Montoya v. United States

• Citation: 392 F.2d 731
• Decision Date: 28 March 1968
• Docket Number: No. 25028.,25028.
• Parties: Maria Hermelinda MONTOYA, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

392 F.2d 731 (1968)

Maria Hermelinda MONTOYA, Appellant, v. UNITED STATES of America, Appellee.

No. 25028.

United States Court of Appeals Fifth Circuit.

March 28, 1968.

Donald F. Frost, Miami, Fla., for appellant.

Michael J. Osman, William A. Daniel, Jr., Asst. U. S. Attys., Miami, Fla., for appellee.

Before TUTTLE and GOLDBERG, Circuit Judges, and HOOPER, District Judge.

TUTTLE, Circuit Judge:

Maria Montoya and a male companion, Heriberto Lozano were arrested on April 2, 1967 in Dade County, Florida very shortly after they arrived from Colombia by air and were charged with importation and illegal purchase of some two thousand grams of cocaine, in violation of Title 26 U.S.Code Ann. § 4704(a). The parties were subsequently indicted; the trial court sustained a motion on behalf of Lozano to suppress the fruits of a search of the hotel room into which the parties had registered as man and wife but overruled the similar motion made on Miss Montoya's behalf; thereupon, the government dismissed the cases against him but proceeded to try the woman; during the course of the trial the fruits of the search of the room were introduced into evidence together with a confession which she made. She is here complaining of error in the trial court's overruling of the motion to suppress the packages of cocaine which were found in the hotel room and the trial court's order denying the motion to suppress her alleged confession.

The basic facts relating to the search and the taking of the statement from Miss Montoya were undisputed.

On the Avianca Airlines flight 56, arriving from Bogota, Colombia at 12:00 noon in Miami, April 2, 1967, Lozano and Miss Montoya and a third party, Sanchez Pineda, debarked and Sanchez was detained by customs officials. Lozano and Miss Montoya proceeded immediately to the Miami Colonial Hotel in downtown Miami, where they arrived at 12:22 P.M. Upon searching Sanchez, the customs agents found four packages of pure cocaine on his person. Thereupon, customs agents proceeded immediately to the hotel, ascertained that Lozano had checked in for himself and Miss Montoya as Mr. and Mrs. Lozano. Thereupon, they went upstairs and waited approximately a half hour outside the room shared by the couple. When Lozano came out the agents talked briefly with him and then entered the room with him, explaining to the trial court in response to the motion to dismiss, that they had the right to enter it as a "border search." Thereupon, Lozano and Miss Montoya were questioned by the agents, who first obtained from them their passports, immigration forms and airline tickets. Then they stated to Lozano and Miss Montoya that they had information that they had not declared everything and asked whether this was true.¹ Upon receiving a denial, they then requested permission to search the baggage, which was given. They found nothing in the baggage, whereupon they began to search the room without asking or receiving consent. Up over the brace in top of one of the drawers of the dresser, they found four packages of cocaine. They thereupon notified the two parties that they were under arrest, and they then called for a customs agent named Minas, who spoke Spanish fluently.

Agent Minas sought to question the two individuals, which he said was not successful. He said, "I tried to talk to each one of them, but it was rather strained. We could not do anything." Thereupon, he ordered Lozano taken from the room and undertook to question Miss Montoya. In view of appellant's attack on the admissibility of the statements she made in response to this questioning, it is necessary that the nature of the warning given by him be carefully stated. The relevant testimony respecting this is as follows:

"A. I advised Miss Montoya of the fact that she was under arrest and made sure she understood that she was under arrest. Then I explained to her her rights under the Constitution.

"Q. Specifically, what rights did you advise her of at that time, sir?

"A. I told her that under the Constitution of the United States, she had the right to remain silent, that anything she might say could be used against her if she was tried. I also told her she had a right to an attorney, and, if she could not afford an attorney, one would be provided for her. I also told her she could terminate the interview at any time she so desired.

"Q. After you advised her of these rights, what, if anything, did she say to you?

"A. She acknowledged. * * * I asked her if she understood, and she acknowledged she did by shaking her head."

Thereupon, Miss Montoya answered questions, as a result of which she admitted that she had brought four packages of cocaine into the country and had placed them on the dresser. She denied that she had concealed them in the place where they were found.

Under cross examination, the following transpired, dealing with the separation of Lozano and Miss Montoya before the questioning of the latter:

"Q. Mr. Minas, when you saw Miss Montoya in the room when you talked with her and Mr. Lozano, you tried to elicit at that time a confession; is that right?

"A. I asked them certain questions.

"Q. You tried to elicit some questions?

"A. I asked them certain questions, yes.

"Q. They refused to answer you, did they not?

"A. They were closed-mouth, yes.

"Q. You tried very strenuously at that point and you saw you were getting no place with them; is that true and correct?

"A. Well, it wasn\'t strenuously, no sir. I wouldn\'t force them to say anything.

"Q. Mr. Minas, is it not true that you never advised them of any constitutional rights when they were jointly together?

"A. That is true, while they were jointly together.

"Q. At the time you saw you were getting no place with them, then you figured you had better separate them and maybe you would elicit information that way?

"A. I figured that would be the way to obtain some statements, yes."

Based on this testimony, the trial court concluded that the entry without a search warrant was not legal as a "border search" and ruled out the proof of anything that occurred in the room as against Lozano, but refused to suppress the evidence as to Miss Montoya. He then permitted the case to go to trial against her, charging that it was for the jury to decide whether she had understood the warning as to her constitutional rights. The trial court admitted in evidence the narcotic packages which were found as a result of the search which it held to have been illegal as against Lozano. The court also submitted to the jury the question as to the voluntariness of Miss Montoya's inculpatory statement. The jury convicted her on two counts.

We conclude that on the showing thus made it was the duty of the trial court to suppress both the narcotics and the confession elicited from the appellant.

The...