US v. Galindo-Hernandez, 87-CR-164.

• Decision Date: 01 December 1987
• Docket Number: No. 87-CR-164.,87-CR-164.
• Citation: 674 F. Supp. 979
• Parties: UNITED STATES of America v. Samuel GALINDO-HERNANDEZ and Jesus Salas-Carvajal, Defendants.
• Court: U.S. District Court — Eastern District of New York

674 F. Supp. 979

UNITED STATES of America v. Samuel GALINDO-HERNANDEZ and Jesus Salas-Carvajal, Defendants.

No. 87-CR-164.

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

December 1, 1987.

Andrew J. Maloney, U.S. Atty., E.D. N.Y., Brooklyn, N.Y., Cheryl Pollak, Asst. U.S. Atty., of counsel, for U.S.

Howard Brownstein, Brownstein, Booth, Barry & Diaz, Union City, N.J., for defendant Samuel Galindo-Hernandez.

Rene A. Sotorrio, Coral Gables, Fla., for defendant Jesus Salas-Carvajal.

MEMORANDUM-DECISION AND ORDER

BARTELS, District Judge.

In this case two codefendants, Jesus Salas-Carvajal ("Salas") and Samuel Galindo-Hernandez ("Galindo") move to suppress all statements made by them (both pre and post-arrest), as well as physical evidence discovered in the luggage that they were carrying when arrested. Each defendant is charged with conspiracy to distribute and possession of cocaine in excess of 5 kilograms, in violation of Sections 846 and 841(a)(1) of Title 21 of the United States Code.

Facts

The facts of this case are that on March 9, 1987, at approximately 11:20 p.m., Salas and Galindo arrived at LaGuardia Airport aboard Eastern Airlines Flight No. 892, which originated in Miami, Florida. As they left the plane separately, the defendants' Hispanic appearance, "very" nervous manner, and ill fitting, expensive attire¹ drew the attention of Special Agents McLeod and Curtin of the United States Immigration and Naturalization Service ("INS")².

After leaving the plane, each defendant was observed walking, alone, through the airline terminal and towards the taxi stand. Neither retrieved any luggage because they had none. Salas, who was carrying a handbag, an attache case, and a paper bag arrived near a railing at the taxi stand line first, "looked around," and allowed several persons to pass him until he was joined by Galindo who, also carrying a handbag, "looked around" as well. Both of the handbags carried by defendants were fitted with combination locks.

At that point the agents believed that Salas and Galindo might be in the United States illegally, and approached the defendants from two sides, asking them in English which flight they had been on. Significantly, the agents were then physically separated from defendants by the railing, and their ability to walk away was unimpeded. That is, the defendants' path was not blocked. After the defendants indicated that they spoke no English the agents, who both speak Spanish, identified themselves as Immigration Agents in Spanish. Agent McLeod then asked Salas if he would speak to them, and Salas responded affirmatively. This question, though directed at Salas, was also heard by Galindo.

Both individuals were next questioned about their country of origin which, it was learned, was Colombia. Upon being asked for immigration papers, Galindo stated that he had none, although he produced an Eastern Airlines Flight Coupon in the name of S. Pachon, while identifying himself to the agents as Galindo. This defendant was then asked for further identification, to which he responded in the negative. In answer to a question regarding his presence in the United States, Galindo admitted that he had entered this country illegally in February, 1987. Many of the agent's questions had to be repeated several times. After denying that the handbag was his, Galindo was arrested by the agents for violating the immigration law under authority conferred to them by Section 1357(a)(2)³ of Title 8 of the United States Code.

Salas, in response to the agent's request for identification, produced a Colombian passport which, upon careful examination, indicated that he had overstayed his visa. The passport was in the name of "Jesus Elias Salas-Carvajal" but his airline ticket was made out to "Moreno, A." When asked if he was carrying any additional identification in the handbag Salas twice denied ownership of it, and began "shaking and sweating profusely." Salas then stated that the locked handbag was given to him by a man in Miami. Unable to establish the legality of his presence in the United States, Salas was also arrested under § 1357 for violating the immigration laws.

After their administrative arrests both defendants were transported to the INS Domestic Task Force Office at JFK International Airport for processing, where each was advised of his rights in Spanish and asked if he would consent to a search of the handbags. With respect to Salas, a Spanish advice of rights form (I-124) was first read to him, and then by him. After indicating that he understood those rights, Salas executed the form. A Spanish consent to search form was also read to and by Salas, who understood and executed it. Galindo underwent a procedure identical to the aforementioned one, except that Galindo did not himself read the consent to search form.

Up to this time neither defendant had requested an attorney or otherwise indicated a desire to remain silent. Instead, when the agents requested that Galindo open "his" handbag, Galindo denied ownership of it a second time. The handbag was then opened, and found to contain 1.1 kilograms of cocaine.

Galindo subsequently explained that the bag was given to him in Miami by a man named Francisco Mejia for delivery to a location in Queens. He added that in return for this delivery, Mejia bought him a new suit of clothes and paid Galindo $1,000.

Salas, just prior to the opening of "his" bag, denied ownership of it for a third time and stated that he did not know the lock's combination. The bag was then forced open by the agents, revealing 5.5 kilograms of cocaine, a colostomy bag, and numerous papers in the name of "Jesus Salas." In so doing, the agents also noted that the handbag Salas carried bore the initials "JES".

Salas and Galindo were subsequently placed under arrest a second time for narcotics violations, whereupon Salas requested an attorney and all questioning ceased.

Discussion

Given the facts of this case, it is clear that the admissibility of the defendants' statements, made at various times prior to and after their arrest, bears directly upon the admissibility of the contents of the handbags. Consequently, we must first determine whether those statements were legally obtained. This initial determination involves an analysis of three discrete, but closely related events: the initial contact between the defendants and INS agents; followed by their arrest; which led to a period of post-arrest detention.

I. The Admissibility of Defendants' Statements The Initial Contact

During the preceding decade three distinct levels of police/citizen contact have emerged from a series of Supreme Court decisions. See INS v. Delgado, 466 U.S. 210, 216-17, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983); U.S. v. Mendenhall, 446 U.S. 544, 553-55, 100 S.Ct. 1870, 1876-78, 64 L.Ed.2d 497 (1980); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). U.S. v. $73,277, United States Currency, 710 F.2d 283, 288 (7th Cir.1983) (wherein the court noted that 6 of the present Supreme Court Justices have adopted the "reasonable man" test regarding whether a seizure has occurred). The first two contact levels, arrests and brief investigatory stops, both involve restraints imposed upon a person's liberty, and therefore implicate the Fourth Amendment's prohibition against unreasonable seizures.

However, in the third level, where personal intercourse between policemen and citizens is voluntary, then no "restraint" upon liberty, and therefore no seizure, has occurred. Royer, supra; Terry, supra; U.S. v. Smith, 649 F.2d 305 (5th Cir.1981) cert. den. 460 U.S. 1068, 103 S.Ct. 1521, 75 L.Ed.2d 945 (1983). That is, "a person has been `seized' ... only if ... under the circumstances ... a reasonable person would have believed that he was not free to leave." U.S. v. Ceballos, 812 F.2d 42 (2d Cir.1987) citing U.S. v. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (plurality opinion of Stewart, J.). Accordingly, voluntary encounters between the police and the populace simply do not implicate the Fourth Amendment. Royer, supra; Terry, supra; Ceballos, supra. See also U.S. v. Sugrim, 732 F.2d 25 (2d Cir.1984); U.S. v. Baptist, 556 F.Supp. 284 (S.D.N.Y.1982). The government argues that, until defendants were arrested for violating the immigration laws, the police/citizen encounter here was voluntary, and therefore no seizure occurred.

When determining whether an encounter was voluntary the Court must, under the totality of the circumstances, determine the degree of coercion extant in a particular case. Ceballos, supra; U.S. v. Berry, 670 F.2d 583, 597 (5th Cir.1982). If coercion is present, then the Court will find that a reasonable person would have believed that his freedom had been limited, and the defendant was therefore seized. U.S. v. Puglisi, 723 F.2d 779 (11th Cir. 1984); Berry, 670 F.2d at 597.

The factors relevant to a voluntariness determination in this context may be broken down into three general groups: (1) the conduct of the police; (2) the characteristics of the person being questioned; and (3) the physical surroundings of the encounter. See Mendenhall, supra; U.S. v. Ilazi, 730 F.2d 1120 (8th Cir.1984); U.S. v. Black, 675 F.2d 129, 134-35 (7th Cir.1982) cert. den. 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983); U.S. v. Schumacker, 577 F.Supp. 590, 595 (D.C.Ill.1983).

With respect to police conduct, it is clear that simply asking questions of individuals willing to listen to them permits no inference of coercion. Royer, 460 U.S. at 497-98, 103 S.Ct. at 1324. So too, the mere fact that an officer identifies himself as a police officer cannot convert an otherwise voluntary encounter into a seizure. Id. On the other hand, blocking an individual's path or otherwise physically impeding his progress is a "consideration of great and probably decisive significance,"...