The opinion of the court was delivered by: CONNER
Defendant moves to suppress evidence seized by agents of the Drug Enforcement Administration ("DEA") on January 9, 1978. A suppression hearing was held on July 25, 1979. This Opinion and Order constitutes the Court's findings of fact and conclusions of law.
In mid-November 1977, about a month and a half prior to the arrest and search of defendant's car, DEA Special Agent Richard Bell ("Bell"), received a telephone call from an informant who told Bell that a man named Jose Luis "was dealing in cocaine and he was expecting a large shipment" and that Jose Luis was "either involved or related to" a narcotics violator known to Bell. (Transcript of the suppression hearing, page 17; hereinafter "Tr. p. -- "). The informant also told Bell that Jose Luis would be in the vicinity of 182nd Street and Valentine Avenue in the Bronx that same evening. Relying on this information, Bell conducted a surveillance and observed Jose Luis enter a Plymouth automobile, New York license plate number 108-GUA. This was not the first time agent Bell had seen this Plymouth. Prior to mid-November, he had seen it being driven by a known cocaine violator whom Bell had arrested (Tr. pp. 20, 40). Subsequently, Bell was again told by the informant that Jose Luis was expecting a large shipment of cocaine and that he had purchased a sample of that expected shipment
(Tr. p. 19).
Further investigation by Bell uncovered a photograph of defendant and the fact that the Plymouth was owned by him (Tr. pp. 19-20).
At about 2:30 P.M. on the day of defendant's arrest, January 9, 1978, Bell was told in a telephone call from the same informant that defendant would be in the vicinity of 182nd Street and Valentine Avenue in the Bronx "around 3:00 o'clock" (Tr. p. 41); that "he would be carrying a quantity of cocaine" (Tr. p. 13); that he would be using the same Plymouth he was driving in mid-November (Tr. pp. 13, 58-59); and that defendant had now grown a full beard (Tr. p. 14).
Prior to January 9, 1978, the informant had provided DEA agents information on nine or ten occasions (Tr. pp. 12, 69) which led to the arrest and conviction of approximately fifteen persons for narcotics violations (Tr. pp. 59-60, 69). Additionally, this same informant had provided information upon which at least two prior search warrants had been based (Tr. pp. 13, 69).
Since the weather was bad (snow mixed with sleet (Tr. p. 14)) and since the travel time from the DEA Regional Office to the Bronx under normal conditions is about twenty minutes (Tr. p. 14), Special Agents Bell and Victor Aponte ("Aponte") left immediately after the telephone call. When they arrived at 182nd Street near Valentine Avenue, agent Bell saw the Plymouth automobile which the informant had said would be used by defendant (Tr. pp. 13, 15). Next, agent Bell saw Naranjo-Sierra. Bell knew it was Naranjo-Sierra since he had seen him in mid-November and because he had obtained a photograph of him. Now, however and just as the informant had described Naranjo-Sierra had a full beard (Tr. pp. 14, 56). Additionally, defendant was carrying a shopping bag (Tr. p. 15). After placing the bag in the Plymouth and cleaning the windows of snow and ice, defendant entered the car and drove away (Tr. p. 21). Bell and Aponte followed.
When Naranjo-Sierra arrived at the Triborough Bridge toll plaza, the agents stopped him. Bell recalls that he and Aponte both approached the driver's window, identified themselves by showing their badges, and asked defendant whether he had a driver's license (Tr. p. 21). Bell then asked what defendant had in the bag and he replied, "Clothing" (Tr. p. 21). Bell said, "Can I look in the bag?" and Naranjo-Sierra said, "Yes" (Tr. p. 21). Both were speaking English. According to Bell, he then went to the passenger side of the car, defendant opened the door and began lifting out some of the clothing from the bag (Tr. p. 22). Bell stopped him, removed the remaining clothing himself and saw a torn paper bag at the bottom of the shopping bag. Through the tear in the paper bag, he saw cash and a plastic bag containing powder (Tr. p. 22). Once Bell saw the cash and powder, he placed defendant under arrest (Tr. p. 22). A test of the powder for cocaine proved positive (Tr. p. 24).
Aponte's recollection of what occurred at the toll booth is as follows: Once defendant was stopped, Aponte went to the driver's side of the car, showed his credentials and asked defendant to pull over to the side of the plaza (Tr. p. 72). At that time, Bell approached the car on the passenger's side, tapped on the window and indicated to defendant to remove the safety latch. Naranjo-Sierra unlocked the passenger door; Bell opened it and asked, "What's in the bag?" (Tr. p. 87). "Clothing," defendant said, and Bell asked if he could look. Defendant nodded his head (Tr. p. 88). Bell then reached in the bag, removing some clothing and eventually found the paper bag, the cash and the cocaine. Naranjo-Sierra was then arrested (Tr. p. 74).
From the Triborough Bridge, defendant was taken to the DEA Regional Office where he was read his Miranda rights, then questioned. He first said his name was Carlos Rivera and gave a false address (Tr. p. 28). When Bell confronted him, telling him that he knew defendant's real identity, defendant gave his true name and address (Tr. p. 29). As Bell and defendant were counting the $ 4,000 cash, defendant offered to give it to Bell if he could walk out (Tr. pp. 29-30).
The government asserts that the arrest of defendant and the seizure of the evidence were proper under any one of three theories: (1) a valid search incident to a lawful arrest; (2) a lawful vehicle search; (3) a proper consent search after defendant had been lawfully stopped. Since I conclude that the search was lawful under the government's first theory, I do not consider the validity of the search under the government's second and third theories.
If an arrest is legal, the search incident to that arrest is also legal if confined to the arrestee's person and the area within his immediate control. United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). An arrest is legal if based upon probable cause. Probable cause exists when there are present facts and circumstances " "sufficient to warrant a prudent man in believing' that an offense is being or has been committed." United States v. Rueda, 549 F.2d 865, 870 (2d Cir. 1977), ...