United States v. Costilla-Alfano

726 F. Supp. 327, 1989 U.S. Dist. LEXIS 14660, 1989 WL 149052
CourtDistrict Court, D. Massachusetts
DecidedNovember 30, 1989
DocketCrim. No. 88-326-K
StatusPublished
Cited by1 cases

This text of 726 F. Supp. 327 (United States v. Costilla-Alfano) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Costilla-Alfano, 726 F. Supp. 327, 1989 U.S. Dist. LEXIS 14660, 1989 WL 149052 (D. Mass. 1989).

Opinion

Memorandum

KEETON, District Judge.

I. Findings of Fact

In the early morning hours of October 14, 1988, the M/T SOLIMAR, a Peruvian vessel, docked at the Belcher Oil Terminal in South Boston. Shortly thereafter immigration and customs officials boarded the vessel and issued shore passes to the crew members.

Customs Inspectors Michael Cunningham and David Loney began an intermittent surveillance of the SOLIMAR at about 5:00 p.m. that evening. At about 8:30 p.m., while parked parallel to the SOLIMAR and between two nearby oil tanks, the inspectors observed three crew members — later identified as Costilla-Alfano, Farias-Caballero, and Yamunaque-Nunez — disembark from the ship. About thirty seconds later, a crew member later identified as Purizaga-Marin followed, and thirty seconds after that, a crew member later identified as Rivera-Vidal. Because the SOLIMAR had not been under constant surveillance since its arrival, the inspectors did not know whether any of the five crew members had also left the ship earlier in the day.

The crew members walked west, parallel to the water, until they reached a dirt road leading to East First Street. They turned left on that dirt road and travelled south toward one of the three exits of the Belch-er Oil Terminal on East First Street. As the five, separated by the two thirty-second gaps, walked around the first oil tank, the inspectors briefly lost sight of them. The first three crew members shortly reappeared in a gap between the two tanks. At that point, the inspectors were approximately sixty feet from the three crew members and noticed that they were walking stiffly with restricted movements. Furthermore, the three crew members were wearing outer jackets which appeared unusually heavy considering the mild temperature (about 50°F). That their jackets were all zipped up further aroused the inspectors’ suspicions.

The inspectors again lost sight of the first three crew members as they walked behind the second oil tank. Shortly thereafter, the inspectors watched as PurizagaMarin appeared between the two tanks. He, too, was wearing a jacket which appeared unusually heavy and which was all zipped up. He, also, was walking in a stiff manner; indeed, the inspectors noted that his movements appeared even more restricted than those of the first three crew members.

After Purizaga-Marin disappeared behind the second oil tank, the inspectors waited for the fifth crew member, Rivera-Vidal, to appear between the two tanks. [329]*329He never did. The evidence suggests that Rivera-Vidal fled back to the SOLIMAR from which he watched as his co-defendants were apprehended.

After about thirty seconds, during which Rivera-Vidal failed to appear between the two tanks, the inspectors decided to continue their investigation of the remaining four crew members. They drove their car between the two tanks and up the dirt road towards the exit on East First Street. The inspectors passed Purizaga-Marin, who was still within the confines of the Belcher Oil Terminal, about 75-100 yards from the exit gate. When they reached the gate, the inspectors turned right onto East First Street and observed three figures walking toward them on the south side of the street, about 175-200 yards from the gate. As Inspector Loney drove past the three, Inspector Cunningham observed that the three figures were the three crew members. Cunningham again noticed their restricted manner of walking and their unusually heavy jackets, which were all zipped up. He also noticed that one of the crew members was carrying an empty duffle bag and another was carrying a radio, two items that he had not previously noticed.

Inspector Loney made a u-turn and parked next to the crew members. The inspectors got out of their car and, displaying their badges, introduced themselves as customs agents. The crew members produced their shore passes and explained in broken English that they were going into town to get some “señoritas.”

At this time, Inspector Cunningham observed Purizaga-Marin walking on the other side of the street at a somewhat more rapid pace than he had been walking before. Purizaga-Marin passed the group without looking at or acknowledging his fellow crew members. Inspector Loney ran after Purizaga-Marin who had by then turned left and was walking “very fast” up 0 Street. After overtaking Purizaga-Marin and identifying himself, Loney asked Purizaga-Marin to return with him to the group on East First Street. Purizaga-Marin voluntarily complied and walked with Loney back to East First Street. Loney again noticed that Purizaga-Marin was walking in a “very restricted” manner.

When the four crew members were together, Inspector Loney noticed that Purizaga-Marin had an unusual bulkiness around his mid-section and an expression on his face which further piqued Loney’s suspicions. Loney began to pat down Purizaga-Marin, unzipped his jacket a bit, and touched his midsection where Loney observed the bulkiness. Loney felt a hard object and lifted up Purizaga-Marin’s jacket. Several parcels, wrapped in brown shiny tape in the manner in which drugs are often packaged, fell to the ground. Inspector Cunningham drew his revolver and called for backup. Subsequent searches of the other three crew members revealed similarly hidden packages which, the inspectors discovered, contained a white powder. A field test determined that the powder was cocaine. A search of the SOLIMAR later that evening uncovered nine more packages of cocaine in PurizagaMarin’s room.

II. Conclusions of Law

Defendants Costilla-Alfano, Farias-Caballero, Purizaga-Marin and YamunaqueNunez seek to suppress inter alia the cocaine discovered in the search on East First Street and the fruits of that search, Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963), on the grounds that the search violated the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” For the reasons set forth below, I find that the search was reasonable and deny the motions to suppress. Other issues presented by motions before the court have been addressed in an unpublished Supplemental Memorandum and Order of this date.

It is well established that customs officials may conduct routine searches at the border of the United States without reasonable suspicion, probable cause, or warrant. United States v. Kallevig, 534 F.2d 411, 413 n. 4 (1st Cir.1976). Such searches are not barred by the Fourth Amendment’s prohibition of “unreasonable searches and seizures,” the Supreme Court [330]*330has held, because they “are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977).

Consistently ... with Congress' power to protect the Nation by stopping and examining persons entering this country, the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant____ [This rule is based on a] longstanding concern for the protection of the integrity of the border.

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Bluebook (online)
726 F. Supp. 327, 1989 U.S. Dist. LEXIS 14660, 1989 WL 149052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-costilla-alfano-mad-1989.