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UNITED STATES v. CANTO

February 29, 1980

UNITED STATES of America
v.
CANTO, Rios, Hernando Herrera, Humberto (Alvaro) Herrera, Defendants



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

Defendants, Prudencio Canto, Jorge Rios, Humberto Herrera ("Alvaro") and Hernando Herrera, are charged with violating the federal narcotics laws. *fn1" After reviewing the papers submitted and after reading the transcripts of the testimony given in court during the months of October, November, and December, the court finds that it must deny defendants' motions to suppress various statements, identifications, and physical evidence obtained as a result of arrests and searches. Because of conflicting schedules and illnesses on the part of the attorneys, the court was unsuccessful in its earlier attempt to render this decision orally. The court will now present its findings of fact and examine defendants' contentions seriatim.

 The Arrest of Alvaro

 William Frawley, a Detective with the Drug Enforcement Task Force, testified as to the events leading up to the arrests of Alvaro, Canto, Rios and Hernando. The court finds that such testimony was fully credible and consistent with the evidence developed in court. Concerning Alvaro, the facts indicate that Frawley, at the very least, had reasonable suspicion to stop the defendant.

 Two reliable informants of the Drug Enforcement Administration ("DEA") independently had alerted narcotics agents that defendants Canto and Rios were members of a Columbian narcotics ring operating in Queens, New York. The informants previously had dealt with defendants, Canto and Rios. Surveillance began of Canto's residence at 2524 32nd Street in Queens. More than one week before the arrests, Frawley, with the assistance of other agents, had the opportunity to observe Canto and Rios, and the Monte Carlo driven by the defendants. On July 2, 1979, Frawley followed the red Monte Carlo to 46th Street between 30th Avenue and 30th Road ("the park"). There he saw three males speak with Canto and Rios. Frawley later was able to identify one of these three males as Alvaro.

 On July 10, 1979 Frawley conducted a surveillance of the park. He observed Alvaro in the company of an unknown male, Green Shirt. Frawley watched Alvaro for 45 minutes with the use of binoculars. He witnessed several males hand Alvaro money and depart with an unidentified item.1a Frawley then observed Rios join Alvaro and Green Shirt. A conversation ensued. Shortly thereafter, the 1974 Monte Carlo stopped adjacent to Rios, Alvaro and Green Shirt. The four men talked. At this point, Frawley was positioned so as to view the occupants of the Monte Carlo. He saw Canto and another male, later identified as Hernando.

 Frawley maintained surveillance of Canto, Hernando, Rios, Alvaro and Green Shirt. He observed Canto and Hernando exit from the car and approach the other three males. A conversation followed. Frawley watched as Canto and Hernando returned to the Monte Carlo, drove a short distance and examined something on the seat of the car. Hernando then drove back to the same location where Rios, Alvaro and Green Shirt had been standing.

 Alvaro and Green Shirt, who were both empty-handed, walked over to Canto and then emerged with a brown plastic bag. The Monte Carlo departed. Alvaro, Rios, and Green Shirt proceeded along 45th Street. Frawley, having the benefit of previous surveillance of Alvaro, determined that Alvaro would return to his 4512 30th Avenue residence. Alvaro and Green Shirt proceeded in the direction of 4512 30th Avenue. Green Shirt, upon noticing Frawley, abruptly turned the corner back onto 45th Street.

 Frawley walked up to Alvaro, showed his badge and identified himself as a police officer. No gun was drawn. Alvaro dropped the unsealed brown plastic bag. As Frawley leaned over to pick it up, he was able to see that the bag contained a white powdered substance. During the process of retrieving the bag, Frawley placed his gun against the side of his leg. Frawley then handcuffed Alvaro and placed the defendant in the back seat of the agent's car. After an unsuccessful attempt to find Green Shirt, Frawley returned to 4512 30th Avenue, whereupon he placed Alvaro in the custody of other officers.

 Given the underlying circumstances, namely, the use of independent information from two reliable informants, the continued surveillance of the defendants which tended to corroborate the informants' information, probable cause to arrest Alvaro existed. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); United States v. Jackson, 544 F.2d 407 (9th Cir. 1976); United States v. Canieso, 470 F.2d 1224 (2d Cir. 1972); United States v. Comissiong, 429 F.2d 834 (2d Cir. 1970); United States v. Llanes, 398 F.2d 880 (2d Cir. 1968). Even assuming that probable cause did not exist at the moment Frawley approached Alvaro, specific and articulable facts existed to warrant a stop of the defendant. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See also United States v. Oates, 560 F.2d 45 (2d Cir. 1977); United States v. Magda, 547 F.2d 756 (2d Cir. 1976); United States v. Worthington, 544 F.2d 1275 (5th Cir. 1977); United States v. Westerbann-Martinez, 435 F. Supp. 690 (E.D.N.Y.1977). The existence of probable cause to arrest Alvaro then developed during the course of the stop. Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); United States v. Oates, 560 F.2d 45 (2d Cir. 1977); United States v. Walling, 486 F.2d 229 (9th Cir. 1973), cert. denied, 415 U.S. 923, 94 S. Ct. 1427, 39 L. Ed. 2d 479 (1974). Here, Frawley approached Alvaro and the defendant then dropped the plastic bag. The bag was unsealed. As Frawley leaned over, he was able to see a white powdered substance. In light of the information Frawley had before him, the observation of a bag containing white powder entitled the agent thereafter to make an arrest. *fn2" The bag, which was in plain view of an officer rightfully having that view, is subject to seizure and may be introduced into evidence. United States v. Worthington, 544 F.2d 1275 (5th Cir. 1977); United States v. Santana, 485 F.2d 365 (2d Cir. 1973); United States v. Riggs, 474 F.2d 699 (2d Cir. 1973).

 The Stop of the Monte Carlo

 The testimony elicited in court indicates that Task Force members knew of the continued search for a particular Monte Carlo and were aware of the general description of two males and the detailed description of two other males who were involved in criminal activity on July 10, 1979. Eventually, agents did locate the Monte Carlo. The agents drove past the car and saw its occupants. Soon after, the car became mobile. The agents followed the Monte Carlo and then stopped the car. The police identified themselves. Instructions were given in Spanish for the three occupants to exit the vehicle. The agents were able to recognize Canto and Rios. The trunk was opened and bags of money were removed. The Monte Carlo, Canto and Rios were transported to DEA headquarters. Frawley was contacted so as to identify the third male. Shortly thereafter, Frawley arrived at the location where the Monte Carlo was stopped. He recognized the third male, Hernando, as the man he had seen driving the Monte Carlo. The defendants now contend that the stop, search and seizure of the Monte Carlo, the detention of Hernando, the identifications and eventual arrest of Canto, Rios and Hernando constituted unconstitutional police conduct.

 DEA agents had probable cause to believe that the red Monte Carlo had been used for carrying cocaine and they properly seized the vehicle pursuant to the federal forfeiture statute. 21 U.S.C. ยง 881(a). See also United States v. Johnson, 572 F.2d 227 (9th Cir. 1978). Once the vehicle was validly seized for forfeiture, the subsequent search of the trunk was lawful, notwithstanding the fact that the search did not occur after the vehicle was impounded or pursuant to standard inventory procedure. United States v. Panebianco, 543 F.2d 447 (2d Cir. 1976); United States v. Zaicek, 519 F.2d 412 (2d Cir. 1975); United States v. Karp, 508 F.2d 1122 (9th Cir. 1974), cert. denied, 422 U.S. 1007, 95 S. Ct. 2628, 45 L. Ed. 2d 669 (1975); United States v. McCormick, 502 F.2d 281 (9th Cir. 1974).

 In light of the fact that Frawley had described the remaining defendants to fellow Task Force members who were aware that Canto and the red Monte Carlo had been involved in a drug transaction, it is evident that probable cause existed to arrest Canto and Rios. *fn3" Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); United States v. Jackson, 544 F.2d 407 (9th Cir. 1976); United States v. Diggs, Keys, Floyd, 173 U.S. App. D.C. 95, 522 F.2d 1310 (D.Col.1975); United States v. Comissiong, 429 F.2d 834 (2d Cir. 1970). The government further argues that since an automobile was involved which had been used and possibly was still being used for an illegal purpose, the agents were entitled to search it on the spot for additional drugs and weapons. Generally, if probable cause exists, an automobile may be searched without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). However, the warrantless search of personal luggage or sealed ...


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