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UNITED STATES v. MANGERI

March 22, 1978

UNITED STATES of America,
v.
Jose Pablo MANGERI, Defendant



The opinion of the court was delivered by: STEWART

MEMORANDUM DECISION

 STEWART, District Judge:

 Defendant Jose Pablo Mangeri moves to suppress evidence seized from his apartment *fn1" on the morning of November 28, 1977. In October, 1977, an arrest warrant had been issued for the defendant in the Southern District of Florida, based on a complaint charging the defendant with involvement in a narcotics conspiracy. Shortly after the warrant was issued, Drug Enforcement Administration agents in Florida contacted agents in New York and asked them to locate Mangeri and to arrest him. The agents discovered that Mangeri was living at the York Avenue apartment with his fiancee, Lynne Hochberg.

 On the morning of November 28, 1977, three agents, Brogan, Mella and Fillmore met at the apartment building. After checking with the management and seeing a layout of the apartment, the agents proceeded to the 37th floor. *fn2" Fortuitously, as the agents were getting out of the elevator, another woman also got out who they realized was about to enter apartment 37C. The woman was the defendant's maid, who had previously been announced by the doorman to the occupants of the apartment. The agents quickly decided to enter the apartment behind the maid, and agreed that Brogan and Fillmore would arrest the defendant while Mella would search the apartment. Lynne Hochberg opened the door for the maid, and the three agents entered behind the maid with their guns drawn. The agents could see the defendant the moment they entered the apartment, as he was lying on a sofa bed in the living room. The defendant immediately surrendered to the agents.

 There were several other people congregated in the living room at the time of the agents' entry -- the defendant's parents, his sister Monica, and Monica's 7-year old daughter. All the occupants were in pajamas or nightgowns. Agents Brogan and Fillmore arrested and handcuffed the defendant and searched him, while Mella placed the other people on or around the bed, which was located in the front of the living room (toward the gallery). *fn3" Agent Mella did not search the other individuals, since

 
The clothing that they were wearing was nightclothes, and I didn't see any bulges, and it would have been easy for me to detect it, being that they were wearing the nightclothes, which are of a looser -- of a filmsy kind of material or thin material that would disclose any kind of a bulge. Tr. at 123.

 Since the defendant was in nightclothes, agents Brogan and Fillmore escorted the defendant into the bedroom *fn4" (by walking through the gallery, not the dining room) so that he could get dressed. *fn5" Hochberg followed them into the bedroom. Agent Mella remained in the living room with the defendant's parents, sister and niece. Several minutes after entering the apartment, Mella made a cursory search of the apartment for security purposes. Agent Mella testified that such a search is routinely made by agents making an arrest in a dwelling place. He testified:

 
The nature of the training was that anytime that an agent or agents have [sic] any kind of law enforcement agency were to make an arrest in a dwelling place, the premises would always have to be secured.
 
Now, what I mean by "secured" is that at least one agent, possibly two, if available, would search the area of the dwelling place for individuals who might be hiding or secreted in any area of the dwelling place.
 
The reason for this search to secure the apartment or dwelling is that the agents have the responsibility of their safety and the safety of the individual that they had just arrested.
 
* * *
 
With me, it's almost a kind of thing where I do it religiously because it is -- I am doing it for my own personal safety and that of my brother agents, so its something you won't forget to do. It's something that you do when it's -- it's a conditioned kind of thing. Tr. 116-118. (See also pp. 165-169).

 Agent Mella left the defendant's parents, sister and niece alone in the living room when he went to search the apartment.

 
I felt relatively secure in leaving them unattended at that time because I either had to stay there and attend them or neglect my search of the rest of the apartment for security purposes, and the fact that they were women and an elderly man and a young child, I felt ...

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