U.S. v. Jaramillo

• Citation: 891 F.2d 620
• Decision Date: 12 December 1989
• Docket Number: 89-1955,Nos. 89-1954,s. 89-1954
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fenet JARAMILLO and Esther Jaramillo, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 620

891 F.2d 620

UNITED STATES of America, Plaintiff-Appellee, v. Fenet JARAMILLO and Esther Jaramillo, Defendants-Appellants.

Nos. 89-1954, 89-1955.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 28, 1989.

Decided Dec. 12, 1989.

Thomas M. Durkin, Colleen D. Coughlin (argued), Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for U.S.

Philip Krasny (argued), Schlesinger & Krasny, Chicago, Ill., for Fenet Jaramillo.

Lauren J. Weil (argued), Federal Public Defender, Office of the Federal Public Defender, Chicago, Ill., for Esther Jaramillo.

Before POSNER and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Esther and Fenet Jaramillo tried to smuggle about 2,000 grams (approximately 4.4 pounds) of cocaine through Chicago's O'Hare Airport. They were caught and the cocaine was discovered and confiscated. The Jaramillos subsequently were charged by indictment with violations of 21 U.S.C. § 846 (Count One), 21 U.S.C. § 841(a)(1) (Count Two), and 18 U.S.C. § 1952 (Count Three). Before trial, they moved to suppress from evidence the confiscated cocaine and certain statements made by them subsequent to the seizure. The district court denied the motions, finding that the cocaine was lawfully seized. 714 F.Supp. 323. Thereafter the Jaramillos entered a plea agreement in which they pled guilty to violating Counts One and Two of the indictment. Each was sentenced on Count One to serve five years in jail. On Count Two each received a sentence of 20 years in jail followed by 10 years of supervised release, but the sentences were suspended and in lieu thereof each was placed on probation for five years, to run consecutively to the custody sentence on Count One, and was subjected to various other conditions. A provision in the Jaramillos' plea agreement reserved to them the right to appeal the denial of their suppression motions. They have exercised that right.

I.

The events transpiring at O'Hare were hotly disputed. The scenario portrayed here comes from the district court's findings, findings that must stand on review unless clearly erroneous. United States v. Talkington, 875 F.2d 591, 593 (7th Cir.1989); United States v. $73,277, United States Currency, 710 F.2d 283, 288 (7th Cir.1983). When and if the need arises to discuss views different from those described or adopted by the district court, those views will be presented and addressed. For the time being, however, we take our story as told by the trial judge.

Esther and Fenet Jaramillo are married, middle aged (Esther is about 57, Fenet, 56) Miami residents. Both emigrated from Colombia and came to the United States, Esther coming in 1982, Fenet in 1964. Fenet attended high school in Colombia, and speaks both Spanish and English well. He is five feet five inches tall and weighs about 132 pounds. He was employed as an exterminator in Miami. Esther completed her education through the second year of Colombian secondary school, and has registered for classes in the United States several times. She speaks fluent Spanish, not so fluent English. She is not quite as tall as Fenet, and has somewhat of a larger build. She was employed as a seamstress in Miami. Neither had been arrested before September 28, 1987, nor had they ever visited Chicago's O'Hare airport.

On that date, however, the Jaramillos decided to take an Eastern Airlines flight from Miami to Chicago. They purchased their tickets the same day as the flight, in cash, in their own names, with open return dates for the trip back to Miami. Before leaving, they packed some personal effects into their luggage; Fenet took a carry-on bag, Esther, a purse. They also packed some cocaine (about 4.4 pounds) into eleven four-by-six packages; Fenet took five of the packages, Esther, six. They wrapped the cocaine packages in white tape, securing them to their waists with rubber waistbands. They then covered the cocaine with their clothing, caught their flight, and headed for Chicago.

At O'Hare, narcotics agents George Mays and Robert Glynn were monitoring incoming flights from "source" cities, one of which is Miami. Agent Mays was a Chicago Police Department veteran of 26 years, the last 19 of which were spent in narcotics enforcement. He was working for the Drug Enforcement Agency O'Hare task force, as he had been for the previous three years. The agents had substantial experience with drug couriers--Mays alone had been involved in about 400 narcotics interviews while at O'Hare, 100 of those resulting in the seizure of illegal drugs, 50 of which involved the concealment of drugs on the interviewee's body--and had received extensive education and training on interviewing suspected narcotics couriers. Both agents were dressed in plain clothes.

The Jaramillos' flight arrived at 4:30 in the afternoon. As the Jaramillos deplaned they began looking about the immediate area. This caught Agent Mays's eye, as did the Jaramillos' bodies, which were bulky and abnormally formed. The Jaramillos' visual search of the gate area reminded Mays of "a type of counter surveillance" usually engaged in by drug couriers. Their bulkiness indicated to him that they were "possible couriers of contraband." Agent Mays noticed that the unusual bulkiness concentrated around the Jaramillos' waists, bulges protruding from Esther's front and back and from Fenet's front, back, and side. This raised his suspicions further; his experience had been that drug couriers commonly smuggle drugs concealed on their waists. Mays also noticed the Jaramillos' paucity of baggage. To him this indicated a short trip (potentially, if no other luggage was picked up at baggage claim), a short trip being the norm for drug couriers.

After the Jaramillos scanned the area around their arrival gate, they began to walk quickly down "D" concourse. Mays and Agent Glynn fell in behind them, back 10 to 15 feet. Several times the Jaramillos turned and made eye contact with the agents. At the end of D concourse, before entering the main terminal, the Jaramillos turned, looked at Mays and Glynn, and nervously backtracked up the concourse. After about 50 yards of walking and watching the agents they again changed course, heading back to the terminal. Once there the Jaramillos got in line for the escalator leading to baggage claim and the lower level exit doors. They stood about 10 persons back. The agents joined them in line about 13 persons back. When the Jaramillos were about three persons from entering the escalator, Fenet turned and saw the agents. He grabbed Esther and left the line, heading for the upper level exit doors. The agents pursued at a quickened pace.

They caught up with the Jaramillos inside the terminal about 25 to 30 feet from the escalator line. The agents flanked the couple on their right side, produced their badges and identification and stated in a normal tone of voice, "Excuse me, we are police officers." They did not display their weapons. They did not touch the Jaramillos. They did not block the Jaramillos' path to the exit doors. They did not order the Jaramillos to stop. Fenet responded, "What can I do for you?" Agent Mays asked if the Jaramillos would speak to him, informing them that they were not under arrest and were free to go at any time. The Jaramillos said "yes," in English, and stopped in the vestibule area between two sets of exit doors.

The vestibule area is about 15 by 20 feet, containing one set of exit doors segregated by a metal bar from two sets of entrance doors. Across from the metal bar, along the exit side, lies a radiator. A sensory pad extends into the area, the pad opening sliding doors when activated. The vestibule enclosure is made of glass walls that are fairly clear for Chicago. It is well lit. It is well traveled by airport visitors. As a large number of people were then exiting through the doors, the agents and the Jaramillos gravitated to the side.

The agents requested the Jaramillos' airline tickets and identification and received them. They were perused for a minute or so and returned. The agents noticed that the tickets were purchased at the last minute before the flight. This raised their suspicions; to their knowledge couriers attempt to hide their movements by making last minute ticket purchases. Also in the drug courier norm was the use of cash and the open return date, again, both helpful means to conceal information on courier whereabouts. Agent Mays asked the Jaramillos about their visit to Chicago, and Fenet replied that they were staying in town for a few days.

Agent Mays then told the Jaramillos that he was a narcotics agent conducting a narcotics investigation, asked permission to search their baggage for narcotics, and informed them that they had a right to refuse consent. Fenet conferred with Esther momentarily in Spanish. Consent was then given by Fenet. Agent Mays addressed Esther, asking her if she was giving consent. Esther responded, "Yes," in English. A cursory search of the carry-on bag and the purse was performed, the search being uneventful. During this time, however, the agents had further opportunities to observe the Jaramillos' bulkiness, now at close range. These observations led Agent Mays to believe that the Jaramillos were concealing drugs or other contraband under their clothes.

To verify his suspicions, Mays asked the Jaramillos in English if they were carrying drugs. Fenet responded, "No." Esther made no response. Mays then pointed to the Jaramillos' waists and said in English, "You have something bulky on your waist. What is that?" The Jaramillos did not respond. He then asked them if they would consent to a pat-down search. After conferring momentarily in Spanish, the Jaramillos effectively refused.

The agents decided to pat the couple down anyway. Concerned about Mrs. Jaramillo's rights, Agent Mays went looking for assistance from a female agent. He left the Jaramillos temporarily with Agent Glynn and...