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January 9, 1984


The opinion of the court was delivered by: GLASSER


GLASSER, United States District Judge:

 The defendants Antonio Bermudez a/k/a "Larry Landa" and Francisco Lopez and Santiago Mejia were indicted together with others, charged with conspiracy to possess with intent to distribute, and with possessing with intent to distribute cocaine. Motions were made on behalf of Bermudez to suppress physical evidence claimed to have been the product of a warrantless search and seizure in violation of the Fourth Amendment; to suppress post-arrest statements unlawfully obtained from him in violation of the Fifth and Sixth Amendments; to dismiss the indictment against him as being insufficient on its face and as being based on unsupported evidence and for a severance of the charges against him.

 On behalf of the defendant Lopez, a motion was made to suppress physical evidence seized incident to a warrantless search; statements which the defendant may have made at the time of his arrest and physical evidence seized after a search warrant was obtained for the reason that the facts upon which the search warrant was issued were illegally obtained. On behalf of the defendant Mejia a motion was made to suppress physical evidence claimed to be the product of a warrantless search and seizure of contraband from an automobile which he was operating at the time of his arrest. It is claimed that the search and seizure were violative of his Fourth Amendment rights.

 A hearing was held on the motions of Bermudez and Lopez. On the following day, Mejia's motion was to be heard. Mejia's attorney advised the Court that he was present during the hearing on the preceding day and heard all the testimony that was elicited. Rather than recall the same witnesses and having their testimony elicited again, a stipulation was entered into between Mejia and the Government that the testimony may be considered by the Court for purposes of his motion. In addition, the following facts were also made part of the stipulation:

 On the evening of November 8, 1983, when Santiago Mejia was observed leaving 4504 Kings Highway, Brooklyn, for the second time that evening, Mejia was carrying an opaque plastic bag which he placed in the trunk of the car he had been driving all evening. Mejia was then arrested after driving several blocks from the Kings Highway address. After placing Mejia under arrest, agents searched the car and its trunk. In the trunk they found an unfastened green garbage bag. The garbage bag was found to contain the opaque plastic bag Mejia had been observed carrying from the Kings Highway residence. Further contained in the plastic bags were three opaque plastic containers each containing a white powder substance later analyzed to be cocaine hydrochloride.

 The defendant, who was present, indicated in response to an inquiry by the Court that he understood the stipulation entered into and that he consented to it.

 After a hearing, this Court makes the following findings of fact.

 Yvette Torres, a Special Agent of the Drug Enforcement Agency and Detective Walter Alicea, a New York City detective assigned to the New York Drug Enforcement Task Force were, at all relevant times for purposes of this case, operating in an undercover capacity in the role of drug buyers and holding themselves out to be brother and sister.

 On the night of November 8, 1983, they met with Santiago Mejia and Nicolas Aguilar, from whom Torres had previously negotiated to purchase 8 kilograms of cocaine. Mejia informed them that only 5 kilograms was then available and when pressed for the 8 kilograms by Detective Alicea, telephoned a number which was observed by other agents and later determined to be a telephone number registered to a subscriber at 4504 Kings Highway in Brooklyn. After concluding the phone call, Mr. Mejia again advised that only 5 kilograms were available. After some discussion about where the transaction would be completed, Special Agent Torres drove Mejia and Aguilar to 89-09 55th Avenue in Queens for the purpose of being shown the place where the sale would be consummated at 11:00 P.M. that evening.

 Mejia, Aguilar and two women were then observed leaving 89-09 55th Avenue and driving to 4504 Kings Highway in Brooklyn, which was described as a one-family house. They entered and remained for approximately 30-45 minutes. When they left those premises, Aguilar was observed carrying what appeared to be a cake pan covered with tinfoil which was placed in the trunk of their car. They returned to 89-09 55th Avenue and Aguilar carried that pan into those premises.

 At approximately 11:00 P.M., as had been pre-arranged, Special Agent Torres and Detective Alicea were met on the street by Mejia and Aguilar who told them that only 1 kilogram of cocaine was then available and that it was at 89-09 55th Avenue. Detective Alicea told Mejia that he was interested in buying 5 kilograms or none at all and Mejia said he would get the other 4 kilograms and would return within an hour.

 Shortly thereafter, Mejia, a woman later identified to be Miriam Acosta, and a confidential informant were followed as they drove to the house at 4504 Kings Highway. Mejia entered that house while the others remained in the car. Ten minutes later, Mejia was observed carrying a plastic bag from that house which he placed in the trunk of his car and drove away. The car was permitted to travel two or three blocks before it was stopped by Special Agents and the occupants placed under arrest. In the trunk of the car was the plastic bag which was found to contain three kilograms of white powder, later comfirmed to be cocaine.

 The officers, more particularly Detective Vincent Colangelo and Special Agent Robert Palombo (and others) immediately returned to 4504 Kings Highway. They were aware of every detail of what had occurred until that time through radio communication with Detective Alicea and Special Agent Torres. They knew, for example, that Mejia was to return to 89-09 55th Avenue withing the hour where he was to again meet with the undercover team and deliver 4 kilograms of cocaine; they knew that Aguilar was still at 89-09 55th Avenue; they knew that Mejia had only 3 kilograms of cocaine in the car and they believed that the 4th kilogram was still at 4504 Kings Highway (which, in the vernacular of the drug trade, they believed was the "stash pad" of these drug dealers). They believed that the ...

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