The opinion of the court was delivered by: CARTER
ROBERT L. CARTER, District Judge.
On September 3, 1974, defendants Alberto Mejias, Alba Luz Valenzuela, Francisco Salazar and Francisco Padilla
were arrested at approximately 5:20 p.m. in apartment 1B at 445 West 48th Street where Mejias resided. Roughly some five hours later, a search warrant was brought to the apartment and a search of the premises and a personal search of the defendants took place. During the intervening five hours between defendants' arrest and the arrival of the search warrant, defendants were held at the apartment in the custody of the arresting officer, Detective Vincent Palazotto, of the New York City Police Department. During that interval, no personal search was made of the defendants, except to pat them down to ascertain whether they were armed, and no search was made of the apartment, except a walk-through and cursory look into the bathroom, kitchen and open closets to determine whether there were other persons in the apartment.
The defendants were arrested without warrant. The issues then are whether the entry into the apartment, the arrest of Mejias and of the other defendants, and the subsequent search of the apartment after the warrant arrived violated Fourth Amendment strictures requiring that all the evidence seized on the person of the defendants and in the search of the apartment be suppressed. Defendants cite and rely upon Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948); Jones v. United States, 357 U.S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958); and Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), but these cases deal with a warrantless entry and search of a private dwelling. They are not dispositive of the issue raised here. No blanket rule has been announced governing the warrantless entry into a private home to arrest persons therein. That issue was left open in Jones, and such entry for purposes of arrest was assumed to be valid in Coolidge. Nor has the question been squarely met by our Court of Appeals, see United States v. Mapp, 476 F.2d 67, 73-74 (2d Cir. 1973). Each case seems to turn on its facts -- whether the police officer had reasonable cause to seek entry into the dwelling to make an arrest at the time in question. See United States v. Mapp, supra. I must, therefore, determine whether on the undisputed facts adduced on this record Palazotto was justified in seeking entry into Mejias' apartment to arrest him on September 3, 1974, and whether once inside the apartment, the arrest of the other defendants was consonant with federal legal and constitutional standards.
Before proceeding to that analysis, let me deal first with several threshold issues.
The pat-down of the defendants by Palazotto on entry into the apartment to determine whether they were armed, Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), and the look through the apartment to determine whether any persons were in the apartment was reasonable, prudent conduct and, indeed, essential to insure the safety of the law enforcement officers. See Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
The seizure of the evidence which defendants seek to have suppressed was held invalid under New York law. People v. Salazar, 83 Misc.2d 922, 373 N.Y.S.2d 295 (Sup.Ct., N.Y.Co.1975). Defendants' reliance on the state court determination as controlling in respect of their motion in this court, however, is surely misplaced. The admissibility of evidence in a federal criminal trial must be tested by federal law, United States v. Burke, 517 F.2d 377, 382 (2d Cir. 1975), and in this instance what must be determined is whether the requirements of the Fourth Amendment have been met. United States v. Bedford, 519 F.2d 650, 654 (3d Cir. 1975). That determination must be made independent of and apart from what has been decided as mandated by state law.
Detective Palazotto was a member of a state-federal dangerous drug enforcement enterprise seeking to apprehend those persons involved in the importation, sale and distribution of narcotics in the New York City area. In the course of this law enforcement effort, Esmerida Sanchez, the maid of defendants, Estella and Mario Navas,
and one Lilia Prada were arrested on January 31, 1974, for selling narcotics to undercover agents. The two women decided to cooperate with law enforcement authorities and became informers. The telephone of Mario Navas was tapped, as was that of one Mono, another suspected narcotics dealer. Through Prada and Sanchez controlled buys of cocaine were made from Navas. During the course of the investigation and pursuant to surveillance of Mono and Navas and the wiretap of their telephones, law enforcement authorities were given good cause to suspect that the defendant Mejias was working with Mono and Navas in the sale and distribution of drugs.
Between February, 1974, and September, 1974, several conversations between Mono and Mejias and Navas were overheard, which police had reason to believe concerned the sale and distribution by Mejias of narcotics. Mejias was often seen in the company of these two men, sometimes entering and leaving their apartments. At one point, Sanchez told the police that Mejias and Navas had arrived at the latter's apartment carrying a number of containers labelled "milk," and that Navas kept two of the containers and Mejias took the rest. Sanchez provided samples from the containers to the police, and laboratory testing showed the substance to be milk sugar. She also reported Navas as having guns in his possession.
Among Palazotto's responsibilities was the reading of all the reports of surveillance, all synopses and all running summaries of wiretapped conversations made or secured in the investigation. From these various reports, synopses and summaries, he would extract information which he believed of particular value for his superiors. He, therefore, was familiar and conversant with all the information which had been gleaned in the investigation through surveillance and overheard wiretapped conversations and reports from informers during 1974 and before. He was on vacation during the month of August, 1974. He came in several times during August to pick up his pay check, and on those occasions he reviewed whatever additional reports, synopses or summaries that had accumulated in his absence. On September 3, 1974, he returned to work from vacation and reviewed all the reports, synopses and running summaries of over-heard conversations for the period August 28 - September 2.
In an overheard conversation between Navas and Mejias on August 31, 1974, the sale of a kilogram of cocaine for $22,785 was discussed, and the two discussed meeting later that night at 7 or 7:30 p.m. He also read a synopsis of a call later on August 31 between Mono and Mejias in which Mono inquired whether Mejias had seen Botallan, and Mejias asked Mono whether Navas was coming over.
Early in the day on September 3, 1974, Detective Manning was on surveillance at Mejias' residence, and he reported seeing Navas and Mejias meeting in front of the building where Mejias lived; that Navas was carrying a red shopping bag with white handles; that both had entered the building and a short time later had come out of the building. When they came out Navas was no longer carrying the shopping bag.
After reviewing the various reports, summaries and synopses referred to and having received Manning's report of Mejias and Navas meeting, Palazotto, at 2:30 p.m. on September 3, himself took up surveillance outside Mejias' apartment. Shortly after assuming surveillance, ...