U.S. v. Montilla

• Decision Date: 21 March 1991
• Docket Number: D,No. 726,726
• Citation: 928 F.2d 583
• Parties: UNITED STATES of America, Appellant, v. Marcos MONTILLA and Nitza Colon, Defendants-Appellees. ocket 90-1446.
• Court: U.S. Court of Appeals — Second Circuit

Page 583

928 F.2d 583

UNITED STATES of America, Appellant, v. Marcos MONTILLA and Nitza Colon, Defendants-Appellees.

No. 726, Docket 90-1446.

United States Court of Appeals,

Second Circuit.

Argued Jan. 9, 1991.

Decided March 21, 1991.

Kathleen A. Felton, Dept. of Justice, Washington, D.C. (Dennis C. Vacco, U.S. Atty., W.D.N.Y., Buffalo, N.Y., Thomas S. Duszkiewicz, Asst. U.S. Atty., of counsel), for appellant.

Robert N. Convissar, Buffalo, N.Y. (Cohen & Lombardo, P.C., Buffalo, N.Y. of counsel), for defendant-appellee Marcos Montilla.

J. Glenn Davis, Buffalo, N.Y., for defendant-appellee Nitza Colon.

Before WINTER, ALTIMARI and McLAUGHLIN, Circuit Judges.

WINTER, Circuit Judge:

This is an appeal from Judge Curtin's decision granting a motion to suppress drugs found in Nitza Colon's bag. We hold that Colon consented to the search of her bag. We remand the issue of whether appellees were illegally seized before that consent was given.

BACKGROUND

Agents of the Drug Enforcement Administration ("DEA") Task Force regularly observe passengers departing the express bus from New York City at the Niagara Frontier Transportation Authority bus terminal ("the terminal") in Buffalo, New York. New York City is the principal source for drugs sold in western New York, and DEA agents believe that the express bus is often used by drug traffickers. Employing a "drug courier profile," each month the agents question about On August 3, 1989, DEA agents saw Marcos Montilla and Nitza Colon leave the express bus gate and enter the terminal. Montilla was carrying a red duffel bag; Colon was carrying a blue duffel bag. Agent Bruce Johnson testified that Montilla and Colon appeared to be nervous when they entered the terminal, that they looked around furtively, and that they were talking "very, very quietly with each other." As they walked through the terminal, Johnson observed them looking over their shoulders and scanning the terminal. When Montilla and Colon reached Agent Paul Terranova, who was standing against a wall of the terminal, they made a sharp turn and walked rapidly toward an exit, once again looking over their shoulders.

eighty disembarking passengers and make three to four arrests.

Terranova and Johnson signaled to each other their suspicion of Montilla and Colon. Johnson approached appellees in an area between the inner doors of the terminal and the outer revolving doors that lead to the street. Johnson testified that he identified himself as a law enforcement officer, displayed his badge, and "asked if [he] could speak to them." According to Johnson, Montilla and Colon both answered "yes" to this question. He then asked them whether they understood English, and they again responded "yes."

Johnson asked appellees for identification. Colon produced a social services card and stated that she lived on Mariner Street in Buffalo. Montilla said that he had no identification and that he was from New York City. As Terranova approached, he noticed a bulge in Montilla's rear pocket, pointed to it and asked Montilla whether he was sure that he did not have any identification. Terranova testified at a suppression hearing that Montilla pulled out a wallet and stated "yes I do." The wallet contained three identification cards. One bore the name "Robert Rutkowski" while the other two were in Montilla's name. Terranova questioned Montilla about the Rutkowski identification, but Montilla remained silent.

While Terranova was questioning Montilla, Johnson asked Colon what she had done in New York City, and how long she had been there. Colon answered that she had been in New York City for two weeks. One of the agents commented that she did not appear to have much luggage for a two-week stay. Colon shrugged her shoulders and did not answer. At this point, Johnson testified:

I explained that we were members of the Drug Enforcement Task Force and we were looking for narcotics, and I said, would you mind if we took a quick look through your bags.... I said, you're not under arrest, you don't have to if you don't want to. At that point [Colon] said, yes, and [Montilla] nodded his head yes and unzipped both bags.

Terranova gave similar testimony concerning the request to look through the bags.

Montilla's bag contained only clothing and personal items. A search of Colon's bag, however, revealed a hard shape wrapped in an article of clothing. Inside the clothing was a plastic bag containing a taped package. Terranova testified that "the manner in which it was packaged and hidden is very consistent with subjects that travel with narcotics." The agents then asked appellees to accompany them to the terminal security office. In the taped package was white powder that was ultimately found to be cocaine. Montilla and Colon were placed under arrest.

While the white powder was being tested, Johnson summoned a Spanish-speaking Border Patrol agent, John Crocitto, based on the suspicion that appellees were illegal aliens. Crocitto gave both appellees Miranda warnings. He testified that he spoke with Colon mostly in English and read the Miranda warnings to her in English. She indicated that she understood. Crocitto said that Montilla had little knowledge of English and that he read the Miranda warnings to Montilla in Spanish. After the warnings, Montilla told Crocitto "that the problem was his and had nothing to do with [Colon], and that he was ready to face whatever was coming in his direction." Montilla admitted that he had Montilla and Colon were indicted for possessing with intent to distribute cocaine and for conspiracy to commit the substantive offense in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1988) and 18 U.S.C. Sec. 2 (1988). Appellees moved to suppress the physical evidence of the cocaine found in Colon's bag. At the suppression hearing the government argued that the initial questioning of Montilla and Colon was justified by a reasonable suspicion that they were transporting drugs. The government also contended that Colon consented to the search of her bag.

brought the cocaine from New York City. When asked how the package had gotten into Colon's bag, Montilla said that he had put it there. Crocitto did not hear Montilla speak English at any time.

The district court ruled that "the officers were not justified in stopping the individual defendants, seeking identification and asking to examine their baggage," United States v. Montilla, 733 F.Supp. 579, 584 (W.D.N.Y.1990). Observing that many travelers carry duffel bags, do not carry large amounts of luggage, speak in a confidential tone to their traveling companions, and "are anxious to be on their journey after a long bus ride," Judge Curtin held that the information initially available to the agents was insufficient to match a legitimate drug courier profile. See id. at 582-83, 584. The government does not challenge this ruling on appeal. The district court also ruled that, even if the decision to stop appellees was justified, neither appellee had given knowing and voluntary consent to the search of the bags. See id. at 584.

In a motion for reconsideration, the government argued, inter alia, that the initial questioning of Montilla and Colon was a consensual encounter rather than a seizure for Fourth Amendment purposes, that Colon and Montilla consented to the search of their bags, and that, in any event, Montilla had no standing to challenge an illegal search of Colon's bag. The district court denied the motion, stating that the District of Columbia Circuit cases on which the government's new argument was based were "wrongly decided" in light of Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). See United States v. Montilla, 739 F.Supp. 143, 144 (W.D.N.Y.1990). Addressing the facts of the encounter with Montilla and Colon, the court concluded that

considering all of the circumstances in this case, it would be reasonable for the defendants to assume that they were not free to leave. The agents had Montilla's identification, they had identified themselves as federal agents, they never told the defendants that they were free to leave, and they had the bags under control.

Id. Finally, the court declined to address the government's standing argument, observing that "[t]his argument was not raised during the time of the original hearing, and the court sees no need to consider it at the present time." Id. at 145.

The government now appeals the district court's suppression order pursuant to 18 U.S.C. Sec. 3731 (1988).

DISCUSSION

On this appeal, the government has abandoned its earlier position that the agents had a reasonable suspicion to detain defendants for questioning under the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We thus first consider whether Colon consented to the search of her bag. Because we conclude that she did, ¹ we then address whether that consent was invalid because it was given in the course of an illegal seizure.

A. Colon's Consent to the Search

The district court found that Colon did not voluntarily consent to the search of her bag. See 733 F.Supp. at 584; 739 F.Supp. at 145. We disagree. The district court's credibility findings, which are binding upon us, accepted the DEA agents' version of events concerning the search of Colon's bag. The agents testified that they told Montilla and Colon that they were narcotics officers who were looking for drugs. Johnson then asked them: "[W]ould you mind if we took a quick look through your bags.... [Y]ou're not under arrest, you don't have to if you don't want to." Colon answered "yes" to this question and Montilla nodded his head. See 739 F.Supp. at 144-45; 733 F.Supp. at 581. The record is unclear as to whether Johnson or Montilla unzipped the bags. However, Colon in no way objected.

In its initial opinion, the court stressed the "studied, offhand manner" in which the request was made and in particular the fact that the agents avoided...