The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
Defendant moves pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure to suppress for use as evidence four plastic bags, allegedly containing heroin hydrochloride, that were seized by agents of the Federal Bureau of Narcotics during a search of an apartment tenanted by defendant and one Eduardo Norman.
The indictment under which defendant has been charged contains two counts: the first asserts that he knowingly concealed and facilitated the concealment of approximately 75.10 grams of heroin knowing the same to have been imported and brought into this country contrary to law;
and the second alleges that he unlawfully purchased the same quantity of the aforesaid narcotic drug, which drug was neither in nor from the original stamped packages bearing the requisite tax stamps.
Both counts of the indictment rest upon the seizure of heroin that resulted from the questioned search.
A hearing was held on February 7, 1968 and the testimony and exhibits disclosed the following sequence of events:
(1) On December 19, 1966, a fugitive warrant was issued in San Juan, Puerto Rico for the arrest of Marcos Roberto Hernandez Huertas (Huertas) under a three-count indictment charging Huertas with certain violations of the narcotics laws.
(2) On May 4, 1967, a warrant was issued in the Southern District of New York for the arrest of Eduardo Norman under an indictment charging Norman with the unlawful transportation and smuggling of marihuana.
(3) On September 4, 1967, defendant and Norman took up residence at the ground floor apartment of 83-15 Vietor Avenue, Queens, New York, a three-story multiple dwelling.
(4) In the afternoon of September 5, 1967, Agent John O'Leary, while sitting in a parked car in a parking field located at 96th Street and the Henry Hudson Parkway, New York, New York, observed a narcotics agent purchase a quantity of heroin from Huertas and defendant. It appears that at the time of the sale, another person, an informant, was also in defendant's automobile, a red and white Ford bearing Florida plates.
(5) Agent O'Leary followed defendant's vehicle as it left the parking area. The informant exited the car at West End Avenue and 96th Street, and Huertas got out at 306 East 96th Street. When the Ford left the latter address, Agent O'Leary remained in the area watching for Huertas, while two other agents continued to follow defendant.
(6) On September 7, 1967, while on surveillance in the vicinity of 83-15 Vietor Avenue, Agent Dennis Raugh saw Huertas enter said premises on two different occasions. Shortly thereafter, Agent Raugh first received information that there was a fugitive warrant outstanding for Huertas.
(7) On the morning of September 8, 1967, Agent Raugh saw Norman get into a car at 96th Street and West End Avenue and drive to 57th Street and 8th Avenue, where he met Huertas.
(8) After spending about twenty minutes in a barbershop in the vicinity of 57th Street and 8th Avenue, Norman and Huertas drove to the vicinity of 83-15 Vietor Avenue and entered the aforesaid premises.
(9) The entrance to the building in question is one step above the street level. Passing through the outer door, which is composed partly of glass, one enters a common passageway, approximately ten feet in length, at the far end of which is the apartment defendant was occupying at the time. In ...