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September 15, 1978

Charles PRAETORIUS, Diann Praetorius, et al., Defendants

The opinion of the court was delivered by: NICKERSON


Charles and Diann Praetorius, indicted along with numerous others for violations of the laws relating to drugs, 21 U.S.C. §§ 841 ff., have moved to suppress evidence seized by government officers in their house in Pleasantville, New York. The indictment charges, among other things, a widespread conspiracy to import heroin from Bangkok, Thailand, and includes several counts alleging actual importation. The court finds the following facts.

 On March 15, 1978, subsequent to the indictment, federal, state and local officers met to receive instructions for the arrest of the various defendants. Drug Enforcement Administration ("DEA") agent Michael Yanniello, the so-called case agent, conducted the meeting. The officers were to divide into teams, and Yanniello explained the nature of the case, the contents of the arrest packages, and the locations where the defendants might be found. He also instructed the officers that "if they were in a position to obtain the passports of the defendants upon their arrest to do so" and to tell the defendants that "most likely the surrender of that passport would be a condition of bail" (Tr. 365).* The passports would be relevant evidence since any stamps contained in them would show whether the defendants had visited Thailand and, if so, on what dates.

 On March 16, 1978, the teams deployed to various areas where it was anticipated the defendants would be found. Some time around 3:30 or 3:45 in the afternoon of March 16, 1978 Detective Sergeant James Thompson of the Suffolk County Police Department met DEA agent Robert O'Leary at LaGuardia airport. They, together with other officers, then proceeded to the Praetorius residence, arriving shortly before 6:00 P.M. Several members of the Pleasantville police department, including its chief, were waiting for them around the corner.

 The officers knocked on the door but received no immediate answer. Soon, however, Ms. Praetorius, who looked out the window, recognized the Pleasantville Chief of Police and, garbed in her bathrobe, opened the door. The officers displayed their shields. O'Leary had his gun drawn and held it at his side. Ms. Praetorius invited the officers in. O'Leary showed her an arrest warrant, advised her that she was under arrest, and read to her from a card (Ex. 1A) the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He also recited the final two sentences printed on the card reading "Do you understand your rights? Do you elect to waive them?"

 Ms. Praetorius, who was nervous, did not respond but simply looked totally astonished. (On this point the court accepts the testimony of Thompson, whom the court finds thoroughly credible, rather than the testimony of O'Leary). The officers then told her that "one of the conditions of her bail, at arraignment, would be the surrender of both her passport and that of her husband, Charles Praetorius" (Tr. 192).

 With that Ms. Praetorius said the passports were probably upstairs in the bedroom. The officers accompanied her to the bedroom. Thompson then showed her a blank DEA consent to search form (Ex. 217), to authorize a search. The form recited, in substance, that the signatory might require a search warrant prior to any search, might refuse to consent to a search, and might consult with anyone of his choosing before consenting, and that anything subject to seizure found as a result of the search could be used in a criminal prosecution. Thompson told her that she had been arrested for conspiracy to distribute narcotics, that he would like to search the house to see if any drugs or proceeds of drugs were concealed on the premises, and that, since the officers had no search warrant, they could search only with her consent. Ms. Praetorius after reading the form responded: "I have nothing to hide here. You can look anywhere you wish. I will just not sign anything until I have spoken to my husband" (Tr. 263).

 After Thompson asked again where the passports might be, Ms. Praetorius picked up from a table her pocket book and began looking in it. At Thompson's request she handed it to O'Leary, who found in it approximately $ 3,300 in cash which he seized after asking what the money was for. She said it was her household money.

 The officers then asked once more the location of the passports, and she said they might possibly be in the men's wardrobe which contained her husband's suits. She started to look in one of the suits but was "very nervous and upset at the time" (Tr. 193) and therefore asked O'Leary if he would look through the suits. He patted down the suits and in one suit found and seized approximately $ 6,000 and some heroin.

 Thompson then asked her to get dressed, to pick out the clothing she wished to wear, and to submit it to him for inspection. She did so and dressed in the bathroom.

 When she emerged the officers again asked her where the passports might be. She replied that she and her husband were planning a trip and that the papers needed for the trip would be located in a briefcase on a table near the bed. She, Thompson and O'Leary went over to the table where she pointed to a brown briefcase. O'Leary opened it and found no passports but approximately $ 14,000 in cash which he seized. He also seized a revolver in view on a shelf on the table.

 Thompson then inquired once more as to the whereabouts of the passports, and she responded that the only other place they could be was in the safe. She proceeded with Thompson and O'Leary to the safe, opened it, and pointed to the passports. Thompson picked them up. O'Leary at that time noticed in the safe a plastic shopping bag with money protruding from it. He seized the bag and found it to contain approximately $ 37,000. He also saw in the safe and seized an automatic pistol. Next to the safe were two briefcases and two plastic bags, all of which he seized. He opened the briefcases and saw that they contained electronic equipment.

 At this point Ms. Praetorius was highly upset, "noticeably nervous, shaking" (Tr. 195), so that Thompson thought it appropriate to accompany her to another room to calm her. There she asked what the ...

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