US v. Jaramillo

• Decision Date: 13 February 1989
• Docket Number: No. 88 CR 72.,88 CR 72.
• Citation: 714 F. Supp. 323
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America, Plaintiff, v. Esther JARAMILLO and Fenet Jaramillo, Defendants.

714 F. Supp. 323

UNITED STATES of America, Plaintiff, v. Esther JARAMILLO and Fenet Jaramillo, Defendants.

No. 88 CR 72.

United States District Court, N.D. Illinois, E.D.

February 13, 1989.

Debra Devaney, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

Lauren Weil, Federal Defender Program, Philip Krasny, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

On September 28, 1987, defendants Fenet Jaramillo and Esther Jaramillo were arrested at O'Hare International Airport after federal agents discovered nearly two kilograms of cocaine secreted on their bodies. The Jaramillos, who are husband and wife, were indicted on January 29, 1988, for violations of 18 U.S.C. § 1952 and 21 U.S.C. §§ 841(a)(1), 846 (1982 & Supp. IV 1986). After the indictments, both defendants moved to suppress the seized cocaine, as well as any statements made after the cocaine was seized. We referred these motions to Magistrate Bernard Weisberg, who, after conducting a suppression hearing and supplemental hearing, recommended that they be granted. See Report and Recommendation ("Rep.") 23. The government moved to reconsider, raising a ground not previously advanced, but Magistrate Weisberg held that this new argument was waived and, treating the motion as one addressed to his discretion, denied the request for reconsideration on December 2, 1988 ("Dec. 2 Ruling"). Both sides filed objections to the Magistrate's Report. For the reasons set forth below, we adopt the Magistrate's findings of fact, modify his conclusions of law, but reject the Magistrate's ruling that the arguments raised in the government's motion for reconsideration have been waived. We accept these arguments and hold that the searches in question were incident to lawful arrests. Accordingly, we deny the motions to suppress.

I. The Suppression Hearing

Magistrate Weisberg conducted the suppression hearing on March 29 and April 4 and 5, 1988, and held a supplemental hearing on October 14, 1988. The testimony at the hearings is set forth at length in Magistrate Weisberg's Report, see Rep. 2-12, but a rather detailed summary of the testimony and Magistrate Weisberg's proposed findings is necessary here.

It is undisputed that Fenet and Esther Jaramillo arrived at O'Hare at approximately 4:30 p.m. on September 28, 1987, after flying in on an Eastern Airlines flight from Miami. Fenet Jaramillo, who is 55 years old, came to the United States from Colombia in 1964, has lived in Miami since 1973 and became a citizen in 1984. Esther Jaramillo is 56 years old and came to the United States in 1982. The Jaramillos were married in 1985.

When they disembarked from their flight, the Jaramillos were observed by Drug Enforcement Administration ("DEA") Agents George Mays and Robert Glynn,¹ who were monitoring incoming flights. After the Jaramillos walked past the agents and started down Concourse D, the agents, who were in plain clothes, began to follow them. Fenet made eye contact with one of the agents, and at some point along the way, the Jaramillos made a slight detour. The witnesses disagree exactly where the two defendants went, but soon they were going the same direction as they had started, and Agents May and Glynn continued to follow.

The two agents caught up with the Jaramillos in a vestibule area between two sliding glass exit doors and identified themselves as police officers. Agent Mays testified, and Magistrate Weisberg found, that the two agents did not attempt to block the Jaramillos' movements, did not display weapons and spoke in normal tones of voice. Rep. 13-14. Magistrate Weisberg also found that Agent Mays initially requested that the Jaramillos speak with him and Agent Glynn, told them that they were not under arrest and were free to leave, and that the Jaramillos both said "yes" in English. Rep. 14. While other travellers were passing through the vestibule, the agents asked to see the Jaramillos' tickets and some identification. Fenet translated this request into Spanish for Esther, whose English apparently is not very good, and Esther produced the tickets from her purse. The tickets were in the Jaramillos' correct names, were for a flight from Miami to Chicago with an open return to Miami and were purchased that same day with cash. Rep. 3. The Jaramillos also produced their driver's licenses and Esther's passport, each giving their correct names and matching the names on their tickets. Both Jaramillos testified that the agents kept the tickets and identification, but Magistrate Weisberg did not believe this and instead chose to credit Agent Mays' testimony that the items were returned to the Jaramillos. Rep. 15.

What happened next is subject to some dispute. Fenet testified that after he and Esther produced their tickets and identification, Mays and Glynn took and searched his carry-on bag and Esther's purse. Rep. 10. Esther testified that the agents did not wait even that long; as she was handing the tickets to Agent Glynn, Glynn grabbed her purse and searched it. Rep. 11. Once again, however, Magistrate Weisberg gave no credence to the Jaramillos and instead believed Agent Mays. Mays testified that he told the Jaramillos he was a narcotics agent conducting a narcotics investigation, asked permission to search their baggage and told them they had a right to refuse. The Jaramillos then spoke to each other in Spanish, and Fenet gave Mays permission to search his bag and Esther's purse. Rep. 15. Mays and Glynn did so, and it is undisputed that no drugs were found.

Mays also testified that while he and Glynn were searching the baggage, he noticed a "bulkiness" around each defendant's waist. Rep. 6.² Since the purported bulkiness plays a key role in this case, Magistrate Weisberg ordered a supplemental hearing, six months after the original suppression hearing, for a courtroom demonstration. The Jaramillos were directed to wear the same clothes and to wear the elastic waistbands containing cocaine that were found when they were searched. It was Magistrate Weisberg's hope that "such a demonstration might clarify the extent to which bulkiness around their waists was noticeable and whether it resembled the ordinary corpulence of middle aged persons or was sufficiently unusual to provide a basis for reasonable suspicion." Rep. 18. But both sides objected to the reliability of this procedure, and no courtroom demonstration took place. Nonetheless, Magistrate Weisberg concluded that Fenet's body, at least, appeared unusually bulky. Fenet is relatively short and slightly built (five feet five inches and 132 pounds), and, as it turned out, he was carrying either 1.76 or 2.64 pounds of cocaine³ in five packages around his waist. Esther has a larger build, but Magistrate Weisberg stated that it was plausible that the bulkiness showed on her as well. Rep. 19.

Based on this observation of bulkiness, Agent Mays asked the Jaramillos if they were carrying drugs, and Fenet said no. Rep. 16. What happened next is hotly contested. Mays testified that he pointed to Jaramillos' waist areas and asked, "You have something bulky on your waist. What is that?" When the Jaramillos said nothing, Mays asked permission to search or pat down their bodies, saying that they had a right to refuse. Fenet and Esther then spoke to each other, and, according to Mays, Fenet said that Mays could search him and that Esther agreed to a pat-down search. Leaving the Jaramillos with Agent Glynn, Mays went and found DEA Agent Christine Kolman, who returned to the vestibule with Mays. Kolman identified herself and then told the Jaramillos in English and Spanish that she was there to search Esther, and that Esther had a right to refuse. According to Mays, the Jaramillos consented to a pat-down search, but when Kolman attempted to touch Esther in the waist area, Esther moved back, complaining of stomach problems. Kolman again said she would like to search that area, and then touched Esther's waist with the back of her hand. Esther grabbed the area and said that what Kolman felt was a girdle, but Kolman replied that it was not. Rep. 6-7.

Agent Kolman's tesimony essentially corroborated Agent Mays'. She added that both Jaramillos appeared unusually large around the waist area on the side. In addition, Kolman testified that the object she felt on Esther's waist was solid with an edge.

The Jaramillos' version of events was quite different. Fenet testified that after he denied carrying drugs, Agents Mays left and then returned with Agent Kolman. Kolman asked Esther in English if she had any drugs, using the Spanish word "druga," but Esther said no. Nonetheless, Kolman touched Esther on the stomach and asked "what you have over here?" When touched, Esther stepped back and said in Spanish that she did not have anything. See Rep. 10. Esther testified that the agents never told her that she could refuse to be searched. Rather, Fenet told her, "They said we have to be searched." According to Esther, when Kolman arrived, she tried to touch Esther, who stepped back. Kolman did not speak to Esther in Spanish, but told her "with a gesture" that she was going to search her and then touched her at the waist area. Esther told Kolman in Spanish that she did not have anything. Rep. 11-12.

Magistrate Weisberg gave credence to part of both stories. He believed Mays' testimony that he pointed to the Jaramillos' waists and asked them to explain the bulkiness, and that the Jaramillos did not respond. Rep. 22. He also believed Mays' testimony, corroborated by Kolman, that they asked the Jaramillos for permission to search. Rep. 16. But Magistrate Weisberg also credited the Jaramillos' testimony that they did not consent to the search — even though he rejected their testimony on every other major point.

After Agent Kolman touched Esther in the stomach area, she escorted Esther to a women's restroom with Fenet, Glynn and Mays following behind. The witnesses disagreed just how voluntary this...