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July 28, 1980

Matthew REGA and Allyson Boyle, Defendants

The opinion of the court was delivered by: WEINFELD

The defendant Allyson Boyle moves to suppress certain items seized from her apartment at the time of her arrest there on March 28, 1980 and additional items found in her purse during post-arrest processing later that same day while she was in custody at the headquarters of the Drug Enforcement Administration ("DEA").

After a hearing at which the defendant and four of the law enforcement agents involved in the relevant events testified, the Court finds that the circumstances surrounding Boyle's arrest and the seizures were as follows. In the mid-afternoon of March 28th, DEA agent Al Cavuto and Inspector John Comparetto, both acting in an undercover capacity, met with Joseph Corallo and Roger Bibeau in a room in the Holiday Inn on West 57th Street in Manhattan. The agents had, prior to this meeting, negotiated with Corallo and Bibeau for the purchase from the latter of one kilogram of cocaine. In the hotel room, however, Corallo produced only a quarter of a kilogram and told the agents that if they gave him $ 10,000 he would return to his source and pick up the remaining three-quarters.

 At this point Comparetto and Bibeau went down to the hotel lobby and reported this development to a third undercover agent waiting there. In the lobby, Bibeau was arrested.

 Agent Cavuto remained in the hotel room with Corallo who then told him that he had obtained the cocaine from his cousin and that he had been delayed in arriving at the rendezvous with the agents because there had been other persons at his cousin's apartment seeking to purchase narcotics and Corallo had had to wait his turn.

 After Bibeau's arrest and Cavuto's conversation in the hotel room with Corallo, other agents entered the hotel room and arrested Corallo. A note was found on Corallo's person which indicated that he was to return to his cousin's apartment to obtain the additional cocaine. Both Bibeau and Corallo were armed with pistols when they were arrested.

 Corallo, after his arrest and after being advised of his constitutional rights, agreed to cooperate with the agents. He agreed to take them to the apartment where he had met with his cousin and the latter's girlfriend and had obtained the one-quarter kilogram of cocaine and where he expected to receive the remaining three-quarters. He indicated to the agents that they could expect to find two persons in the apartment, a man and a woman (presumably his cousin and the cousin's girlfriend).

 Corallo accompanied Comparetto, Cavuto and a third agent, Shockley, to 322 West 57th Street in Manhattan. He obtained admission to the lobby and elevator by giving his name to a security guard in the building, and went with the agents upstairs to the door of Apartment 43-T. Corallo knocked on the door of the apartment which was opened by the defendant Boyle, who admitted the four men into the living room area of the apartment.

 Agent Shockley, posing as the purchaser, complained of the quality of the cocaine delivered by Corallo. Boyle told the agents that she had only picked up the package, that "they" could do better but that the agents would have to talk to "him" about it. The male referred to was not identified. Shortly after this conversation, a knock was heard at the door of the apartment and Boyle responded, admitting four additional agents of the DEA: Toal, Rooney, Hondoga and Gray.

 Agent Toal, the supervising agent, immediately placed Boyle under arrest and directed his men to check the rooms of the apartment for any other persons who might be hiding there with guns and to assure the safety of his men. In response, Comparetto and Hondoga proceeded to the bedrooms and bathrooms of the apartment. Comparetto first checked the bathroom and the bathtub in it, and then entered the master bedroom where he met Agent Hondoga. Comparetto checked under the bed and looked in the closets of this room. At this time he also observed a brown mirror with white powder on it and a green plastic grinder which he recognized as a type used to crush cocaine.

 After less than a minute in the master bedroom, Comparetto returned to the living room and reported that he had seen drug paraphernalia on the dresser there. Hondoga, who left the master bedroom with Comparetto, did not return immediately to the living room but went on to check the smaller, second bedroom in the apartment. One agent reported seeing a scale in the apartment during the security check.

 In the living room, while the security check was carried out, agents Toal and Cavuto placed Boyle on the couch. After being advised of her rights, Boyle indicated she would not answer any questions. Toal left the living room and went with Agent Cavuto to view the two bedrooms which had by now been checked and in which the agents had reported there was evidence in plain view.

 In the master and the smaller bedroom, Toal and Cavuto observed various objects, exposed and in plain view on the surface of dressers and other furniture in the rooms. Toal directed his agents to seize whatever items were in plain view, which they did.

 Before leaving the apartment with Boyle, Toal told the defendant that she would need identification and to bring a pocketbook with her. Boyle left the apartment with a brown leather purse. At DEA headquarters, during the processing of Boyle, Agent Cavuto inventoried the contents of the purse and discovered the additional items that the defendant also seeks to suppress. In total, the agents were in Boyle's apartment for approximately thirty minutes.

 As to the seizure of the items from the apartment's bedrooms, the defendant claims that the search leading to these seizures was unlawful as beyond the scope of a reasonable search incident to arrest under Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). The government, however, does not seek to justify the seizures on this ground. Rather its position is that the objects were properly seized because they were observed ...

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