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UNITED STATES v. RUBIO

November 10, 1981

UNITED STATES of America
v.
Concepcion RUBIO, a/k/a "Carol Rubio", and Richard Rosado, Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

Defendants Richard Rosado and his wife Concepcion Rubio were arrested by Drug Enforcement Administration ("DEA") agents on June 6, 1981, and subsequently charged with three counts of violations of federal narcotics laws. Defendant Rosado asks for the following relief from this Court:

 1. Suppression of all statements and evidence obtained prior to arraignment.

 2. Suppression of all statements made to Assistant United States Attorney ("AUSA") Romatowski.

 3. Suppression of all evidence seized pursuant to warrants 81-787, 81-764, 81-779 and 81-788.

 4. An order for the disclosure of the name, address and prior criminal record of the government's confidential informant and all relevant information regarding this informant.

 5. Reduction of bail.

 Defendant Rubio joins in requests 3, 4 and 5 and additionally moves for a separate trial.

 A hearing was held before me to ascertain facts relevant to any statements made by defendant Rosado. Based on this hearing and the papers submitted by the parties, the following shall constitute my findings of fact and conclusions of law regarding defendants' motions.

 THE FACTS

 On Saturday, June 6, 1981, the defendants met with undercover DEA Agent Castillo and the informant "Dennis" in the lounge of the Holiday Inn on West 57th Street in Manhattan. The government alleges that in that lounge a deal for the purchase of two kilograms of cocaine for a price of $ 100,000 was agreed upon. Subsequently, while the foursome was leaving the lounge, the defendants were arrested.

 A search of the defendants' incident to their arrest revealed: a .38 caliber revolver, a kit, allegedly used to test the purity of cocaine, a total of $ 956 in cash, two packets of heroin and a blue bag containing a bottle of Clorox and a triple beam balance scale.

 The defendants were then taken to DEA headquarters for arrest processing. Mr. Rosado was strip-searched and questioned by the DEA agents after being advised of his Miranda rights. During this routine arrest procedure, DEA Agent Hall was in contact with the United States Attorney's Office in an effort to procure a search warrant for the defendants' apartment. The Assistant United States Attorney in contact with Agent Hall told him that a U. S. Magistrate was not available to arraign the defendants.

 The defendants were then driven from DEA headquarters to the Metropolitan Correction Center ("MCC"). Agent Hall testified that the DEA intentionally delayed lodging the defendants at the MCC until the search warrant was executed on the Rosado-Rubio residence. The DEA agents feared that Mr. Rosado would call his brother as soon as he was admitted to the MCC and that contraband would be removed from the apartment before the search. The defendants were finally lodged at the MCC at 6:03 p.m.

 The defendants remained at the MCC and were not questioned further until two days later, Monday, June 8, 1981. At approximately 10:30 a.m. defendant Rosado spoke with AUSA Romatowski after again receiving his Miranda warnings. Later that afternoon, the defendants were arraigned and bail was set at $ 50,000 each. Both defendants still remain in custody.

 I. Statements Made to DEA Agents and AUSA Romatowski

 Defendant Rosado alleges that his post arrest statements were involuntarily procured through unreasonable delay and therefore should be suppressed. In support of this motion, defendant argues that no Miranda warnings were issued until Monday, June 8, 1981, ...


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