The opinion of the court was delivered by: DUFFY
Defendants Robert Currington and Frank Townsend, indicted in two counts alleging possession of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), have moved under Fed.R.Crim.P. 41(e) to suppress evidence found in Townsend's car and apartment and in Currington's apartment. Primarily, they claim that police officers lacked sufficient probable cause to stop and search Townsend's car and that, as a result, all evidence ultimately derived from that search must be suppressed as "fruit of the poisonous tree." After having heard and considered extensive testimony during a five day evidentiary hearing held between January 26, 1978 and February 6, 1978, it is my conclusion that the searches were proper in all respects and accordingly the motion to suppress is denied.
On the morning of August 18, 1977, Agent Richard Bell of the Drug Enforcement Administration ("DEA")
was on surveillance in the area of West 90th Street and Columbus Avenue in Manhattan when he observed Frank Townsend drive up in a 1977 cream-colored Thunderbird. Bell recognized Townsend from a flier put out by the Unified Intelligence Division (an organization made up of New York State and City police officers, federal agents, and DEA agents) and a "rap sheet" circulated by the New York City Police Department. According to both the flier and the rap sheet, Townsend was considered a major narcotics dealer. Moreover, Bell knew that an informant previously found reliable by the DEA had identified Townsend as the ultimate source of a sample of heroin distributed in March or April of 1977.
Bell closely observed Townsend as the latter parked near the intersection of West 90th Street and Columbus Avenue, emerged from his car, and entered an apartment building at 35 West 90th Street. Bell knew this building to be the residence of Robert Currington, with whom Bell had had prior dealings concerning narcotics. In March 1977, Bell had met Currington in a restaurant on the upper west side of Manhattan, at which time Currington had unsuccessfully attempted to buy some cocaine from Bell. Furthermore, Bell had observed Currington transacting sales of heroin with a DEA informant on two occasions in April 1977, and had watched as Currington accepted delivery of 480 bars of mannite (a substance often used to dilute heroin for sale) on May 17, 1977. In sum, Bell had reason to be suspicious of a meeting between Townsend and Currington under any circumstances.
Approximately twenty minutes after Townsend had entered the building at 35 West 90th Street, he emerged with Currington, who carried a briefcase or attache case (hereinafter referred to by the generic term "briefcase"). After one or both of the pair had briefly visited a nearby stationery store, they got into Townsend's car with the briefcase and drove south down Columbus Avenue. In the meantime, Bell had ascertained that the Thunderbird was leased to M.T.S. Industries by Daks Auto Leasing on Long Island. Radioing for back-up from fellow-agents, Bell followed the Thunderbird as it turned right on 86th Street, right again on West End Avenue, left on 96th Street, and entered the West Side Highway heading north toward the Henry Hudson Parkway. As he followed the Thunderbird up the West Side Highway to the Henry Hudson Bridge, Bell observed Townsend driving evasively -- that is, speeding up and slowing down for no apparent reason.
Eventually, Townsend exited from the Henry Hudson Parkway at the Broadway South Exit near 254th Street in Riverdale. Agent Bell testified that this maneuver was accomplished by Townsend cutting sharply across all three lanes of traffic from left to right -- apparently, at least to Bell's mind, in an attempt to avoid continued surveillance. By this time, other agents in other cars had joined in the surveillance. From the Broadway South Exit, the Thunderbird turned south on Broadway and proceeded around the block across from Van Cortlandt Park in the vicinity of 252nd Street. Townsend and Currington then drove south on Broadway to 238th Street, where they circled around the area of the Riverdale Diner; it is unclear exactly what ground was covered by Townsend in this maneuver. At any rate, Townsend and Currington finally parked near the Dempsey Dumpsters at the rear of the diner and entered the restaurant without the briefcase. Agent John Maddox (one of those who had joined the surveillance) and his partner followed Currington and Townsend into the diner and watched them sit down and eat lunch, trying unsuccessfully to overhear their conversation.
During the time the two suspects were in the diner, Group Supervisor Jeffrey Hall joined the surveillance team and was apprised of the actions of Currington and Townsend up to that time.
After finishing their meal, Currington and Townsend re-emerged from the diner, entered the Thunderbird, and drove north on Broadway in the general direction of the Henry Hudson Parkway. This time, however, they stopped at 9621 Broadway (where Townsend had an apartment-office) and parked in the lot at the rear of the apartment building. Bell positioned himself on a side street near the parking lot and observed Currington and Townsend enter the apartment building from the rear, with Currington carrying the briefcase which Bell had previously seen in his possession on West 90th Street. Shortly thereafter, the pair emerged from the building -- Currington still carrying the briefcase -- and drove away together in the Thunderbird. After entering the Henry Hudson Parkway, Townsend drove east to the Major Deegan Expressway by way of the Mosholu Parkway extension. By this time there were a number of DEA agents positioned in several cars participating in the surveillance. To avoid detection, each car would be the lead surveillance vehicle for a period of time and then drop back for another to take over.
As Townsend's Thunderbird approached the Yankee Stadium exit from the Major Deegan Expressway, it signalled a left turn and immediately veered off, exiting on the right. At the top of the exit ramp, the Thunderbird turned left and then left once again on Jerome Avenue near Macombs Dam Park, heading north. At this point, Group Supervisor Hall, who was in the lead surveillance car, decided to stop the Thunderbird, fearing that otherwise Townsend would lose the surveillance team. Accordingly, he pulled alongside Townsend's vehicle, displayed his identification through the window, and ordered Townsend to pull over. Townsend complied, stopping near the curb, and Hall's car stopped slightly ahead and to the left of the Thunderbird. Thereafter, both Townsend and Currington got out of the car, moved to the rear of the passenger side of the Thunderbird, and were engaged in conversation by Hall, who asked Currington if Hall could look in the briefcase. Currington denied any knowledge whatsoever of the briefcase, which at this point was situated on the floor in the back of the Thunderbird behind the passenger seat and was visible through the partially open passenger door.
Townsend, upon being questioned about the briefcase, began backing toward the open passenger door while answering that the agents had him "on the spot," but that he could not in any event allow them to look in the briefcase. Currington at the same time began backing in the opposite direction -- away from the officers and the car -- saying that he would leave. At this point both Currington and Townsend were arrested.
Hall then took the briefcase from the car, opened it, and discovered two paper bags containing plastic bags which, in turn, contained a tan substance later proved by chemical analysis to be heroin.
Later on August 18, 1977, DEA agents searched Townsend's office-apartment at 9621 Broadway and seized a quantity of heroin and cocaine. Although this search was not performed pursuant to a warrant, counsel for the government and Townsend represented to the court that Townsend is not challenging this second search, save insofar as it was the "poisonous fruit" of the prior allegedly improper search of Townsend's car. In addition, Currington's residence at 35 West 90th Street was searched pursuant to a warrant on August 18, 1977, and a briefcase containing personal business papers was seized. This briefcase has since been returned to Currington and he knows of no papers not returned. Nonetheless, he seeks suppression of any possible copies of these papers, claiming that this search also was the "poisonous fruit" of the first allegedly illegal search.
Defendant Currington called as a witness Agent Maddox and sought to make much of the apparent inconsistencies between his version of the surveillance operation on August 18, 1977, and that testified to by Agent Bell and Group Supervisor Hall. These inconsistencies are not considered by the court to indicate that any of the agents were lying; on the contrary, they are the hallmarks of the truth.
Maddox' sketchy memory regarding the events of August 18, 1977, is largely attributable to the fact that he had been transferred to New York from New Orleans only two or three days prior to August 18. Accordingly, he knew virtually nothing of New York geography or even of New York DEA procedures. Moreover, Maddox' testimony at the instant hearing was preceded by only a glancing reference to reports made shortly after the events in question. When called to testify, Maddox was engaged in closing the purchase of a home in the New York area, which took the time he otherwise might have spent reviewing the facts with fellow agents and reading written reports.
Currington also produced Miss Cheryl Chaney, a friend of Currington, who testified she had been at a neighbor's window to view the availability of tennis courts on August 18 when she saw Townsend's car approach from the 155th Street Bridge. From the neighbor's window, Chaney allegedly saw Hall pull Townsend over, emerge from his car, and talk with Townsend for ten or fifteen minutes while Townsend remained in the car. Chaney further testified that eventually Townsend and Currington got out of the car and one of the agents opened the trunk of the Thunderbird. Chaney claims that shortly thereafter she ran downstairs and outside to ...