609 F.2d 642 (2nd Cir. 1979), 926, United States v. Nieves

Docket Nº:926, 927, Dockets 79-1051, 79-1052.
Citation:609 F.2d 642
Party Name:UNITED STATES of America, Appellee, v. Jose Vidal NIEVES and Maria Isabel Figueroa, Appellants.
Case Date:October 30, 1979
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 642

609 F.2d 642 (2nd Cir. 1979)

UNITED STATES of America, Appellee,

v.

Jose Vidal NIEVES and Maria Isabel Figueroa, Appellants.

Nos. 926, 927, Dockets 79-1051, 79-1052.

United States Court of Appeals, Second Circuit

October 30, 1979

Argued April 23, 1979.

Ruth A. Nordenbrook, Mary McGowan Davis, Asst. U. S. Attys., Edward R. Korman, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., for appellee.

Barry Bassis, New York City (Legal Aid Society, Fed. Defender Services Unit), for Figueroa; William F. Hanrahan, Bellmore, N. Y., on the brief (no oral argument), for Nieves.

Before WATERMAN, FEINBERG and MANSFIELD, Circuit Judges.

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WATERMAN, Circuit Judge:

Jose Vidal Nieves and Maria Isabel Figueroa appeal from judgments entered in the United States District Court for the Eastern District of New York (Neaher, District Judge) on December 1, 1978, convicting each of them, upon their pleas of guilty, of one count of knowingly and intentionally importing into the United States approximately 984.3 grams of cocaine, a Schedule II narcotic drug controlled substance, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). Nieves was sentenced to three years imprisonment, with the court directing that he be incarcerated for six months, and that the execution of the remainder of the sentence be suspended. Nieves also was placed on probation for five years, and was required to serve a special five year parole term. Figueroa was sentenced to five years probation pursuant to the Youth Corrections Act, 18 U.S.C. § 4216. Execution of these sentences was stayed pending disposition of this appeal.

Nieves and Figueroa entered their guilty pleas pursuant to a court approved agreement between them and the government preserving their right to appeal the court's denial of their motions to suppress certain physical evidence and post-arrest statements. 1

Nieves challenges the denial of his suppression motion on the grounds that the border search performed on him at the time of his entry into the United States from Panama at John F. Kennedy International Airport was unreasonable, in violation of the Fourth Amendment. Figueroa challenges the denial of her suppression motion on the grounds that the secondary search of her person, conducted after she had successfully completed a regular customs inspection, was not a valid border search. She, too, alleges that the search, absent a border search justification, was unreasonable, in violation of the Fourth Amendment. For the reasons set forth below, we affirm the district court's denial of the suppression motions, and thus uphold the convictions of Nieves and Figueroa.

I

On the evening of July 12, 1978, Customs Patrol Officer John Boyle was on duty at the International Arrivals Building at JFK International Airport. Boyle observed Nieves presenting his luggage and entry documents to the regular customs inspector who was examining passengers arriving on Braniff Flight 906 from South America. Boyle's attention was drawn to Nieves because he was carrying only one small bag, did not have any gifts or souvenirs that would have marked him as a tourist and did not look like a businessman. Boyle's suspicions were aroused by these circumstances, and he made inquiries of the customs inspector who was examining Nieves's things. Boyle looked at Nieves's passport, and noted that Nieves was born in Puerto Rico, was returning from a vacation trip to Panama, and had been away for four or five days. Boyle then told the customs inspector that he wanted to "check out" Nieves after the initial inspection was completed.

Nieves was taken from the inspection line to the private search room, where he was patted down and told to remove his shoes. Boyle noticed that the inner sole of Nieves's shoes appeared to be homemade. He obtained a drill, and proceeded to bore small holes through the inner soles of the shoes. This core sampling procedure disclosed the presence of a white powder under the inner soles of the shoes, which a contemporaneous field test established to be cocaine. At this point, Nieves was placed under arrest and advised of his constitutional rights. Nieves indicated that he understood his rights and that he did not wish to cooperate. He was then asked to remove his pants so that a

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further search of his person could be conducted. No other narcotics were uncovered in this subsequent search.

After this search was completed, Nieves was turned over to Agent Arthur Rose of the United States Drug Enforcement Administration (DEA). Rose took Nieves to the DEA office at the airport where Nieves was again advised of his constitutional rights. When Nieves was asked whether he wished to waive his rights and cooperate, Nieves responded affirmatively, and told the agents how he had become involved in the cocaine venture. He also told the agents that he was to be contacted in the airport lobby by an unknown man. Nieves then agreed to go to the lobby, under the watch of several DEA agents, to see if someone would contact Nieves in an attempt to take delivery of the drugs. After half an hour passed without any contact, the agents and Nieves proceeded back to the DEA office. En route to the office, one of the agents (Huber) noticed that the suitcase Nieves was carrying had a felt stripe with a buckle running down its side, and remembered that during the surveillance in the lobby he had seen a woman standing beside a similar bag with an identical stripe running down its side. Huber told his colleagues what he had observed, and while the other agents proceeded to the DEA office with Nieves, Huber and another agent (Murphy) returned to the lobby to attempt to locate the woman that Huber had seen earlier.

Upon returning to the lobby, the agents located the woman (appellant Figueroa) immediately. Murphy maintained surveillance while Huber summoned a customs inspector. Upon his return, Huber approached closer to Figueroa, and noticed that her bag, in addition to appearing identical to Nieves's, bore a similar baggage identification tag. In the proceedings in the district court, Huber testified that Figueroa, standing in the airport lobby, "appeared to be confused, if not lost; she was not being met nor was she meeting anyone outside, and this was, as I understood it, just what Nieves was supposed to do." On the basis of these observations, Huber contacted Figueroa, identified himself, and asked her for identification. She produced a passport, but her response indicated that she did not understand English well enough to be interrogated further by him. Huber then asked Figueroa to accompany him back to the customs area, where she could be interrogated by a Spanish speaking customs officer.

While Figueroa was being escorted back to the customs area, Murphy returned to the DEA office, where he...

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