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UNITED STATES v. MORALES

June 19, 1985

UNITED STATES OF AMERICA against JOSE MORALES, Defendant.


The opinion of the court was delivered by: KNAPP

MEMORANDUM & ORDER

WHITMAN KNAPP, D.J.

 Defendant moves to suppress certain statements made by him as well as physical evidence obtained from his person in the course of his arrest for violations of the narcotics laws. He asserts that his rights under Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, were violated and that his arrest was unlawful.

 The facts which emerged at the hearing held on this motion and from defendant's affidavit made in support thereof are as follows. At about 5:00 p.m. on February 6, 1985, a team of five narcotics law enforcement police officers executed a search warrant at a building on the lower east side of Manhattan. They were admitted into the apartment after they requested entry, were refused, and then attempted a forced entry. Transcript of May 9, 1984 Hearing ("Tr.") at 11, 14. They found three persons inside: the elderly tenant, Maria Hernandez, her infant niece, and defendant Jose Morales. The first person they observed was Hernandez. Tr. 11. The officers then noticed defendant, who was standing in or near a doorway between the living room and a back bedroom. Tr. 11, 58. They directed defendant to sit on a couch in the living room. Tr. 11, 24. After frisking defendant and ascertaining that no other persons were present, the officers holstered their guns. Sergeant Katowitz, the leader of the team, advised Maria Hernandez of her Miranda rights *fn1" in the kitchen of the apartment, Tr. 26, while defendant remained under guard in the adjacent living room. Sergeant Katowitz did not know whether defendant heard what was said to Hernandez, Tr. 26, and he was not at this time separately advised of his Miranda rights. Defendant and Hernandez were not told they were under arrest, Tr. 13, 42, and neither was handcuffed, Tr. 14, 59, but neither was free to leave the premises, Tr. 14, 28-29.

 The officers commenced their search of the apartment. During this time defendant remained in the living room under the guard of another officer. Tr. 25-26. Hernandez, whom Sergeant Katowitz described as a person who "appeared to be no threat to anyone," Tr. 11, may have been directed to go from the kitchen to the living room because "it was a little more comfortable, she was an elderly woman," with a small child. Tr. 29. After approximately 45 minutes, Officer Cannon found three glassine envelopes containing white powder on the floor of the back bedroom, Tr. 16, 44, which bore the appellation "AIDS." Tr. 44. He picked them up and gave them to Officer Solberg, Tr. 46, who went to the living room, held up the envelopes and asked, "Whose are these?," Tr. 61, or "Who do these belong to?" Tr. 16, 28. Officer Solberg stated that he was not talking to anyone in particular, although Officer Cannon remembered that Solberg had approached and addressed the defendant. Tr. 46. Defendant responded that the glassines were his, Tr. 46, and that they were for his own use. Tr. 66. He was thereupon placed under arrest, handcuffed, and read his Miranda rights by Sergeant Katowitz. *fn2" Defendant stated that he understood these rights, Tr. 31, though Sergeant Katowitz could not remember whether he said he wished to talk. Ibid.

 The search proceeded for about another 30 minutes. Tr. 27. No other narcotics were found. Tr. 61. The officers then informed defendant that he would be strip searched and asked if he wanted to tell them whether he had anything on his person. Tr. 36, 62. Defendant informed them that he had seven more glassine envelopes in the waistband of his pants. He was then asked, "You have seven in your waistband, why was there three in the bedroom? If you were looking to dump, why didn't you dump all of them? " Tr. 36. Defendant responded that he had had a hard time getting them out, that he had heard the police coming through the door, that he was afraid and that he was in a rush trying to remove them. Tr. 36-37. The defendant then showed the officers where the seven glassines were secreted in his pants, Tr. 37, 62, and Officer Cannon reached inside and removed them. Tr. 62. These envelopes were marked in the same way as the three glassines found in the bedroom. Tr. 48.

 Defendant was interviewed later that night by Assistant United States Attorney Franklin Stone, who again advised him of his Miranda rights. He asked to see a lawyer and no statement was taken. The charges against Maria Hernandez, who was also arrested, were later dropped.

 By letter dated June 14, 1985, the Government informed defendant's attorney that it would seek to introduce a trial a further statement made by defendant after his arrest. From this letter it appears that on the day of his arrest defendant had been taken to the 7th Precinct where he asked an officer, Bill Bradley, to tell him about the federal system. The officer asked defendant what he wanted to know about it, and defendant "stated, in substance, that he had been caught with ten bags and had no choice but to plead guilty." This statement was not before us at the hearing and was not explored.

 DISCUSSION

 The Detention

 We first find that defendant was permissibly detained pursuant to the police officers' execution of a valid search warrant under the rationale of Michigan v. Summers (1981) 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587, and that this detention did not itself rise to the level of an arrest. The Court in Summers, 452 U.S. at 705, held that

 for Fourth Amendment purposes, . . . a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.

 The Court's holding was framed in terms of "occupants," not solely "owners," and defendant fell within its scope by his presence in the searched apartment. See United States v. Taylor (4th Cir. 1983) 716 F.2d 701, 707. Furthermore, defendant's detention satisfied two of the three justifications given for the Summers rule by "preventing flight in the event that incriminating evidence [was] found," 452 U.S. at 702, and insuring the safety of the police. Ibid. The fact that defendant, not the tenant of the apartment, was unable to facilitate "the orderly completion of the search," the third rationale presented by Summers, Id. at 703, does not undermine the otherwise valid interest in detaining him.

 Further, we do not find the circumstances of the detention to have suggested an arrest.The officers' display of drawn guns in the apartment was permissible even in the absence of probable cause to arrest, United States v. Harley (2d Cir. 1982) 682 F.2d 398, 401, and defendants' detention for approximately 45 minutes prior to discovery of the heroin glassines was within the scope of a permissible detention. See United States v. Timpani (1st Cir. 1981) 665 F.2d 1 ...


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