Go ahead." Agent Gerace then looked through the bag. During this time, the defendant sat down holding her baby.
After the suitcase was examined, Torre conversed with the defendant. Deputy Terranova did not hear this conversation. The defendant was then advised by Agent Torre that they were going back to the NFTA police office at the other terminal because Torre believed she was carrying drugs. The defendant began crying. The agents called for a female police officer, who transported the defendant to the NFTA police office. She was then taken into a bathroom by the female officer. Shortly thereafter, the female officer came out of the bathroom and handed a package to Torre, stating "here it is." The package was field tested and determined to contain crack cocaine.
On cross-examination, Deputy Terranova indicated that the agents had a physical description and a clothing description of a black male they were looking for as a result of the tip. The last name was "Gary." The tip did not include any information on a second person.
Deputy Terranova testified that aside from the subject of the tip and the defendant, there were only two other black passengers on the plane. This was an elderly couple in their mid-70's travelling together. He admitted that the DEA-6 (Exhibit 1) prepared after the arrest said nothing about the association between the defendant and Gary. He also testified that he did not see Gary and the defendant conversing as they got off the plane. He testified that his attention was alerted to the defendant because she was seated facing a wall, rather than facing the concourse area where someone who was picking them up would see them. He also testified that she repeatedly turned and looked in the direction of where Gary had gone. She looked in the direction of the officers, and appeared to avoid eye contact by glancing down. He also described the phone call as being secretive. He could hear her talking but not the words used. She was turned away and hunched down and appeared to be talking in low tones. He testified that she was free to leave during the time that she was being asked to consent to a search of her belongings. He also testified that she consented voluntarily to go to the NFTA police office.
The next witness to testify was Special Agent Philip Torre. Agent Torre testified that he also knew about the tip and arrived at the airport after the subject of the tip was being questioned by other agents. He learned from one of the agents that the subject had gotten off the plane with a black female who was carrying a small child. He met Deputy Terranova on the second floor, who confirmed this information. He went with Terranova to gate 7 and observed the defendant with her baby.
Officer Pettys, a female police officer with NFTA, arrived as the agents were leaving the terminal and going to the parking lot with the defendant. On the way out, Agent Torre asked the defendant where she was carrying the package and she pointed to an area near her stomach or her groin. Defendant was then placed in Officer Pettys' car and transported to the NFTA police office. She was taken inside, read her rights and searched by Officer Pettys. After the package of crack cocaine was discovered, defendant was questioned. She admitted making one previous delivery of narcotics to an individual named "Slim" in Buffalo.
The next witness to testify was NFTA Police Officer Michelle Pettys. She testified that on November 4, 1993, she was at the airport and was asked to go to the west terminal at approximately 1:30 p.m. She took her patrol car to the west terminal, at which time she met the defendant who was in the company of various other law enforcement agents. She sat the defendant in the back seat of her car with her baby, bag, purse and luggage. She then drove the defendant to the east terminal. When they reached the east terminal, they went into the NFTA police office and she was told to search the defendant. Prior to the search, the defendant was seated on a bench and Special Agent Torre advised her of her rights. Pettys then asked the defendant to come in the bathroom, which she did, bringing the baby. Officer Pettys put the baby in a chair and then proceeded with a search of the defendant. She found a girdle under her skirt containing a large bulge. The defendant removed the package from the girdle and handed it to Officer Pettys.
The next witness to testify was the defendant, Lashandra Parker. She testified that she is single and that her baby is currently four months old, having been born October 2, 1993. As of November 4, 1993, her baby was four weeks old. She came to Buffalo from Fort Lauderdale. She got on the plane at approximately 7:20 a.m., switched planes at LaGuardia airport and continued on to Buffalo. She testified that she talked to no one on either of the two flights and that she travelled alone with the baby. She noticed a few black people on the plane, but did not sit near them and was not close to any black persons when she deplaned. She specifically denied leaving the plane with a black male. When she arrived in Buffalo, she stopped at the chairs in the terminal in order to put a snowsuit on her baby. She testified that she was facing where the people come and go in the terminal, not toward the wall as the agents had testified.
The defendant testified that she sat for three to four minutes and then made a phone call. After dialing, she got an answering machine and left a message. She stated that she did not whisper or attempt to conceal her conversation. She did not notice anyone watching her and walked to get her luggage. She was stopped when she went past the metal detector and touched on the shoulder by a DEA agent, who she recognized in court as Agent Terranova. He advised her that he was looking for drugs and asked to talk to her. He asked her if she knew anyone known as Barry. She stated that she did not. He stated, "Well, Barry knows you, and then asked her if she was travelling with anyone. She stated that she was, meaning that she was flying with her baby.
According to the defendant, she was transported to the other terminal in an NFTA police car driven by a male agent wearing a short-sleeved shirt and carrying a gun in a shoulder holster. When she arrived, the agents asked her if she knew she was under arrest and she testified that she did not because no one had read her ...