US v. Maldonado-Espinosa

• Decision Date: 14 June 1991
• Docket Number: Crim. No. 91-122(JAF).
• Citation: 767 F. Supp. 1176
• Parties: UNITED STATES of America, Plaintiff, v. Jose MALDONADO-ESPINOSA and Carmen Maldonado-Espinosa, Defendants.
• Court: U.S. District Court — District of Puerto Rico

767 F. Supp. 1176

UNITED STATES of America, Plaintiff, v. Jose MALDONADO-ESPINOSA and Carmen Maldonado-Espinosa, Defendants.

Crim. No. 91-122(JAF).

United States District Court, D. Puerto Rico.

June 14, 1991.

José A. Quiles-Espinosa, Asst. U.S. Atty., Daniel F. López-Romo, U.S. Atty., District of Puerto Rico, San Juan, P.R., for plaintiff.

Juan R. Acevedo-Cruz, San Juan, P.R., for José.

Francisco Acevedo-Padilla, San Juan, P.R., for Carmen.

OPINION AND ORDER

FUSTE, District Judge.

Defendants, José Maldonado-Espinosa and Carmen Maldonado-Espinosa, siblings, are charged with possession with the intent to distribute sixty (60) kilograms of cocaine found in suitcases which they checked as luggage aboard an American Airlines flight from San Juan, Puerto Rico, to Miami. Defendants seek to suppress the cocaine claiming that its discovery was the fruit of an illegal search. The government concedes that the search was warrantless, but seeks to justify the absence of a warrant on exceptions to the warrant rule: border search or, alternatively, search conducted on consent (Mr. José Maldonado) and abandonment/disclaimer (Ms. Carmen Maldonado). We reject the border search theory outright and focus on the consent and abandonment. We must determine whether the outcome of an X-ray search of the luggage, which we find to be illegal, was "traded upon" by the law-enforcement officials in such a way so as to invalidate the consent of Mr. José Maldonado. We must determine whether the outcome of the X-ray search was traded upon in such a way as to coerce Ms. Carmen Maldonado's disclaimer.

Facts

We cull the following facts from a full hearing held on the suppression motion.

On February 28, 1991, Customs Officer Raúl Díaz was conducting a training session with a drug detection dog named "Hershel" at Luis Muñoz Marín International Airport in Carolina, Puerto Rico. The training session consisted of Officer Díaz placing dummy luggage along with actual passenger luggage on conveyor belts within the airport. The dummy luggage was packed with narcotics as a "plant". Díaz would then bring Hershel into proximity with the "plant" so that Hershel could be trained in "alerting" to the presence of contraband narcotics. Hershel, a 1986 graduate of the K-9 training center in Virginia, has been in service in Puerto Rico since 1988 and has successfully certified for accuracy on an annual basis since then. A utilization record, put into evidence, is kept on all of Hershel's "alerts". Officer Díaz has been the sole "handler" of Hershel since the dog began its career.

The particular training session of interest to us was being conducted in an interior area of the airport, but not in the confines of the Customs area. Luggage on the particular conveyor belt had already been checked in for travel, and was headed for a location where it would be segregated by flight into small "carts" or containers which would then be taken to the appropriate airplane for loading. The belt contained luggage bound for both domestic and international destinations, each bag already marked from the check-in point as to its final destination.

At some time around Noon, Hershel alerted to two hardshell suitcases, neither of which were the prearranged plants, but which appeared to be actual passenger luggage. Officer Díaz contacted his superiors, Inspectors Justiniano and Hurtado. Officer Díaz was ordered to take the bags to the United States Department of Agriculture/Customs enclave. The bags were then subjected to an X-ray search which revealed several kilo-shaped packages, and the absence of clothing or other usual luggage contents. Officer Díaz was ordered to return to the conveyor belt to continue searching. Hershel alerted to two more bags, which were then brought to USDA/Customs, and subjected to an X-ray, which revealed the same presence of kilo-shaped packages and absence of other contents.

Inspector Hurtado examined the name and destination tags on the luggage, and determined that two of the bags carried the name "Rafael Colón" and two carried the name "F. Castro". The tags indicated that the luggage was headed to Miami on a particular American Airlines flight scheduled to depart at 1:50 that afternoon. At approximately 12:45 p.m., Inspector Hurtado left the Customs area, went to the gate from which the flight was scheduled to depart. He inquired of airline personnel, asking whether they could identify passengers "Castro" and "Colón". The gate agent told Hurtado that she could, and that she remembered the couple because of a slightly strange occurrence during checking. Although the two clearly appeared to the flight agent to be travelling together, they had turned down the agent's offer to seat them together. The flight agent then pointed out to Hurtado the area in the waiting room where defendants had seated themselves.

When Hurtado approached, only the woman was there. He was in uniform, and asked to see her plane ticket. She told him that her brother had the ticket, and that he was in the men's room. Hurtado asked if she would be willing to show him (Hurtado) the restroom where her brother had gone, and she agreed. The brother was coming out of the restroom when Hurtado arrived. Hurtado asked to see the tickets for the flight. The brother informed Hurtado that he did not have the tickets, that instead a "man in a yellow shirt" had them. No yellow-shirt man carrying the tickets could be located after a search of the concourse area. Hurtado asked whether the two would accompany him to the Customs area. They assented.

In the Customs area each was placed in a separate room. A patdown for weapons was conducted on each, and no weapons were found. Special Agent Rodolfo Salcedo read each a copy of the Miranda warnings in Spanish, and obtained a written waiver of their rights. Defendants revealed their real names. At some point defendants were handcuffed to the chair in their respective rooms. Supervisor Special Customs agent Benjamin Garcia arrived. He asked Ms. Carmen Maldonado for the tickets. She used her free hand to reach into the carry-on bag and produced them. An inspection of the tickets revealed that they contained no baggage claim stubs. Agent Garcia then ordered Inspector Nidia Alvarez to search the carry-on bag. At that time the claim stubs for the four bags were found.

By mid-afternoon, approximately 3:00 p.m., Drug Enforcement Agent Enrique Nieves had arrived. Mr. José Maldonado was in the interview room along with the two brown suitcases bearing the name "Rafael Colón", the name under which Mr. José Maldonado was travelling. Ms. Carmen Maldonado was in the interview room along with the two grey suitcases bearing the name "F. Castro." Agent Nieves identified himself to Mr. José Maldonado, read him the Miranda warnings again, and began to discuss Mr. José Maldonado's situation. Nieves explained that the dog had alerted to the bags. He explained that the bags had been run through an X-ray machine and that kilo-shaped packages had been discovered. He told Mr. José Maldonado that in his experience, such packages contained cocaine. He told Mr. José Maldonado that the suitcase contained what he believed were a large quantity of drugs. He told Mr. José Maldonado that there were two options. Either Nieves could obtain a search warrant, which he would obtain on the basis of the information that he already had, or Mr. José Maldonado could consent to the opening of the bags.

Past the point at which Nieves informed Mr. José Maldonado of his options, the testimonies of the witnesses diverge. Mr. José Maldonado testified that Nieves produced a printed consent-to-search form that Mr. José Maldonado refused to sign. According to Mr. José Maldonado, Nieves then asked for oral consent, and Mr. José Maldonado refused. Nieves went on to have the suitcase opened anyway.

Nieves testified that he did not seek a written consent to search Mr. José Maldonado's luggage, since a verbal consent was sufficient. Although he was familiar with the written consent forms which were sometimes used on such occasions, he did not have one available that day. Nieves testified that in his four years as an agent assigned to the airport he had never had an occasion to request a search warrant.

On his direct examination, Nieves testified that after describing Mr. José Maldonado's "options", he asked whether these were Mr. José Maldonado's bags and whether he could open them. Nieves testified that Mr. José Maldonado gestured positively and assented verbally.

The court later recalled Mr. Nieves in order to go into greater detail regarding the precise exchange that took place with regard to the consent. This time, Nieves testified that he asked Mr. José Maldonado if these were his suitcases, and that Mr. José Maldonado acknowledged, that he nodded, and that he said yes. Nieves asked if Nieves could open the suitcases, and that it would be done in Mr. José Maldonado's presence. Nieves testified that Mr. José Maldonado hesitated. Nieves asked again, and told Mr. José Maldonado that they were going to open the suitcases either with consent or a warrant. Nieves testified that at that point Mr. José Maldonado said yes and gestured affirmatively. Nieves then ordered Díaz to open the suitcases, which was accomplished with a knife, since the cases were locked.

We give no weight to Mr. José Maldonado's testimony, since we find it not credible. Mr. José Maldonado admitted that he lied to Hurtado in the concourse regarding the tickets and the "man in the yellow shirt" as a way to, as he described it, buy time so he could figure out what was going on. This evidence of a willingness to blatantly lie to officials combined with Mr. José Maldonado's demeanor while testifying leads us to find him a wholly-incredible witness.

Nieves' testimony on the consent of Mr. José Maldonado was fairly consistent, and was supported by all the other agents on the scene. We find that Mr. José Maldonado...