U.S. v. Ruiz, No. 96-CR-227 S.

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
Writing for the CourtSam
Citation961 F.Supp. 1524
PartiesUNITED STATES of America, Plaintiff, v. Ana B. RUIZ, Defendant.
Decision Date03 April 1997
Docket NumberNo. 96-CR-227 S.

Page 1524

961 F.Supp. 1524
UNITED STATES of America, Plaintiff,
v.
Ana B. RUIZ, Defendant.
No. 96-CR-227 S.
United States District Court, D. Utah, Central Division.
April 3, 1997.

Page 1525

Leshia M. Lee-Dixon, Assistant United States Attorney, District of Utah, Salt Lake City, UT, for Plaintiff.

Gregory Brent Smith, Salt Lake City, UT, Curt W. Morris, Provo, UT, for Defendant.

ORDER

SAM, District Judge.


The defendant Ana B. Ruiz made a motion to suppress evidence that was obtained from her. The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). The magistrate judge made a report and recommendation that the defendant's motion to suppress be denied. No objection has been taken to the report and recommendation. The court has reviewed the file and hereby adopts the report and recommendation of the magistrate judge. Therefore,

IT IS HEREBY ORDERED the defendant Ana B. Ruiz' motion to suppress is denied.

REPORT & RECOMMENDATION

BOYCE, United States Magistrate Judge.

The defendant, Ana B. Ruiz, is charged in one count by indictment with possession of amphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The offense allegedly occurred on October 9, 1996 (File Entry # 19). The defendant filed a motion to suppress (File Entry # 27). The defendant contends the initial encounter with defendant at the Salt Lake International Airport was unlawful under 42 U.S.C. § 1981 because it was racially motivated and also violated equal protection of the law. This equal protection claim has not been pursued and is deemed abandoned. It is also contended that the stop was improper because defendant was seized in violation of the Fourth Amendment, her luggage searched against her will, and she was arrested without probable cause. A memorandum was submitted in support of the motion (File Entry # 28).

Hearing was held on the motion to suppress and defendant submitted a post hearing memorandum (File Entry # 38). (Id). The United States filed a response (File Entry # 39).

The case has been referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted pursuant to the reference on defendant's motion to suppress.

Evidence

James Wetzel, an agent with the United States Customs Service, testified he had special training with regard to drug enforcement (Tr. p. 5) and that for the past 3½ years he has been assigned to the courier interdiction unit at the airport in Salt Lake City. His purpose is to look for couriers of narcotics and money as the proceeds of drug activity (Tr. p. 6). Flights from source cities are watched. These are flights from large cities on the border (Mexican border) or from California (Id.). The agent looks for persons who stand out such as those who pay cash or have a fast turn around flight (Tr. pp. 6-7). Wetzel was working at the Salt Lake City International Airport on October 9, 1996. He was working with detectives Paul Gardiner and Mike Judd. They monitored the arrival of Delta flight 324 which arrived at 8:50 p.m. from the Los Angeles International Airport. Wetzel's attention was drawn to a Hispanic female passenger who on leaving the airplane went in the opposite direction from baggage or information services (Tr. pp. 7-7). She came out of gate C-6 turned and walked towards gate C-7, stopped, turned around and looked back toward C-6 and down the concourse. She did not appear

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nervous. She stood for a couple of minutes then walked past C-6. The officers followed the woman who was the defendant (Tr. pp. 8-9). She proceeded down the concourse to the luggage carts and rented one. She placed her bags on the cart. She then quickened her pace. The officers were in plain clothes. The defendant went through an airport screening device and went to an elevator when she readjusted her blouse and shirt. When she got off the elevator, she quickened her pace and went out the doors of the airport terminal (Tr. pp. 9-10).

After the defendant got to the curb across the street in the pickup area, Detective Gardiner made contact with the defendant. Agent Wetzel was a few feet behind and could hear the conversation. After a few questions, Gardiner handed Wetzel a cell telephone to call Detective Judd. The conversation with defendant was in English (Tr. p. 11). Detective Judd was called because he speaks Spanish and, in this case there might be a language problem, and apparently there was a problem because defendant did not appear to understand when she was asked for her airline ticket (Tr. p. 12). Judd came up and identified who he was and was told what the officers had done. He advised defendant she was not under arrest and she was free to go. Judd spoke to defendant, who didn't appear to understand, but then she appeared to relax (Tr. p. 12). The conversation was in Spanish. Officer Judd asked permission to search defendant's bags. Gardiner and Wetzel were present. Defendant's bags were searched (Tr. p. 13). In a larger bag, a half gallon container of lard was found. Wetzel took another bag, found a large bottle of shampoo with plastic bags in it. Wetzel believed it was narcotics based on his training. Gardiner also found a plastic bag in the tub of lard and asked the defendant what it was. She replied she did not know (Id). The bags were placed back together and Ms. Ruiz was asked to go to the officers office. Wetzel observed nothing that could be considered a threat. No weapon was displayed.

When defendant and the officers arrived at the office, Ms. Ruiz sat at a large table. Two other pieces of luggage which were kept at the office were placed with the defendant's luggage and a narcotics detection dog, Boone, was deployed on the bags. He gave a positive indication on the larger bag of defendant's. The two objects the officers had previously identified were taken out from the lard and shampoo. Other items, cream conditioners and baby powder, were removed and examined and a field test conducted (Tr. p. 15). The test was positive for amphetamine base. 959.6 grams were found in defendant's bags.

The defendant's flight was the first one checked by the officers that evening (Tr. p. 17). As soon as Agent Wetzel saw Ms. Ruiz, he decided to start observing her (Tr. p. 18). Racial characteristics are not particularly of concern (Id.). The agent identified the defendant in his report as an "Hispanic female." This was a matter of writing style. Defendant being Hispanic would possibly be of importance if coming from a source city, which occurred in this case (Tr. p. 19). No one else was stopped. The first thing that attracted the agent's attention was the way defendant turned in the different directions. The defendant's race1 (ethnicity) possibly could have triggered the agent's interest (Tr. p. 19). The fact that defendant was alone, from a source city and walked in a different direction than most passengers was considered significant (Tr. p. 21). The defendant was wearing loose clothing. She was not walking stiffly or holding her stomach. She had three carry on bags. She did not see Agent Wetzel nor did she go to the bathroom (Tr. p. 22). She did not make a telephone call (Tr. p. 23). The defendant sped up once she obtained a luggage cart. There was no indication the defendant was "body packing" (Tr. p. 25). When Officer Gardiner spoke to defendant she was probably aware of Agent Wetzel's presence, although Officer Judd was at the baggage claim area (Tr. pp. 26-27). After Officer Judd arrived he conducted the inquiry of defendant in Spanish (Tr. p. 27).

A large amount of the attention the officers paid to defendant was because of the way she came off the airplane by walking in the opposite direction (Tr. p. 28). She stood

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in the concourse for about two minutes (Tr. p. 29). It was as if she was looking to see if somebody was watching her or she was looking for someone.

Agent Wetzel said they saw a lot more drug couriers who were Hispanic from source cities (Tr. p. 30). He considered that of importance.

Officer Paul Gardiner, a Salt Lake City Police officer, testified that he was assigned to the DEA task force, airport interdiction unit. The Task Force often targets flights from source cities (Tr. p. 32). On October 9, 1996 he was working at the airport with Agent Jim Wetzel and Detective Mike Judd. He observed Delta flight 324 from LAX to Salt Lake City. Agent Wetzel came up and pointed out defendant and indicated what Wetzel had seen (Tr. p. 34). After defendant took a cart the officers merely observed her pass security and go on to an elevator, and out the front door and across the street to the restricted area (Tr. pp. 35-36).

When Officer Gardiner stopped the defendant he showed her his DEA credentials. He told Ms. Ruiz that Gardiner was a narcotics officer at the airport. Gardiner told defendant that she was not under arrest and was free to go at any time, that he just wanted to ask her a few questions. The defendant said "yes" in English (Tr. p. 36). No weapon was displayed. Wetzel was present. Gardiner asked the defendant if she had some identification and she produced a Utah driver's license. The officer examined the license and then returned it to the defendant (Tr. pp. 37-38). The defendant appeared to understand the questions. There was no hesitation on defendant's' part. The officer asked for an airline ticket. Defendant admitted she was traveling from Los Angeles and produced a Delta airlines ticket receipt (Tr. p. 38). The name on the ticket matched the name on the driver's license, Ana Ruiz. It was a one way ticket from LAX to Salt Lake City (Tr. p. 38). The ticket receipt was handed back to defendant. The officer asked if the bags were the defendant's and if she packed the bags and the defendant said yes. Gardiner asked Ms. Ruiz if he could search her bags. She looked at him and said nothing (Tr. p. 39). Gardiner then said "can I look inside your bags?" The defendant said "yes." Gardiner...

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1 practice notes
  • Farag v. U.S., No. 05-CV-3919(FB)(SMG).
    • United States
    • U.S. District Court — Eastern District of New York
    • November 24, 2008
    ...noting that "[t]he overwhelming majority of Hispanics are not involved in drug trafficking or any other criminal endeavor. . . ." 961 F.Supp. 1524, 1532 (D.Utah 1997) (emphasis added). And in United States v. Hayden, an Iowa district court found no reasonable suspicion to justify a Terry st......
1 cases
  • Farag v. U.S., No. 05-CV-3919(FB)(SMG).
    • United States
    • U.S. District Court — Eastern District of New York
    • November 24, 2008
    ...noting that "[t]he overwhelming majority of Hispanics are not involved in drug trafficking or any other criminal endeavor. . . ." 961 F.Supp. 1524, 1532 (D.Utah 1997) (emphasis added). And in United States v. Hayden, an Iowa district court found no reasonable suspicion to justify a Terry st......

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