US v. Montilla

• Decision Date: 22 March 1990
• Docket Number: No. CR-89-142C.,CR-89-142C.
• Citation: 733 F. Supp. 579
• Parties: UNITED STATES of America, v. Marcos MONTILLA and Nitza Colon, Defendants.
• Court: U.S. District Court — Western District of New York

733 F. Supp. 579

UNITED STATES of America, v. Marcos MONTILLA and Nitza Colon, Defendants.

No. CR-89-142C.

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

March 22, 1990.

Dennis C. Vacco, U.S. Atty. (Thomas S. Duszkiewicz, Asst. U.S. Atty., of counsel), Buffalo, N.Y., for U.S.

Cohen & Lombardo, P.C. (Robert N. Convissar, of counsel), Buffalo, N.Y., for defendant Montilla.

J. Glenn Davis, Buffalo, N.Y., for defendant Colon.

INTRODUCTION

CURTIN, District Judge.

Defendants Marcos Montilla and Nitza Colon are charged with possession with intent to distribute a Schedule II controlled substance and conspiracy and agreement to possess with intent to distribute a Schedule II controlled substance, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and 21 U.S.C. § 846.

At the hearing on October 30, 1989, testimony was heard from Drug Enforcement Administration DEA Agent Bruce Johnson; Paul Terranova, an Erie County Deputy Sheriff assigned to the DEA; and Border Patrol Agent John Crocitto. The defendants did not testify.

FACTS

On August 3, 1989, agents of the United States Drug Enforcement Agency Task Force ("DEA") were assigned to observe passengers disembark from the New York City express bus at the Niagara Frontier Transportation Authority Bus Terminal ("NFTA Terminal") (T. 8-9). Because this express bus was considered to be a major source for the flow of narcotics into this area, the agents watched it regularly. They testified that on the average, they stopped about 80 disembarking passengers a month meeting a "drug profile," and three to four arrests resulted (T. 37).

On August 3, 1989, at approximately 7:30 a.m., the agents saw two individuals, later identified as the defendants, leave the bus, enter the terminal, and walk toward the North Division Street exit. DEA Agent Bruce Johnson testified:

A Number, 1 they were very nervous when they entered the terminal, they were constantly looking around, and I'm not saying in a general look around manner. It was very quick glances back and forth. They were talking very, very quietly with each other. As they walked through the terminal they kept looking back over their shoulder and again scanning the terminal. At one particular point as they approached Investigator Terranova's position, which was about midway in the terminal, they walked towards him, they looked right at him and immediately did a turn and walked very, very briskly away, again constantly looking over their shoulder as they walked away from him.

Q When you made these observations as you have just testified to about their nervous character and change of direction, et cetera, were either of the individuals carrying anything with them?

A Yes, sir. They were both carrying what I call either overnight bags or duffel bags. As I recall, the male was carrying a red duffel bag and the female was carrying a blue duffel bag.

(T. 12-13)

At that time, the agents had no prior information about the defendants (T. 42). All the agents were in plain clothes, and as Agent Terranova explained, they were trying to be undercover and inconspicuous, not looking like police officers (T. 49). He said that when the defendants got off the bus, he was stationed about midway in the station with his back to the wall. When they approached him, it was necessary for them to turn one way or the other. They turned left to proceed to the North Division exit (T. 49).

A signal to stop the defendants was given by eye contact. This decision was based upon defendants' nervous reactions, the use of the express bus from New York City, and their pace through the terminal. The agents testified that they did not base their decision upon the fact that the defendants appeared to be Puerto Rican (T. 52, 54, 101).

The defendants were stopped initially by Agent Bruce Johnson, who spoke to them in English. Johnson said that Montilla spoke in somewhat broken English, but it was understandable, and Ms. Colon spoke very good English. None of the agents at the scene spoke Spanish. Johnson said that both defendants told him that they understood English, and they responded to him in English. The defendants consistently spoke between themselves in Spanish (T. 55-58).

When Agent Johnson asked for identification, defendant Colon produced an Erie County Social Services card, said that she lived on Mariner Street in Buffalo and had been in New York for two weeks. Referring to her blue duffel bag one of the agents said to her, "That doesn't seem to be much luggage for a two-week stay". In response, she merely shrugged her shoulders.

Johnson claims that defendant Montilla said that he had no identification and that he was from New York (T. 20, 68). There appears to be confusion as to the response made by defendant Montilla. It is not clear that Terranova heard defendant Montilla speak in English. As he approached the area where Johnson was asking the defendants for identification, Terranova said that when the question was put to Montilla, he simply "shook his head no." (T. 96.) With that, Terranova noticed the wallet in his pocket. When he pointed to it, Montilla took it out (T. 96). At the suppression hearing, he testified that he "asked Montilla if he was sure he didn't have any identification. He said yes I do, and he pulled out his wallet." (T. 97.) At the preliminary hearing, however, Agent Terranova stated that Montilla handed over the wallet without speaking (T. 98). Johnson observed Terranova look at the wallet, but before anything further occurred, he told the defendants they were members of the Drug Enforcement Task Force and were looking for narcotics, and he asked, "would you mind if we took a quick look through your bags." He said that he also said to them, "you're not under arrest, you don't have to if you don't want to." (T. 20-23.)

Terranova testified that as he approached Johnson and the defendant, Johnson was asking for identification. He said that when he saw the bulge in Montilla's pocket "I pointed to the wallet and asked him again if he was sure he did not have any identification". According to Terranova, Montilla responded "Yes I do" and he reached for his wallet. Terranova said he was addressed and responded to in English. Inspection of the wallet by Terranova revealed identification also in the name of Robert Rutkowski. When Terranova asked him about the Rutkowski card he did not respond (T. 79-81). As I read the record, it appears that none of this information was made available to Johnson when he asked the defendant if he could take a quick look at their bags.

According to Johnson when the request to open the bags was made, Montilla, without speaking but nodding his head, unzipped both bags. Nothing other than clothes and personal items were found in Montilla's bag (T. 25). However, defendant Colon's blue bag yielded a shape wrapped in male clothing. Upon opening the clothing, a plastic bag which contained a taped package was found (T. 25). Johnson testified that when he picked the package out of the bag, Montilla said something to the effect, "she doesn't know anything about it, it's not hers." (T. 26.) Again, there is confusion in the testimony. When Terranova appeared before the grand jury he said that the bags were opened by Agent Johnson. Upon further questioning by the Assistant U.S. Attorney, he then said that Montilla unzipped the bags (T. 99, 100).

After the taped package was found both defendants were taken to a small room inside the terminal which served as the NFTA's Security Office. Although not informed that they were under arrest, it was clear that they were not free to leave (T. 29, 62). Upon further examination, it was discovered that the plastic bag contained cocaine (T. 30-31).

While the substance was being tested, Spanish-speaking Border Patrol Agent John Crocitto arrived (T. 32, 85, 116). He was called because it was suspected that the defendants might be illegal aliens. From this point, there are further contradictions in the testimony. Agents Johnson and Terranova claim that when Montilla was questioned about the cocaine, he said that it was his in English (T. 64, 85, 102). On the other hand, Agent Crocitto, who was present during the testing, denies hearing any conversation by defendant Montilla in English (T. 116-18). He said that the room was small, everyone was fairly close together, and he would have been in a position to hear any conversation between the DEA agents and defendant Montilla (T. 118). Crocitto said that defendant Montilla had little knowledge of the English language and did not understand him when he gave the Miranda warnings to him in English (T. 119-20). In his opinion, Montilla neither understands nor speaks English.

In any event, even assuming that the version given by Agent Johnson is correct, any alleged admissions by defendant Montilla occurring after the defendants were taken to the NFTA office, when they were not free to leave and before any Miranda warnings were given in either English or Spanish (T. 64-65) must be suppressed.

After Crocitto gave the defendants their Miranda warnings in English and Spanish, Montilla said that the problem was his and that she (Colon) had nothing to do with it. He said that he had brought the package up from Manhattan. Ms. Colon told Crocitto that she had flown down the day prior to the arrest and had an airplane boarding stub to verify her air passage. When asked how the package got in Ms. Colon's bag, Montilla said that he had simply put it there.

DISCUSSION

The government argues that the initial questioning of defendants was proper under the circumstances, citing United States v. Sokolow, ___ U.S. ___, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637,...