The opinion of the court was delivered by: SWEET
The Government has named defendants Paul Mannino, Michael Ardizzone, Neil Lombardo, Robert Romeo and Joseph Cordano in an eleven count indictment charging possession with intent to distribute controlled substances, conspiracy to distribute controlled substances and firearms offenses. Mannino is also charged with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Mannino and Lombardo are charged with engaging in a pattern of racketeering in violation of 18 U.S.C. §§ 1961, 1962(c) and 1963, the Racketeer Influenced and Corrupt Organizations statute ("RICO"). The filing of the present indictment and the requirements of the Speedy Trial Act have been the subject of two prior orders of this court.
Mannino and Ardizzone have now moved to suppress certain evidence seized from Mannino's automobile on September 20, 1979 and from his residence pursuant to a search warrant on September 21, 1979. Mannino moves to dismiss the RICO count under Rule 12(b)(2), Fed.R.Cr.P. The motions to suppress are granted in part and denied in part. The motion to dismiss is denied.
A suppression hearing was held on February 4 and 25, 1980 at which Mannino and four agents of the Drug Enforcement Administration ("DEA"), Agents Pavlick, Higgs, Kobell and White, testified. This opinion constitutes the court's findings of fact and conclusions of law as required by Rule 41(b), Fed.R.Crim.P.
At 6:00 p.m. on September 20, 1979, DEA Agent Silvestri negotiated a purchase of 40,000 methaqualone ("Quaalude") tablets from Cordano by telephone. Cordano was then situated at the residence of Romeo at 124 Avenue T in Brooklyn. Cordano told Silvestri that he was going to "Paulie's" house to obtain the drugs.
Agent Pavlick, who was positioned outside the Romeo residence during this call, observed Cordano leave the Romeo home and followed him directly to 474 Van Sicklen Street, the residence of Paul Mannino, which Cordano entered. Cordano telephoned Silvestri, and Silvestri was able to hear "Paulie" speaking in the background. Cordano arranged to meet Silvestri at 9:00 p.m. at Cordano's residence at 2436 84th Street in Brooklyn.
Pavlick returned to Cordano's home on 84th Street, outside which Agent Silvestri, Group Supervisor White and other agents had stationed themselves. Agents Higgs and Moser simultaneously maintained surveillance of the Mannino residence. Agent Silvestri completed negotiations for the pills inside Cordano's house. Cordano delivered 10,000 pills in a brown cardboard box to a car at the end of his block. The agents then arrested Cordano.
Approximately fifteen minutes after the arrest, Agent Moser reported to Pavlick that Ardizzone had been dropped off at the Mannino address. Mannino and Ardizzone began loading cardboard cartons into the back end of a Ford station wagon that was parked in Mannino's driveway facing out toward the street. When Mannino and Ardizzone entered the car, and Mannino started the engine, Agents Higgs and Moser pulled their car in front of the station wagon to block its departure. Agent Moser arrested Ardizzone, and Agent Higgs arrested Mannino. Agent Higgs told Mannino to get out of the car and put his hands up on a cyclone fence which ran perpendicular to the driveway. Agents Kobell and Silvestri arrived on the scene almost immediately, followed shortly by Agent Pavlick and Group Supervisor White. Silvestri placed handcuffs on Mannino. Agent Kobell assisted Agent Moser with Ardizzone, then proceeded toward Agents Higgs and Silvestri and took custody of Mannino. As Kobell escorted Mannino to the front stoop of his house, he walked by the station wagon and removed the keys.
Agent Pavlick walked around the back of the station wagon on the passenger side and noticed six or seven cardboard boxes in the rear. As he got to the driver's side, Pavlick attempted to look into a box bearing the label "Egg Pullman," which was longer than the other boxes. Some rags covered approximately half of the top of the box toward the rear of the auto. The longitudinal flaps of the cardboard box were turned outward and pressed against its sides. The lateral flaps were pushed down at an angle on the inside of the box. Pavlick testified, "I pushed the rags off the top of the box, and I was able to see plastic bags with a white backing." With the aid of a flashlight obtained from Group Supervisor White, Pavlick could see that the bags contained pills. Pavlick stated, "I put my hand inside the box, and I pulled out one or two bags. I then went into the car itself, and I opened at least one or two more boxes with a key that I had, . . . boxes that were sealed." The other boxes also contained bags of white pills.
Pavlick and Group Supervisor White joined Agents Kobell and Silvestri on the porch where they had Mannino under control. Mannino asked to be taken into the house in order to avoid scrutiny by a group of fifteen or twenty neighbors which had gathered on the street in front of the Mannino residence. The agents removed the handcuffs so that Mannino could enter the house and subdue a guard dog which was barking inside. After Mannino chained the dog, the cuffs were replaced, and he was seated at the kitchen table.
Agents Pavlick and Kobell proceeded to make a cursory search for individuals on the interior of the house. During this cursory search, Kobell and Pavlick observed a loaded sawed off shotgun in the bedroom and a safe in the basement.
Recalling that he possessed the keys to the station wagon, Kobell left the house to secure it. Leaning against the back of the front seat of the automobile, he observed a white plastic bag within which he discovered a ledger book and four loaded handguns. The ledger book contained a detailed record of a large number of drug transactions extending over a period of several years.
On the basis of this evidence, Agent Pavlick applied for a search warrant of the Mannino residence on September 21, 1979. The warrant was granted, and a search of the residence, which had been secured by DEA agents overnight, was conducted. The search yielded over $ 45,000 cash and incriminating documentary evidence.
In reaching these factual findings, the court has taken note of certain discrepancies among the testimony of the four DEA agents. The only significant discrepancy was between the testimony of Agents Higgs and Kobell. Higgs testified that shortly after the arrest of Mannino, Agent Kobell searched the front seat of the station wagon and discovered the plastic bag containing weapons, which he showed to her. Kobell testified that he did not search the car until after entering the house, approximately fifteen minutes after the arrest, and denied showing the contents of the bag to Agent Higgs. However, this discrepancy in testimony has no legal significance. In view of the rapid and fluid unfolding of events at 474 Van Sicklen, small differences in testimony are inevitable. Kobell testified in a frank and credible manner and the agents corroborated each other in all pertinent respects. The disparities in testimony strengthen, rather than detract from, the impression of credibility.
Mannino's testimony contradicted that of the DEA agents in several significant respects. The contradictions will be discussed in ruling upon the various points of law raised by this motion.
A. Seizure of the Pills in the "Egg Pullman" Box
Mannino contends that the seizure of the pills from the "Egg Pullman" box violated his Fourth Amendment rights. He claims that once the DEA agents gained control of the station wagon and its contents, they were required to obtain a search warrant before opening any of the boxes. Mannino relies on Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), and United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), aff'd on motion for reh., 615 F.2d 10 (2d Cir. 1980). The Government urges that the search falls within the "automobile exception" to the warrant requirement of the Fourth Amendment.
In Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), the Supreme Court held that the search of an automobile in which a robbery suspect had been riding and the seizure of two revolvers without a warrant did not violate the suspect's Fourth Amendment rights. The Court emphasized that the police had had probable cause to arrest the suspect and to believe that the automobile contained incriminating evidence. Because of the inherent mobility of an automobile and the diminished expectation of privacy ...