U.S. Judge Bars Evidence Seized in Airport Drug Arrest

A federal judge has thrown out evidence obtained in a cocaine seizure at Los Angeles International Airport and suppressed incriminating statements made by the man who picked up the drugs and who complained he was physically abused by government agents.

In a ruling Monday that was critical of the government’s conduct in the case, U.S. District Judge Pamela Ann Rymer questioned the veracity of the agents’ account of the arrest of Marcus Allan Fazio and asserted that to permit seizures in such cases “would be to rewrite the Constitution . . . to sanction the warrantless search.”

The ruling is likely to result in dismissal of the charges against Fazio, a San Diego college student, unless the government decides to appeal.

“Basically, the trend in criminal law has been to give the police more and more leeway in doing searches. And here, finally, some body said enough, you’ve got to get a warrant,” said Fazio’s attorney, Alan Rubin.

“I also think it’s highly significant because it came from a Republican Reagan appointee, very law-and-order oriented, and not one that could be called a liberal coddler of criminals by any stretch of the imagination,” the lawyer added.

According to the court’s findings, a Drug Enforcement Administration agent in Orlando, Fla., was suspicious of the package when it was mailed aboard a Delta Airlines flight April 29. When the plane stopped in Dallas, a narcotics detection dog located the package, and DEA agents in Los Angeles waited to see who would pick it up.

Although it took four hours for the package to arrive in Los Angeles from Dallas, agents never attempted to obtain a search warrant, saying they had decided to attempt to obtain consent from whoever picked up the package.

The two men who initially arrived to pick up the package left the airport after learning the flight had been delayed.

Agent’s Decision

DEA agent Bill Woessner testified that he decided to open the package after smelling ether, a signal that it might have contained the drug PCP, which is potentially explosive. None of the previous agents had mentioned an ether smell. The substance inside was later identified as cocaine.

Fazio was arrested several hours later when he attempted to claim the package, containing 967 grams of cocaine, and was taken into an airport restroom where, he said, he was violently shoved into a wall by agents before admitting he knew the package contained cocaine.

It was those statements, and others Fazio made a short time later, that were ordered suppressed after Rymer called into question the agents’ failure to report that they had taken Fazio into the restroom.

“The officers deny that any physical abuse took place. However, their lack of candor about the restroom incident calls into question their version of what transpired,” the judge wrote.

The judge also said that, even if Woessner’s account of why he decided to open the package without a warrant is entirely credited, “which is not justified,” the agent should have sought a warrant once he learned the package did not contain PCP.

Constitutional Mandate

“The Constitution does not require perfection, but it does prescribe a procedure that is important to society to preserve and the police to respect,” Rymer held. “All it takes is a little patience.”

Assistant U.S. Atty. Richard E. Robinson, the prosecutor in the case, denied that Fazio was physically abused and also said the agents did not seek a warrant for the search because there was no time to obtain one.

“Certainly, we would also disagree about whether there were exigent circumstances that justified opening of the package (without a warrant),” Robinson added, noting that agent Woessner had smelled ether and felt nauseous, both indications of the presence of PCP.

“I think agents need the flexibility to be able to respond appropriately to emergency circumstances,” he said.