Appeal from judgments of the Eastern District of New York entered after a jury trial before Judge John R. Bartels convicting appellants of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Affirmed in part and reversed in part .
Before Lumbard, Mansfield and Meskill, Circuit Judges.
Daniel Ocampo, Theodoro Hernandez, Jose Vincente Otero and Nicholas Munoz-Velasquez appeal from judgments of the Eastern District of New York entered after a jury trial before Judge John R. Bartels convicting them of conspiracy to distribute large quantities of cocaine in violation of 21 U.S.C. § 846. The trial was preceded by a four-week suppression hearing before Judge Bartels, following which he issued a comprehensive opinion upholding appellants' arrests, certain seizures of evidence from their automobiles at the time of their arrests, the search of an apartment believed to be a "stash pad" for cash, drugs, and drug paraphernalia, and the search of appellant Otero's home. 492 F. Supp. 1211 (E.D.N.Y.1980). We reverse the conviction of Hernandez and remand for a new trial. The other three convictions are affirmed.
Since appellants raise issues with respect to the denial of their motions to suppress as well as the trial itself, a review of the record of both proceedings becomes necessary.
The present case originated as the result of a Drug Enforcement Administration (DEA) investigation, supervised by Agent William Mockler, Jr., into a large organization engaged in Colombian cocaine-trafficking under the leadership of Jose Patino. Papers seized in 1978 from an associate, Heldar Puglarin, and in 1979 from Patino, led the DEA agents to the door of appellant Ocampo as a participant in cocaine sales. He lived at 1401 55th Street, Brooklyn, had been arrested in Colombia in 1971 for possession of cocaine, had been named by a government informer as a drug trafficker, and was shown by telephone pen register call records to be in communication with another known drug dealer (Ayerbe, also known as "Toby") listed in Patino's records.
On January 22, 1980, officers conducting a surveillance of Ocampo's apartment building at 1401 55th Street saw one Vasquez, also named in Patino's records, enter the apartment and emerge shortly with a yellow shopping bag which, upon Vasquez' arrest, was found to contain cocaine and $27,500 in cash. Pen register data revealed calls between Ocampo's phone and that of Vasquez.
On January 25, 1980, the agents conducted a second surveillance, this time of another apartment at 1440 Ocean Parkway in Brooklyn, which was leased to Ocampo and had a telephone registered to him. The apartment, not visibly occupied, had heavy curtains and an iron grating over its windows. Neighbors told the agents that the apartment seemed to be unoccupied but was regularly visited at night by well-dressed South Americans carrying cardboard boxes, one of whom seemed to fit Ocampo's description. Based on their extensive observation of the drug trade, the agents concluded that the apartment might be a "stash pad" used as a cache for the accouterments of the narcotics trade.
On January 28, when agents were once again observing the Ocean Parkway apartment, they saw Ocampo, who was carrying a brown paper bag and a leather shoulder bag, let himself into the apartment with a set of keys. After he left the apartment carrying only the shoulder bag, the agents followed him to his home at 1401 55th Street, and watched him place a cardboard box in the trunk of his car. He then proceeded to a Burger King restaurant in Brooklyn, parking in an open corner of the parking lot. He entered the restaurant and pretended to make a phone call while looking around nervously. A moment later, another car pulled into the lot next to Ocampo's car, and a man later identified as Hernandez emerged.
Hernandez entered the Burger King, but did not join Ocampo for several minutes. After talking together, the two men separated and left the restaurant. As they drove their cars out of the parking lot, one of the agents recognized Hernandez as a fugitive from the Immigration and Naturalization Service (INS). Hernandez had been handed over in October 1978 for deportation proceedings after being arrested on a narcotics charge and a warrant for his arrest was outstanding. The agent also thought Hernandez recognized him. The agents followed the two cars, which proceeded evasively, entering and leaving the expressway while both drivers constantly looked around to see if they were being followed. Finally, the agents pulled over both cars, and placed Ocampo and Hernandez and his passenger*fn1 under arrest.
Upon looking with a flashlight into the car driven by Hernandez, the agents saw on the rear seat floor two brown paper bags. One of the bags was open, and bundles of U.S. currency were in plain view. After removing the bags from the car, one of the agents felt the other bag and determined that it also contained bundles of currency. On the front seat of the auto driven by Ocampo was an unzipped blue and white flight bag,*fn2 which was the same as that carried by him out of the 1440 Ocean Parkway apartment. It contained a second unzipped bag, in which the agents found records evidencing a large volume of narcotics transactions.
On the next morning, January 29, at about 10:00 A.M., police, armed with a search warrant, entered Ocampo's "stash pad" on Ocean Parkway and seized cash, pistols, ammunition, a plastic bag of white powder later determined to be cocaine, and an additional receipt book. This book showed scheduled meetings at "MC" (McDonald's) and "BK" (Burger King). One meeting had been scheduled at "BK" between Ocampo and "Grone" ("Negro" with its syllables reversed) at the very time Ocampo and Hernandez appeared there prior to their being chased and arrested. Another "BK" meeting was scheduled with "Vic" (identified as appellant Jose Vincente Otero) on January 31 at 1:00 P.M.
At 12:57 P.M. on January 31, as agents watched, a car with two occupants pulled into the same part of the Burger King parking lot that Ocampo and Hernandez had used three days earlier. The man in the passenger seat got out and looked around nervously before returning to the car and speaking to the driver, whom agent Mockler recognized as resembling the Motor Vehicle Department's description of Otero. The two men briefly entered the Burger King, then returned with bags of food. The passenger once again left the car and began pacing back and forth, apparently waiting for someone, while the driver moved the car to a position offering a vantage point over the entire lot. After a few minutes more, the passenger returned to the car, and the two men began to drive out of the lot. As they reached the exit, agents drove their cars in front of and behind them, blocking their way.
Without drawing guns, the agents approached the car and asked the driver his name. When he said that he was Otero, they arrested him and his passenger, appellant Munoz.*fn3 Agent Mockler then reached into the back seat, where a paper bag that was taped shut at the top was partially covered by loose clothing. He did not open the bag at first, but felt its outside and concluded that the bag seemed to be full of wrapped currency. Inspection of the bag's contents confirmed his suspicions. The agents then searched the rest of the car, and found a loaded .45 caliber pistol ...