Appeal from judgment of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, granting a motion to suppress evidence seized by the appellant in connection with the arrest of one of the appellee-defendants.
Feinberg, Chief Judge, Oakes, Circuit Judge, Friedman, Chief Judge, United States Court of Claims.*fn*
FRIEDMAN, Chief Judge, United States Court of Claims:
This is an appeal by the United States pursuant to 18 U.S.C. § 3731 (1976) from a judgment of the United States District Court for the Eastern District of New York (Bartels, J.) suppressing evidence seized in an apartment in connection with the warrantless arrest of appellee-defendant, Ivo Martinez-Gonzalez. We reverse.
A. The pertinent facts, as found by the district court and not here challenged, with minor additions reflected in the record, are as follows:
1. On February 18, 1981, while stopped at a traffic light in Queens, William Mockler, a Special Agent of the Drug Enforcement Administration ("DEA"), recognized defendant Sanchez sitting in the automobile next to his. Mockler had arrested Sanchez in 1979 in connection with an investigation of cocaine trafficking, and she had pled guilty to illegal presence in the United States. Mockler knew that Sanchez had been sentenced to two years' imprisonment commencing in June 1979, and that she would have been deported after serving her sentence. He therefore concluded that her presence in this country was almost certainly illegal.
Mockler caused the car in which Sanchez was riding to pull over. In response to questions from Mockler and other agents accompanying him, the driver of the car produced a valid driver's license but could not produce a registration for the car. Sanchez, who was sitting on the passenger side, stated that her name was Marta Gonzalez, which Mockler knew was false. She also could not produce the car's registration but stated that she had borrowed it from a friend whose name she did not know.
On the basis of these answers, Mockler asked Sanchez to accompany him to a nearby police station for the purpose of checking her identity. Sanchez agreed to go.
At the station Mockler and other agents questioned Sanchez about her presence in this country. In response she produced several papers bearing names other than Sanchez or Marta Gonzalez and gave two different birth dates. She also placed on the table a rent receipt bearing yet another name, for apartment 5M at 164-20 Highland Avenue in Queens. Ultimately Sanchez admitted her true identity and was turned over to agents of the Immigration and Naturalization Service who had been summoned to the police station and who arrested her for violation of the immigration laws.
A search of Sanchez's handbag was conducted which revealed: (1) a set of keys; (2) the rent receipt for apartment 5M; (3) money; and (4) a piece of paper containing telephone numbers and several figures.
2. That evening Mockler and other agents went to the building in which apartment 5M was located, hoping to locate Disney Mendez (whose name may be "Daisey"), a daughter of Sanchez, for whom a state arrest warrant was outstanding. Upon arriving at 164-20 Highland Avenue, the agents learned from the building superintendent and his wife that a woman named "Pagan," whom the superintendent identified from a photograph as Sanchez, lived in apartment 5M with her daughter. The description of the daughter matched that of Disney Mendez, and the name on the rent receipt found in Sanchez's handbag was "Lucelli Pagan." From the doorman, the agents learned that the daughter had returned to the apartment recently.
The agents then went to apartment 5M. They knocked on the door, and announced in Spanish and English that they were the police. No one responded, but the agents heard people moving inside, as well as the sound of a television set. The agents then used one of the keys found in Sanchez's handbag to open the door and entered the apartment.
Two of the officers found a locked bathroom door. They repeatedly banged on it and shouted, "Police, police -- open up the door." A female responded that she was using the facility. A woman soon emerged from the bathroom after the toilet had been flushed. The agents escorted her to the living room, where a man found hiding in a second bathroom already was sitting. The woman identified herself as Maria Mendez; the agents did not ask whether she was "Disney" Mendez. The agents asked Mendez whether there were any drugs or weapons in the apartment. She responded, "No, you could look around." The agents advised Mendez that she need not consent to a search, but when she was asked whether she would agree, she replied affirmatively.
In the search, the agents found and seized the following: (1) traces of cocaine in a plastic bag found in the toilet in the bathroom from which Mendez emerged; (2) a.38 caliber revolver; (3) currency; (4) several notebooks; and (5) a small quantity of marijuana.
Shortly after the search, another agent arrived with a photograph of Disney Mendez. Although there was a resemblance, the young woman found in the apartment was not Disney Mendez, but Disney's sister, Maria. On the basis of the evidence found in 5M, Maria Mendez was arrested for violating the federal narcotics laws.
3. The following day, February 19, while Sanchez and her daughter were being arraigned in Brooklyn, Detective Vallely (one of the agents who had participated in the search of apartment 5M) inventoried all of the evidence seized the day before, including the contents of Sanchez's handbag, at DEA's Manhattan headquarters. He discovered in the bottom of an eyeglass case found in the handbag a crumpled cash receipt for rent on apartment 7F, located at 87-15 16th Street, across the street from the building in which apartment 5M was located. Vallely informed Mockler of the discovery late that afternoon. Mockler directed Vallely and the other agents to investigate the apartment.
The building superintendent at 87-15 16th Street and his wife informed the agents that (1) apartment 7F had been leased one month earlier by a young Hispanic male in the company of a female, whom they identified from photographs as Sanchez; (2) no furniture had been moved into the apartment other than a folding cot; (3) the couple had observed the young man carrying four or five very heavy flight bags into the apartment; (4) only the electricity, but not the gas for cooking, had been turned on; (5) Sanchez had been seen entering the building with a pot of food to take to the apartment; (6) Sanchez had keys for the lobby door and stated that she also had a key to 7F; (7) a new lock had ...