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November 20, 1979


The opinion of the court was delivered by: GAGLIARDI


Defendants Jorge Heldibrado Gomez, Irma Mejia-Londono, a/k/a "Irma Mora", Ever Serna and Henry Serna were indicted for conspiracy to violate §§ 812, 841(a)(1) and 841(b)(1)(A) of Title 21 of the United States Code and for possession with intent to distribute cocaine in violation of the same statutory sections. In addition, Gomez was indicted for using a firearm during the commission of a felony in violation of § 924(c) of Title 18 of the United States Code. After the arrest of defendants, officers of both the Drug Enforcement Agency ("DEA"), the New York City Police Department who were assigned to DEA and an investigator from the Immigration and Naturalization Service ("INS") conducted searches at five locations and took statements from the defendants. Defendants now move to suppress the evidence so seized and the statements so made. Following a three day evidentiary hearing, *fn1" this court grants in part and denies in part the motions before it.


 The facts found by this court, after hearing the testimony and assessing the credibility of the various witnesses, are as follows. Agent William F. Mockler, Jr., a group supervisor with the DEA, testified regarding background of the surveillance that precipitated the challenged searches. In 1977 an informant, previously found reliable, advised Mockler that Irma Mejia, the part owner of a Queens jewelry store, was heavily involved in cocaine trafficking in New York City. From 1977 until August 15, 1979, the name "Irma", followed by one of two telephone numbers, appeared on different documents seized in narcotics investigations. The DEA traced these numbers to a phone at 340 East 80th Street listed to Henry Serna and to a phone in another Queens jewelry store. Investigations during the 1977 to August 1979 period also uncovered other papers which the DEA suspected to be records of narcotics transactions in which Mejia appeared as a monthly multi-kilogram cocaine purchaser. In July 1979, the DEA arrested a suspect in Queens and recovered large amounts of cocaine and other drug paraphernalia. Among the papers seized from the suspect were Irma's name and phone number at a jewelry store and the name "Henry" with a telephone number traced to the East 80th Street apartment. Both were accordingly believed to be customers of the suspect. Mockler, unable at that time to follow this lead, passed this information along to another DEA group to pursue it before Mejia became alerted to the Queens arrest.

 Having received this information, New York City police officer Sergeant Richard Werdann obtained a positive identification of Mejia. Thereafter, Werdann and fellow officer Detective William Frawley set up surveillance on August 15th at 2 P.M. at 340 East 80th Street. At approximately 5 P.M. Werdann observed Henry Serna, Mejia and a baby in a red Mustang exit the garage. The car was being driven by Serna and was followed to West 83rd Street and Amsterdam Avenue. Serna parked, got out and spoke for several minutes with an Hispanic female. Serna reentered the car and drove to Broadway and 83rd Street where he parked at the curb. A male Hispanic approached the car on the driver's side and conversed with the occupants for a few minutes. Werdann then followed the car to 625 Columbus Avenue, saw it leave that location, and then followed it to West 99th Street and Broadway. After parking the vehicle at a hydrant, Serna left the car to make a phone call from a phone booth on the corner as he looked in the direction of the upper floors of an apartment building located at 243 West 99th Street. Werdann next observed Serna walking toward the entrance of the building at 243 West 99th Stret at approximately 6:00 P.M. and, at this point, contacted his headquarters to request the assistance of a supervisor.

 Special Agent Patrick Shea, an assistant group supervisor of DEA and a specialist in South American cocaine traffickers, responded to the call. From previous experience Shea knew that the Upper West Side of Manhattan was an area of heavy narcotics activity. At the scene at 6:20 P.M. Shea observed Serna emerge from 243 West 99th Street carrying a gold colored plastic bag labeled "Fashion Boutique" which he placed in the rear of his car. Serna was observed getting into the Mustang and was then followed by the agents, in separate cars, back to 625 Columbus Avenue. Serna entered the restaurant, leaving the bag in the car, and emerged five minutes later from the restaurant. The surveilling agents, communicating over car radios, discussed the events that they had witnessed and reasonably concluded that the bag contained either narcotics or money. They determined, therefore, that if Serna returned directly to his apartment the bag contained only money, the fruits of a completed narcotics transaction and they would not intercept him; but if Serna entered another building with the bag, then the bag contained narcotics and a deal was about to "go down", and they would intercept him.

 The red Mustang was followed to Bennett Avenue. All three occupants emerged and headed toward the rear entrance to 295 Bennett Avenue, Serna carrying the plastic bag and Mejia the baby. Frawley, who was directly behind Mejia and Serna, observed them walk down a path leading to the rear entrance. As soon as he saw them enter the building, he rant o the doorway. Frawley raced to the doorway followed by Shea, who had been observing Frawley. Neither attempted to stop Serna or Mejia prior to their entering the building. Once inside the building, Frawley located the door to the stairwell. As both agents entered the stairwell, they heard the door closing on the next landing and ran up to the second floor where they went into the hallway and heard voices and the release of a door chain. They immediately headed around te corner to the direction of the sounds. Frawley, who was then about fifteen feet from apartment 2A, testified that Mejia was no longer in sight but that Serna was just walking over the threshold of the apartment door. Both agents yelled "police" as they held their shields in their hands and ran toward the door. The door was slammed just as they reached it. The agents knocked on the door, and then banged and kicked, announcing loudly that they were police and requesting that the door be opened. Shea put his ear to the door a few times and heard voices, the scurrying of feet and the sound of water running through the pipes. Werdann, who entered the building moments after Frawley and Shea, followed the sounds up to the second floor. As he approached apartment 2A, Werdann saw Shea and Frawley knocking on the door with their shields still in their hands. Werdann, followed by Frawley, then went outside and located the windows of the apartment. Werdann saw Serna at the window and with his shield in hand, yelled to him that he was a police officer and requested that he come out. Serna retreated and Mejia appeared. Werdann repeated the message to Mejia before she too withdrew. Two officers joined Shea in front of the door and kicked while Shea banged. After approximately seven to ten minutes from the time the door was slammed, one of the occupants opened the door. The agents entered the apartment, placing Serna, Mejia and Gomez, the other occupant, under arrest.

 The officers conducted a protective search to insure that no other occupants were present. During the course of the search, they observed the bathroom floor flooded, white powder on top of the toilet bowl and a clear plastic bag floating inside the bowl. Werdann also observed white power on the kitchen floor and on the bedroom floor what appeared to be the gold "Fashion Boutique" bag from which now protruded two clear plastic bags with white residue. Werdann also stated that he saw a large amount of money in an open safe and in a closet and a loaded .38 caliber pistol on a table. Shea further observed an exposed scale in the kitchen.

 Following DEA's standard procedure in cases of an arrest involving suspected illegal aliens, Shea called for an INS investigator. Investigator Victor Rita responded and after Detective Ramos gave the suspects their Miranda warnings, Rita interviewed them to determine their alien status. Gomez displayed satisfactory proof of his status as a legal alien, and Rita did not question him further. Mejia, on the other hand, told Rita that she was a Colombian national and had entered the United States illegally. Rita asked Mejia to complete two forms: a rights waiver and a contact report. He then asked Mejia to furnish proof of the biographical information that she had supplied. She responded that she was not carrying any such proof but had the documentation at home. Rita then interviewed Serna, who stated that he had entered the United States on a visitor's visa. Rita determined, however, that Serna was also an illegal alien because it appeared that his visa had long since expired. At the behest of Rita, Mejia and Serna separately executed consent to search forms for their apartment at East 80th Street. Rita advised them of their right to withhold consent to the search and that although he would search for documentation to verify their identification and alien status, he would be accompanied by a DEA agent and that anything found could be used against them. At approximately 10:30, Rita, Mockler and Shea accompanied Mejia to 80th Street. In the course of searching for documents, Rita found a loaded pistol, ammunition, money and jewelry.

 As Mejia was being taken to 80th Street, Werdann and Sergeant Skelly, a DEA supervisor drove Serna to 243 West 99th Street. Although the keys that the agents took from Serna did not open the locked vestibule door, the agents gained entry to the building after ringing the superintendent's bell. Werdann walked towards the superintendent's door while Skelly remained with Serna at the end of the hallway. The time was between 10:30 and 11:00 P.M. Werdann asked Mrs. Fernandez, the superintendent, if she recognized Serna. Fernandez, who was called by the government, testified that she recognized Serna as the person she had seen at the elevator two weeks earlier who had told her that he would be staying in apartment 6B and that she should not be "scared" if she saw him in the apartment.

 The agents then checked the tenants' directory which listed Y. Londono as the tenant of apartment 6B.The agents led Serna to the 6th floor and Werdann knocked on the door of 6B. The only response was the opening of the peephole by the occupant of the apartment. Werdann, shield in hand, announced that he was a police officer investigating a dispute and requested that the occupant open the door. Serna and Skelly were on the landing between the 5th and 6th floors and were not visible from the interior of the apartment. Werdann then saw the peephole close and heard the bolt slide. He again announced his authority but to no avail. Leaving Skelly with Serna, he returned to the street to phone for assistance. He was advised that Frawley and Lieutenant Greeley, who took part in the Bennett Avenue arrest would join them. Werdann then climbed the fire escape to the 6th floor to observe 6B. Inside the building, Skelly handcuffed Serna to the landing and was alone with him for approximately one-half hour until the arrival of the two additional police officers. While waiting for assistance, Skelly listened at the door but was unable to determine what was going on inside the apartment. When Frawley and Greeley arrived at approximately 11:30 or 11:45, they led Serna to the door and asked him to request the [occupants] to open the door. Although it is unclear whether the agents asked Serna to speak in English or Spanish, Serna said something to the [occupants] in Spanish, which none of the officers could comprehend. The agents then began to bang on the door because they "realized that Henry Serna was not going to be helpful to us in getting into the apartment." Skelly testified that they continued to bang on the door and stated to the [occupants] that they would remain all night until the door was opened. Frawley put his ear to the door and heard the sounds of a door sliding and water running. Greeley later did the same and heard the flushing of a toilet. Twenty to thirty minutes later, Serna, without provocation, offered to assist the agents in gaining entry to the apartment. He was taken over to the door and the agents knocked. Serna spoke loudly in an authoritative tone in Spanish two or three times. The occupant then opened the door. Skelly and Greeley entered the apartment and arrested the occupant, identified by Serna as his brother, Ever Puertas Serna ("Ever"). Skelly walked through the apartment to secure it while Greeley watched the suspects. Skely opened a closet in the hallway and observed a large press. He also observed damp white plastic bags on a garbage pile in the kitchen. Werdann entered the apartment at approximately 12:30 A.M., and made another protective search, and observed a mixer on the drainboard.

 Werdann then went to East 80th St. to pick up Rita because the agents believed Ever to be an illegal alien. When Rita arrived at 99th Stret, he identified himself to Ever, who told him that he was Colombian and had come into the United States illegally two weeks prior. Rita asked Ever if he had any documents that could verify his alien status. Notwithstanding the fact that Ever responded in the negative, Rita, based upon his experience that aliens often have such proof but are unfamiliar with the documents, asked Ever for consent to search the apartment. Ever responded affirmatively. Unlike Mejia's and Henry Serna's consent to search East 80th Street, Ever did not fill out a written consent form since Rita did not have any with him. Rita, accompanied by the agents, proceeded to search the bedroom and recovered a small quantity of cocaine from a shoe bag and $151,000 from under the mattress or boxspring.

 After the search, Ever told Rita that he did not live in the apartment but had been taken there by his brother to watch it. The agents attempted to lock the apartment door but they could not locate the key among the Keys found in Ever's possession. Ever once again stated that he did not live in the apartment but that he lived with Henry at East 80th Street. Rita observed, however, that Ever's key did not match the key to the East 80th Street apartment and therefore told Ever that he knew Ever did not live there. Ever then responded that he lived at 85th and 1st Avenue but could not remember the exact address. Ever agreed to take Rita there to see if any documents pertaining to his allien status could be located. Rita, along with some of the agents, drove to the vicinity of 85th Street and 1st Avenue until Ever recognized a building at 440 East 85th Street. Ever opened the door to his apartment; the agents entered and searched. Rita found a press and some written materials but no documents related to Ever's immigration status.

 On the morning of August 16th, the day of arraignment, the defendants were brought before an Assistant United States Attorney for preliminary questioning. The defendants stated that they did not want to answer any questions without their lawyers being present. Somewhere between the United States Attorney's office and the magistrate's courtroom, Rita met again with the defendants. After giving them their rights in both English and Spanish, Rita obtained some additional statements from Mejia, Serna, and Ever. Although Rita recalled hearing some discussion before the arraignments about locating counsel for the defendants, he stated that he neither knew nor specifically inquired whether any of the defendants had already retained counsel.

 In addition to the warrantless searches described above, the DEA agents applied for and were granted warrants to search several premises. In the late evening of August 15, Magistrate Bernikow signed a warrant, at his home in the Eastern District, based on the affidavit of Robert Palombo, authorizing a search of apartment 2 A, 295 Bennett Avenue. Magistrate Bernikow also issued a warrant on August 16th, upon the affidavit of Shea, to search a safety deposit box allegedly rented by Gomez. A second warrant to search Bennett Avenue was issued by Magistrate Tyler on August 28th on the affidavit of Shea. Magistrate Tyler also issued a warrant based upon Palombo's affidavit for a second safe deposit box allegedly under Gomez's control. On September 11, Magistrate Gershon issued a warrant to search 340 East 80th Street. Finally, on September 25, Magistrate Raby issued a warrant upon the affidavit of Shea to search 230 West 75th Street, another apartment allegedly leased to Gomez. Gomez attacks the validity of all these warrants except for the one covering the E. 80th Street search.


 A. Bennett Avenue Arrests and Search

 Proper analysis of the warrantless arrests at Bennett Avenue and the subsequent search incident to the arrests is a two step process: the first step covers events preceding the agents' command in the hallway outside of apartment 2A; the second step covers the period from that moment until the agents entered the apartment, formally placed the three occupants under arrest, and searched the premises. The propriety of the agents' actions culminating in their demand that the suspects stop -- implicit when they shouted "police" -- must be decided before this court considers the legality of the agents' actions subsequent to that command.

 In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the Supreme Court held that "a police officer may in appropriate circumstances and in appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22. The officer, however, according to the Court, "must be able to point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." id. at 21; see also United States v. Price, 599 F.2d 494, 500 (2d Cir. 1979) and cases cited therein.

 The following "articulable" facts can be distilled from the testimony:

 1. The agents who were conducting the surveillance knew that Mejia was a suspected narcotics dealer.

 2. The car in which Mejia was a passenger stopped on at least two occasions in an area known to the agents as one of high narcotics activity, ranging from street sales to wholesale deals, for meetings with unidentified persons. The officers could have drawn an inference that the car and/or its occupants were expected and/or recognized.

 3. The driver made a phone call from a booth outside a building while appearing to look at an upper floor of the building.

 4. He then emerged approximately twenty minutes later, carrying a small plastic shopping bag. The building is in an area of high narcotics activity.

 5. The car then returned to one of its previous locations, also in an area of high narcotics ...

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