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May 7, 1984


The opinion of the court was delivered by: DUFFY



 On November 19-20, 1983, nineteen individuals were arrested without warrants in New York City and Port Jervis, New York. In a complaint filed on November 21, 1983, the government alleged that these individuals entered into a conspiracy to violate and did violate 21 U.S.C. ยงยง 812, 841(a)(1), 841(b)(6) by "unlawfully, intentionally and knowingly attempt[ing] to distribute and possess with intent to distribute in excess of 1,000 pounds of mariguana. . . ." *fn1" Several motions are now before me. They include (1) motions to suppress evidence and/or post-arrest statements, (2) alternative motions for a hearing on the sufficiency of the search warrants and/or on the issue of probable cause to arrest, and (3) motions for severance. *fn2"

 The facts surrounding the arrest of the defendants, as stated in the complaint, are as follows:

 In early November 1983, three undercover agents -- U/C 1, U/C 2, and U/C 3 -- posing as wholesale sellers of marijuana in Austin, Texas entered into negotiation with Roberto Carvajal and defendant Ferndinando Daniele to sell approximately 12,000 pounds of marijuana. Defendant Herbert Kornblau accompanied Carvajal to see a sample of the marijuana. On or about November 14, 1983, Carvajal gave U/C 1 and U/C 2 $250,000 in Austin, Texas. Carvajal told U/C 1 and U/C 2 that they would have to travel to New York City to see the balance of the purchase price. Later, U/C 3 observed defendants Michael Hyman Henry, Roberto Quevedo, and Ronald Fishman in a room in the Marriott Hotel located in Austin, Texas.

 On November 15, 1983, U/C 1, U/C 2, Carvajal and Henry flew from Texas to New Jersey and travelled by limosine to New York City where Carvajal checked into room 1129 and Henry checked into room 1127 of the Sheraton Motor Inn. At 10:30 p.m. on November 15th, in room 1130 of the New York Hilton, Carvajal delivered to U/C 1 and U/C 2 $500,000. On November 16, 1983, Carvajal delivered another $250,000 to U/C 1 and U/C 2 at the Sheraton Motor Inn.

 U/C 1 and U/C 2 indicated to Carvajal that another 30,000 pounds of marijuana was available for sale. Carvajal stated that he would be interested in the additional delivery. Defendant Sheldon Pett took U/C 1 and U/C 2 in his 1980 Mercedes automobile to an A-frame structure located at the end of a dirt road in the Port Jervis area. Pett indicated to the agents that the A-frame had not been used for a large delivery in six months and that he would have the power turned on in order to operate commerical scales; otherwise, he would obtain a generator to operate the scales. Pett also indicated to U/C 1 and U/C 2 that the dirt road's soil would support an 18-wheel semi-trailer turck. In addition, Pett told the officers that defendant Richard Stone would be one of the drivers and had rented a truck in Texas.

 On November 16, 1983 in Austin, Texas, Capote told U/C 3 that the $250,000 previously given to U/C 1 and U/C 2 had come from Capote. Capote and Fishman later introduced U/C 3 to defendant Daniel Thorud as a driver. Further, on November 16th, Capote, Quevedo, and Fishman flew to LaGuardia Airport followed the next day by U/C 3.

 The purported delivery of the 30,000 pounds of marijuana was scheduled by U/C 1 for November 18, 1983. On November 17, 1983, Carvajal, Pett, U/C 2, and U/C 3 travelled to the Port Jervis A-frame. They then checked into the Port Jervis Holiday Inn. Carvajal told U/C 1 that he could be reached under the name of Richard Stone. On November 18, 1983 U/C 1 told Carvajal that the shipment was about one hour away and Carvajal stated that he was unable to supply the balance of the purchase price. He indicated therefore that he was going to room 4110 of the Parker Meridien Hotel in New York City. Thereafter, negotiations between Carvajal and the undercover agents took place in New York concerning the delivery and payment schedule.

 On November 19, 1983, Carvajal, Henry and U/C 3 rented an automobile, dropped Carvajal at the Port Jervis Holiday Inn and drove to the Parker Meridien Hotel in New York City. Capote, Quevedo, and Fishman were in room 4110 when Henry and U/C 3 arrived at the hotel at 2:00 p.m. Thereafter, Henry, Fishman, Capote, and U/C 3 left the hotel and made telephone calls from public telephones on the street. At that point, defendant Michael Haber walked by and Henry called to Haber and spoke to him alone. U/C 3 asked Fishman to identify Haber and Fishman responded that Haber was the one who had the $750,000. At this time DEA agents, including special agent Thomas King, Jr. arrested Capote, Henry, Fishman, and Michael Haber.

 In Port Jervis, unaware of the arrests in New York City, Kornblau indicated that he would talk to "his people" to get additional money. U/C 2 went to room 218 of the Holiday Inn where he saw Kornblau and defendant Charles Montgomery. Montgomery had checked into room 218 and according to Kornblau, Montgomery was a driver. Montgomery shared room 218 with defendant Alden Belkin. *fn3" Mongtomery was arrested in his hotel room and Belkin was arrested in the hallway of the hotel.

 Kornblau and U/C 2 went to U/C 2's room where Kornblau telephoned defendant Lawrence Haber. Lawrence Haber spoke to U/C 2 and stated that they would not release any additional money until at least 500 to 1,000 pounds of marijuana was loaded on a truck and released to them. Lawrence Haber told Kornblau that he had not heard from and did not know what happened to his brother Michael Haber after the latter went to park his car in New York City.

 On November 19, 1983 at 4:00 p.m., four DEA agents transported approximately 15,000 pounds of marijuana to the A-frame. They were followed by Carvaja, U/C 1, and U/C 2. Pett and defendant Glen Joseph Keating were in the A-frame when the others arrived. Carvajal, Kornblau, and U/C 2 left the A-frame after which the "off-loaders" and drivers, defendants Luis M. Santiago, Joseph DeCarlo, Steven Lackowitz, Arthur Caballero, and Stone arrived. Two other undercover agents, Pett, and the drivers and off-loaders went to the motor home parked behind the A-frame where they discussed the marijuana business, how the scales operated and the loading process. Arrests of these individuals who were in the A-frame area followed.

 On November 20, 1983 at 2:00 a.m. after he was arrested, Kornblau telephoned Lawrence Haber. Their conversation -- the subject of motions to suppress by both Kornblau and Lawrence Haber -- were electronically taped by the government. On November 20th at 4:00 a.m., Lawrence Haber was again telephoned in his Parker Meredien Hotel room. He was told by a government agent that his brother was arrested and to go down to the lobby to clear up the situation. Lawrence Haber was arrested in the hotel lobby. Several individuals were searched incident to arrest and various hotel rooms and safe deposit boxes were searched pursuant to warrants.

 Motions to suppress post-arrest statements have been made by Montogmery, Kornblau, Belkin, and Pett. Motions to suppress evidence seized pursuant to an allegedly unlawful arrest or an allegedly invalid search warrant have been made by Kornblau, Henry, Belkin, Lawrence Haber, Michael Haber, Fishman, Pett, and Stone. Lawrence Haber and Kornblau move to suppress statements made in a conversation that was electronically recorded. Finally, a motion to sever is made by Montgomery.

 A.Motions to Suppress Statements

 Defendants Charles Montgomery, Henry Kornblau, Michael Haber, and Sheldon Pett move to suppress post-arrest statements essentially on two grounds. They argue that their statements should be suppressed as being "tainted" by illegal arrests, see, Wong Sun v. United States, 371 U.S. 471, 484-86, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), and as being violative of the Fifth and Sixth Amendments.

 An officer effecting a warrantless arrest must have "probable cause to believe that an offense has been committed and that the defendant has committed it." See Fed. R. Cr. P. 4(a). Probable cause has been defined as a "reasonable ground for belief of guilt." Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949) (citations omitted). It is less than the quantum of evidence required to obtain a conviction but more than "mere suspicion." Id. Probable cause exists when the arresting officer possesses facts and circumstances to warrant a reasonable man to believe that an offense has been or is being committed. Id.

 After an arrest without a warrant is made, a complaint has to be filed and probable cause must be established in the complaint or by way of accompanying affidavits or affirmations. Fed. R. Cr. Pa. 5(a). The party moving for suppression of statements based on an arrest allegedly made in the absence of probable cause must make a preliminary showing concerning the circumstances of the arrest sufficient to raise a question as to its legality. See United States v. Rivera, 321 F.2d 704, 706 n.1 (2d Cir. 1963). The government, however, has the burden of showing that probable cause existed at the time of the arrest. Id. at 708 (citing Wong Sun v. United States, 371 U.S. at 482).

 1.Charles Montgomery

 Montgomery moves to suppress his post-arrest statement in which he allegedly stated that he was waiting to drive a shipment of marijuana to Connecticut. After his arrest, Kornblau allegedly told agents the same thing. Montgomery argues that his arrest was made in violation of Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), because he was arrested in his hotel room without a warrant and in the absence of exigent circumstances. Thus, he argues, his statement must be suppressed as the "fruit" an illegal arrest.See Wong Sun v. United States, 371 U.S. at 484-86.

 The Fourth Amendment protects a suspect from warrantless arrests in his or her dwelling unless there are exigent circumstances or an occupant has consented to the entry. See Payton v. New York, 455 U.S. at 602-03; United States v. Vasquez, 638 F.2d 507, 526 (2d Cir. 1980), cert. denied sub. nom, Mesa v. United States, 450 U.S. 970, 67 L. Ed. 2d 620, 101 S. Ct. 1490 and 454 U.S. 975, 102 S. Ct. 528, 70 L. Ed. 2d 396 (1981). This principle has been extended to a suspect who is arrested in his or her hotel room. See, e.g., United States v. Whitten, 706 F.2d 1000, 1015 (9th Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1593, 80 L. Ed. 2d 125 (1984); United States v. McGuire, 608 F.2d 1028, 1034 (5th Cir. 1979), cert. denied, 444 U.S. 1092, 100 S. Ct. 1060, 62 L. Ed. 2d 782 and 446 U.S. 910, 100 S. Ct. 1838, 64 L. Ed. 2d 262 (1980); cf., United States v. Salmasian, 515 F. Supp. 685, 689 (W.D.N.Y. 1981) (because exigent circumstances were found, court assumed but did not decide that individual arrested in his hotel room is entitled to the same protection as an individual arrested in his dwelling).

 According to the complaint, the first and only contact that the undercover agents had with Montgomery prior to his arrest was on November 19, 1983, at the Port Jervis Holiday Inn. U/C 2 allegedly saw Kornblau and Montgomery in the same hotel room. After his own arrest, Kornblau allegedly indicated to U/C 2 that Montgomery was involved in the marijuana purchases as a driver. This, however, occurred after Montgomery was arrested and because the test is whether probable cause existed at the time of the arrest, see United States v. Rivera, 321 F.2d at 709, Kornblau's statement is of no relevance.

 Therefore, a hearing is necessary to resolve several factual issues raised by Montgomery's claims. Indeed, no affidavit by the arresting officer was submitted to clarify the circumstances surrounding Montgomery's arrest. Montgomery's presence in the hotel room with Kornblau was the only objective fact before the undercover agent that has been cited to. A defendant's association with an individual suspected of criminal activity is insufficient to constitute probable cause to arrest. See United States v. DiRe, 332 U.S. 581, 583-87, 68 S. Ct. 222, 92 L. Ed. 210 (1947). Moreover, even assuming that the undercover agents had probable cause to arrest Montgomery, the arrest may have been illegally made in his hotel room. On the other hand, probable cause and exigent circumstances may have justified the agents' warrantless entry into Montgomery's hotel room. Further, Montgomery may have consented to the ...

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