The opinion of the court was delivered by: PLATT
Defendant, Hector Adames, has been charged in a two count indictment filed May 17, 1979, with knowingly receiving and possessing stolen goods in interstate commerce, in violation of 18 U.S.C. §§ 2, 659. Defendant is alleged to have received and possessed approximately 757 cartons of Maxwell House Mellow Roast Instant Coffee, stolen from a shipment from Hoboken, New Jersey, to Arlington, Texas, and approximately 2948 cartons of Sergeant's Flea & Tic Collars, stolen from a shipment from Richmond, Virginia, to Los Angeles, California.
Defendant has moved to suppress physical evidence seized from and statements made by the defendant on March 1, 1979, when Special Agents of the Federal Bureau of Investigation ("F.B.I.") conducted two warrantless searches and a later search pursuant to a warrant which revealed stolen goods to be in the possession of defendant. Defendant argues that the affidavit on which the search warrant was based was irreparably tainted by an assertedly illegal search by New York City police officers carried out a week earlier. Defendant has also moved for dismissal of the indictment on the basis of a duplicative conviction in the Criminal Court of the City of New York, following a guilty plea entered on March 13, 1979, approximately one month prior to the filing of the instant indictment.
The Court held a hearing on August 31, September 28, and November 8, 1979. The facts developed at the hearing are as follows:
On February 15, 1979, the Manhattan and Brooklyn-Queens offices of the F.B.I. became involved in the investigation of the hijacking of a shipment of Maxwell House Mellow Roast Coffee, which had occurred January 12, 1979, in Newark, New Jersey. Both F.B.I. offices received teletypes detailing the hijacking and indicating that a General Foods Corporation employee had subsequently observed an individual selling cases of Maxwell House Mellow Roast Coffee from the back of a van bearing a New York license plate. The teletypes directed both F.B.I. offices to pursue the investigation by ascertaining and interviewing the registered owner of the van. (Tr. 44-47).
Employing customary investigative techniques, F.B.I. Special Agent Alan V. MacDonald, of the Brooklyn-Queens office, determined that the van was registered to the Bensonhurst Leasing Corporation in Brooklyn. About a week later, on February 23, Agent MacDonald and two other F.B.I. agents interviewed the manager of Bensonhurst Leasing, one Vincent Bonafeta, about the identity of the lessee of the van. Mr. Bonafeta, relying on Bensonhurst Leasing records, indicated that the van was leased by one James McMahon of Brooklyn. On February 26, Agent MacDonald, again accompanied by two other F.B.I. agents, interviewed Mr. McMahon at his home. (Tr. 47-50). Mr. McMahon told the agents that he earned his livelihood by selling from his van various products that he had acquired "at flea markets and close-out sales, and things of this nature." (Tr. 50). The agents learned that he had recently purchased a quantity of Mellow Roast Coffee from a distributor in Brooklyn, a transaction for which Mr. McMahon produced a receipt. (Tr. 50-51). The receipt identified the distributor as "Pal Pick & Pay", a "Division of Hector Adames Distributors," located at 318 Gates Avenue in Brooklyn. (Government's Exhibit 4).
Mr. McMahon volunteered that he still had some of this coffee in his warehouse, which the agents subsequently examined with McMahon's explicit consent. One of the agents, Neil Moran, noted the serial numbers of fourteen of the cartons, selected at random. Two days later, February 28, Agent Moran contacted an official of General Foods Corporation (the manufacturer of Maxwell House Mellow Roast Coffee) and learned that two of the fourteen five-digit numbers differed only slightly from two of the cartons stolen in the January 12th hijacking. (Tr. 52-54; 144-145). During this conversation, the General Foods official expressed the opinion that the coffee purchased by McMahon from Pal Pick & Pay was from the stolen shipment. He based this opinion on the similarity of the serial numbers, the fact that General Foods had never sold Maxwell House coffee to Pal Pick & Pay, and the relatively small amount of Maxwell House coffee distributed to the metropolitan New York area in the immediately preceding two months. (Tr. 146-147).
In the afternoon of February 26, after the interview with Mr. McMahon but before the conversation with the General Foods official, Agents MacDonald and Moran returned to the Brooklyn-Queens F.B.I. office to find that the New York City Police Department ("N.Y.P.D.") had communicated certain information to it, through the Manhattan F.B.I. office. The communication briefly described an N.Y.P.D. investigation which had resulted in the seizure of stolen property from the Pal Pick & Pay distributorship at Gates Avenue and a Pal Pick & Pay warehouse at 61 Clifton Place on February 24. Agent Moran and another agent immediately went to interview N.Y.P.D. Sergeant Albert Jeffries, the officer principally involved in the investigation, who related to them the details.
(Tr. 56-58; 113-117; 148-152).
Three days later, on March 1, while Agent Moran attempted to obtain a search warrant for the Pal Pick & Pay warehouse on Clifton Place, Agent MacDonald received information from the N.Y.P.D. to the effect that a truck there was being loaded with merchandise, including coffee. (Tr. 69-70; 118-119). Agent MacDonald relayed this information to Agent Moran and proceeded with another agent to the warehouse, where he was met by N.Y.P.D. officers and detectives. The doors to the warehouse were closed; outside stood a flat-bed truck with two men seated in the cab and another man alongside on the sidewalk. In response to Agent MacDonald's question, the man on the sidewalk identified himself as Hector Adames, the defendant here. Agent MacDonald then orally advised Mr. Adames of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Mr. Adames indicated orally that he understood his rights. (Tr. 71).
Again in response to Agent MacDonald's question, Mr. Adames stated that he was the owner of the truck and the warehouse, and that the truck was being loaded for a trip to the Gates Avenue store. Another F.B.I. Agent then read to Mr. Adames the standard F.B.I. consent to search form, and advised him that he did not have a search warrant and that Mr. Adames could refuse to consent to a search of the truck and the warehouse. Mr. Adames refused to sign the consent form but, stating that "he knew what he was doing," orally consented to a search of the truck. (Tr. 72-73). Agent MacDonald entered the truck, observing various items of merchandise, including cartons of Maxwell House Mellow Roast Instant Coffee. (Tr. 74; 92; 125-126). Mr. Adames stated that the items belonged to him, and in response to a question from Agent MacDonald, stated that he had bills of sale for the items at the Gates Avenue store, which he "would be happy to show" to Agent MacDonald and the N.Y.P.D. officers. (Tr. 74; 93; 127).
The agents and Mr. Adames drove to the Gates Avenue store, where Mr. Adames was again advised of his rights and advised that the agents did not have a warrant and would need his consent to search the premises. Mr. Adames indicated that he understood, and consented to a search of the store. (Tr. 74-75; 93-94). After Mr. Adames removed the bolts from heavy doors to the storage area and rigged a light for better illumination, Agent MacDonald entered the area and observed cartons and a sale display of Sergeant's Flea and Tic Collars. Based on an earlier conversation with an official of the A. H. Robbins Corporation, the manufacturer of the collars, Agent MacDonald concluded that the merchandise had been stolen from a shipment in interstate commerce originating in Richmond, Virginia, the previous month. He so advised Mr. Adames, who then retracted his earlier statement that he had bills of sale for the items. Instead, he said, he had been storing the merchandise for a friend whose identity he did not wish to reveal. He indicated that he wished to answer no more questions about the merchandise. The agents then seized the Sergeant's Flea and Tic Collars. (Tr. 75-79; 93-95).
Mr. Adames, who had not yet been placed under arrest and who, according to Agent MacDonald, would have been free to leave (Tr. 127; 130), then accompanied the agents back to the Clifton Place warehouse, where Agent Moran had arrived with the search warrant in the interim. The agents showed Mr. Adames the warrant, again advised him of his rights under Miranda, supra, and asked if he understood his rights. Mr. Adames answered in the affirmative, reiterated that he was merely storing the merchandise for a friend, and said that he would make no further statements. The agents then arrested Mr. Adames and executed the warrant, seizing from the ...