United States v. Dusablon, Cr. No. 81-00009-B.
| Decision Date | 25 March 1982 |
| Docket Number | Cr. No. 81-00009-B. |
| Citation | 534 F. Supp. 1368 |
| Parties | UNITED STATES of America, Plaintiff, v. Paul DUSABLON and Donald McCue, Defendants. |
| Court | U.S. District Court — District of Maine |
COPYRIGHT MATERIAL OMITTED
William H. Browder, Jr., Asst. U. S. Atty., Bangor, Me., for plaintiff.
Carl McCue, Carl Rella, Bangor, Me., for defendant McCue.
The defendants are under indictment for unlawfully bringing aliens into, and transporting them within, the United States, and for conspiracy, in violation of 8 U.S.C. §§ 1324(a)(1) & (2) and 18 U.S.C. §§ 2 & 371. The court is presented with motions to suppress evidence under Federal Rules of Criminal Procedure 12(b)(3) and 41. The suppression hearing has been held and the issues have been briefed and argued by counsel. This memorandum contains findings and conclusions as contemplated by Federal Rule of Criminal Procedure 12(e).
At approximately 7:15 p. m. on May 7, 1981, U. S. Border Patrol Agent Peter Moran received a telephone call at his residence in the village of Jackman, Maine from U. S. Customs Inspector Paradise at the U. S. Port of Entry, 16 miles north of the village, alerting Moran that a possible "walkaround"1 smuggle was in progress in the vicinity of the Port of Entry. Agent Moran immediately drove to the U. S. Border Patrol Station and began to patrol in a marked squad car on Route 201 in and around Jackman village. Route 201 is the only north-south route connecting the Port of Entry and Jackman village.
While on patrol, Moran received a radio message from U. S. Customs Inspector Paradise that the defendant, Paul Dusablon, was the driver of a brown station wagon, with Massachusetts plates, which had just entered the United States through the Port of Entry. Inspector Paradise stated that Dusablon was the only occupant of the station wagon at the time it entered the United States and that Immigration Inspector Gosselin was following the station wagon south on Route 201. Inspector Paradise provided Agent Moran with the licenseplate number of the station wagon and advised that Dusablon was suspected of involvement in a "walk-around" attempt near the Port of Entry approximately two weeks earlier.
Moran promptly contacted Inspector Gosselin by radio and was advised that Gosselin had followed the station wagon south on Route 201 from the Port of Entry for about six miles, where Gosselin passed the station wagon, observing only a driver in the vehicle. Moran was told that Gosselin continued south on Route 201 to its intersection with the Heald Pond Road, a side road about two and one-half miles south of the point at which Gosselin had passed the station wagon, where he stopped, turned and waited for the station wagon. After several minutes, during which the station wagon did not come into view, Gosselin drove north on Route 201 to the Port of Entry. Gosselin did not see the station wagon on the return trip to the Port of Entry.
Agent Moran radioed instructions to Gosselin, who was then at the Port of Entry, to contact the El Paso Intelligence Center EPIC for information on Paul Dusablon. Moran also requested that Gosselin inquire of the Canadian authorities at the Port of Entry as to whether the station wagon had reentered Canada. At about 7:30 p.m., Gosselin radioed Moran that the EPIC check revealed that Paul Dusablon was suspected of smuggling activity and that he might be armed and dangerous. Gosselin reported that the Canadian authorities had advised that the station wagon had not returned to Canada.
At approximately 7:45 p. m. Agent Moran, who was patrolling in a northerly direction on Route 201, met a station wagon fitting the description of the Dusablon vehicle heading south on Route 201 about two miles north of the village. Moran turned and followed the station wagon for about two miles, meanwhile confirming the license-plate number by radio with Inspector Paradise. Moran observed that there were two occupants visible in the station wagon, but noted nothing unusual in its manner of operation. Agent Moran testified that there are no side roads, except for approximately six dead-end dirt logging roads, and no habitations, along Route 201 between the Heald Pond Road and the Port of Entry. Moran first spotted the station wagon about five miles south of the intersection of Route 201 and the Heald Pond Road. The record is silent as to whether there are habitations along that five-mile stretch of Route 201, though there are several houses along Route 201 south of the point where Moran first spotted the station wagon.
Agent Moran followed the station wagon south for about two miles and stopped it on Main Street, Route 201, in Jackman village at about dusk. The driver, Dusablon, got out and began walking back toward the patrol car. Moran ordered Dusablon to stop and lean against the station wagon. While frisking Dusablon for weapons, Moran observed through the side window of the station wagon that there were two persons the aliens of oriental appearance lying on their backs in the rear section of the station wagon covered with a blanket pulled up to their chins. At the request of Agent Moran, the driver of the station wagon identified himself as Paul Dusablon. Agent Moran positioned Dusablon near the rear of the station wagon and instructed the passenger, who identified himself as Donald McCue, an American citizen, to step outside, whereupon McCue was frisked for weapons. At about this time U. S. Border Patrol Agent Vern Annis arrived at the scene. No weapon was found on either defendant, but Moran noticed that the seat and cuffs of the trousers of the defendant McCue were wet and that he was not wearing shoes.
Agent Annis watched Dusablon and McCue as the two adult aliens, a male and female, exited from the rear of the station wagon. Agent Moran noticed that their trouser cuffs were wet and that they were not wearing shoes. After being frisked, the male alien advised Agent Moran that he was from Hong Kong. The defendants and the aliens were placed under arrest. Prior to leaving the scene of the stop and upon request Agent Moran secured the shoes of the defendant McCue and the two aliens from the station wagon. The four subjects were transported to the Border Patrol Station, located on Route 201 about two and one-half miles north of Jackman village. Agent Annis drove the station wagon to the Border Patrol Station, arriving at approximately 8:05 p. m., and assisted in processing the defendants.
After being told by the aliens that they were Chinese nationals from Hong Kong and that they did not have immigration papers or passports, Agent Annis searched the interior of the station wagon for "passports, immigration documents and such," looking on and under the seats, on the dash and the floor, in the glove compartment and in the luggage compartment located in the floor of the rear section of the station wagon. Agent Annis found and removed some jackets and observed that the luggage compartment contained a spare tire, but no luggage.
While the warrantless search was being conducted by Agent Annis, Agent Moran was investigating the border area, miles from the Border Patrol Station, for further evidence of the walk-around. Upon returning to the Border Patrol Station, Moran learned that Annis had found no immigration papers in the vehicle. Moran further testified that it is routine procedure in these cases to search a vehicle for immigration documents, but that normally, in the absence of a warrant, the search would not extend to "compartments in the car or underneath floors or up above or within the upholstery of the car." See Transcript of November 23, 1981 hearing on Defendant's Motion to Suppress Evidence, at p. 52.
The affidavits of Agent Moran supporting the issuance of the search warrant on May 8, 1981 made no reference to a prior search. Moran was aware that Agent Annis had conducted a search with negative results, but did not know its scope. The affidavits stated that Agent Moran, on the basis of past experience in alien smuggling cases and the facts of this case, believed that a substantial amount of cash was probably hidden in the station wagon.
On May 9, Agent Moran conducted a thorough search of the station wagon, behind the upholstery and under the dash, in the engine air cleaner, in the rear quarter panels and in the spare-tire compartment. The spare-tire compartment in the rear interior section of the station wagon had been screwed shut and was found to contain an overnight travel bag with woman's clothing and packages of tissue bearing Chinese labels.2
At the scene of the vehicle stop and after the arrest, Agent Moran recited from memory certain "Miranda" warnings3 in the presence of the defendants, who were standing outside the station wagon on either side of Moran approximately four feet apart. Dusablon verbally acknowledged awareness that Moran was speaking to him. Agent Moran did not advise the defendants of their right to have counsel present during any interrogation, nor did he make specific inquiry as to whether they understood their rights. No significant statements appear to have been made by the defendants between the stop and their subsequent receipt of written Miranda warnings at the Border Patrol Station.
After being placed in the Border Patrol Station holding cell together, the defendants again were informed of their rights. Agent Annis handed McCue Form I-214, containing the complete Miranda warning and a waiver. Annis testified that McCue read the form, acknowledged that he understood it, but refused to sign the waiver.4 Agent Moran saw U. S. Border Patrol Agent Carnes give Dusablon Form I-214, which Dusablon read. The defendants are able to...
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