The opinion of the court was delivered by: PLATT
Defendants in this case are charged with possession of cocaine with intent to distribute, and conspiracy, in violation of 21 U.S.C. §§ 2, 841(a)(1). They have each moved to suppress certain evidence and to dismiss the indictment. This Court held hearings on July 14, 27 and 28, 1983 to consider this motion. In addition, the government has moved this Court to consolidate for trial the indictment against defendants Mmes. Moran and Guzman, and Messrs. Leocadio Caro and Torres with the indictment against Hernando Caro. For the reasons set forth below, the various motions of defendants are denied, and the government's motion to consolidate is granted.
On May 23, 1983, acting through a confidential informant, members of Group IV of the New York Drug Enforcement Task Force arranged to purchase one-eighth of a kilogram of cocaine from the informant's "source of supply." (July 14, Tr. 24) This source was described as a female Hispanic named "Mima."* Ms. Perez agreed to deliver the cocaine to the informant that night at a location in Manhattan.When she did not appear as scheduled, the informant called Ms. Perez and was informed that her connection had not responded to a call to his beeper number, and a new meeting was scheduled for the next evening. (July 14, Tr. 27-28)
At that time Police surveillance was established at both the Manhattan meeting place and Ms. Perez's suspected residence at 92-16 Whitney Avenue in Queens. The police observed Ms. Perez leave the latter residence shortly before the rendezvous time, and radioed to the Manhattan police the license number and make of Ms. Perez's car. Approximately 40 minutes later this car was observed approaching the rendezvous site, where it stopped to let Ms. Perez out, and then drove off. (July 14, Tr. 28-32)
Ms. Perez met with the informant, but the transaction was not consummated, and she left the scene by taxi, followed by the police. When it appeared that Ms. Perez suspected she was being followed, the police stopped the taxi and arrested her. On her person was one-eighth of a kilogram of 90% pure cocaine and $2,551.00 in cash.(July 14, Tr. 32-36)
Ms. Perez was advised of her Miranda rights in Spanish, which she indicated she understood.She then gave her consent for the police to search her apartment in Queens. (July 14, Tr. 36-38)
Thereafter in their car the police drove with Ms. Perez to her apartment where they met with the superintendent. He recognized Ms. Perez as a tenant in apartment #110, which, he said was also occupied by at least one other female resident. Because Ms. Perez did not have keys to the apartment, the police asked the superintendent to knock on the door thereof, and he did so. A woman's voice was heard inside and the door opened. At this time the detective involved stepped in front of the door and announced that it was the police. The woman (subsequently identified as defendant Moran) attempted to slam the door, but the detective kept it open with his shoulder, and the police entered the apartment. (July 14, Tr. 38-42)
Upon entering, the police first saw a triple-beam O'Haus scale, which the detective testified is a common fixture in apartments where drugs are packaged. They then saw defendant Guzman in the apartment hallway and proceeded to check the rest of the apartment to see if any other people were present. In the master bedroom the detectives saw a dinner plate on a pillow on the bed, upon which was a small mound of white power (later identified as cocaine) and above which was a high intensity light. (July 14, Tr. 42-46)
At this point defendants Guzman and Moran were placed under arrest and informed of their rights, which they indicated they understood. The officers also now obtained Ms. Perez's written consent to search her apartment. (July 14, Tr. 48-49) The evidence shows, and defendants do not dispute, that this consent was given freely and knowingly.
A more thorough search of the apartment followed immediately. The long closet in the small bedroom yielded a white purse containing $1,585.00 in cash. The purse was initially claimed by defendant Moran (July 28, Tr. 97), but the money inside was later claimed by defendant Guzman. (July 14, Tr. 53) Outside the small closet in the small bedroom the officers found a brown plastic bag which contained plastic bags of white powder, later identified as cocaine, and $1,203.00 in cash. In addition, the small bedroom yielded a purse, in which the officers found a Colombian passport bearing the name Marida Restrepo de Velez, which contained a photograph of defendant Moran and a Colombian passport bearing the name Virginia del Carmen Moran de Guzman, which also contained a photograph of defendant Moran. Also found was a yellow cannister containing $2,084.00.(July 27, Tr. 5-7).
A search of the kitchen turned up a large quantity of small clear plastic bags (July 27, Tr. 29).
The officers then asked defendant Guzman where she slept in the apartment, to which she first replied that she slept in the small bedroom. She then changed her answer and said that she slept on the couch in the living room. (July 27, Tr. 8).
In the large bedroom, which Ms. Perez indicated she used, were found various papers with the name Edilma Perez and Maria Perez. Also found was a list of phone numbers, one of which was 218-3282. (July 27, Tr. 28).
Approximately 40 minutes into the search of apartment 110, the buzzer from the outside door rang. The police pushed the button opening the front door and a moment later there was a knock on the door. The police opened the door and saw defendants Leocadio Caro and Hernando Caro*1 standing together in the hallway. The detective said "Police, come on in," and Mr. Hernando Caro walked into the apartment, carrying a leather bag. Mr. Leocadio Caro took a half step to his left, dropped a brown leather bag in the hallway and entered the apartment. (July 27, Tr. 9-10).
The detective immediately retrieved the dropped bag, opened it, and saw three clear plastic bags containing white powder, later identified as 380 grams of approximately 85% pure cocaine. (July 27, Tr. 13-14).
At this time both Messrs. Caro were placed under arrest, and the bag Hernando Caro was carrying was taken from him by the officers. Both Caro defendants were then handcuffed and read their rights in Spanish, which they indicated they understood. (July 28, Tr. 189-190).
Mr. Hernando Caro's bag was opened and searched. Inside were found certain papers and documents which the government alleges are drug trafficking records. (July 27, Tr. 15-17). Mr. Hernando Caro was asked by Detective Martinez of the New York City Police Department how he and Mr. Leocadio Caro had travelled to the apartment that night, and he answered "by car", and described a white station wagon. When asked where the keys were, Mr. Leocadio Caro produced a set of keys which fit a white station wagon parked at a fire hydrant outside Ms. Perez's apartment. (July 28, Tr. 191).
Forty minutes after the arrival of the Caro defendants the front door buzzer rang again. The buzzer was pushed again and, moments later, there was another knock on the door. Detective Prakin of the New York City Police Department opened the door, saw defendant Luis Torres and recognized him as the person upon whom he had served a state arrest warrant for firearms possession while Mr. Torres was in the Federal Metropolitan Correctional Center. Detective Prakin also knew that Mr. Torres was a Colombian citizen who had been convicted of a federal narcotics violation, and he therefore believed that Mr. Torres was present in this country illegally. Considering Torres to be under ...