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UNITED STATES v. MOHAMMAD RAFIQ KHAN

January 8, 1986

UNITED STATES OF AMERICA
v.
MOHAMMAD RAFIQ KHAN and MOHAMMAD SHAKEEL, Defendants



The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 Factual Background

 On May 3, 1985 Agent Michael Levine of the Drug Enforcement Administration ("DEA") paid defendant Mohammad Rafiq Khan ("Khan") $30,000.00 in pre-marked bills for heroin which Khan had delivered to Levine on April 29, 1985. According to the government, Khan was not arrested when he received payment because he had agreed to deliver to Levine another shipment of heroin on May 4, 1985.

 After Khan received the $30,000.00 payment, he was placed under surveillance by other DEA agents. Khan was followed to apartment 2F, located at 87-74 150th Street, Jamaica, New York. Although Khan had earlier represented to certain agents that this apartment was one of his residences, the agents later learned it was owned by Khan's co-defendant, Mohammad Shakeel ("Shakeel").

 At approximately 12:00 p.m. on May 4, 1985, DEA Agent Dick L. Musso and Assistant United States Attorney ("AUSA") Peter Sobol ("Sobol") made a telephonic application for a search warrant to United States Magistrate John Caden ("Caden"), who sits in the Eastern District of New York. Caden issued a warrant which authorized the search of Shakeel's apartment for the $30,000.00. During the telephone call, Caden agreed that the agents could apply for a supplemental warrant if they saw "other contraband or evidence of narcotics dealing" in plain view.

 At approximately 5:00 p.m. on May 4, 1985, Khan sold Agent Levine an additional 500 grams of heroin at a prearranged location. While conducting the sale, Khan told Levine that additional heroin was located in Shakeel's apartment. After providing Levine with the heroin, Khan returned to Shakeel's apartment, where he was arrested at approximately 6:00 p.m.

 At approximately 6:30 p.m., the DEA agents executed the warrant and searched Shakeel's apartment. *fn1" While conducting the search, the agents removed a sheet draped over a coffee table and discovered narcotics paraphernalia in plain view. The agents also discovered a black gym bag, which was originally used by Agent Levine to carry the $30,000.00 in cash, as well as passports and other travel information.

 After discovering this evidence, DEA agent John Ozaluk ("Ozaluk") applied to Caden for a supplemental warrant authorizing a broader search. Caden issued a supplemental warrant at approximately 8:20 p.m. Before the search was completed, Shakeel arrived at his apartment. After Shakeel responded to the agents' questions, he was placed under arrest.

 Shakeel was arrested at approximately 7:30 p.m. on Saturday, May 4, 1985, and was interviewed by AUSA Sobol at approximately 2:00 p.m. on Monday, May 6, 1985. During this interview, Shakeel made some incriminating statements. Shakeel was not arraigned *fn2" before a United States Magistrate until 3:00 p.m. on Monday, more than 43 hours after his arrest. The facts relating to Shakeel's arrest and post-arrest statement are not in dispute.

 Shakeel moves to suppress the evidence seized in his apartment pursuant to Fed. R. Crim. P. 12 and 41. Shakeel also moves pursuant to Rule 12 to suppress the statements he made to Sobol, on the grounds that they were obtained in violation of 18 U.S.C. § 3501(c) and Fed. R. Crim. P. 5(a).

 A. Shakeel's Motion to Suppress the Evidence Seized in the Search

 Shakeel argues that there was no probable cause to search for the $30,000.00, "at least in the absence of surveillance to determine that Khan had not left the [apartment]" after returning with the payment. Affidavit of Leonard F. Joy, sworn to on August 12, 1985, at p.3. Secondly, Shakeel contends that the agents obtained the search warrant for $30,000.00 as a pretext to search the apartment for drugs and narcotics paraphernalia. He argues that the search of his apartment was unreasonable and that all the items were seized in violation of the Fourth Amendment.

 Shakeel's first argument is unpersuasive. The agents had sufficient probable case to believe that the cash was located in Shakeel's apartment. After Levine paid Khan $30,000.00, which was placed in a black gym bag, Khan was followed to the apartment by the DEA agents. ...


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