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UNITED STATES v. ALBORTO FORERO

July 31, 1985

UNITED STATES OF AMERICA, v LUIS ALBORTO FORERO, JOSE CASTELLANOS AND SONIA CUEVAS, Defendants


The opinion of the court was delivered by: MCLAUGHLIN

McLAUGHLIN, District Judge

Defendants are charged with conspiracy to possess and distribute cocaine (21 U.S.C. § 846) and possession of a substantial quantity of cocaine with the intent to distribute it (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2). They join in a motion seeking (1) suppression of the fruits of a warrantless search; (2) suppression of statements made by defendant Cuevas, and (3) severance of their trials. In addition, defendant Castellanos moves to dismiss the indictment claiming insufficiency of the evidence against him.

 For the reasons set forth below, defendants' motions are denied.

 Facts

 On the night of February 11, 1985, Special Agent Giovino and Detective Connors, both of the N.Y. DEA Task Force, were surveilling a known high-volume drug trafficking area in the vicinity of 82nd Street and Roosevelt Avenue in Queens. At about 10:30 p.m., the agents observed the three defendants leaving a Chinese restaurant and entering a dark, late-model Cadillac (Tr. 5, 111). The driver, Forero, looked up and down the street before entering the car (Tr. 7). The defendants then "screeched their tires away from the curb and drove off very quickly," thus arousing the agents' suspicion (Tr. 7).

 The defendants drove around the neighborhood for a few minutes before proceeding to a private two-story house on 90th Street, a location well known to the agents as the subject of two previous narcotics related investigations (Tr. 10-11). All three defendants were observed entering the house.

 About fifteen minutes later, the defendants emerged from the house (Tr. 9). Defendant Cuevas was carrying a black leather shoulder bag (Tr. 10). The defendants entered the Cadillac with Forero, the driver, and Castellanos in the front seat, and Cuevas, who held the bag, in the rear.

 Again, the car drove off at an excessive rate of speed and proceeded east on Northern Boulevard (Tr. 10). The agents attempted to follow the car, but had difficulty keeping up (Tr. 12). Nonetheless, they were able to keep the car in sight because of its broken taillight (Tr. 113). Along the way, the agents enlisted the help of two New York City police officers who were parked in their patrol car (Tr. 112). Upon catching up to defendants' Cadillac, the police officers activated their flashing lights and signalled to the defendants to pull over. Forero continued to drive for a few blocks before finally pulling over (Tr. 114).

 During the last few blocks when Forero was pursued by the patrol car, the agents' unmarked vehicle was driving alongside Forero's car (Tr. 113). The agents observed considerable movement inside the defendants' car. Specifically, they observed defendant Castellanos, the front seat passenger, turn and face defendant Cuevas in the rear seat. Castellanos appears to be reaching over the seat to the rear floorboard. At the same time, Cuevas appeared to be rocking back and forth and bending over toward the front seat (Tr. 15, 114-15).

 When defendants' car finally stopped, the marked patrol car pulled up directly behind it. The agents then parked their unmarked car in front of defendants' car (Tr. 52).

 Agents Giovino and Connors came out of their car "pretty quick" and approached defendants' vehicle, with Connors walking toward the passenger side of the car and Giovino approaching the driver's side. Agent Giovino had his gun out (Tr. 52). Agent Connors, who did not have his gun drawn, alerted the uniformed officers of the suspicious movement in defendants' car (Tr. 116). Thus, the uniformed officers remained back by their patrol car, it is unclear whether their guns were drawn (Tr. 115-16).

 As Agent Connors approached the left side of the Cadillac, he noticed that Cuevas was concealing an object beneath her coat. Concerned that the hidden object might be a weapon, he asked Cuevas to slowly open her coat (Tr. 116). As Cuevas opened her coat, Connors observed that she was concealing a slightly open pocketbook with a large clear plastic bag of white powder sticking out (Tr. 116). The powder was later determined to be cocaine.

 At that point, Connors asked Cuevas to step out of the car; Agent Giovino asked the other two defendants to do the same. All three defendants complied and, following a routine patdown for weapons, the defendants were placed under arrest (Tr. 16-17, 117).

 Agent Giovino then noticed that the back seat of the Cadillac had been moved forward to partially cover the black bag that Cuevas had carried from the house on 90th Street (Tr. 16). The bag was open and contained two large clear plastic bags of white powder (later ...


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