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United States v. Vigo

decided: September 11, 1973.


Lumbard, Hays and Timbers, Circuit Judges. Timbers, Circuit Judge (concurring in part and dissenting in part).

Author: Lumbard

LUMBARD, Circuit Judge:

The government appeals from an order of the Southern District, entered January 18, 1973, which suppressed certain evidence relating to the prosecution of Robert Vigo and Carmen Pagan, who were indicted on August 11, 1972, for possession of heroin with intent to distribute it, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A), and for conspiracy to violate these sections (18 U.S.C. § 2). Prior to trial defendants moved to suppress tangible evidence obtained during the search of the automobile in which they were riding at the time of their arrest, to suppress other tangible evidence obtained from defendant Pagan's pocketbook, and also to suppress oral statements made by both defendants shortly after their arrest. The district court, after a hearing, denied the motion with respect to the evidence seized from the automobile, but granted it with respect to the evidence seized from Miss Pagan's purse and with respect to the oral statements, see 357 F. Supp. 1360 (S.D.N.Y. 1972). The government does not challenge the suppression of Miss Pagan's statement, but pursuant to 18 U.S.C. § 3731, it has appealed the order to the extent that it suppressed the evidence seized from Miss Pagan and Vigo's oral statement.

We reverse, and hold that both defendant Vigo's oral statement and the evidence seized from Miss Pagan are properly admissible.

From the evidence at the hearing, the district court found the following facts. On April 11, 1972, Thomas Smith, a special agent with the Federal Bureau of Narcotics and Dangerous Drugs (BNDD), received information from an unidentified informant*fn1 that Vigo had offered to sell him up to one kilogram of cocaine. The informant reported 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 for the delivery of the cocaine to take place at that meeting.

On April 12, 1972, the informant told Smith that he had contacted Vigo and that Vigo had agreed to deliver the cocaine to him later that day for an undetermined price. Smith and the informant decided that the latter would telephone Smith or other BNDD agents when he was with Vigo, that he would inform Vigo he was calling his customers for the cocaine, and that he would try to arrange a meeting place where completion of the transaction could take place. The informant advised Smith that Vigo would be driving to Amigo's Bar in a 1965 Lincoln Continental with New York license plates. He also gave Smith a description of Vigo.

On the evening of April 12th, BNDD agents (not including Agent Smith) established surveillance of Amigo's Bar. Members of the surveillance team observed Vigo drive up to the bar in the automobile described by the informant, and they watched Vigo enter the bar at about 9:00 p.m. At 9:45 p.m. Smith received a telephone call at his office from the informant, who advised him that he was calling from the bar and that he was with Vigo and an unidentified customer of Vigo's. The informant reported that Vigo was having difficulty with the customer regarding some heroin with which the customer was dissatisfied, and that Vigo was unwilling to conduct further business until the other customer was satisfied. The informant asked Smith whether he would be interested in the heroin which the other customer was desirous of returning, or whether the purchase of the cocaine, as originally contemplated, should be pursued. Smith then heard a man in the background say, "I paid $8000. Tell him he can have it for that." The informant stated that the voice was that of Vigo's customer and that the customer had just said the package of heroin was "not good" but he would (in the informant's words) "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, that he should continue to negotiate for the cocaine, and that he should attempt to 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 that he would be leaving Amigo's Bar shortly. He also said that he believed the heroin was located in the trunk of Vigo's car. Informed of this, Smith and another agent left his office and joined the surveillance team. Vigo was observed to leave the bar at 11:45 p.m., accompanied by two unidentified men. The members of the surveillance team followed Vigo and his companions to East 5th Street and Avenue D in Manhattan, where Vigo entered a housing project and returned with Miss Pagan.

The agents subsequently followed the car to the Bronx, where Vigo and his companions stopped at several bars. It shortly became apparent that Vigo was not going to any particular destination, and consequently, at roughly 1:00 a.m. on the morning of the 13th, the agents stopped Vigo's car in the vicinity of 163rd Street and Third Avenue. All four occupants were removed from the car, were told that they were being arrested, and were advised of the offense for which they were being arrested.

Six agents participated in the arrest, and as a result the events described below happened nearly simultaneously.*fn2 The agents frisked Vigo and found a loaded.32 caliber revolver tucked in his belt. They then took Miss Pagan's purse (they did not search her person) and searched it, discovering, among other things, some notes thought by the agents to contain a formula for cutting narcotics, a scale, and some marihuana. They also searched Vigo's car, and in the trunk Agent Smith discovered a briefcase containing several packages of heroin as well as narcotics paraphernalia, including spoons, rubber bands, a strainer, and a scale.

After the search of the car, Agent Smith advised Vigo that ". . . he had a right to have an attorney, had a right not to say anything at all, that he had a right to have an attorney present during anything we might discuss, if he wanted to discuss anything, and advised him he had the right to have a court-appointed attorney if he so desired and could not afford his own attorney." Smith could not recall that he had informed Vigo that anything he said could later be used against him. Vigo was asked whether he understood what he had been told, and in response Vigo expressed a willingness to talk. He admitted that one of the packages contained heroin and that it belonged to him. Furthermore, in what appears to have been an effort to protect his companions, he stated that although Miss Pagan knew there was heroin in the car, she was not responsible for it, and that the other two occupants of the car did not even have knowledge of it.

We hold that the search of Miss Pagan's purse was reasonable and proper as a normal protective measure on the part of law enforcement authorities. A loaded concealed gun had just been found on her companion Vigo. A lady's handbag is the most likely place for a woman similarly to conceal a weapon. Cf. United States v. Berryhill, 445 F.2d 1189 (9th Cir. 1971). The search of the handbag took place directly after the defendants had been stopped. The circumstances fall well within the limits of permissible protective search established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Cf. United States v. Johnson, 467 F.2d 630 (2d Cir. 1972). Nor did the search spill over into an unrelated and therefore unreasonable search for evidence. The agents did not search Miss Pagan's person. They did no more than ascertain the contents of the place where she would have been most likely to hide a weapon. Evidence of crime discovered by virtue of such a limited investigation is not the fruit of an unreasonable search and is admissible. See United States v. Del Toro, 464 F.2d 520 (2d Cir. 1972).

Defendant Vigo's oral admissions made at the time of his arrest are also admissible. In Miranda v. Arizona, 384 U.S. 436, at 478, 86 S. Ct. 1602, at 1630, 16 L. Ed. 2d 694 (1966), the Supreme Court stated:

In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege [against self-incrimination] while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime [footnote omitted], or a person who calls the police to offer a ...

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