U.S. v. Forero-Rincon

• Decision Date: 16 June 1980
• Docket Number: D,FORERO-RINCO,No. 542,A,542
• Parties: UNITED STATES of America, Appellee, v. Amparoppellant. ocket 79-1304.
• Court: U.S. Court of Appeals — Second Circuit

Page 218

626 F.2d 218

UNITED STATES of America, Appellee, v. Amparo FORERO-RINCON, Appellant.

No. 542, Docket 79-1304.

United States Court of Appeals Second Circuit.

Argued Dec. 11, 1979.

Decided June 16, 1980.

Arthur M. Unterman, New York City (Gould & Reimer, New York City, of counsel), for appellant.

Thomas G. Roth, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty. and Harvey M. Stone, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for appellee.

Before LUMBARD, FEINBERG and VAN GRAAFEILAND, Circuit Judges.

LUMBARD, Circuit Judge:

Amparo Forero-Rincon appeals from her conviction, entered on August 3, 1979, in the Eastern District of New York after a jury trial, for possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Forero claims that Judge Bramwell erred in denying a pre-trial motion to suppress three pounds of cocaine found in her shoulderbag by a Drug Enforcement Administration agent at La Guardia Airport. We conclude that Judge Bramwell properly refused to suppress the evidence. We therefore affirm the conviction.

I.

This appeal presents the increasingly recurring question of the constitutionality of a warrantless "investigatory stop" of a domestic air traveler by a DEA agent monitoring arriving passengers for the purpose of detecting and stemming the flow of narcotics brought into New York City by air travel. Several such appeals have been decided in the past two years by this circuit ¹ and by others, ² and one has recently been decided by the Supreme Court. ³ The decisions of this circuit have established (1) that these stops will be deemed reasonable, and therefore constitutional even though warrantless, so long as they are minimally intrusive upon the detained traveler and are initiated only after the agent has observed specific and articulable facts to support a suspicion that the traveler is engaging in criminal activity and that the stop is immediately necessary, United States v. Vasquez, 612 F.2d 1338 (2d Cir. 1979), and (2) that the reasonableness of the agent's suspicion must be judged upon the particular facts of each case, United States v. Buenaventura-Ariza, 615 F.2d 29 (2d Cir. 1980). The facts of this case, as elicited at the suppression hearing from DEA Special Agent Alfredo Iglesias, whose testimony Judge Bramwell fully credited, are:

At approximately 4:40 p. m. on April 18, 1979, Eastern Airlines Flight 20 arrived at La Guardia Airport from Miami, Florida. Because the DEA has designated Miami as a "source city" that is, a city from which narcotics are frequently carried into the New York City area for distribution Iglesias, along with the ubiquitous Special Agent Whitmore, ⁴ positioned himself at the flight's arrival gate to observe whether the behavior of any of the arriving passengers suggested that they might be carrying narcotics. After watching about seventy passengers disembark, Iglesias noticed two women exit from the jetway into the waiting area carrying shoulderbags of identical size and color. Neither of the bags had an identification tag. As they came out of the jetway and proceeded through the waiting area to the corridor leading to the terminal's main lobby, the two women walked together and conversed. After they had walked a short distance, one of them, Gaby Ofir Yepes, moved very close to the other, Forero, and whispered to her. Yepes then accelerated her pace and moved ahead of Forero by five to ten feet. Upon observing this whisper and separation, Iglesias advised Whitmore that he would follow and continue to observe Yepes and Forero, who were then briskly walking in single-file toward the lobby.

The women walked in this manner briskly with Forero following Yepes by five to ten feet until Yepes reached an area near a security checkpoint, where she stopped, turned around, and looked back toward the other passengers walking from the arrival gates. When Yepes stopped, Forero slowed her pace and then stopped in front of a nearby magazine stand. Forero did not look at magazines, engage anyone in conversation, nor look about; she watched only Yepes, who, after scanning the area in a full circle, resumed walking toward the lobby. Forero then followed, five to ten feet behind.

Unlike most passengers arriving from Miami, who are usually baggage-laden tourists, Yepes and Forero did not proceed to the baggage-claim area on the lower level of the terminal. Instead, they proceeded through the lobby on the upper level, Forero following Yepes, and exited onto the sidewalk. Upon exiting, Yepes stopped, although there was no designated spot for cars, buses, or taxis to pick up passengers in that area of the upper level. When Forero had also exited, the two women stood together and both looked back through the glass wall at the people inside the lobby. They then proceeded, but now side-by-side and conversing, down the sidewalk toward the National Airlines area. As they walked, Yepes scanned both the area inside the terminal and the incoming vehicles on the upper roadway. Once in front of National Airlines, they stopped, Forero leaned against the building, Yepes paced back and forth, and they continued to converse.

After a few minutes, the women walked a bit further and re-entered the terminal building. Upon re-entering, Yepes again took the lead and walked five to ten feet ahead of Forero toward the telephone booths. While Forero used the phone, Yepes stood nearby and scanned the lobby. Forero then said something to Yepes, and again with Yepes in the lead they retraced their steps toward the exit. Yepes reached the sidewalk first, waited for Forero, and the two then proceeded together, while conversing again, back toward the Eastern Airlines area. Before reaching that area, Yepes looked behind her and saw Iglesias. She quickly said something to Forero, and the two of them began to walk rapidly away. Iglesias then stopped them.

We must, of course, rely solely upon these facts "the facts available to the officer at the moment of the seizure," Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) in judging whether Iglesias' suspicion that Yepes and Forero were trafficking in narcotics was sufficiently supported to warrant the stop. However, because the reasonableness of the warrantless stop depends upon the scope of its intrusion as well as the need for its inception, Delaware v. Prouse, 440 U.S. 645, 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and because Forero challenges the constitutionality of the search as well as of the stop, the following facts, also elicited from Iglesias, are also relevant:

After stopping Yepes and Forero by touching Yepes on the shoulder, identifying himself as a federal narcotics agent, and displaying his credentials, Iglesias stated that he wished to ask them a few questions. Iglesias addressed the women in English, and Yepes readily understood and replied in English. Forero, however, did not understand, for she does not speak English, and she asked Yepes in Spanish whether there was some problem. Yepes responded to Forero that Iglesias was a policeman who wanted to ask some questions. Iglesias understood this exchange, because Spanish is his native language, but he did not reveal to Yepes or Forero that he understood; rather, he continued to speak in English and let Yepes translate to Forero, who had indicated that she would answer his questions.

After the woman truthfully answered Iglesias' first question whether they had disembarked from a flight or were at the airport to meet someone Iglesias asked them if he could see their airline tickets. Yepes produced a ticket in her name and Forero produced a ticket in the name of Robert Villanueva. Iglesias next asked them each for identification, and each produced a driver's license in her name. He then asked Yepes to inform Forero that her ticket was not in the same name as her license. Yepes did so, and then immediately explained to Iglesias that she Yepes had forgotten Forero's name when making the airline reservations. Simultaneously, Forero stated to Yepes that the airline had erred in the name when she Forero purchased the ticket. Yepes did not translate Forero's explanation. Iglesias, however, heard, and of course understood, both statements.

Iglesias then informed the women that he had stopped and asked them these questions because it was his job to prevent the smuggling of cocaine from Miami to New York. Forero was visibly moved when Iglesias intentionally pronounced "cocaine" in his native Spanish accent; her eyes opened widely, her mouth dropped, and her face turned red. Iglesias stated that he wished to look inside their shoulderbags, but that he had no authority to do so unless they gave him permission. Yepes accurately translated this statement to Forero, who, like Yepes, indicated that Iglesias could search her bag. After looking in Yepes' bag and finding no narcotics, Iglesias again asked Forero, through Yepes' accurate translation, for permission to search her bag, and he informed her that he could not do so without her permission. Upon Forero's consent, Iglesias searched the bag and found approximately three pounds of cocaine.

II.

The standard by which this circuit judges a warrantless seizure ⁵ such as Iglesias' of Yepes and Forero is by now clear: this stop will be deemed justified if (1) it can be demonstrated solely upon specific and articulable facts, and the rational inferences to be drawn therefrom, that the intrusion was based on a reasonable suspicion and was necessary, and (2) the intrusion fits within the narrow category of minimally intrusive seizures recognized in Terry v. Ohio, supra; United States v. Vasquez, supra, at 1342. We must also be guided by three criteria in determining whether the facts and inferences support a reasonable suspicion. First, Iglesias' observations must be viewed as a whole, not as discrete and...