The opinion of the court was delivered by: SOFAER
Defendants in this case are charged with conspiring to deal in counterfeit obligations and with possession of counterfeit plates in violation of 18 U.S.C. §§ 371(1), 474 & 2(2). Their arrests and indictments grew out of a counterfeiting investigation by Special Agents of the Secret Service. In April 1983 counterfeit currency began appearing around Rockland County, New York. The counterfeiters apparently had some difficulty producing a convincing product, however, since on April 17 police found a barrel containing millions of dollars of discarded, imperfect counterfeit bills floating in the Hudson River near Stony Point, New York. The government intends to show that the conspirators decided in May to get out of the counterfeiting business and that Joseph Bohn, acting as a middleman, arranged for an individual whom he knew only as "Leo" to buy the machinery and materials used in the counterfeiting operation from a man named "Ed" for $150,000. Before agreeing to purchase the materials, "Leo" requested samples of the product, and "Ed" -- via middleman Bohn -- supplied counterfeit bills in several denominations for the buyer's approval. Unknown to Bohn, the Secret Service had earlier traced suspect bills to Bohn's butcher shop, Charlie's Meats, in Nanuet, New York, and had initiated an undercover operation to crack the conspiracy. Bohn's buyer "Leo" was Secret Service Agent Letterio D'Amico.
On May 19, 1983, D'Amico and another agent, wired with a transmitter enabling a Secret Survice surveillance team to monitor the transaction, went to Charlie's Meats on Main Street, Nanuet, to consummate the purchase. Having verified that the promised plates and equipment were in the butcher shop basement, the agents arrested Bohn, as well as Edward Stanard and Joseph Gazzara, two men alleged to be Bohn's confederates who were apprehended at or near the scene of the transaction. The three were indicted June 20, 1983, and on July 29 a grand jury voted a superseding six-count indictment naming these three and Edward Stanard's brother Robert, as well as Samuel Cazes, who subsequently entered a guilty plea.
Each of the four remaining defendants has filed motions to suppress statements and/or evidence obtained at the time of his arrest and in the ensuing investigation, claiming violations of the Fourth, Fifth and Sixth Amendments. Defendant Gazzara moved to suppress his post-arrest statements and evidence seized pursuant to a search warrant issued after his arrest, arguing that the arrest was made without probable cause and that the search warrant was based on "fruits" of the illegal arrest. Gazzara also sought to suppress a witness identification based on a photographic array he contends was impermissibly suggestive. Defendant Bohn moved to suppress admissions made to Secret Service agents on the ground that he was unaware of his rights and was given no Miranda warnings. He moved as well to suppress evidence obtained after a warrantless search of his home which he claims took place without his consent. Robert Stanard moved to suppress evidence acquired in the warrantless search of a room he used in a friend's home on the ground that the search violated the Fourth Amendment because it was accomplished without his consent or the consent of the home's owner. He sought also to suppress two pretrial identifications based on essentially the same photographic array challenged by Gazzara. Edward Stanard moved to suppress his post-arrest statements on the ground that they were taken in violation of his Fifth and Sixth Amendment rights, after he had invoked his right to an attorney.
After seven days of evidentiary hearings and an opportunity for complete briefing on the issues, the suppression motions were deemed fully submitted as of March 25, 1984. Defendants have also moved for severances under Rule 14 of the Federal Rules of Criminal Procedure on the ground that introduction into evidence of the unredacted inculpatory admissions of their codefendants would violate their rights to confront their accusers under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).
On the morning of May 19, while the scheduled sale of the printing equipment and plates was taking place behind Bohn's butcher shop, several Secret Service agents were deployed in visual and electronic surveillance of the neighborhood around the shop. One of their specific objectives was to watch for anticipated "counter-surveillance" by Bohn's accomplices. Agent Bodigheimer supervised the surveillance from a specially equipped electronic surveillance van parked up the block from Charlie's Meats. As the action unfolded, he monitored the undercover agents' conversations with Bohn via a transmitter carried by one of the agents and radioed a play-by-play account to the teams of agents dispersed around the town of Nanuet.
At about 10:30 a.m. Agent Boklan, who had been assigned to watch the rear of the shop, drove past the shop's exit and across Orchard Street, and took up a position from which he would observe the exit of the parking lot behind Charlie's Meats. At about 10:35 a.m. Boklan's attention was drawn to a car parked nearby on Orchard Street also in a position to observe the parking lot exit. Boklan saw a person in the car reading a newspaper. He watched the person lowr the paper and look around, and at that point recognized him as Joseph Gazzara, a suspect whose photograph he had obtained earlier in verifying an informant's tip. He also recognized the license plates as Gazzara's.He alerted the other agents to Gazzara's presence on the scene.
Shortly after 10:35, immediately after Agent Boklan made eye contact with him, Gazzara pulled out of his parking space and drove to an autobody shop down Orchard street, from which Charlie's Meats was still visible. Agent Boklan followed by car and observed Gazzara conversing with an employee but also appearing to "look around." Boklan drove by the autobody shop and continued down the road. He then returned to his surveillance post behind Charlie's, and noted at about 10:44 that Gazzara had left the autobody shop. Meanwhile, Agents Rohde, Lacey, and Adams, stationed at various points around Nanuet, were reporting Gazzara's movements. They observed Gazzara drive east on Church Street, away from Charlie's Meats, turn north on Demarest, a residential street, take a right hand turn into the dead end of Orchard, back up and turn south on Highview, another residential street, and turn west on Church. He appeared to turn south on Main Street, away from Charlie's, before he was lost from view. Within minutes he reappeared, coming down Main Street from the opposite direction. He passed over an empty parking space in front of Charlie's and parked three to five car lengths beyond the butcher shop. At approximately 10:45 Agent Bodigheimer radioed the other agents that Gazzara was parked on Main Street, seventy-five feet beyond Charlie's Meats, in a position to watch the front entrance to the butcher shop parking lot.
At about this time Agent Bodigheimer overheard and radioed to the agents Bohn's statement that an armed confederate was parked in a van behind the shop and another confederate was "out there" waiting to collect the genuine currency in exchange for the equipment. At about 11:05 Agent D'Amico, who was posing as "Leo," left Charlie's Meats, walked out the front exist of the parking lot to a public phone booth on the corner of Church and Main Streets and telephoned the Secret Service's New York field office in the World Trade Center to report that the equipment had been delivered to the shop -- the signal to close in for the arrests. He repeated Bohn's statement that Bohn had two partners, an armed man out back in a van and another man out front. This information was immediately relayed by radio to the agents at the scene.
As D'Amico returned to the butcher shop he walked past Gazzara's car. D'Amico testified, corroborated by Bodigheimer, that he and Gazzara made eye contact as he passed. Shortly after D'Amico reentered the shop Gazzara, who had been parked on Main Street for some twenty minutes without existing his car, pulled away from the curb and drove off. He was arrested approximately three quarters of a mile from the market. Advised of his rights, he acknowledged that he understood them and agreed to talk to the agents. But he denied any involvement, explaining his movements by saying he had been waiting on Orchard Street for an estimate for work on his car, had noticed Boklan's unmarked police car engaged in what looked like a stakeout, and had stayed around to see what was happening.
Gazzara contends that Secret Service Agents Boklan and Sulivan arrested him illegally, without warrant and without probable cause to believe that he was engaged in criminal activity. He further contends that a warrant to search his home issued several days after his arrest was based partially on information obtained as a result of his illegal arrest and the evidence found there must therefore be suppressed. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Gazzara claims his conduct on the morning of May 19, in "lawfully operating his motor vehicle on the public road," was "innocuous in nature and susceptible of innocent as well as culpable interpretation," Gazzara Memorandum at 1, 4, and contends that the information available to the agents at the time of arrest was too ambiguous to form the basis for a warrantless arrest.
The agents had no warrant to arrest Gazzara, but the arrest was based on probable cause. The information that contributed to the arresting agents' perception of probable cause came from three main sources: (1) direct observations of the agents who were monitoring street activity near Charlie's Meats; (2) a tip provided earlier in the investigation by a confidential informant who told federal agents that Joseph Gazzara was involved in a counterfeiting scheme and had purchased or was about to purchase $10,000 worth of ink for printing counterfeit currency; and (3) information independently corroborated or newly uncovered in verifying the informant's tip, including a photo of Joseph Gazzara, and the facts that he lived at 6 Christine Drive in Spring Valley, New York, that two years earlier he had been charged with second degree murder before a Rockland County grand jury that refused to indict, and that he had been identified by New York State Police as a "known associate" of parties connected with passing counterfeit bills. (Tr. A 104-117) Gazzara challenges the informant's tip as bearing insufficient "indicia of reliability" to be accorded any weight in the agents' evaluation of probable cause. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983). The information the agents had independently verified or uncovered and "the corroborative nature of events which the agents themselves observed," United States v. Tucker, 380 F.2d 206, 212 (2d Cir. 1967), were sufficient even absent the confidential informant's tip to give the agents probable cause to believe that Gazzara was "acting as a lookout and was involved in a counter surveillance, and was covering [the] counterfeit deal . . . that was taking place there." (Agent Boklan, Tr. 107)
The Supreme Court has recently reaffirmed, in jettisoning the two-pronged Aguilar test for evaluating credibility of informants' statements, that probable cause determinations in whatever context turn on an evaluation of "the totality of the circumstances." Gates, 103 S. Ct. at 2332, citing Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302 (1948), and Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960). The facts "are not to be dissected and viewed singly [but] must be considered as a whole." United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977) (quoting United States v. Magda, 547 F.2d 756, 758 (2d Cir. 1976), (quoting United States v. Hall, 174 U.S. App. D.C. 13, 525 F.2d 857, 859 (D.C. Cir. 1976))). Moreover, "probable cause requires only a probability or substantial change of criminal activity, not an actual showing of such activity." Gates, 103 S. Ct. at 2335 n. 13. The passage of time has not diminished the force of Learned Hand's observation that "the "reasonable cause" necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon trial, unless the powers of peace officers are to be so cut down that they cannot perform their duties." United States v. Heitner, 149 F.2d 105, 106 (2d Cir. 1945).
Courts have widely recognized that "seemingly innocent activity [may become] suspicious in light of [corollary information]." Gates, 103 S. Ct. at 2335 n. 13 (quoting unpublished dissent of Illinois Supreme Court Justice Moran); United States v. Webb, 623 F.2d 758, 761-62 (2d Cir. 1980); United States v. Canieso, 470 F.2d 1224 (2d Cir. 1972) (Friendly, C.J.); Heitner, 149 F.2d at 106. Nowhere is this observation more apt than in the case of an individual suspected of acting as a lookout at a place where a crime is known to be in progress, a criminal activity whose only visible signs are the ordinarily innocent acts of waiting and watching.
Above all, "probable cause deals "with probabilities. These are technical; they are the factual and practical considerations of everyday life," Gates at 2333 (quoting Brinegar, 338 U.S. at 175), "weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement," id. at 2328 (quoting United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981) (border stop and search)).Whether the facts available to the arresting officers were "sufficient to warrant a prudent man in believing that the petitioner had committeed . . . an offense," Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964), must be assessed "on the basis of the collective knowledge of the police rather than on that of the arresting officer alone," United States ex rel. La Belle v. La Vallee, 517 F.2d 750, 753 (2d Cir. 1975), cert. denied, 423 U.S. 1062, 46 L. Ed. 2d 655, 96 S. Ct. 803 (1976); see Canieso, 470 F.2d 750, 753 (2d Cir. 1975), cert. denied, 423 U.S. 1062 (1976); see Canieso, 470 F.2d at 1230 n. 7.
In Gazzara's case, even discounting the uncorroborated element in the informant's tip -- that Gazzara was active in a counterfeiting operation and had purchased large quantities of ink -- the totality of the circumstances provided probable cause to effect a warrantless arrest. The agents did not merely suspect but knew for a certainty that a violation of federal counterfeiting statutes was in progress. See United States v. Webb, 623 F.2d 758, 762 (2d Cir. 1980). Compare Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959); United States v. Canieso, 470 F.2d at 1226-29. They knew that Bohn, a key participant, claimed to have two confederates at the scene. One they had already identified as the occupant of a van near the basement door; the other was a man waiting "out there" or "out front" to ensure delivery and payment. The agents had observed a man sitting in a parked car positioned to monitor their activities who appeared to be watching the area. They knew that man to be Joseph Gazzara, since both his face and his license plate matched information obtained from local law enforcement agencies in verifying the informant's tip. Compare Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1978) (no certainty that suspect was the "Irving" identified in tip); Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) (no indication that the individual arrested was the same Mr. Toy implicated by the informant's tip).
Information obtained in the court of a pre-arrest investigation may include hearsay and police reports of prior brushes with the law. The elements of a probable cause determination need not meet the stringent standards for evidence competent to prove guilt at trial. See, e.g., Jones, 362 U.S. at 270-71 ("that petitioner was a known user of narcotics made the [informant's] charge against him [of selling heroin] much less subject to scepticism than would be such a charge against one without such a history"); Brinegar, 338 U.S. at 173 (quanta and modes of proof differ in determining guilt and probable cause to arrest); Tucker, 380 F.2d at 211; Heitner, 149 F.2d at 107. The agents were not barred from factoring into the probable cause equation what they already knew of Gazzara's past activities: that he had been wounded three years before in a drug related shotgun shoot-out that left one man dead and another seriously wounded (Tr. 104-117; Def. Ex. to Gazzara Memorandum), and that he was a known associate of parties involved in passing counterfeit bills. ...