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UNITED STATES v. AGAPITO

October 5, 1979

UNITED STATES OF AMERICA, against CALIXTO AGAPITO, MARTHA CALDERON and HORACIO RUEDA, Defendants.


The opinion of the court was delivered by: COOPER

The defendants Calixto Agapito, Martha Calderon and Horacio Rueda were arrested by agents of the Drug Enforcement Agency (DEA) on February 22nd, 1979. Defendant Rueda was charged with one count of conspiring to violate the Federal narcotics laws (Count 1), two counts of possession of cocaine with intent to distribute (Counts 2 and 4) and one count of possession of a firearm during the commission of a felony (Count 3). Defendants Agapito and Calderon were charged with one count of conspiracy (Count 1) and one count of possession of cocaine with intent to distribute (Count 4). *fn1"

Prior to trial, defendants moved for suppression of evidence and dismissal of the indictment as being the result of illegal arrests, searches and seizures, and illegal investigatory tactics, in contravention of the Fourth, Fifth and Sixth Amendments of the Constitution of the United States. *fn2"

 Facts

 On the afternoon of February 21, 1979, an informant called DEA headquarters and spoke to Special Agent Victor Aponte, informing him, in substance, that a "close friend" *fn3" of the informant, identified by first name, had been in Room 1701 of the Sheraton-Centre Hotel at 810 Seventh Avenue in Manhattan where the friend had seen and sampled approximately four kilograms of cocaine. The informant had, in the past, furnished similar information to the authorities from the same source and it had proven reliable. The informant himself was considered reliable by the DEA agents, for his information on several occasions lead to convictions and at least two search warrants which survived attack.

 Agent Aponte testified that Mr. X had told the informant: he had been in Room 1701 before; the room was occupied by a Colombian man (later identified as the defendant Agapito) and a Cuban woman named Martha who came from Miami; Martha had been staying at the hotel for several days; and Martha and Agapito planned to leave New York by the weekend.

 Special Agents Bell and Forteza were sent to the Sheraton, and confirmed with the hotel security personnel that Room 1701 was occupied by one Martha Calderon who had given a Miami address, had stayed in the room approximately one week, and had paid in cash at a double rate on a daily basis.

 The agents obtained access to Room 1702 which adjoined Room 1701, a single locked door between. By pressing the naked ear against the crack of the adjoining door, the agents were able to overhear noises and parts of conversations emanating from Room 1701. The agents remained in Room 1702 and were joined by other agents who took turns with Bell and Forteza at pressing their ears against the door. They also maintained surveillance at the entry to Room 1701.

 The agents testified to hearing many fragments of conversations between a man and a woman, and gathered that someone was to visit the room the next day, February 22, 1979. After a telephone conversation, the woman, later identified as Martha Calderon, was overheard to say in effect: "He is coming over about 11:00 a.m. tomorrow."

 In mid-afternoon on February 22, 1979, DEA agents observed a male, later identified as Horacio Rueda, carrying a shoulder bag and an attache case, enter Room 1701, accompanied by a small boy. The only other activity in and out of Room 1701, since the agents commenced surveillance on February 21st, occurred when Martha Calderon left the room (followed by Agent Forteza), made a phone call in the lobby and returned; also when room service delivered food to the room.

 From their position in Room 1702, the agents were able to hear greetings when Rueda entered Room 1701, conversation accompanied by ripping or tearing sounds as well as a shuffling sound, suggesting the tearing of tape and/or the counting of money. Agent Aponte heard one of the men say: "one-five-zero-zero-zero."

 Soon after, Rueda left the room with the small boy, without the shoulder bag and attache case. Rueda was arrested by agents in the lobby of the hotel, searched in the DEA car outside the hotel and then taken to DEA headquarters. At the time of his arrest, he was carrying a loaded .22 caliber derringer.

 After being advised of his rights at DEA headquarters, Rueda stated to a Spanish-speaking agent that he had just taken cocaine to the room. Rueda's statement was conveyed, by telephone, to the agents in Room 1702.

 At approximately 4:00 p.m. on the afternoon of February 22nd, Agapito, carrying an attache case (apparently the same attache case Rueda had brought to the hotel room), and Martha Calderon left Room 1701. They were arrested just outside the hotel, the attache case was seized from Agapito, forced open, and found to contain $ 29,000 cash. Thereafter agents entered, secured and remained in Room 1701 in order to continue their investigation, apparently expecting additional phone calls relating to the sale of drugs would come there. They did not at that time search the room but opened the adjoining door to Room 1702 where Agapito and Calderon were temporarily detained.

 At approximately 6:00 p.m. on February 22nd, the phone rang in Room 1701. Agent Forteza, a Spanish-speaking agent acting undercover, answered the phone. A female caller, later identified as Ligia Atehortua, inquired whether Horacio and her son had been to the hotel room. Ligia called back twice more, and finally gave permission to Agent Forteza, posing as an associate of Agapito and Calderon, to come to her apartment, 3B, 328 East 85th Street, in New York City.

 Upon their arrival at the apartment, Ligia admitted Agent Forteza, followed by other agents, into the apartment. Forteza identified himself as a DEA agent, and obtained Ligia's consent verbally and later in writing to search the apartment. When the agents entered Apt. 3B, bags of white powder were in plain view in the living room. The search turned up approximately eight kilograms of cocaine, several kilograms of isonicotinamide, a cutting agent, various other narcotics paraphernalia, also photographs of Horacio Rueda and the small boy who had accompanied him to Room 1701.

 The next morning, February 23rd, upon the affidavit of Agent Aponte, the agents obtained a search warrant for Room 1701, which previously had simply been occupied and secured. The affidavit contained much, but not all, of the information then known to the agents. The subsequent search of Room 1701 revealed one kilogram of cocaine in a suitcase with female clothing in it. The key to the suitcase was taken from Agapito at the time of his arrest.

 The instant motions

 Defendants base their motions to suppress on the issues of law to be discussed shortly, and on the following interpretations of the ...


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