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UNITED STATES v. RIVERA

January 12, 1979

UNITED STATES of America
v.
Manuel RIVERA, a/k/a "Nector Galarza," a/k/ "Nester," Maximino Ramirez, a/k/a "Cookie," Domingo Torres, a/k/a "Dominic," David Lopez, Rafael Melendez, a/k/a "Nestali," Petra Vila Mathaus, Olga Galarza, Ramon Gonzalez, a/k/a "Moncho," Julio Perez Cestero, a/k/a "Julio Perez Cestaere", a/k/a "Julito" and Jane Doe, a/k/a "Elena," Defendants



The opinion of the court was delivered by: DUFFY

OPINION AND ORDER

The Grand Jury, in a two-count indictment, filed September 11, 1978, charged the defendants, Manuel Rivera, Maximino Ramirez, Domingo Torres, *fn1" David Lopez, Rafael Melendez, Petra Vila Mathaus, Olga Galarza, Ramon Gonzalez, Julio Perez Cestero and Jane Doe (later identified as Maria Elena Zea-Carpio,) with conspiring to import and distribute a large quantity of heroin, in violation of a variety of the federal narcotics laws. *fn2"

Defendants Rivera, Lopez, Galarza and Ramirez have separately moved to suppress certain evidence originally seized by New York State law enforcement officials. In addition, defendants Rivera and Lopez have moved to dismiss the indictment on the ground that by virtue of prior prosecutions they are faced with double jeopardy for the same offenses charged in the instant indictment. *fn3"

 I. Suppression

 A lengthy suppression hearing was held before me commencing December 18, 1978 and terminating on December 22, 1978. The following constitute my findings of fact and conclusions of law.

 A. Rivera and Galarza

 In the latter part of 1976 the defendant, Manuel Rivera, was sought by the New York City Police Department as a suspect in connection with multiple homicides in the Bronx and in Queens. All efforts to locate Rivera had proved futile. It was not until October 25, 1976 that the police learned, through a confidential informer, Benny Escobar, that Rivera was living with his common law wife Olga Galarza, a co-defendant in this action, in a Bronx apartment located at 1383 Bronx River Avenue. Escobar also corroborated much of the information the homicide detectives had pieced together concerning Rivera's involvement in the murders. In light of Escobar's apparent reliability, the detectives decided to immediately place the Rivera/Galarza apartment under surveillance. Once it was determined that Rivera resided therein, they would place him under arrest.

 As it turned out, however, just hours before the surveillance and anticipated arrest of Rivera, Escobar volunteered additional information, tangential to the homicide investigation, linking Rivera with a large narcotics operation in the Bronx. In fact, Escobar stated that the homicides in issue were actually the by-product of the narcotics operation in which Rivera occupied a prominent position. Furthermore, the detectives were told that Rivera was presently storing a large quantity of heroin in his apartment at 1383 Bronx River Avenue. At this point, an Assistant District Attorney called in the Bronx Narcotics Unit and set the wheels in motion for securing a search warrant of the Rivera apartment as soon as possible.

 The surveillance of the Rivera apartment began the next morning as scheduled, however, in light of the recent developments it was decided that rather than entering the apartment to arrest Rivera they would simply maintain surveillance of the apartment. This would enable the homicide detectives to monitor Rivera's movements while the Narcotics Unit secured a search warrant. To this end, Detectives Marsenison and Paul, of the Homicide Division, were stationed outside of 1383 Bronx River Avenue. From their vantage point they observed Rivera exit the building and drive off with another individual, later identified as Sixto Mayi. The detectives followed the Mayi vehicle and, after two brief stops, at an auto body shop and a restaurant, the car headed for the Sheridan Expressway. Paul and Marsenison decided to stop the vehicle before it entered the expressway and proceeded to force it to the side of the expressway entrance ramp. The detectives approached the vehicle, carrying shotguns and calling out that they were police. A gun battle ensued with Rivera shooting a pistol at the officers while Mayi backed the car at great speed off the entrance ramp. Detective Paul fell to the ground wounded in the crossfire. After helping Paul to their vehicle, Detective Marsenison attempted to follow the car in which the defendant Rivera was a passenger but that vehicle was lost from the detectives' view. Accordingly, the detectives retraced their steps, first to the restaurant then to the auto body shop and finally back to the Rivera/Galarza apartment. There Paul was turned over to uniformed police who were present pursuant to an "Assist Officer" call. Thereafter, Detective Marsenison knocked on Rivera's door and was admitted by Olga Galarza. *fn4"

 Defendants Galarza and Rivera both allege that upon entering the apartment, Marsenison conducted a full search thereof without a warrant and without the consent of Ms. Galarza. They further assert that it was at this point that a red suitcase containing three pounds of heroin and a pistol were seized and only later, in an effort to cure an initially defective search, was a search warrant secured.

 Alternatively, defendants argue that even if a warrant was secured prior to a full search of the apartment, it was not issued on probable cause and was therefore defective. *fn5" I find, however, that the totality of credible evidence does not support either of defendants' allegations.

 It is undisputed that upon losing sight of the Mayi vehicle on October 26, 1976, Detectives Paul and Marsenison returned to the Rivera/Galarza apartment where they were joined by Detectives Trainer, Power and Howard all members of the Eighth Homicide Squad. It is at this point, however, that the facts are bitterly contested.

 Much was made of the fact that Ms. Galarza neither speaks nor understands English. It was argued that upon returning to the apartment Marsenison and the other homicide detectives initially gained entrance thereto without Ms. Galarza's consent. It was argued that they intimidated Ms. Galarza into opening the door. Even assuming this to be true, *fn6" I find that nothing was seized by the detectives at this point and, therefore, there is nothing to be suppressed.

 It was apparent from the testimony at the hearing that the detectives, with or without consent, merely conducted a walk-through search for defendant Rivera. This search consisted of looking in each of the rooms, closets and under the beds. There is simply nothing credible to indicate that upon this initial entrance a full search of the apartment was conducted. Indeed, the totality of evidence and logic both compel the contrary conclusion. The homicide detectives knew that the narcotics unit was in the process of securing a warrant authorizing a full search of the premises. It was established that upon learning of the presence of narcotics in the Rivera/Galarza apartment, the investigation became a joint operation between the narcotics and homicide unit. There is no reason to believe, or evidence to suggest that the homicide detectives would risk an illegal seizure at this point in the investigation. Moreover, the unanimous testimony of those detectives of the narcotics unit who went to the apartment later that day armed with a valid search warrant, Detectives Brady and Coursey, was that before executing the warrant they established, by questioning the homicide detectives present in the apartment, that the premises had not been searched. They also testified that upon entering the apartment and a visual inspection thereof everything was in order and it was clear to them that no prior search had taken place. There is no reason to doubt their testimony and I find it dispositive of this issue.

 The balance of defendants' arguments focus upon the role played by the confidential informant, Benny Escobar, in securing a search warrant for the Rivera/Galarza apartment.

 It was upon the affidavit of Detective Kevin Coursey, dated October 26, 1976, that the search warrant was issued for the Rivera/Galarza apartment located at 1383 Bronx River Avenue. The defendants' contest, however, the reliability of the confidential informant who was the source of the information contained in the Coursey Affidavit. They argue that the affidavit was insufficient in that it failed to state on what basis the informant could be judged to be credible or his information reliable by the issuing Magistrate.

 It is now settled that the constitutional requirement of probable cause can be satisfied by hearsay information. Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). It is equally as clear, however, that where the hearsay is that of a confidential informant not personally before the issuing Magistrate, as in the case at bar, the affiant must set forth the basis of the informant's information and demonstrate that the informant is credible or his information reliable. Spinelli v. United States, 393 U.S. 410, 413, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, supra.

 Upon review of the Coursey Affidavit, I find it sufficient to establish both the basis of the informant's information and the reliability of his information. Indeed, the affidavit states that the informant's information concerning the presence of narcotics was based upon personal knowledge and that prior information supplied by him led to at least one arrest and one narcotic's buy in the past. Moreover, Officer Coursey gave oral testimony before the issuing Magistrate which more fully set forth the basis of the informant's information as well as demonstrating his credibility and the reliability of his information.

 Accordingly, defendants' Rivera and Galarza's motions to suppress must be denied.

 B. Lopez

 In March of 1977 the defendant, David Lopez, was indicted by a California Grand Jury for violations of the federal narcotics laws. Thereafter, as a result of an investigation, it was learned that prior to his indictment Lopez had been living in an apartment with one Martha Diaz at 1485 Macombs Road in the Bronx. As a potential witness in the Lopez trial Ms. Diaz was interviewed in late March by Officer Kenneth Robinson of the New York Drug Enforcement Task Force.

 In the course of the interview, Ms. Diaz told Officer Robinson that Lopez no longer resided in the apartment and she had no idea where he was presently residing. She went on to say, however, that Lopez had left certain personal effects in the apartment. She then voluntarily turned the items over to the Officer, which included a "travel diary." It is the introduction of this travel diary that Lopez seeks to suppress in the instant motion.

 The defendant argues that he was in fact living with Ms. Diaz prior to his arrest and the apartment was, at the time of the "seizure," his permanent residence and, consequently, he had a proprietary interest therein. He further argues that if Ms. Diaz voluntarily turned the travel diary over to the police she did so without his consent or a waiver of his consent. He concludes, therefore, that the seizure of the diary was violative of his fourth amendment rights and it must be suppressed. *fn7" I disagree.

 It is clear that where the government seeks to justify a warrantless seizure, as in the instant case, by proof of voluntary consent, it is not restricted solely to consent given by the defendant but rather may prove consent, sufficient to justify the seizure, by a third party "who possessed common authority over or other sufficient relationship to the premises or effects" ...


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