The opinion of the court was delivered by: MOTLEY
Memorandum Opinion on Motion To Suppress
Defendants Robert Vigo and Carmen Pagan were indicted on August 11, 1972 and charged with possessing, with intent to distribute, heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. They have moved to suppress tangible evidence obtained during the search of an automobile in which defendants were riding when arrested and from the search of defendant Pagan's pocketbook and certain oral statements allegedly made by both defendants subsequent to their arrest.
The court held a hearing on their motions on November 20 and November 21, 1972. At the end of the Government's case, the court ruled from the bench that the search of defendant Vigo's automobile, which revealed a quantity of heroin, was proper and that the evidence was admissible.
Defendant Pagan then took the stand and testified. With respect to the oral statements allegedly made by both defendants and the tangible evidence discovered during a search of defendant Pagan's purse, the court directed that the parties submit briefs and indicated that, despite any rulings from the bench, the suppression motions would be decided based on all the evidence adduced at the hearing.
Defendants' motions to suppress the oral statements and the evidence discovered during the search of Miss Pagan's pocketbook are granted for the reasons set forth below. Their motion with respect to the evidence seized from the automobile is denied.
On April 11, 1972, Thomas Smith, a special agent with the Federal Bureau of Narcotics and Dangerous Drugs, received information from an unidentified informant that defendant Vigo had offered to sell him up to one kilogram of cocaine. Agent Smith had known the informant since January, 1972. The informant was registered with the Bureau as a "cooperating informant" and had provided the Bureau with other information with respect to narcotics trafficking which had resulted in an arrest. The informant told Smith that he was to meet with Vigo the following day at Amigo's Bar, located at 8th Street and Avenue D in Manhattan. Smith instructed the informant to contact Vigo again and attempt to arrange the delivery of the cocaine for the following day.
On April 12, the informant told Smith that he had contacted Vigo and that Vigo had agreed to deliver the cocaine to him later that day. No price for the cocaine had been set. It was decided that the informant would call the agents by telephone in the presence of Vigo, inform Vigo that he was speaking with customers for the cocaine and arrange a meeting place where the agents would deliver the money. The informant advised Smith that Vigo would be driving to the bar in a 1965 Lincoln Continental with New York license plates. He also gave Smith a description of Vigo.
On the evening of April 12, agents established surveillance of Amigo's Bar. Special Agent Kieran Kobell, a member of the surveillance team, testified that the members of the team observed Vigo drive the automobile previously described by the informant to the bar and enter the bar at approximately 9:00 P.M.
At 9:45 P.M., Smith received a telephone call from the informant who advised him that he was calling from Amigo's Bar, that he had met with Vigo and an unidentified customer of Vigo's. The informant told the agent that Vigo was having a problem with the customer regarding some heroin with which the customer was dissatisfied. The agent was informed that Vigo had said that he could not do anything for the informant until he (Vigo) had satisfied the other customer. The informant asked Smith whether he would be interested in the heroin or whether he should pursue the cocaine.
Smith heard a man in the background say, "I paid $8,000. Tell him he can have it for that." The informant told the agent that the man he had heard was the customer for the heroin, that the customer had said that the package was "not good but he will let you have it for . . . the price he paid for it, just to get his money back."
Smith told the informant that the agents would not purchase the heroin package and that the informant should continue to negotiate for the cocaine and discover what Vigo intended to do with the heroin.
At 11:00 P.M., the informant again telephoned Agent Smith and told him that Vigo intended to take the package of heroin back to his supplier and would be leaving Amigo's Bar shortly. The informant told Smith that he [the informant] understood from his conversation with Vigo that the heroin had been placed in the trunk of Vigo's automobile.
Smith and another agent then left Smith's office to join the surveillance team. Special Agent Kobell testified that he observed Vigo leave the bar with two unidentified men at 11:45 P.M. Vigo and his companions then drove to East 5th Street and Avenue D. Vigo entered a housing project and returned to his car with Miss Pagan. The agents then followed the car to the Bronx where Vigo and his companions stopped at several bars. Once it appeared to the agents that Vigo was not going to any particular destination, they stopped the car in the vicinity of 163rd Street and Third Avenue in the Bronx at approximately 1:00 A.M. on April 13. All the occupants were removed from the car and told they were being arrested and, according to Smith's testimony, were advised of the offense for which they were being arrested. Defendant Pagan was advised that they were being arrested for "narcotics activities." The agents frisked Vigo and allegedly discovered a loaded.32 caliber revolver on his person. They subsequently searched the car and discovered in the ...