612 F.2d 1338 (2nd Cir. 1979), 1197, United States v. Vasquez

Docket Nº:1197, Docket 79-1064.
Citation:612 F.2d 1338
Party Name:UNITED STATES of America, Appellee, v. Maria VASQUEZ, Appellant.
Case Date:November 30, 1979
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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612 F.2d 1338 (2nd Cir. 1979)

UNITED STATES of America, Appellee,


Maria VASQUEZ, Appellant.

No. 1197, Docket 79-1064.

United States Court of Appeals, Second Circuit

November 30, 1979

Argued June 8, 1979.

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David Segal, New York City, for appellant.

Francis J. Murray, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Harvey M. Stone, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellee.

Before KAUFMAN, Chief Judge, OAKES and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Maria Vasquez appeals from a judgment entered in the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, convicting her, after a plea of guilty, of one count of knowingly and intentionally using a communication facility in connection with the commission of a narcotics-related felony, in violation of 21 U.S.C. § 843(b). 1 Appellant's guilty plea was entered pursuant to a court-approved agreement preserving her right to appeal the court's denial of her motion to suppress certain evidence. 2

The evidence that Vasquez seeks to have suppressed was seized in the course of a

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warrantless search conducted by agents of the Drug Enforcement Administration shortly after Vasquez and Luis Flores, another passenger apparently travelling with her, arrived at La Guardia Airport on a flight from Chicago. Vasquez contends that the evidence was obtained as the result of an unconstitutional stop in the course of which the agents made an unconstitutional search. Specifically, she argues (1) that the agents lacked reasonable cause to stop and question her, and thus the evidence seized in the course of the stop must be excluded as the fruit of an unconstitutional seizure, and (2) that Flores' purported consent to the warrantless search of the luggage in his possession was not freely and voluntarily given, and thus the evidence found pursuant to that invalid consent must be excluded as the fruit of an unconstitutional search. Our review of the record compels us to reject both contentions and we therefore affirm.

I. Background

After a two-day suppression hearing, at which the three arresting agents and an airport skycap testified, Judge Platt found the relevant facts as follows. 3 On April 4, 1978, a team of DEA Special Agents assigned to La Guardia Airport was observing passengers arriving on an afternoon flight from Chicago, which has been identified by the DEA as a "source" city from which couriers frequently transport illicit drugs to New York via regularly-scheduled commercial flights. Vasquez and Flores were the last passengers to disembark. Although they were conversing as they walked down the first ramp, they separated when they reached the corridor leading to the waiting room. As Flores proceeded to the baggage area, Vasquez trailed behind him, glancing frequently over her shoulder as she walked and, on at least two occasions, stopping to make a complete turn while surveying the other people in the terminal. During a five minute wait in the baggage claim area, Vasquez and Flores stood several yards apart, occasionally making eye contact but, according to the agents' testimony, giving no signs of recognition. When the luggage was placed on the carousel, Flores removed two bags, neither of which bore any identification. One of the bags was secured with a small metal padlock.

After retrieving the luggage, Flores summoned a skycap. One of the DEA agents, Gerard Whitmore, then saw Flores tear two baggage claim checks off his boarding pass, giving the claim checks to the skycap and returning the boarding pass to his pocket. When the skycap inquired as to Flores' destination, Flores initially responded "Brooklyn," but after being corrected by Vasquez, Flores again addressed the skycap and said "the Bronx." After this exchange, Vasquez again moved away from Flores. As the skycap led the way to the taxi-stand, Flores followed him closely while Vasquez followed Flores at some distance.

When the skycap began to load the luggage into a taxi, Agent Whitmore identified himself as a federal narcotics agent and asked the skycap to hold up for a moment. According to the skycap's testimony, this request was made in a quiet and polite manner. Agent Whitmore then addressed Flores, asking whether he spoke English. Flores responded in the affirmative. Agent Whitmore then asked if he could see Flores' airline ticket and some identification. In response, Flores produced a driver's license but said that he did not have an airline ticket. Agent Whitmore then asked Flores whether the two bags were his. Flores did not reply but the skycap handed the two claim checks to Agent Whitmore. At this point Agent Sears, who along with Agent Trustey had been questioning Vasquez while Whitmore spoke to Flores, informed Agent Whitmore that Vasquez had produced no identification but had stated that her name was Maria Vasquez, that the luggage was not hers, and that Mr. Flores had her airplane ticket. Agent Whitmore again asked Flores for the tickets and in response Flores showed him two consecutively numbered tickets made out to "Mr. and Mrs. Alcaide." The tickets, purchased for cash

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on that very day, were both one-way from Chicago to New York.

Agent Whitmore again asked Flores whether the luggage was his. Flores, now exhibiting signs of nervousness such as shaking hands and choppy speech, replied that the bags were his but that he did not know what was in them because they had been packed by someone else. Upon receiving this response, Whitmore informed Flores that he had reason to believe that the luggage contained narcotics. Whitmore also told Flores that unless Flores gave his permission Whitmore would have to seek a warrant in federal court before opening the luggage. Flores replied that Whitmore should "check out" the luggage because that was his job. Agent Whitmore asked Flores and Vasquez whether they would mind stepping inside, and the two suspects and the three agents returned to the terminal building. Flores and Vasquez were again advised by Agent Whitmore that he had no authority to open the bags unless they consented and that without their consent he would have to seek a search warrant in court. Flores again told Whitmore to open the bags, while Vasquez continued to indicate that the bags were not hers. When the bags were opened the agents found several packages of heroin. Flores and Vasquez were arrested, given the appropriate warnings, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and driven to the DEA office at Kennedy Airport for processing.

The uncontradicted testimony of the agents and the skycap was to the effect that the agents were not in uniform, that all questioning was carried on in a conversational tone of voice, that no weapons were displayed, and that neither Vasquez nor Flores was touched by any of the agents prior to the formal arrests.

II. The Stop

During the current term this Court has heard a number of appeals challenging the admissibility of evidence seized by DEA agents who have stopped suspected narcotics couriers arriving at La Guardia and obtained their consent to conduct a search. 4 The legal standards against which we must assess these stops are therefore familiar, as is the scenario which typically leads up to these encounters.

As the Supreme Court has recently reaffirmed, the essential purpose of the Fourth Amendment is to impose a standard of reasonableness on government officials in order to safeguard the privacy and security of individuals against arbitrary invasion. Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Therefore, the Prouse Court explained,

the permissibility of a particular law-enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an objective standard," whether this be probable cause or a less stringent test.

Id. (footnotes omitted). When a seizure entails "the kind of intrusion involved in an arrest," the reasonableness standard of the Fourth Amendment generally requires that the officers act on no less than probable cause. Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254, 60 L.Ed.2d

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824 (1979). 5 However, it has long been the law that a less intrusive stop may be reasonable under the Fourth Amendment if the facts upon which the intrusion is based meet the "less stringent" although still "objective" standard of "reasonable suspicion." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). It is clear that the investigative stop at issue in this case does not "fit comfortably within the traditional concept of an 'arrest' " because the intrusion involved is "so much less severe." Dunaway v. New York, supra, 442 U.S. at 209, 99 S.Ct. at 2254; United States v. Vasquez-Santiago, 602 F.2d 1069, 1071 (2d Cir. 1979). Rather, the stop fits within the narrow and circumscribed category of minimally intrusive seizures first recognized in Terry v. Ohio, supra, and therefore may be deemed justified under the Fourth Amendment if it can be demonstrated, solely on the basis of specific and articulable facts and the rational inferences to be drawn therefrom, that the intrusion was based on reasonable suspicion. United States v. Price, 599 F.2d 494, 499 (2d Cir. 1979). See also Brown v. Texas, --- U.S. ---- - ----, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); United States v. Brignoni-Ponce, 422...

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