United States v. Ramos

• Decision Date: 06 July 1979
• Docket Number: No. 79-40-Cr-JLK.,79-40-Cr-JLK.
• Citation: 473 F. Supp. 1109
• Parties: UNITED STATES of America, Plaintiff, v. Raymond Wayne RAMOS, Defendant.
• Court: U.S. District Court — Southern District of Florida

473 F. Supp. 1109

UNITED STATES of America, Plaintiff, v. Raymond Wayne RAMOS, Defendant.

No. 79-40-Cr-JLK.

United States District Court, S. D. Florida.

July 6, 1979.

Linda Carroll, U. S. Atty., Miami, Fla., for plaintiff.

Neal R. Sonnett, Miami, Fla., for defendant.

ORDER GRANTING MOTION TO SUPPRESS

JAMES LAWRENCE KING, District Judge.

I. INTRODUCTION

This matter arose upon the motion of the Defendant, Raymond Ramos, to suppress certain evidence. Specifically, the defendant contends that he was the victim of an illegal search by customs officials at the Miami International Airport, and that therefore the cocaine found on his person during that search must be suppressed. This court referred the motion to the United States Magistrate for the purpose of conducting an evidentiary hearing and preparing a report and recommendation. Based upon the evidence adduced at the above hearing, the Magistrate recommended that the motion be denied. The defendant has filed an objection to this recommendation and has petitioned for review by this court.

Upon careful review, for the reasons discussed below, this court concludes that it should not follow the recommendation of the Magistrate and that the motion to suppress should be granted.

II. THE FACTS

Raymond Ramos, the defendant, arrived at the Miami International Airport on November 18, 1978, after traveling on a flight that originated in Columbia. Mr. Ramos proceeded through a routine customs inspection and was permitted to enter the country by Inspector Cocchini. The inspector testified that there was nothing suspicious about Mr. Ramos at that time.

At approximately the same time as the inspection of Mr. Ramos, another passenger, Sheri Anderson, also proceeded through a customs inspection. However, unlike Mr. Ramos, Ms. Anderson aroused the suspicions of the customs inspector, and she was referred to a secondary inspection area. A search of her person revealed several packages of cocaine. A subsequent search of her handbag revealed a sheet of paper that appeared to be a flight itinerary and that contained the names of three persons—E. Harwell, S. Anderson, W. Ramos. An examination of the customs' declarations submitted by all passengers on that flight disclosed that one of the passengers, Raymond W. Ramos, and Ms. Anderson both resided in the same city, Tampa.

Upon the discovery of this information, customs inspectors Cocchini and Basile began searching the airport to locate Mr. Ramos. They found him exiting the airport hotel and walking toward the pay telephones in the airport lobby. Approximately thirty minutes had elapsed from the time that Mr. Ramos had passed through his customs inspection. His clothing and briefcase appeared the same as they were when he left the customs enclosure after the prior inspection by Cocchini.

Inspectors Cocchini and Basile approached Mr. Ramos and escorted him to the secondary inspection room of the customs enclosure. He was left there temporarily with a third inspector, Sigmund Korzenowski. None of the inspectors made any inquiry regarding his possible relationship with Ms. Anderson or his possible involvement with cocaine. None of the inspectors noticed anything suspicious about the appearance or actions of Mr. Ramos during this period of time.

Shortly after Mr. Ramos arrived at the secondary inspection room, Inspector Korzenowski conducted a pat-down search for the purpose of determining whether Ramos was in possession of any weapons. Korzenowski testified that this was a routine pat-down search, and that there were no articulable facts or circumstances that made him suspect that Ramos was carrying a weapon. During the course of the pat-down a large bulge was discovered on the lower leg of Ramos. A further search revealed that this bulge was caused by an ace bandage and tape which secured a package of cocaine to the leg.

Although there was no testimony presented at either the preliminary hearing or the suppression hearing regarding additional cocaine found on Mr. Ramos, the government has proffered that Korzenowski would testify that a further search revealed an additional cocaine package taped to Ramos' abdomen. The significance of this proffer will be discussed later.

III. THE LAW

Since the search of Mr. Ramos obviously was based on less than probable cause, the only rationale which might support the activities of Inspector Korzenowski is that of the border search exception to the probable cause requirement. In this connection, there are three issues with which this court is concerned: (1) Whether the search of Mr. Ramos occurred at the border or its functional equivalent; (2) Whether the pat-down search of the defendant was justified by a reasonable suspicion that the defendant was carrying either contraband or a weapon; (3) Whether it is reasonably certain that the contraband found during the search actually crossed the border. The court now turns to the resolution of these issues.

A. The Border, or Beyond?

In United States v. Walters, 591 F.2d 1195 (5th Cir. 1979), the Fifth Circuit described the criteria which should be used to determine whether a particular search falls within that category of searches which is conducted at a border or its functional equivalent. In Walters, as here, the defendant initially was permitted to pass through the customs enclosure and into the main airport lobby, but subsequently was approached by customs inspectors and returned to the customs enclosure for further inquiry and a strip search. Approximately 55 minutes had elapsed between the time the defendant, Walters, first left the customs enclosure and the time that she was approached by the customs inspectors. The Court began its analysis of this search by noting that it is well settled that the customs enclosure at the Miami International Airport is the functional equivalent of the border. From there, the court turned to the issue of whether the defendant had remained at the functional equivalent of the border after she left the customs enclosure. The court held that this determination must be based on "the degree to which the traveler has been assimilated into the `mainstream of domestic activity.'" 591 F.2d at 1198. Under the circumstances presented in Walters, the Fifth Circuit concluded that she "was not significantly removed physically or temporally from the border . . . and the nature of her activities was not such that would require an intrusion into domestic activities in order to search her." 591 F.2d at 1198.

The decision in Walters controls this case. Here, the defendant, Ramos, was approached by customs inspectors in the airport lobby a mere thirty minutes after leaving the customs enclosure. Although Ramos, unlike Walters, had registered as a guest in the airport hotel at the time he was approached, this factor is not controlling. The standard for determining whether a search occurs at the border must be applied in light of the facts known to the customs inspectors at the time of the search. Here, Ramos was in the public area of the airport, near the customs enclosure, a very short time after his initial inspection. He had not changed his clothing since departure from the customs enclosure, and he was carrying the same briefcase that he had carried through his initial customs check. This court therefore concludes that Ramos remained at the functional equivalent of the border and that the customs inspectors had the right to detain him for further questioning. Therefore, we now turn to the issue of whether the ensuing search was justified by reasonable suspicion.

B. The Search

At the outset, the Court notes that since the activities in this case occurred at the border, "it was constitutionally permissible for the customs officials initially to stop Ramos, to examine his visa, and to search his luggage and personal effects for contraband regardless of whether the officials had any articulable suspicion that actual criminal activity was afoot." United States v. Himmelwright, 551 F.2d 991, 993-94 (5th Cir. 1977). However, any decision by customs inspectors to go further than this and conduct a personal search must be based upon articulable facts which arouse a reasonable suspicion that the person to be searched is carrying contraband or a weapon. United States v. Klein, 592 F.2d 909...