The opinion of the court was delivered by: MINER
MEMORANDUM-DECISION and ORDER
On February 29, 1984, a two-count indictment was filed charging defendant Sheldon Buschel with unlawful possession with intent to distribute approximately 1,250 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1) (count I) and charging defendants Sheldon Buschel and Mark Hein with a conspiracy to possess with intent to distribute that marijuana in violation of 21 U.S.C. § 846 (count II). Presently before the Court is defendant Hein's motion to suppress all evidence seized from him following his allegedly unlawful arrest. Fed. R. Crim. P. 41(f). The challenged arrest was made without a warrant and assertedly without probable cause.A hearing on the motion was conducted on May 30 and 31, 1984.
Final submissions of counsel were received in chambers on August 9, 1984.
On February 15, 1984, approximately 1,250 pounds of marijuana were seized from a home owned by Leonard Durell. At the time, the home was rented and occupied by defendant Sheldon Buschel.
Allegedly, when Buschel discovered the marijuana was missing, he called Durell and accused him of its theft. Fearing for his safety, Durell subsequently requested protection from the New York State Police. On February 19, 1984, New York State Police Investigator Gregory Harlin and others were assigned to protect Durell. According to Harlin, Durell appeared nervous and frightened and told Harlin of conversations he had had with Buschel in which Buschel had stated that he was not the only one involved in the case and that he would not "take the fall" alone.
On February 20, 1984, Investigator Harlin returned a telephone call he had received from Durell. Durell told Harlin that he (Durell) was to meet Buschel at the intersection of Front and Church Streets in New Paltz, New York. Harlin testified that Durell stated that "they" (Buschel and another) were going to meet him (Durell) there. Harlin then arranged to meet with Durell in New Platz prior to Durell's meeting with Buschel, and notified New York State Police Investigator Daniel Reidy of the impending meeting. Harlin met Durell at a parking area on lower Main Street in New Platz at approximately 7:00 P.M. on the 20th. He advised Durell that he would follow him to the Front and Church Street location where the meeting with Buschel was to occur.
A. Investigator Harlin's testimony
Harlin testified that after his meeting with Durell he turned his vehicle off Main Street and proceeded to the intersection of Front and Church Streets. Before arriving there, he observed defendant Hein standing by a restaurant. He then observed Hein walk to the corner and then towards the Durell car in which a passenger, who later proved to be Buschel, was now seated. After Harlin exited his car on Front Street, Hein looked at him, turned around, and then walked back toward the restaurant. Harlin approached the Durell car and observed Buschel sitting in the front passenger seat. He also observed Hein walking up Front Street, looking back and talking into his coat. Harlin opened the door of the Durell car and arrested Buschel. By this time, Investigator Reidy had arrived and a search of Buschel uncovered a small tape recorder with a microphone attached to his sleeve and a quantity of marijuana. Harlin and Reidy then proceeded in their car up Front Street in search of another person whom they believed to be involved. When they came upon Hein, Harlin exited the car and placed Hein under arrest. Reidy assisted in the arrest and subsequent search which revealed a walkie-talkie, a beeper and a small notebook. No drugs were found on Hein's person.
B. Investigator Reidy's testimony
Reidy testified that after receiving a call from Harlin he drove to New Paltz. Along the way, he passed Durell's house looking for Durell's yellow Pinto or Escort type car. While in New Platz, Reidy spotted the car parked on a corner and saw "two gentlemen," whom he later identified as Buschel and Hein. According to Reidy, the two appeared to be talking on the street corner, although he could see no lip movement. Reidy saw Hein walk away and observed Buschel enter Durell's car. Within a minute, he observed Harlin place Buschel under arrest. He then observed Hein walking up the street, apparently talking to no one and looking back over his shoulder. Reidy then assisted in the arrest and search of Buschel. Harlin then told Reidy he thought there were "two of them." Reidy agreed and said he had seen one. Reidy and Harlin then drove up Front Street and turned onto Main Street where they saw Hein in a recessed doorway. They drove around the block once and when they returned saw that Hein had moved and was now heading in the opposite direction on Main Street.The officers approached Hein and immediately placed him under arrest.
In addition to questioning the complete truthfulness of the above account as set forth by Investigators Harlin and Reidy,
defendant points to a number of factors assertedly supportive of his position that his arrest was without probable cause. First, defendant contends that there were no investigative inquiries made nor any opportunity given him to explain his presence, demeanor or any other suspicions the officers may have had prior to his arrest. Moreover, defendant suggests that there is no evidence that these officers feared for their own safety prior to his arrest. Finally, defendant notes that prior to the evening of his arrest he was not known to any law enforcement officers, he had never been by any law enforcement officers, and no officer had any information from any source that he was in any way associated with defendant Buschel.
Regarding the hearing testimony, defendant strenuously urges that no evidence has been adduced which would indicate that the officers had probable cause to effect his arrest. First, defendant points to the testimony of Investigator Harlin to the effect that prior to his arrest of Buschel, he had never seen Hein and Buschel together and had no information that Hein was in any way involved in the drug conspiracy. Second, defendant ...