United States v. Webb, 79 CR 375.

• Decision Date: 21 November 1979
• Docket Number: No. 79 CR 375.,79 CR 375.
• Citation: 480 F. Supp. 750
• Parties: UNITED STATES of America, v. Lillian WEBB, Defendant.
• Court: U.S. District Court — Eastern District of New York

480 F. Supp. 750

UNITED STATES of America, v. Lillian WEBB, Defendant.

No. 79 CR 375.

United States District Court, E. D. New York.

November 21, 1979.

Edward R. Korman, U. S. Atty. by Mark A. Summers, Asst. U. S. Atty., Brooklyn, N. Y., for United States.

Gordon, Hurwitz, Butowsky, Baker, Weitzen & Shalov by Franklin B. Velie; Gerald B. Lefcourt, New York City, for defendant.

MEMORANDUM OF DECISION AND ORDER

COSTANTINO, District Judge.

Defendant, Lillian Webb, is charged with violating the federal narcotics laws.¹ She has moved to suppress a statement made by her and a packet of narcotics seized from her while in custody. She contends that since her arrest was not based on probable cause all evidence obtained is tainted. A hearing was held on August 7 and 8 of 1979, and memoranda were submitted thereafter. On November 6, 1979 this court rendered an oral opinion in which it granted defendant's motions. This decision follows to elaborate upon the court's rulings.

I. THE ARREST

On the night of June 5, 1979, Lillian Webb ("Webb") arrived at Kennedy Airport after a flight from Paris, France. After gathering her luggage, Webb approached the exit doors of the customs area at approximately 9:00 p. m. When Webb reached the doors, the customs aide, Pat Lockiby ("Lockiby") informed Webb that her customs declaration was not signed by a customs inspector. Lockiby directed Webb to return to one of the customs inspection belts for clearance. The customs clearance area was approximately 60 to 75 feet from the exit doors.

Webb turned from the exit area and walked toward the customs inspection area. However, rather than going directly to a customs inspection belt, Webb proceeded to a women's bathroom. Seeing Webb's apparent detour, Lockiby began to walk toward the bathroom. At some point between the bathroom and the exit area, a skycap expressed his annoyance to Lockiby over having to hold Webb's baggage while she was in the bathroom. Lockiby entered the bathroom through two doors which separated the bathroom facilities from the customs area. As she opened the inner door she observed an elderly woman and young child standing near a sink. She also observed Webb standing near a sanitary napkin dispenser four feet from the door.² Lockiby directed Webb to exit the bathroom immediately and to proceed to the nearest customs inspection belt. As Webb reached to the floor to pick up her handbag, Lockiby noticed a pink packet in a space on the tampax dispenser. Webb exited and proceeded to the customs belt.³ Although Lockiby did not see Webb place the packet in the dispenser and could not link her to it, Lockiby signaled to Customs Inspector Lundt to observe Webb carefully, and returned to the bathroom to inspect the packet. She found another package in an adjacent slot. The two packets were pink colored condoms. Lockiby contacted another customs official, retrieved the condoms and brought them to Lundt's inspection belt.

At approximately 9:15 p. m. Drug Enforcement Agent Michael Priore ("Priore") joined Lockiby in the customs area. Lockiby related the events which had developed and showed Priore the bathroom. Priore examined the bathroom, exited it, and went to Lundt's line to examine the condoms. Although the condoms were not tested for narcotics, Priore believed through prior experience that they contained narcotics. At that point, Priore did not believe that he had even mere suspicion to conduct a customs search.⁴

After exiting, Webb stood approximately 20 to 25 feet from the bathroom door and observed the activities near the bathroom. Priore approached Webb and identified himself as an agent. Priore informed Webb that he was conducting a narcotics investigation and that Webb was observed in the area where narcotics were found. In response, Webb immediately turned toward the bathroom, and stated that she was tired, had just arrived from Bangkok, and knew nothing of narcotics. Priore's investigation was then at a level of mere suspicion.

Priore asked Lundt for Webb's passport and customs declaration. Priore noticed that the customs declaration indicated that Webb had arrived from Paris, France. Moreover, Webb's passport was newly issued in Paris one week prior to June 5, 1979.

At that time, Lundt suggested that they move to a secondary customs inspection area, a private search area adjacent to Lundt's customs inspection belt. Lundt, Priore and Webb walked to that area. As they left the primary customs area, Priore inquired about Webb's airplane ticket. Webb indicated that she did not have it with her. At that point, although Webb was not formally under arrest, she was not free to go.

In the secondary inspection room, Lundt continued with his examination of Webb's baggage on a table in that room. Lundt also brought the two condoms and placed them on that table. Priore informed Webb that she was a suspect in his investigation and informed her of her rights. Although Webb was an Australian lawyer, Priore indicated that he wanted to insure that she understood her rights in the United States. Webb responded that she understood them. Priore again asked for the airline ticket, and Webb told him that she discarded it on the airplane. Webb also informed him that her original passport had fallen into a puddle, and that because she believed it to be unpresentable, obtained a new one. When asked about narcotics Webb denied any knowledge of them.

Priore observed that Webb appeared unhealthy. Webb informed him that she had suffered from dysentary from December of 1977. She also told him of her psychiatric problems and the partial paralysis of her arm. Nevertheless, Priore believed that she looked like a narcotics addict.

During this time, Lundt found a small scale marked in carats and grams in Webb's suitcase. Webb stated that she used the scale to weigh beads, jewelry and diamonds which she bought and sold during her travels as a means to support herself.

At approximately 10:00 p. m., Priore left the secondary room to call his supervisor. Priore told his supervisor that packets containing what appeared to be narcotics were discovered, that he was suspicious of a passenger and that when he ascertained more facts he would contact the United States attorney to obtain approval for a continuing investigation.

When Priore returned about eight minutes later, he again asked Webb about narcotics and received her denial of knowledge. He then told her that he would submit the condoms for fingerprint analysis. Priore was then informed that Webb had touched the condoms in the presence of and with the knowledge of Lundt. No further questioning ensued and no further efforts were made to obtain fingerprints from the tampax dispenser. Priore conducted a field test of the condoms and found that they contained heroin. Priore left the room at approximately 10:15 p.m. to call Assistant United States Attorney ("AUSA") Appleby. When Priore returned he placed Webb under arrest and informed her of her rights.

At that point, Lundt ordered a personal body search of Webb. Webb removed all her clothes and her body was examined. She was also told to bend over and spread her buttocks. The strip search revealed no narcotics.

Throughout, Webb denied any knowledge of narcotics, although she was questioned frequently about their existence. After the arrest and strip search she was taken to a processing office between 10:30 and 11:00 p.m. by three agents of the DEA.

The Government contends that the following factors lead to a showing of probable cause: (1) the defendant had attempted to leave the customs area without inspection; (2) when told to return for inspection the defendant proceeded to the ladies room; (3) the defendant stood near the sanitary napkin dispenser in which the heroin was found; (4) the defendant stated that she was travelling from Bangkok although her flight came from Paris; (5) the defendant turned toward the bathroom when informed that narcotics had been discovered; (6) the defendant had a newly issued passport; (7) the defendant discarded her airplane tickets; (8) the defendant looked like a narcotics addict; (9) the defendant had a scale; (10) the defendant "deliberately" touched the packets.

The defendant claims that these factors were innocent when considered in their factual context and were insufficient to support a showing of probable cause. She contends that there was no evidence amounting to probable cause to arrest.

The standard for probable cause is well settled. "Probable cause exists where `the facts and circumstances within their the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that `an offense has been or is being committed.'" Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949), quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This standard was reaffirmed recently in Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979).

Unique factual determinations in the context of the nation's drug enforcement activities arise in support of and in challenges to findings of probable cause. Drug enforcement agencies, among them the DEA, have developed new methods for coping with a growing drug trade and the imaginative efforts of drug dealers and couriers. One method used to identify potential narcotics violators is a loosely compiled set of factors known as a drug courier profile. See e. g., United States v. Asbury, 586 F.2d 973 (2d Cir. 1978).

While the characteristics which make up a profile may establish a sufficient basis for a customs or border search, see United States v. Asbury, 586 F.2d 973 (2d Cir. 1978), or a "stop and frisk" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), see United States v. Rico, 594 F.2d 320 (2d Cir. 1979); United States v. Oates, 560 F.2d 45 (2d Cir. ...