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June 25, 1979


The opinion of the court was delivered by: PLATT

Defendant, Jose Manuel Baltazar, has moved to suppress the fruits of a warrantless search, seizure and arrest executed on March 5, 1979 by New York City detectives. Defendant and four other persons arrested at the same time and location, Beatrice Lopera, Alexandra Escobar, Luis Tobon Gonzalez, and Jesus Espinal, were indicted in federal court for violating Title 21, United States Code Section 841(a)(1) and Title 18, United States Code Section 2, possession with intent to distribute one hundred seventy-eight (178) grams of cocaine hydrochloride, a Schedule II narcotic drug controlled substance. All five defendants moved to suppress all items seized from, and all statements made by, them at the time of their arrest on the grounds that the same were obtained in violation of defendants' constitutional rights. Pursuant to these motions, a hearing was held on April 20, May 3, May 4 and May 24, 1979. *fn1" Although Jose Manuel Baltazar is now the only defendant in this case who has not pled guilty or against whom the indictment has not been dismissed, *fn2" an analysis of the legal issues raised by his motion, and in particular the question of defendant's standing to have evidence suppressed, requires a rather detailed summary of the testimony received at the hearing.



 The Court heard testimony from four witnesses: Detective Thomas Healy of the New York City Police Department; Special Agent Richard K. Crawford of the Drug Enforcement Administration; and two Spanish language interpreters, Jack Trabout and Manuel Ras, called by defendants.

 Detective Healy testified that as a member of the Queens Homicide Task Force he had been assigned to investigate a double homicide that had occurred in Queens on October 18, 1978 (Tr. 12-13, 103, 109, 113, 116-118, 148). *fn3" In late January or early February of 1979, Agent Crawford, a member of Group Five of the Drug Enforcement Agency's ("DEA") New York Joint Task Force, informed Det. Healy that a visit to an apartment located at 2534 Crescent Street in Astoria, Queens, might prove useful in the latter's homicide investigation (Tr. 105, 120, 303, and 319-320). Having learned that certain individuals he wished to interview "had at one time or other stayed at that apartment in Astoria" and that one of the two deceased had been "a frequent visitor" there (Tr. 109 and 113), Det. Healy went to the Crescent Street address on February 27, 1979 and was let into the apartment by the building superintendent. The apartment had been abandoned but, after rummaging through garbage he found "a memo book or a little memo pad" which contained the address of an Apartment 6D located at 88-10 178th Street in Queens (Tr. 104-109, 119-120, 125, 127-130, 158, 238).

 On March 4, 1978 (Tr. 161), Detective Healy went to the 178th Street address where he spoke to the building superintendent. The superintendent thought that "at least two males and two females" were living in Apartment 6D, but he did not know their names (Tr. 153-156). He had a floor plan or a list of all the apartments which associated the name Guttierez with Apartment 6D (Tr. 285-286). Detective Healy consulted the building directory; although he could not remember at the hearing the name listed for Apartment 6D, he did remember that it was not Guttierez. He did not check for a name on the mailbox (Tr. 153-156). Presumably in order to learn more about the occupant or occupants of Apartment 6D, Det. Healy proceeded that same day to the premises of the Famma Realty Corporation where he requested a copy of the lease for that apartment and was given an application for a lease on the apartment. It dated from December, 1978, listed as the prospective tenant one Severinno Gutierrez, and was signed by one Beatriz Valasquez Gutierrez *fn4" (Tr. 15-16, 156-157, 159-163, 181-186, 285). Detective Healy testified that the "person at the realty (company) could only recall that it (the applicant for a lease) was a male and that the person (Gutierrez) spoke Spanish and the person in the realty office thought that the person was from Colombia" (Tr. 157).

 Sometime around nine o'clock in the evening of the following day, March 5, 1979 (Tr. 187), Detective Healy and three fellow police officers (Tr. 152, 236) returned to the 178th Street address to interview the occupant or occupants of the apartment listed in the notebook found in the abandoned Crescent Street apartment (Tr. 16, 177, 187). Det. Healy spoke to the building superintendent again (Tr. 163) and either on this occasion or during their meeting of March 4th the superintendent indicated that the occupants of Apartment 6D were Spanish-speaking persons from Colombia and "roughly stated their ages and complexions and builds" (Tr. 178). One of the superintendent's descriptions matched the description of an individual sought by Det. Healy in connection with his homicide investigation (Tr. 177-179, 238). *fn5" In order to determine the likelihood that somebody would actually be in the apartment at that time, Det. Healy went to the garage and found a car in the space leased to Apartment 6D (Tr. 164-165).

 As Detectives Healy and Fasullo took the elevator to the sixth floor, Detective Hudson stationed himself outside the building on the street below the windows of Apartment 6D and Detective Alleyne proceeded up the stairs and stationed himself on the sixth floor landing in the stairwell (Tr. 167-168; 171-172). Upon reaching the sixth floor, Det. Healy, accompanied by Det. Fasullo (Tr. 16, 171, 192), proceeded to Apartment 6D "listened for a second" at the apartment door but heard nothing (Tr. 192-193), and knocked on the door. He testified that he heard a female voice from within the apartment "but . . . couldn't make out what she was saying." (Tr. 16, 171, 193). Detective Healy then uttered the name on the lease application: "Severinno, Severrino Gutierrez" (Tr. 17, 193, 193a). Defendant Beatrice Lopera then opened the door halfway or a little more than halfway (Tr. 18, 194). This permitted Det. Healy an unobstructed view (Tr. 197) into the living room of the apartment. He could see a couch located approximately twenty-five to thirty feet from where he stood, placed up against the wall to his left and positioned in a manner perpendicular to the doorway (Tr. 19, 197-198, 255-256). In front of and parallel to the couch was a coffee table (Tr. 18, 100-102). A brown leather handbag was on the coffee table (Tr. 19, 21, 29). On the other side of the coffee table and facing the couch were two easy chairs (Tr. 18, 100-102, 255). When Miss Lopera opened the door, Det. Healy observed three other persons in the apartment. Defendants Alexandra Escobar and Jose Manuel Baltazar were seated on the couch, Miss Escobar being positioned closest to the door (Tr. 18, 20, 32, 255, 277-278); defendant Luis Tobon Gonzalez was seated in the easy chair closest to the door (Tr. 18, 32, 255, 277-278).

 On direct examination, Detective Healy testified that when defendant Lopera opened the door he displayed his detective's shield in his left hand and said: "I am a police officer. Where is Severinno Gutierrez?" (Tr. 17, 195-199). On cross-examination, he testified that he first repeated the name Severinno Gutierrez and then displayed his shield saying: "Police policia" (Tr. 195-196). As he spoke, Miss Lopera began backing away from the door (Tr. 19, 195-196). Detective Healy did not move his feet, walk towards Miss Lopera or touch the door (Tr. 196-197), but when she did not respond he repeated the name Severinno Gutierrez (Tr. 18, 194-195).

 At this time, Detective Healy observed Mr. Baltazar, who was seated approximately twenty-five feet away at the far end of the couch, "come forth off the couch and reach his right hand behind the brown leather bag" (Tr. 20, 21). Det. Healy testified that the bag was so positioned on the coffee table that he could not see what the defendant was reaching for (Tr. 20-21, 198) and testified that

"I got aroused, I thought he may be reaching for an arm, a pistol.
"I watched him intently and I went to my pistol, I had my pistol on the right side, I let go of the safety release on the holster, and I had it in my hand and I took the gun halfway out of the holster." (Tr. 22)

 When Mr. Baltazar's hand came back into view from behind the leather bag, he was holding by its tip "a clear plastic bag containing white powder" (Tr. 22, 198). Detective Healy testified that he saw Mr. Baltazar take the glassine bag containing white powder and place it "inside his coat in the area of his left armpit" (Tr. 23, 194, 196, 198, 339, 361-362).

 Detective Healy testified that based on his experience *fn6" he then believed the glassine bag secreted by Mr. Baltazar to contain cocaine (Tr. 23-24). He stated to Detective Fasullo, who was standing to his right: "Joe, there's coke" (Tr. 24) or "Gee, it's coke" (Tr. 199). Det. Healy then entered the apartment "walking rapidly." *fn7" As he neared the coffee table, he noticed that the brown leather handbag was open and contained money (Tr. 29). He displayed his shield which was still in his left hand and he still had his right hand on his pistol in his holster. As he approached the people in the living room he repeated "Policia, policia, policia" and as he approached Mr. Baltazar he motioned that Mr. Baltazar (who presumably had resumed his seat on the couch) should stand and said "Stand up, ariba, up" (Tr. 24-25, 198-199, 263).

 As Mr. Baltazar rose from the couch, Detective Healy replaced his shield in his left pants pocket and reached underneath Mr. Baltazar's coat, into the area of his left armpit, retrieved the clear plastic bag (Tr. 25-26) and confirmed his initial visual observation. Detective Healy then informed the four occupants of the apartment that they were under arrest (Tr. 30, 275-276). He noticed that Miss Lopera and Det. Fasullo had moved into the apartment and away from the door and were talking. He instructed Miss Lopera to sit on the couch and had Det. Fasullo make a quick check of the apartment for any other persons. There were no other persons in the apartment at that time and when Det. Fasullo returned to the living room the two officers handcuffed and searched the two male occupants, Mr. Baltazar and Mr. Tobon (Tr. 30, 35, 275-276). Detective Healy removed from Mr. Baltazar's coat pocket a driver's license, a car registration, and a social security card (Tr. 31, 35).

 At this point, Detective Healy took from his wallet a printed form containing the Miranda warnings. Prior to reading the four arrestees their rights, Det. Healy asked them if they understood English. He found he could converse only with Alexandra Escobar who said she was attending a school here to learn English (Tr. 36, 40, 53, 208-209, 340). Since none of the detectives on the scene that night had any fluency in Spanish (Tr. 172-174), Detective Healy asked her if she would translate what he read to the other three arrestees. She nodded in agreement (Tr. 36, 39, 199-200, 207). Det. Healy then read separately each Miranda Warning in English. After each such reading, he asked Miss Escobar if she understood what he had read; when she responded affirmatively, he asked her to translate and she spoke to the other three arrestees in Spanish (Tr. 35-41).

 When this process was complete, Detective Healy took a closer look at the handbag sitting open on the coffee table and noticed that it contained "numerous bills, United States currency, and it seem(ed) like they were bundled with rubber bands around them" (Tr. 41). Detective Healy asked whose money this was and Miss Escobar responded in English that it was hers (Tr. 42, 339). In response to further questioning, she stated that the bag contained two hundred dollars ($ 200.00) intended for a vacation (Tr. 41-42). Upon looking further into the bag, he found a "world health vaccination card" bearing the name Beatrice Soccoro (phonetic) Lopera Tobon (Tr. 42-43). Det. Healy looked again through the handbag and found two United States postal receipts for registered mail sent to Colombia, which receipts also bore the name Beatrice Lopera and the address of the apartment he was in (Tr. 45-46). He also found in the handbag a writing pad which he "perused through and saw that there were amounts, figures and some names" and a black notebook which also contained figures and names (Tr. 47-48). The bag also contained a Con Edison utility bill for the address 59-21 Calloway Street (Tr. 49-50). When Det. Healy ultimately counted the money from the handbag, it totalled six thousand and eighty-nine dollars ($ 6,089.00) (Tr. 51-52).

 Detective Healy then proceeded to obtain the pedigrees (names, addresses, country of origin, and nationality of the individual arrestees. He spoke to Alexandra Escobar in English and to the other three in a combination of English and "pidgeon Spanish" (Tr. 52-59). He learned, Inter alia, that Miss Lopera, who initially gave her name as Beatrice Gomez (Tr. 53, 61), lived at 59-21 Calloway Street, Apartment 4D in Queens. *fn8" Mr. Baltazar gave as his address Apartment 2D at 404 West 51st Street in Manhattan (Tr. 54, 269-270, 309) After each arrestee had given him a pedigree, Det. Healy asked them who lived in the apartment, "and no one of them admitted to living in the apartment," "the answer I got was that, we don't live here, that the addresses they have given was where they lived" (Tr. 56-57, 339). He then asked who Severinno Gutierrez was and Miss Lopera replied to the effect that he was a friend of hers by saying "amigo." When asked by Det. Healy and Miss Escobar where Severinno Gutierrez was, Miss Lopera shrugged her shoulders and said she did not know (Tr. 57, 174-176). When asked whether he knew Severinno Gutierrez, Mr. Baltazar indicated that he did not (Tr. 271). Detective Healy then proceeded to one or more other rooms of the apartment and seized other documents. Since the Government does not intend to introduce into evidence in its direct case any of Mr. Baltazar's statements or any items seized other than in the living room (Tr. 59-60), they are not proper subjects of a suppression motion at this juncture.

 Detectives Healy and Fasullo had been in Apartment 6D approximately twenty-five to thirty minutes (Tr. 61, 241-242) when a buzzer in the apartment rang, indicating that somebody downstairs sought to gain entry to the building. Det. Healy pushed a button in the apartment, which momentarily unlocked the main doors to the building, and positioned himself by the front door of the apartment. Within a matter of minutes, there was a knocking on the door, which Det. Healy then opened, and Jesus Espinal entered the apartment (Tr. 61, 242-244). The officer identified himself to the newcomer who was carrying a bag containing hot food and who said he worked as a delivery boy for a restaurant and was delivering food to the apartment. Due to certain evasive, contradictory, and otherwise suspicious answers given by Mr. Espinal concerning his pedigree and other matters, Det. Healy informed Mr. Espinal that he was detaining him in order to allow immigration authorities to interview him (Tr. 62-71, 244-246). This exchange was held in English (Tr. 97).

 Detective Healy returned to the area of the living room where the four arrestees had remained to tell them he was going to take them to the precinct house. At that point he noticed a triple beam scale lying on the floor beside "the far end (of the couch), the side of the couch that would be nearest Mr. Baltazar" (Tr. 72, 277). He also noticed a white plastic bag lying "(i)n front of the scale itself against the couch" (Tr. 81-85, 92-93, 99, 272-273, 276-277). It was "a shopping type plastic (bag)" and lay open. Det. Healy could see within it a strainer and a large plastic bottle (Tr. 82). He picked up the bottle since he could see it bore writing on its face and found that the label "had a name of a company and stuff and the main thing was that it was mannitol" (Tr. 84, 92). He then noticed in the plastic bag "a piece of white, like wax paper with a brown substance or dark substance" which, when he opened the wax paper, he recognized as marijuana (Tr. 84-85, 92). In addition, the plastic bag contained a box of "Baggies" plastic sandwich bags (Tr. 92-93).

 Detective Healy seized the scale and the white plastic bag and its contents as evidence and asked the arrestees "whether any of the items in the bag or the scale were theirs," to which he received no response (Tr. 93-94). He indicated to all present that the group would proceed to the precinct house when Det. Fasullo suggested that jewelry he had noticed lying in plain view in other rooms might not be safe in an unoccupied apartment. The jewelry was retrieved and, since it appeared to be woman's jewelry, it was offered to the female arrestees and accepted by Miss Escobar (Tr. 94-96). As he walked towards the front door, he noticed a ring lying on a table and, holding it up, said that whoever owned it should take it. Mr. Espinal stepped forward, claimed the ring as his own, and began putting the ring on his finger. When Det. Healy reminded Mr. Espinal that he had earlier stated that he had never been to the apartment before, Mr. Espinal "just laughed and he was placed under arrest also," the ring was seized as evidence, and Mr. Espinal was advised of his rights (Tr. 96-97, 100, 246-247).

 The five arrestees were then taken downstairs and driven to the 114th Precinct (Tr. 100). Special Agent Richard K. Crawford of the Drug Enforcement Administration testified that he arrived at the 114th Precinct some time after ten o'clock that same evening and was met there by Detective Healy (Tr. 303). Speaking in Spanish, Agent Crawford then advised each arrestee individually of his or her rights *fn9" and obtained each one's personal history (Tr. 288, 292, 304-311, 314-317, 345). When Miss Lopera indicated she wished to go to the restroom, Agent Crawford searched her coat pockets and found "a piece of paper which indicated the purchase of an ...

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