The opinion of the court was delivered by: LESLIE G. FOSCHIO
DECISION and ORDER/REPORT AND RECOMMENDATION
This case was originally referred to Magistrate Judge Edmund F. Maxwell by order of the Hon. Richard J. Arcara dated January 14, 1992. After preliminary proceedings before Magistrate Judge Maxwell, it came to the attention of the district court that similar issues had been raised in another case before this court. By order dated July 26, 1994, Judge Arcara referred the matter to the undersigned for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A), and for report and recommendation pursuant to § 636(b)(1)(B). It is presently before this court on the Defendant's requests for discovery, an evidentiary hearing and the appointment of an expert witness, and her motion to suppress evidence.
In an Indictment dated January 8, 1992, Guzman was charged with the violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) in that, on or about January 7, 1992, she unlawfully possessed with intent to distribute 500 grams or more of a substance containing cocaine. At a pretrial conference on February 7, 1992, Guzman orally moved to suppress physical evidence. A suppression hearing was held before Magistrate Judge Maxwell on August 24, 1992 and September 21, 1992, at which time the Government presented the testimony of United States Border Patrol Agent Daniel Lorenz, Erie County Sheriff's Department Investigator Paul Terranova, and United States Drug Enforcement Administration Agent Bruce Johnson. Following the hearing, Magistrate Judge Maxwell set a briefing and oral argument schedule.
On May 25, 1994, Guzman filed a motion seeking discovery and a hearing on her claim that, at the time of her arrest, she was stopped by Government agents because of her race or ethnic origin. She also sought the appointment of an expert witness. The Government filed its response on July 7, 1994. During an appearance on July 19, 1994, defense counsel advised the court that he wished to withdraw the first suppression motion, based on a purported lack of consent to search Guzman's bag, and to pursue the second. By order filed July 20, 1994, Magistrate Judge Maxwell dismissed Guzman's first motion.
By letter dated October 19, 1994, Guzman framed the factual issues for a hearing on her contention that the stop of her by the agents was unlawfully based on her race or ethnic origin. On October 26, 1994, the Government filed an affidavit stating that no further evidentiary hearing is necessary, and that the documents Guzman seeks do not exist. Additionally, the Government stated that the record supports the factual finding that Guzman was stopped, not because of her race or ethnic origin, but because of her conduct.
For the reasons that follow, the motions for discovery, for a further evidentiary hearing, and for the appointment of an expert witness are DENIED, and the motion to suppress should be DENIED.
In proceedings before Magistrate Judge Maxwell, Investigator Terranova testified that on January 7, 1992, he was assigned to the NFTA bus terminal, and observed a bus from New York City arrive at approximately 8:00 am. (T.I.82, 84).
Guzman and a male passenger were the first to exit the bus, and Terranova observed them walk to the side of the bus, converse for a moment, and enter the terminal. Terranova also stated that the two looked around in a nervous manner, towards the terminal and away from it, and at Terranova and his partner, DEA Agent Bruce Johnson. (T.I.85-86). Guzman and the male then entered the terminal, and continued to converse and look around the terminal nervously as they walked, very slowly, for a distance of approximately twenty to thirty feet, at which point they separated. (T.I.86). In response to what Terranova considered suspicious behavior, he and Agent Johnson followed the two, and signaled, with a nod of the head, to Agent Lorenz to join them. (T.I.88).
Agent Lorenz testified that he followed Guzman, while Terranova and Johnson approached the male passenger. (T.I.6). He identified himself as a Border Patrol Agent, and asked if he could speak with her. (T.I.7). Guzman agreed, and produced a New York State driver's license as identification. (T.I.7). In response to his questions, Guzman stated that her purpose in travelling to Buffalo was to visit an uncle in Canada, but she was unable to say where in Canada the uncle lived. (T.I.8). Investigator Terranova then joined Agent Lorenz, and asked Guzman if her bag contained narcotics. (T.I.10). She denied that it did, and agreed to accompany the agents to the NFTA police office for a search of the bag. (T.I. 10, 93). The subsequent search revealed a quantity of cocaine, packaged in duct tape and wrapped in a blouse, and a bottle of inositol, a cutting agent for cocaine. (T.I.12-14, 97, 99).
Agent Johnson testified that he observed the bus arrive from New York City on January 7, 1992 shortly after 8:00 a.m. (T.II.147). A man and woman, later identified as Hector Huertas and Guzman, were the first two people off the bus, and they proceeded to stand outside, near the front of the bus, quietly conversing for about one minute. They then entered the terminal. (T.II.150). Agent Johnson continue to observe the couple, because they made no attempt to claim luggage from the side of the bus, nor did they immediately enter the terminal on a January morning. (T.II.151).
Johnson testified that, after entering the terminal, Guzman and Huertas walked very slowly down the center aisle, toward the exit, and then separated, with Guzman walking six to eight feet ahead of Huertas. (T.II.152). As they walked separately through the terminal, Guzman looked back at Huertas, and Huertas looked over his shoulder, around the terminal. (T.II.159). Johnson stated that he was suspicious that they were travelling together and were carrying narcotics, based on their conduct after exiting the bus and entering the terminal. (T.II.158).
Agent Johnson testified that the agents make no report when they stop an individual and that person is not arrested. (T.II.179). There are no records on the number of stops made in the transportation centers, or the number involving Hispanic individuals. (T.II.180). Agent Johnson could not say how many black, white or Hispanic persons were arrested at the transportation centers during his years on that detail. (T.II.180). There is no classification for a Hispanic individual on a DEA arrest record. (T.II.179). On the DEA form 6, Agent Johnson classified Guzman as a white female and Huertas as a white male. (T.II.183). There is no criteria that ...