The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, District Judge.
District Judges are charged with the responsibility of determining credibility of witnesses because our court system recognizes that the signs of credibility are more than just those found in a cold record. Spurdis' testimony is, in and of itself, inherently incredible. It is clear that he changed his story from time to time as it suited him; but my conclusion as to his credibility is dictated not only by these factors but by watching a man of supreme ego attempting to toy with the truth and with our court system. The record does not show that Spurdis as a witness attempted from time to time to whisper instructions to me so that he could have complete control over the proceedings. The record cannot show his demeanor, the way he shifted uneasily as he spun out his tale nor his fleeting smiles of unwarranted comtempt when he thought he had blunted the cross-examination and avoided provable perjury.
For all of these reasons, I reject entirely the testimony of the witness John Spurdis.
Having done so, I must turn therefore to find the facts as proven in the hearing on this motion to suppress certain evidence seized from a green Pontiac automobile in connection with the arrest of Vincent Papa, a co-conspirator in this case, and the defendant and movant, Joseph DiNapoli.
On the evening of February 3, 1972, agents of the Joint Task Force were sent out to execute certain arrest warrants. Patrolman George Reilly, with his partner (then) Detective John Spurdis, were sent out with a "John Doe" warrant. Group Supervisor Peter Pallatroni and Agent James Reed were to arrest George Rossi. Both arrests were to made in connection with violations of the narcotics laws. At about 8:00 in the evening, Spurdis and Reilly brought their unmarked police car to the vicinity of 1908 Bronxdale Avenue, in the Bronx. They had reason to suspect that this address was being used in connection with the sale and distribution of narcotics. Indeed, Officer Reilly had been on surveillance at this address for some twenty evenings prior to the night in question. The reasons that the Joint Task Force had placed this address under surveillance were that the automobile of Genevieve Patalano, who resided at the address, was seen being used in connection with the transfer of certain narcotics at the Cottage Inn Bar & Grill. The transfer of narcotics at the Cottage Inn apparently was not a sometimes thing. Allusions to at least four such transactions were made in the hearing. The owner or manager of the Cottage Inn, Joseph DeBenedetto, was seen leaving the Bronxdale Avenue address in possession of a stolen car and when he was arrested he claimed (falsely) that he resided at this address.
On the night of February 3, 1972, it was raining quite hard. For about forty-five minutes Reilly and Spurdis sat and watched the one family house at 1908 Bronxdale Avenue. At about 8:45 p.m. a green Pontiac pulled up in front of the house and a then unknown white male left the car and entered the house carrying a suitcase or valise. The driver of the car then made a "U" turn and parked on the side of the street opposite the house under surveillance. Reilly and Spurdis pulled up and saw the driver of the green Pontiac leave the car. Apparently the driver stared at Reilly and Spurdis and both immediately identified the driver as Vincent Papa.
Vincent Papa was known to officers and agents working with the Joint Task Force. Papa had a previous arrest record including a conviction for narcotics violations. Information had been given to the Joint Task Force by an informant, Stanton Garland, that Papa was a major supplier of narcotics. Stanton Garland has since proved unreliable since he became a fugitive (or at least disappeared) rather than testify in another case. Doubt is also cast on his reliability because he committed various violations of law while supposedly cooperating with the Joint Task Force. But there is absolutely no indication that Reilly, Spurdis, Pallatroni or Reed had any indications of this unreliability on February 3, 1972. Indeed, the opposite conclusion must be reached -- certain information which Garland gave the Joint Task Force had proven reliable.
The testimony at the hearing also proved that at least Pallatroni and most likely the other officers present that night, knew that Papa had also been indicted for narcotics violations in the Eastern District of New York. The sealed indictment had been opened during the previous month.
When Reilly and Spurdis spotted Vincent Papa in the vicinity of 1908 Bronxdale Avenue, and after they saw him enter the suspect address, Officer Reilly radioed to his superior, Group Supervisor Pallatoni. After some conversation on the radio, in which Reilly indicated that Papa had gone into 1908 Bronxdale Avenue, a place far from Papa's usual haunts in Queens County, Pallatroni and Agent Reed came to assist in the surveillance. Spurdis left his unmarked car and told Pallatroni and Reed about what he and Reilly had seen. Spurdis identified Papa and gave Pallatroni a description of the other man seen entering the house. The description which was given to Pallatroni matched a "John Doe #3", a person whom Spurdis had seen engaged in a narcotics transaction (apparently for 1/8 kilo of heroin) at the Cottage Inn Bar & Grill. Spurdis also gave Pallatroni the license number of the green Pontiac in which Papa had driven up to the suspect premises.
Pallatroni radioed the license plate number of the green Pontiac to the headquarters of the Joint Task Force, asking who the record owner of the car was. He was informed that the vehicle was a rental or leased car owned by a Wide World Leasing Corporation. Pallatroni had information that Vincent Papa owned two cars. As an experienced narcotics officer, he knew that narcotics violators often use rented or leased cars while engaged in a narcotics violation. Apparently this modus operandi is used because vehicles seized in connection with narcotics transactions are generally forfeited to the government.
At the hearing it was shown that, in fact, the green Pontiac was a courtesy car, loaned to Papa by his cousin, a sales and service employee of Wides Motor Sales, while his own car was being repaired.
So as least by 9:00 p.m. on the night in question Agent Pallatroni reasonably believed that a major narcotics violator was away from his usual haunts in a house which a reasonable person could suspect as having been involved in major narcotics transactions.
The fact that certain beliefs that Agent Pallatroni held on February 3, 1972 were later proved untrue is of no import. To determine whether probable cause existed for Group Supervisor Pallatroni to arrest Vincent Papa and Joseph DiNapoli on the night of February 3, 1972, we must look to his state of mind as of that ...