The opinion of the court was delivered by: BARTELS
This suppression motion raises questions concerning the sufficiency of the evidence necessary to satisfy the legal and constitutional standards applicable to unwarranted arrests, investigative stops, consent searches, plain view seizures, auto searches, warranted apartment seizures, post-arrest statements, and photographic and in-court identifications. Defendants Daniel Ocampo, Theodoro Hernandez, Carlos Cardona, Jose Vincente Otero, and Nicholas Antonio Munoz-Velasquez are charged in a two-count indictment with distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and conspiracy to violate 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846.
Claiming their arrests and the resulting searches and seizures violated their Fourth Amendment rights, defendants now move pursuant to Fed.R.Cr.P. 12(b)(3) to suppress certain evidence thus obtained, including approximately $ 700,000 in cash. A lengthy hearing was held at which evidence of the circumstances surrounding the arrests and searches was adduced and the issues presented were argued by all counsel. After consideration of the evidence and the pertinent legal questions raised, the Court hereby renders the following memorandum opinion containing its findings of fact and conclusions of law as required by Fed.R.Cr.P. 12(e).
Over the period of the past several years, Drug Enforcement Administration ("DEA") Task Force Group 5, under the supervision of Special Agent William Mockler, Jr., has been investigating what is believed to be a large and sophisticated organization engaged in Colombian cocaine trafficking and controlled by one Jose Patino. In July 1979, members of Group 5 arrested Patino and seized from him certain documents. Together with papers seized in October 1978 from Heldar Pulgarin, a suspected drug associate of Patino, these documents constituted essential elements in the continuing investigation by Group 5 leading to the arrests and seizures in this case.
During his eleven years experience with the DEA, of which two years have been devoted to investigation of Colombian narcotics activities, Agent Mockler became familiar with the bookkeeping practices of narcotics dealers, and, based upon this expertise, he testified as an expert concerning the meaning of the Patino and Pulgarin documents. Seized from Patino, who was convicted for narcotics offenses, was a telephone and address book (Govt. Ex. 3) containing certain names and telephone numbers which, through decoding, Agent Mockler was able to decipher and learn the identities of persons thought to be Patino's colleagues and customers in cocaine trafficking. Among those identified were Daniel Ocampo, known as "Chino," address 1401 55th Street, Brooklyn; Theodoro Hernandez, known as "Negro," address 23-35 Broadway, Astoria, Queens; and Jose V. Otero, known as "Vicente," address 42-37 Hampton Street, apartment 2J, Elmhurst, Queens.
Seized from Pulgarin, who was convicted on a weapons charge, were several slips of paper (Govt. Exs. 1, 2) containing various names, telephone numbers, and figures suggesting narcotics transactions.
The name "Daniel" appeared on one of the slips next to Ocampo's phone number and on another slip next to the figure "1,000." Mockler's examination of DEA files also revealed that Ocampo had been arrested in Colombia in 1971 for possession of cocaine and that a government informant had stated that Ocampo was involved in drug traffic in Brooklyn. Ocampo's association with Tulio Enrique Ayerbe, a known narcotics dealer listed in Patino's book as "Toby," was confirmed by Group 5 members through pen register data showing calls from Ayerbe's phone to that of Ocampo and by observation of a meeting between Ocampo and Ayerbe.
Mockler's conclusion that "Negro" was a nickname for Hernandez was based on information from a reliable informant and documents seized around the time of Patino's arrest from a Bayside apartment for which Patino had rent receipts (Govt. Ex. 54). Those documents evidenced cocaine transactions involving "Negro" and listed debits in his name for attorney's fees and a bond. The amount of this bond was exactly the amount forfeited by Hernandez in 1978 when he failed to appear for an Immigration and Naturalization Service ("INS") deportation hearing after he had been turned over to INS by DEA agents who had arrested him on a narcotics charge. From a pen register placed on the phone of Ayerbe, Mockler obtained the number for an apartment at 23-35 Broadway in Astoria, which number was identical to that listed for "Negro" in Patino's address book.
On January 22, 1980, members of Group 5, with this background information in mind, conducted a surveillance outside Ocampo's apartment building at 1401 55th Street in Brooklyn. As they sat in a car parked across the street, the officers observed Daniel Ocampo's wife come in and out of the building at two to three minute intervals between 5:00 and 5:55 P.M. looking around as if she were expecting someone. At 6:00 P.M., a car appeared with two occupants, subsequently identified as Louis Ibarguan (the driver) and Manuel Vasquez, known in Patino's book as "Korea." Vasquez entered the building and returned to the car five minutes later carrying an umbrella. The car then drove to 1163 43rd Street in Brooklyn, where Vasquez again left the car and entered the building. As Ibarguan made several turns around the block, Vasquez emerged briefly from the building, looked around, and reentered the building. At 6:45 P.M., he emerged again, this time carrying a large yellow shopping bag, got in the car, and proceeded out of the area. When Vasquez and Ibarguan were stopped several minutes later by the surveilling officers, the yellow shopping bag was searched and found to contain three bags of cocaine and $ 27,500 in cash.
Following the arrest of Vasquez and Ibarguan, one of the officers found in the back seat of the suspects' vehicle a New York State vehicle registration in the name of Gustavo Rodriguez (Govt. Ex. 4) showing residence at 104-40 Queens Boulevard in Rego Park. Inquiry at that address revealed that Vasquez was the occupant of apartment 19D. Pen register data from a device placed on Ocampo's phone at 1401 55th Street showed that seven calls were placed from that address to Vasquez' phone at the Rego Park apartment on January 22, 1980 between 9:20 and 11:35 P.M.
On January 25, 1980, between 1:30 and 7:30 P.M., New York City Police Officer Stuart Prakin and New York State Police Investigator Michael Purpura, both members of Group 5, conducted a surveillance of the sixth floor of the apartment building at 1440 Ocean Parkway in Brooklyn. In addition to having information that the subscriber for the telephone in apartment 6C was Daniel Ocampo, the officers noted that his name appeared on both the mailbox and the doorbell in the lobby, and they discovered that the apartment was leased to him. Officer Prakin observed that the windows of the apartment had heavy curtains and steel gratings which, based on his experience, he knew to be characteristic of narcotics "stash pads." Officer Prakin was told by a neighbor that she did not believe the apartment was occupied, that various well-dressed South American men had been seen at unusual hours, and that they usually carried suitcases, cardboard boxes, or bags. She described one of these men as a middle aged male Hispanic with characteristics matching those obtained from Ocampo's DEA file. Officer Prakin also talked to another neighbor who confirmed this information.
On January 28, 1980, Officer Prakin was again surveilling apartment 6C at 1440 Ocean Parkway when he saw a man matching Ocampo's description and carrying a brown paper shopping bag and a brown leather shoulder bag let himself into the apartment with a set of keys. Three minutes later he emerged from the apartment carrying only the shoulder bag and drove away in a 1979 blue Chevy Caprice Classic, license plate 289 UXE. At 5:35 P.M., he returned and again entered the apartment, and approximately an hour and ten minutes later he left carrying a blue and white flight bag (Govt. Ex. 10). With Investigator Purpura, Officer Prakin followed him to 1401 55th Street, where Ocampo double-parked, entered the building, and five minutes later returned carrying a medium-size cardboard box, which he placed in the trunk. He then entered the car and drove off.
Officer Prakin and Investigator Purpura followed Ocampo to the Burger King restaurant located at Caton Avenue and Dahill Road in Brooklyn. Soon thereafter, they were joined in other vehicles by Detective Kenneth Robinson, of the New York City Police Department, and DEA Special Agent Thomas Deignan pursuant to Agent Mockler's instructions from DEA headquarters. After parking his vehicle in the restaurant lot, Ocampo walked to the telephone booth on the corner of Dahill Road and Caton Avenue and, while holding the telephone receiver about six inches from his mouth, he looked nervously up and down Caton Avenue and Fort Hamilton Parkway. As Investigator Purpura walked within several feet of the phone booth and entered the restaurant, he observed that Ocampo appeared not to be speaking but that he dialed four or five digits before hanging up the receiver. Several seconds later, as Ocampo moved away from the telephone booth, a 1978 blue Buick, license plate 349 T70, with two occupants entered the lot through the Caton Avenue entrance. As the car entered, Ocampo and the driver of the Buick waved quickly at each other, and Ocampo proceeded into the restaurant as the Buick moved through the lot and parked next to Ocampo's vehicle. The driver of the Buick, subsequently identified as Theodoro Hernandez, stepped out, looked in the direction of Investigator Purpura who was now standing outside the Burger King lot on Dahill Road, quickly turned around, and walked into the restaurant through the door on Caton Avenue. The passenger of the Buick, later identified as Carlos Cardona, remained in the front seat.
From his vehicle on Caton Avenue, Detective Robinson then observed Hernandez walk to the counter, make a purchase, and move to the corner table where he sat with his back to Caton Avenue. After approximately ten minutes, Ocampo, who had been standing inside the restaurant by the Caton Avenue door, went to the counter, made a purchase, and walked over to the corner table where Hernandez was seated. Soon thereafter, they walked out of the restaurant and took separate routes to their respective cars, Hernandez on the Dahill Road side of the building and Ocampo through the lot.
Again in their vehicles, Ocampo was the first to leave the lot through the Dahill Road exit, turning left across traffic and heading toward Caton Avenue. Hernandez and Cardona followed, but because of traffic were unable to complete their left turn onto Dahill Road and, consequently, blocked traffic in the oncoming lane as they waited for an opening in the opposite lane. At this moment, Detective Robinson, driving one of the vehicles blocked in the oncoming lane, had a clear facial view of Hernandez, and before Hernandez drove on, Robinson recognized him as an INS fugitive whom he had arrested on a narcotics charge in 1978. Robinson immediately radioed this information to the other Task Force members in the vicinity.
As Ocampo, Hernandez, and Cardona left the area, they were followed by three government vehicles. Officer Prakin and Investigator Purpura, who was now riding with Agent Deignan, observed that Cardona, on the passenger side of the front seat of Hernandez' Buick, looked around constantly, suggesting a fear that they were being followed. Leaving the service road along which they had been proceeding, the Ocampo and Hernandez vehicles entered the Prospect Expressway, gained speed, and took the first exit back to the service road, apparently in an effort either to detect or evade surveillance. Fearing that the surveillance had been detected, the officers stopped the suspect vehicles at Fifteenth Street and Fifth Avenue in Brooklyn. They suspected at that time that the driver of the lead vehicle was Daniel Ocampo and the driver of the second vehicle was Theodoro Hernandez.
After parking his car directly behind the Hernandez car, Officer Prakin got out, walked to Hernandez' door, and, after displaying his shield, told him to shut off the engine. When he failed to do so, Prakin removed him from the car, arrested him, and frisked him. Seeing Cardona slide over to the driver's seat and place his left hand on the steering wheel with the car's engine still running, Investigator Purpura, with his gun drawn, moved to the driver's side of the Hernandez vehicle, reached in, turned off the engine, identified himself, and escorted Cardona from the vehicle to the front hood where he spread Cardona's hands on the hood and held him with the gun. Ocampo was removed from his vehicle by Agent Deignan, who had parked his vehicle directly in front of Ocampo's. After placing Hernandez beside Cardona on the hood, Officer Prakin looked in the Buick with a flashlight and saw on the rear seat floor two adjacent brown paper bags, one of which was open and contained in plain view numerous bundles of U. S. currency (Govt. Exs. 8, 9, 9a-e). The contents of the second bag (Govt. Exs. 6, 7, 7a-e) subsequently discovered also to be bundles of money were covered by a single piece of brown paper, which covering Officer Prakin ripped after removing the bags from the car. He placed both bags in his automobile and locked it.
Prakin then walked over to Ocampo's car where, as Ocampo stood in the open door, Prakin looked in the car and saw in the middle of the front seat an unzipped blue and white flight bag, the same that Ocampo had carried out of the 1440 Ocean Parkway apartment. Upon removing it, approximately three to five feet away from the vehicle, Officer Prakin observed that it contained a brown leather shoulder bag (Govt. Ex. 11), also open, in which he found various documents, such as several loose papers (Govt. Ex. 12), a sheet containing names and phone numbers (Govt. Ex. 13), and a receipt book (Govt. Ex. 14). These bags and documents he also placed in his vehicle.
He returned to Ocampo's car, removed the keys from the ignition, and opened the trunk, in which he discovered the medium-size brown box (Govt. Ex. 15) which he had seen Ocampo carrying earlier that day. After removing the single three-inch strip of tape with which the box was closed, he opened it and observed a large plastic bag containing a white powder, later discovered to be inositol, a substance used in cutting cocaine.
Thereafter, Ocampo, Hernandez, and Cardona were taken to the 72nd precinct in Brooklyn where they arrived between 7:35 and 7:45 P.M. During the drive to the station, no attempt was made by the officers to interrogate the arrestees. Approximately fifteen minutes after their arrival, they were searched and certain articles were seized, including from Hernandez, a small black address and telephone book (Govt. Ex. 35) and a group of papers with handwritten notations and a driver's license in the name of Amparo Torres (Govt. Ex. 36); and from Cardona, three keys on a ring (Govt. Ex. 33).
Later that evening, the arrestees were transported to DEA headquarters on 57th Street in Manhattan and placed in detention cells on the 18th floor. At approximately midnight, Detective Guzman read the suspects their Miranda rights in Spanish from DEA Form 13B (Govt. Ex. 53) and informed them that they had been arrested for violation of the federal narcotics laws.
Each stated several times that he understood. Guzman then took Cardona into another room where he asked questions concerning pedigree information for DEA Form 202, and Cardona answered that he had no phone but that he lived in Queens, perhaps on 147th Street. When Cardona stated that he was willing to cooperate with the government, Guzman again read Cardona his Miranda rights and told him that he did not have to make any statement if he did not wish to, but that if he did so, it would have to be truthful. Cardona then explained that he had been in Flushing Park with Jorge, whom he identified by pointing at Hernandez (who was in the room being fingerprinted at the time), that a person known as Villegas (age 32-33, 130 lbs., 5'8, moustache, light-skinned Colombian) gave them some money to deliver to the Burger King in Fort Hamilton, and that Villegas gave them $ 20 for carfare. Detective Guzman then left, promising to return later. When Guzman returned 45 minutes later, Cardona said he had no information to give, denied knowing or having been with Hernandez, and disclaimed any knowledge of the money seized at the time of arrest.
At approximately 9:00 P.M., Officer Prakin and Special Agent Crawford returned to 1440 Ocean Parkway, apartment 6C, to secure the location until a search warrant could be obtained. They made no attempt to enter the apartment.
At 10:00 A.M. on January 29, 1980, Agent Mockler appeared with a warrant to search apartment 6C at 1440 Ocean Parkway (Govt. Ex. 16) and, together with four other agents, obtained access with keys taken from Ocampo at the time of his arrest. During the course of the two-hour search, the agents discovered and seized (1) a white plastic bag containing a white powder (Govt. Ex. 17), found under the nightstand by the bed; (2) a shoe box containing $ 49,990 in cash (Govt. Exs. 18, 19, 19a), found in the bedroom closet; (3) a shopping bag containing $ 45,000 (Govt. Exs. 20, 21, 21a), found also in the closet; (4) a green laundry bag containing shirts, pistols, and ammunition (Govt. Exs. 22-27), also found on a night stand in the bedroom; (5) a manila envelope and box of magic markers (Govt. Ex. 28), found in the top dresser drawer; (6) an all-purpose receipt book (Govt. Ex. 29), found also in the dresser drawer; (7) a manila envelope containing assorted pages from the receipt book and other note papers (Govt. Exs. 30-31), with writing and figures, found in the same dresser drawer. When the officers left the apartment at 12:10 P.M., they left a copy of the warrant listing these articles and others removed from the apartment (Govt. Ex. 32).
As noted supra, several documents (Govt. Exs. 12, 13) were seized from Ocampo at the time of his arrest, one listing various meetings at "BK" and "MC" on particular days of the week with named individuals, and the other containing many names and telephone numbers. Predicated upon analysis of these documents, Agent Mockler inferred that one of the meetings listed at "BK" on "Lunes" at "7:00 p.m." with "Grone" was the Burger King meeting on January 28, 1980 subsequent to which Ocampo, Hernandez, and Cardona were arrested. He further hypothesized that subsequent meetings would be held at an unspecified McDonalds fast food restaurant ("MC") and again at the Burger King on Thursday, January 31, 1980, at 1:00 P.M. with "Vic." Using the telephone list together with Patino's telephone book, Agent Mockler determined by decoding that "Grone" ("Negro" with syllables reversed) was Hernandez and "Vic" was Jose V. Otero ("Vic" for "Vicente").
Although agents were placed at two different McDonalds restaurants in Brooklyn, they met with no success. However, on January 31 at 12:40, guided by Ocampo's schedule of meetings, Agent Mockler arrived at the Burger King on Fort Hamilton Parkway and Dahill Road in Brooklyn and parked his vehicle in the lot. At approximately 12:57 P.M., he saw a 1976 maroon Oldsmobile Cutlass with two occupants enter from the Caton Avenue entrance. The passenger, whom Mockler identified in court as Munoz, got out, walked toward Mockler's car, looked at Mockler, and walked slowly back to his car, while repeatedly glancing over his shoulder at Mockler. He then walked around the Burger King and looked at Mockler from the far corner nearest the Caton Avenue entrance. He returned to his car, spoke to the driver who looked in the rear view mirror at Mockler; then, both got out of the car and walked toward Burger King restaurant. At this point, Mockler noticed that the driver resembled a description of Jose Otero obtained from the Department of Motor Vehicles. Several minutes later they returned with food bags, again turning to look at Mockler as they got into their car. Mockler, who had by now been joined on the scene by Sergeant Toal in a separate vehicle, left the lot, turned right on Dahill Road, and parked his car several hundred yards away.
Munoz again got out of his car, walked to Caton Avenue, and, appearing very anxious, he looked up and down the streets at the approaching traffic. At this point, the driver, whom Mockler identified in court as Otero, backed the car to a position facing Dahill Road with an unobstructed view of both exits. Pursuant to Mockler's instruction, Detective Robinson, in a four-door yellow Chevy, arrived at this time through the Caton Avenue entrance, where he observed Munoz walking back and forth. Looking very nervous, Munoz then walked back to the Oldsmobile and seated himself in the front seat, at which time Otero moved the vehicle slowly toward the Caton Avenue exit. At this point, Sergeant Toal, Agent Mockler, and Detective Robinson converged their vehicles on the Oldsmobile, blocking its exit in both directions. When it stopped, Mockler displayed his badge and approached Munoz, who opened the door and began to walk away. When Mockler asked him his name, he stopped and answered "Nicholas." Mockler asked again, this time for his last name, and Munoz gave the same answer. At the same time, Detective Robinson approached Otero, displayed his badge, knocked on the window, and asked to see some identification, such as a driver's license or vehicle registration. Otero then got out of the car without having been asked to do so and handed Robinson a license in the name of Jose V. Otero. In response to a question from Mockler, Robinson gave him Otero's name and address, and Mockler advised him to place Otero under arrest. After positioning Munoz against the trunk of the Oldsmobile, Mockler peered into the vehicle and observed on the rear floor partially covered by a shirt a white shopping bag (Govt. Ex. 37) containing a brown paper bag with the top folded over and pieces of scotch tape attached. He took the bag from the seat, felt what seemed to be bundles of money, opened it, and found $ 212,000 in U.S. currency (Govt. Exs. 38, 38a-d). Agent Mockler then reached under the passenger seat and found a loaded .45 caliber automatic pistol (Govt. Ex. 40). After Mockler informed both Otero and Munoz that they were under arrest, they were frisked by Detective Robinson, who found a live round of .45 caliber ammunition (Govt. Ex. 42) in Munoz' pocket.
Munoz and Otero were then placed in Sergeant Toal's vehicle with Detective Robinson, and, followed by Mockler in the Oldsmobile Cutlass, they were driven by Toal to the Brooklyn South Narcotics Unit at the Prospect Park precinct in Brooklyn, where they arrived at 1:20 P.M. While in transit, Robinson advised Otero of his rights in English from DEA Form 13 (Govt. Ex. 43), and Otero stated that he understood. No attempt was made similarly to advise Munoz or to question him because Otero explained that Munoz spoke no English. While both were detained at the precinct, the three officers returned to the Burger King to await the expected arrival of "Willie," whose name appeared on the Ocampo meeting list opposite the time "2:00," although no place for the meeting was specified.
Since Willie had apparently not arrived by 2:05 P.M., the officers returned to the precinct, at which time Otero and Munoz were transported to the 70th precinct, on Lawrence Avenue in Brooklyn. After arriving between 2:00 and 3:00 P.M., both were thoroughly searched by Detective Robinson, who took from Otero a wallet and various papers (Govt. Exs. 41, 41a).
Soon thereafter, the arrestees were taken to DEA headquarters on 57th Street in Manhattan, where they were placed in detention cells on the 18th floor. After again being informed of his Miranda rights, Otero stated that he understood them and made a statement to Detective Robinson explaining his presence at the Burger King. In substance, Otero stated that on January 31 he was driving along Woodhaven Boulevard looking for the movie "In Search of Historic Jesus," when he was waved down by Munoz who was carrying a shopping bag. Munoz told Otero that he would give $ 100 if he would take him to Brooklyn. Otero, who knew Munoz and had been helping him with learning English, agreed. Driving along the Prospect Parkway, Munoz said he was hungry so they stopped at a Burger King for some food. Initially, Munoz went in alone but when he came out and explained that he was having difficulty ordering the food, Otero went in also. Finally, Otero told Detective Robinson that Munoz would back him up because "he knows I'm innocent," and asked, "is it against the law to carry money?"
Munoz was interviewed for about 20 minutes by Detective Louis Ramos, New York City Police Department, at about 4:30 that afternoon at DEA headquarters. After Munoz was advised of his Miranda rights in Spanish from DEA Form 13 and had acknowledged his understanding of them,
Ramos filled out a DEA Form 202 for him. Munoz then explained that at a restaurant on 147th Street and Northern Boulevard he had met by chance an old acquaintance named Guillermo who asked him to take a shopping bag to Fort Hamilton, although Munoz did not know precisely where. He denied knowing anything about the money found in the bag, but stated that he knew it contained a gun. Finally, he stated that Otero had nothing to do with it. At the end of the interview, Munoz said he had no more to say and that he wanted a lawyer.
Later that evening, Mockler, Robinson, Guzman, and Toal met at Otero's home at 42-37 Hampton Street, apartment 2J, in Brooklyn, in order to verify the address, get a consent search, and obtain further information about Munoz. They let themselves into the apartment building by using one of the keys taken from Otero, went to the door of the apartment and knocked loudly for several minutes, got no answer, and then left the building. Upon learning from one of the agents that a woman had been seen at the window of the apartment, they returned, rang the bell, again knocked loudly on the door, and, after two to three minutes, heard a woman ask, "Who's there?" in English. Detective Robinson responded, "Police Officers" and held his shield up to the peephole. The woman, holding a young child, opened the door and identified herself as Nora Otero; the officers showed their shields, and Guzman said in Spanish, "We'd like to speak with you about your husband." She opened the door and showed the four officers into the living-dining room area where they were all seated at a table. When Detective Robinson informed her that her husband had been arrested for narcotics violations, she became very upset and began to cry. The officers then tried to calm her down, telling her that everything would be alright and explaining where and when an arraignment would be held. They then showed her a picture of Munoz and asked her if she knew him. She answered that she did, but did not know where he lived. They also asked her about her husband, who she said had been employed at the Brasserie Restaurant as a waiter and was now doing odd jobs. By this time, according to Detective Robinson, Mrs. Otero had calmed down.
The agents then asked her whether there were any guns or narcotics in the apartment, and she answered, "No," and told them they could look if they wished. When Agent Mockler asked her if she would sign a consent to search form, she agreed and, after Investigator Purpura had brought one from the police vehicle and Agent Guzman had read it to her in Spanish and explained it, she said she understood and signed it (Govt. Ex. 44).
The agents then asked her to show them where his papers or documents could be found, and she showed them in the bedroom (1) a night-table and (2) a dresser, and in the kitchen, drawers with bills and housekeeping records. From the night-table, the agents seized an address book (Ex. 46) and, from the kitchen drawers, three large notebooks (Govt. Exs. 47-49), one of which contained several loose pieces of paper (Govt. Exs. 50, 51, 51a). Mrs. Otero stated that these books belonged to her husband and that he was the only person who would write in them.
During the approximately one hour the agents were in the apartment, their weapons were neither drawn nor displayed. Although they looked around the apartment generally in addition to examining the places specifically pointed out by Mrs. Otero, they did not go through closets or pull out drawers. No attempt had apparently been made by the agents to get a warrant to search the ...