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UNITED STATES v. BENN

November 25, 1977

UNITED STATES of America
v.
Kevin BENN, Ronald Barnes and Stanley Parks, Defendants



The opinion of the court was delivered by: NICKERSON

OPINION AND ORDER

 NICKERSON, District Judge.

 In this criminal case involving the federal narcotics laws, 21 U.S.C. § 841(a)(1), and conspiracy to violate them, 21 U.S.C. § 846, defendant Kevin Benn moves on Fourth Amendment grounds to suppress certain items seized from his residence in Queens, New York, and the other two defendants, Stanley Parks and Ronald Barnes, join in the motion. Benn moves also to suppress his oral statements as taken in violation of the Fifth Amendment. In addition, Barnes seeks to suppress a manila envelope seized at the time of his arrest.

 The testimony at the suppression hearing showed the following pertinent facts. In April 1977, New York City police officials and special agents assigned to the Drug Enforcement Administration ("DEA") of the United States Department of Justice were conducting a narcotics investigation in Queens. On April 21, 1977 near 209th Place and 110th Avenue, Queens, DEA Special Agent Wilbur Ladson made a purchase from Parks of heroin, which Parks said he had acquired from Benn. On May 3, 1977 near Benn's then residence on 209th Place and 111th Avenue Ladson sought to buy heroin from him. Benn said that Ladson could buy ten "spoons" at $90 a piece but would have to put the money "up front" and take delivery later. No purchase was made.

 On May 5, 1977 Ladson returned to Benn's residence and sought to buy five "spoons". Again Benn required the money "up front", and Ladson responded he would return later. When he did so Barnes emerged and relayed Benn's message that the money must be "up front" with delivery at an address Barnes had written on a piece of paper. Ladson refused and rang the bell to the house. When Benn came to the window he reiterated that the money must be "up front". Ladson again refused and departed.

 On May 11, 1977 Ladson met once more with Parks to buy heroin. They drove to Benn's residence which Parks entered. He then came out and told Ladson that Benn had gone to another location. There Parks met with Benn then returned to the car and waited for two or three minutes until Benn signalled. Parks got out, conversed for a minute with Benn, and then told Ladson to drive to still another location. Upon arriving there Ladson gave Parks $450 with which he walked out of view and shortly returned to say they would pick up the heroin in about two hours at the same location. On Ladson's return Parks delivered the heroin.

 On June 20, 1977, Ladson, Detective Richard Lehan and Special Agent Ross drove to the vicinity of 198-03 Street and 120 Avenue to arrest Benn. This was known to be Benn's new residence, he having moved in the interim. Soon they saw Benn and Barnes come out of the building and enter a 1972 green Thunderbird, Benn in the driver's seat. With the officials following, the Thunderbird proceeded a few blocks then pulled over to the curb at 205 Street and Linden Boulevard.

 As Benn got out of the car Lehan arrested him. Barnes, on the passenger side, held a small brown manila envelope which he was "attempting to put away". Although told not to move he dropped it between the right hand door and the seat. Ladson then arrested Barnes, and Ross recovered the envelope which proved to contain heroin. Benn and Barnes were placed in the rear of the government automobile and were fully advised of their constitutional rights by Lehan.

 In the meantime, Detective William Kilgallon, the case agent in charge of the group, and Sergeant Kapp were several blocks away in a government automobile near Benn's residence. They were advised by radio of the arrests and drove to the arrest scene within a few minutes. Kilgallon asked Benn where the keys were to his 1976 Ford Grenada, which was to be seized for violation of Federal law. Benn replied that "his wife had the keys and it was back at his house."

 Kilgallon and Kapp then drove in one government automobile back to Benn's residence. Lehan and Ross, with Benn and Barnes in custody, followed in another government vehicle. Kilgallon knocked at the door of Benn's residence and a Mr. Jupiter opened the door "fairly wide." In response to Kilgallon's question Jupiter told him that Mrs. Benn had left a short time previously. The door opened into the kitchen, and Kilgallon, while still outside the threshold, saw on top of the refrigerator, some ten feet away, several strainers of different sizes and some spoons. He walked across the threshold into the kitchen and went over to look at the strainers and spoons. He then observed underneath them a box which had stamped on it in green ink "Green Barron". Kilgallon opened the box and found it to contain empty glassine bags, rubber bands, an ink pad, and a rubber stamp with the impression Green Barron. The packages purchased by Ladson from Parks on May 11, 1977 were similarly stamped "Green Barron" in green ink. Kilgallon seized the strainers and spoons and the box with its contents.

 Kilgallon testified that he then called the United States Attorney using Benn's telephone and was advised that unless there was additional evidence in the house it would be unnecessary to obtain a search warrant. He walked out with the seized items and asked Benn, who was in custody in the government vehicle, whether there was any contraband in the house. After Benn responded that there were no narcotics but there was a gun, Kilgallon, again without a warrant, returned inside, opened the drawer Benn had identified, and seized a.22 caliber automatic weapon and $1000 in United States currency. Later Benn made incriminating statements to the officers.

 The claim of Benn that his oral statements should be excluded is without merit. The court finds that there was probable cause to arrest him, that he was fully advised of his rights, and that his statements were knowingly and voluntarily made. Similarly, there was probable cause to arrest Barnes, and the seizure of the manila envelope which he dropped was appropriately incident to the arrest.

 The only matter of substance for the court to consider is Benn's motion to suppress the evidence seized from the top of the refrigerator. The court holds ...


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