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UNITED STATES v. SALGADO

August 9, 1995

UNITED STATES OF AMERICA
v.
RAFAEL SALGADO, Defendant.



The opinion of the court was delivered by: HECKMAN

REPORT AND RECOMMENDATION

 This matter was referred to the undersigned by the Hon. William M. Skretny, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendant has moved to suppress evidence obtained as a result of a warrantless search of his luggage. A hearing was held before this court on May 4-5 1995. For the following reasons, it is recommended that defendant's motion be denied.

 BACKGROUND

 At approximately 6:30 p.m. on November 3, 1994, the defendant Rafael Salgado and Irene Garbowski entered the United States from the Rainbow Bridge port-of-entry in Niagara Falls, New York. The defendant and Garbowski were passengers in a taxi bearing an Ontario, Canada license plate.

 I. Testimony of Inspector Charles Young.

 Once in the secondary inspection building, the defendant and Garbowski were requested to fill out custom declaration forms. Both stated on the forms that they were not carrying more than $ 10,000 into the United States. Garbowski made an oral declaration that she was carrying about $ 300 in United States and Canadian money. The defendant stated that he was carrying about $ 1,000 in United States and about $ 1,200 in Canadian currency.

 Meanwhile, Canine Enforcement Officer Sally Barr used her dog to perform a canine sniff on the taxi cab. The result was negative. However, a brown leather satchel containing approximately $ 3,236 in United States and $ 1,258 in Canadian currency was found on the passenger seat in the back. A further search of the taxi revealed a package wrapped in carbon paper underneath the rear passenger seat. The package contained $ 100 bills totaling $ 10,000 in United States currency. Supervisory Inspector Bruce Smith testified that after the currency was found, he approved a strip search of the passengers. After the strip search, the passengers were locked into separate interview rooms. At this point, Bruce Smith notified the Niagara County Drug Task Force, which sent Detective John Humphrey to the Bridge. At about 8:00 p.m., Bruce Smith also called Special Agent Peter Smith of the United States Customs and informed him of the currency seizure (T. at 3-4).

 Inspector Young testified that he and Detective Humphrey spoke to the defendant in the interview room. The defendant stated that he had left Columbia and went to Mexico to see his female friend (not Garbowski). He then travelled to Montreal to see a friend regarding his export-import business. The defendant stated that he had been living in Columbia for about a year and that he also worked in a lemon processing plant.

 After Young was finished with his questions, Detective Humphrey read the defendant his Miranda rights. He asked the defendant if he spoke and read English, and defendant replied "Yes". He asked the defendant if he understood, and defendant again said "Yes". Humphrey told the defendant that he should be honest but denied that he made any threats to the defendant. The detective asked the defendant several questions about his occupation and his travels in Canada. Humphrey testified that after a while, the defendant became agitated with the questions and Humphrey felt that the defendant was not being truthful. The defendant was not asked about the package found in the taxi. Both Young and Humphrey testified that the defendant did not ask for an attorney at any point.

 II. Testimony of Special Agent Peter Smith

 Special Agent Peter Smith testified that he received a phone call at about 8:00 p.m. on the date in question and that he arrived at the Rainbow Bridge at around 8:50 p.m.

 At sometime between 9:30 - 9:45 p.m., Smith began talking with Garbowski. She told him that she had arrived in Montreal on October 29th and that she had spend a couple of days with the defendant. Thereafter, they traveled to Toronto and rented a car and drove to Niagara Falls, Ontario. He further testified that Garbowski had rented a car at the Radisson Hotel in Niagara Falls, New York with her American Express Card. Smith confirmed this transaction. She also stated that there was luggage in the rental car at the Radisson and that at some point the luggage had also been in Canada. However, Smith did not ask her whose luggage it was nor did he advise her of any rights. The interview ended at about 10:20 p.m. (T. at 5-8).

 Smith asked the defendant several general questions about his travels and his relationship with Garbowski, which the defendant answered. Special Agent Smith also asked defendant if he was aware of the reporting requirements. The defendant stated that he was aware of the requirements. Finally, when Smith told defendant about the $ 10,000 that was found, the defendant did not respond but asked for an attorney. At this point, the questioning stopped and the defendant was taken to the smaller detention room without any handcuffs (T. at 11-15).

 Thereafter, Smith went to speak to Garbowski again and asked her about the rental car at the Radisson Hotel. Smith asked her if she would give him the keys so that they could go see the car. Garbowski gave Smith the keys and he along with Garbowski, Schmelzinger, and Group Supervisor Tom Manifase drove to the hotel. Smith testified that the Radisson was three-tenths of a mile from the Rainbow Bridge and that it could be seen from the Bridge (T. at 15-16).

 Once at the garage where the rental car was parked, Smith asked Garbowski if he could open the trunk and she said that he could. Garbowski identified three bags as hers and the others as the defendant's. Smith did not take the bags out but instead closed the trunk and asked Garbowski if he could drive the car to the bridge and she agreed that he could do that (T. at 16-18).

 Smith testified that when they returned, he parked the car in the bridge garage, next to the secondary inspection area. Smith asked Garbowski to identify the luggage and then he put all bags on the garage floor. At this point, the defendant was still in the detention room. Smith then asked Garbowski if he could search her bags and she said, "go ahead". Nothing was found in the search but women's clothes. Neither Smith nor anyone else searched the defendant's luggage (T. at 18-22).

 At this point Officer Barr's dog sniffed the bags but there was no response or alert as to any drugs. Smith testified that when the dog was brought in, Garbowski got very excited and she said that she did not know whose luggage the other three were. While Garbowski had name tags on her luggage there was no identification on the other three bags. Thereafter, Smith put Garbowski's luggage in the trunk and put the three other bags on an inspection table located in the garage (T. at 22-25).

 Smith testified that he took Garbowski inside the customs office and got the defendant and had him fingerprinted at about 12:05 a.m. on November 4, 1994. At about 12:30 a.m., Smith contacted Assistant United States Attorney Paul Campana, who advised Smith that they could not search defendant's bags and that he should be released. Smith obtained defendant's personal belongings and told him that he was free to go (T. at 25-31).

 Once in the garage, Smith told defendant that if the "bags were his he could take it." The defendant did not respond verbally but hesitated. The defendant then took one of the bags and put it in the trunk of the rental car. Smith then stated, "If the bag is not yours, you can't take it" and put the bag back on the inspection table. According to Agent Smith, Agent Schmelzinger stated, "If these are your bags, tell us they're your bags and you can go." Smith testified that at this point Garbowski said, "Tell him they're your bags and let's get the hell out of here." Smith then testified that the defendant stated that they were his bags. Then Agent Schmelzinger stated, "Can we look in your bags," and the defendant responded by saying, "Yes, go ahead." (T. at 33-36). Smith also testified that he never told the defendant that he did not have to consent, and if he had not consented then they still would have been free to go.

 According to Agent Smith, the defendant was free to leave up until the time when he gave ...


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