The opinion of the court was delivered by: BAUMAN
Rafael Torres was indicted along with Rafael Gonzalez for conspiracy to violate various provisions of the federal narcotics laws, 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). He now moves to suppress (1) $100,000 in United States currency seized at the time of his arrest by members of the New York Joint Task Force for Drug Control and (2) his admissions made subsequent to arrest concerning his role in narcotics trafficking. A four day evidentiary hearing was held, and what follows constitutes my findings of fact and conclusions of law.
In mid-1971, the attention of various members of Group 9 of the Joint Task Force began to focus on two men: Rafael Gonzalez and Edward Arroyo.
One patrolman, Alan Ruggiero, had been told by several individuals arrested for narcotics violations in and around the lower east side of Manhattan that Gonzalez was the "big guy" or major distributor. In November, 1971, the group received an informer's tip that Gonzalez and Arroyo had, two months before, received a shipment of 47 pounds of heroin. This report also identified the Monterey Bar on Hester Street in the lower east side as the center of their operations.
Intensive surveillance in and around the Monterey Bar began almost immediately. Both Arroyo and Gonzalez were observed there, driving around the lower east side, and on several occasions, delivering brown paper packages to individuals in neighboring buildings, or picking up individuals carrying such packages. On December 20, 1971, Octavio Pons, a detective assigned to the Task Force, entered the Monterey Bar and struck up a conversation with Gonzalez, whom he recognized as a boyhood acquaintance. Gonzalez first warned Pons that the bar was under police surveillance as a "hang-out for drug pushers" and then described his involvement in narcotics dealing. He boasted of the large profits he made, and pointed out how wealthy all of his workers in the traffic had become. At one point two people
approached Gonzalez and expressed satisfaction with the quality of the "stuff" they had been receiving. Pons had on a previous occasion (December 13) seen Arroyo in the company of Gonzalez, and upon returning to the bar on December 22, was told by Arroyo that Gonzalez would be in Puerto Rico for approximately one month.
On January 5, 1972, the Task Force was informed that Arroyo had been arrested in Miami in possession of approximately 243 pounds of heroin and, on January 13, was told that another 142 pounds had been seized.
On January 18, 1972, two members of the Task Force saw Gonzalez and Mr. and Mrs. Torres emerge from Lucy Jung's bar at 206 Canal Street. The agents trailed them to a delicatessen at the corner of Eldredge and Houston Streets, and thence to the vicinity of Broome and Allen Streets, where both men left the car for a brief period. All three then drove to the City Squire Motel, 51st Street and Seventh Avenue, where (as the agents later learned) Torres was staying. Fifteen minutes later the two men reappeared and then drove back to the Broome and Allen Street area with the police still in attendance. They parked and entered a building in which they remained for approximately forty-five minutes. After reentering the car they drove off at what Patrolman Ruggiero characterized as an "excessive rate of speed", losing him in the process. (It is important to note at this point that no Task Force agent had ever before seen or heard of Torres. He had neither been mentioned in any informer's report, nor was there any information connecting him with the arrest of Arroyo in Florida.
The following day, January 19, Gonzalez was observed entering and leaving a building on the same block near Broome and Allen Streets that he and Torres had visited the previous evening. Some two hours later, at approximately 7:45 P.M., he entered the City Squire Motel, which had by this time been staked out by a surveillance team of several agents. Shortly thereafter he emerged with Mr. and Mrs. Torres and they proceeded to Forno's Restaurant, 236 West 52nd Street.
When they returned to the motel at about 9:30 P.M., Anthony Pitruzzello, then a sergeant in the Joint Task Force, entered the elevator with them and accompanied them to the 10th floor. He returned to the lobby and checked to see if any persons with Hispanic names were registered on that floor. While he was checking, Gonzalez and Torres left the hotel and rode down to the lower east side, again to the Broome-Allen Street area where the surveilling agents lost sight of them.
At approximately 11:00 P.M. Gonzalez and Torres returned to the City Squire, and at this point the accounts of the Task Force agents on the one hand, and Torres on the other, diverge markedly. It is undisputed that Torres left the car and Gonzalez drove on. According to the members of the Task Force who testified (Pitruzzello and John Crowe) the car pulled up in front of the motel and Torres went directly inside carrying a brown paper package. Torres' account, which I do not credit, is that he emerged from the car carrying the $100,000, as well as various business documents, in a large satchel or valise and went across the street to a delicatessen, where he purchased food for breakfast the following morning. He says that he then entered the motel carrying both his satchel (containing the $100,000) and a brown paper bag (containing groceries).
As Torres was entering the motel, Pitruzzello let forth with a resounding "Let's get them", which was heard not only by the others in his car, but by all other Task Force Units over the car radio. Thereupon Pitruzzello, Crowe, Michael Downs, and Joseph Nunziatta ran into the motel and accosted Torres as he was approaching the elevator. Nunziatta placed his hand on Torres' arm and said "Hold it" and simultaneously grabbed the brown paper package that Torres was holding. He gave the package to Pitruzzello, who discovered that it contained $100,000 in $100 bills bound with rubber bands.
Torres was then taken to a men's room a few feet from the elevators. Without being given any of the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), he was asked what his name was, what the money was for, and how he knew Gonzalez. Torres replied that he was in the clothing business, that he was in New York on a purchasing trip, and that Gonzalez was a business associate. The agents then appeared to consider the men's room unsuitable for this interrogation and removed Torres to an open unused elevator. At that point they explained to Torres that they were not robbers after his money but policemen and federal agents. Then, according to the testimony of Crowe, Nunziatta read to Torres the Miranda warnings from a form known as a BND 12.
Torres nodded in acknowledgement as the statement was read. On this point as well there is vigorous disagreement. Torres testified that he was never given any such warnings, and in fact demanded on several occasions to see a lawyer. I credit the testimony of the government witnesses.
While Torres was still detained in the elevator, Pitruzzello spoke by telephone to Charles Updike, an Assistant U.S. Attorney, and one Sherris, a legal adviser to the Task Force. Updike suggested that Torres' room be searched, either with his consent, or, if he withheld his consent, pursuant to a search warrant. According to the agents, Torres was asked permission to search his room and immediately consented, insisting that he had nothing to do with heroin trafficking and thus had nothing to hide. Torres disputes this and insists that he never gave permission to search. Again, I find that he consented to the search.
The agents and Torres went to his room, where they found Mrs. Torres dressed for bed. They then conducted a thorough search of the premises, but the only meaningful discovery was a piece of tinfoil containing 1.3 grams of heroin underneath the linen in the bathroom. When asked, Torres said that he was keeping it for a friend. At that point Torres was handcuffed and told he was under arrest.
Torres was then taken by Crowe and Pitruzzello to the McAlpin Hotel, apparently because agents had found a matchbook in Torres' room with a McAlpin room number written on it and concluded that another member of the conspiracy might be located there. The visit proved unproductive, however. They proceeded to the Joint Task Force office where Torres was fingerprinted, photographed, and questioned about his family and background. At about 2:00 A.M. on January 20 he was delivered to the Federal House of Detention. During the course of his transportation Torres was, at several ...