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UNITED STATES v. ALMONTE

January 9, 1984

UNITED STATES OF AMERICA, against FELIX ALMONTE, ET AL., Defendants.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 Defendant Luis Fernando Mejia has moved to suppress evidence seized from him pursuant to his warrantless arrest and to suppress statements made by him incident to that arrest. An evidentiary hearing was held in this Court on November 28, 1983. For the reasons developed below, the motion is denied.

 FACTS

 Beginning on May 12, 1983, Detective Robert Johnson of the New York Drug Enforcement Task Force (the "Task Force") began negotiating to buy a kilogram of cocaine from defendant Felix Almonte to whom Johnson had been introduced by a confidential informant. Almonte stated he had three sources of supply, but did not identify any of them. The same informant called Johnson on May 16, 1983 to advise him that Almonte was ready to do business.

 At 2:45 P.M. on May 17, 1983, Almonte telephoned Johnson and told him to call "Ralph," (later identified as defendant Rafael Antonio Jaquez-Bisono). Johnson called Ralph, Bisono, and after several conversations, the two agreed to meet between 5:30 and 6:00 P.M. at 91-10 34th Avenue, Apartment 2C in Queens, Bisono's residence. At the appointed time, Johnson went to that address with agent Jose Velasquez of the Task Force. Both were undercover. The building at that address has an intercom and buzzer system, by which Johnson and Velasquez were admitted to the lobby. They went to the apartment 2C and met Bisono, defendant Carlos Checo, and defendant Luis Flores-Diaz.

 On a bedroom table in the apartment were several celar bags, one of which contained cocaine in rock form, as well as drug paraphernalia, and a loaded .44 caliber magnum revolver. After Johnson tested a sample of cocaine and agreed to buy one kilogram, Bisono said that he had only one pound of rock cocaine with him, but that if Johnson were willing to purchase powdered cocaine, he could have one kilogram that night.Johnson agreed.

 Bisono dialed a number and spoke with someone he referred to as "Luis" or "Fernando." He turned to Johnson and Velasquez and told them the kilogram of powdered cocaine would be delivered in two hours, at approximately 9:00 P.M. The agents agreed to return at that time.

 When the agents re-entered the building between 8:30 and 9:00 P.M., Flores-Diaz was waiting in the lobby. He said that everything was fine, that Bisono had the package, and that Johnson and Velasquez should go right up. Bisono admitted the agents into the apartment, in which Checo was also present.

 On the table in the bedroom, Johnson saw a large brown package with a circled numeral "5" written on it in a red-orange color. Bisono told Johnson that this was half of the kilogram, that Johnson should test it, and that if he were satisfied, the second half would be delivered. Although not happy with the purity of the flake cocaine, Johnson agreed to purchase the entire kilogram for a lower price than originally discussed. Bisono made a phone call, spoke briefly, and told Johnson the second half of the package would arrive in approximately 20 minutes.

 Johnson told Bisono that he would go downstairs before the package arrived to get the purchase money. Checo accompanied Johnson, while agent Velasquez remained in the apartment. When Johnson walked out of the building, he signaled other members of his surveillance team. They arrested Checo as well as Flores-Diaz, who was still in the lobby. Johnson returned immediately to apartment 2C with other agents. When Bisono opened the door to admit Johnson, he was arrested. The agents then searched the apartment and seized the half-kilogram of cocaine, weapons, and drug paraphernalia.

 Shortly after Bisono was arrested, Almonte and Sixto Martinez arrived at apartment 2C and they too were arrested. *fn1" Neither of them was carrying the second half-kilogram of cocaine.

 With all the prisoners being held in the apartment, Johnson returned to the street. He saw a male, later identified as defendant Luis Fernando Mejia, enter the building carrying a plastic shopping bag. Mejia's arrival at the building came twenty to thirty minutes after Bisono had told Johnson the second package was on the way. Johnson was unable to communicate to his fellow agents in the apartment, however, that a man had arrived with a package.

 Velasquez, who was in apartment 2C, heard the lobby intercom buzz, and he buzzed back to open the door. He next heard the apartment door bell ring, saw Mejia through the peephole, and opened the door. Mejia was clutching a plastic bag tightly, so that Velasquez could see the outline of its contents. Velasquez testified that the package in the ...


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