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January 29, 1986

WILLIAM CHEN, et al., sub nom, LOUIS RUPERT GARCIA, Defendants

The opinion of the court was delivered by: LOWE


Defendant William Chen moves to suppress certain evidence seized during a search of his home as well as statements which he made during the course of that search. The government strenuously opposes his motion.


 On September 13, 1984, defendant Chen was indicted along with 29 others, and charged with a conspiracy to violate the federal narcotics laws, under 21 U.S.C. § 846. He was also charged with distribution or possession with intent to distribute heroin or cocaine, in violation of 21 U.S.C. §§ 812 and 841.

 Since that time, the government has filed several superceding indictments in this case. The two most recent superceding indictments apparently split what was originally characterized as one conspiracy into two conspiracies to violate federal narcotics laws. All previous motion practice has been incorporated into the new indictments. (Transcript dated January 16, 1986, p. 7).

 DEfendant Chen is currently named as a defendant on the indictment designated as "SSSS" ("4S"), in which Louis Rupert Garcia (a/k/a "Papo") is the lead defendant. Count One charges defendant Chen and 13 others with conspiracy to violate the federal narcotics laws under 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). Overt Act of 25 of Count One alleges that:

 On or about September 6, 1984, the defendant WILLIAM CHEN possessed a number of firearms, approximately .69 grams of cocaine, and approximately $28,000 in cash at 134 Highway Avenue, Congers, New York.

 Counts Three through Five charge that all 14 defendants possessed with the intent to distribute various amounts of cocaine and heroin seized from the two Manhattan apartments in which Louis Rupert Garcia and Awilda Nieves, another named defendant, lives. Count Sic accused defendant Chen of possession with intent to distribute .69 grams of cocaine found in his home. Counts Two, Seven and Eight do not relate to defendant Chen.

 At a pre-trial conference held on January 16, 1986, all references to firearms in the Overt Acts enumerated in Count One of the 48 indictment were stricken, including the reference to firearms contained in Overt Act 25 pertaining to defendant Chen. (Transcript dated January 16, 1986, p. 38).

 The indictment of defendant Chen and the 13 other alleged a lengthy investigation which included physical surveillance, undercover work, and court-authorized wiretaps on telephones at three different locations over a three month period.* In addition, evidence was obtained as a result of searches conducted in 20 locations throughout the Southern District of New York.

 The searches performed in the Southern District were executed pursuant to warrants issued on September 5, 1984 by Judge Cannella of this court. Judge Cannella found probable cause to authorize the searches on the basis of the September 5, 1984 affidavit of Special Agent Emilio Garcia*1 of the Drug Enforcement Administration ("DEA") ("Rider A").

 One of the September 5 warrants empowered Agent Garcia "or any other law enforcement officer" to search the "premises known as 134 Highway Avenue" in Congers, New York. At that time defendant Chen and other members of his family lives at that address.

 Defendant Chen challenges that warrant and its execution is overboard.*2 On November 5, 1985, Chen submitted an affidavit (the "Chen Affidavit") in support of his motion to suppress the evidence seized in the search of the Highway Avenue residence. On December 4, 1985 this Court held a hearing on the merits of Chen's position. The account of the search which follows emerges from the testimony of three witnesses who appeared at the December 4 hearing: DEA Special Agents Counihan and Emerson, and defendant Chen.

 The Search of Defendant Chen's Residence

 At approximately 4:00 o'clock.*3 on the morning of September 6, 1984, DEA Special Agent John T. Counihan went to the vicinity of defendant Chen's residence at 134 Highway 'AVenue in Congars, New York. As the team leader of the group of eight DEA agents assigned to arrest defendant Chen and to execute the search warrant on his residence, Agent Counihan arrived about two hours before the scheduled arrest time to familiarize himself with the area. In addition, Agent Counihan contacted the local police department to "obtain the services of a uniformed officer to come with us ... at the time we executed the warrant." (Transcript of December 4, 1985 Suppression Hearing, hereinafter "12/4 Tr.," p. 40).

 Agent Counihan testified that he had never before seen the outside or inside of defendant Chen's hoe. Nor had nay other agent been inside the defendant's residence. (12/4 TR., p. 57). The government indicated that their knowledge regarding the location of defendant Chen's residence was derived from "surveillance and other knowledge concerning this individual [defendant Chen],: but that it was "not exactly sure how we know Billy Chen lived at that address." (12/4 Tr., p. 40). Rider A states only that "CHEN is believed to reside" at the Highway Avenue residence. (Rider A, p. 4).

 While the other agents were stationed at various locations around the outside of the defendant's residence, Agent Counihan, the uniformed officer, and at least two agents approached the door. The officer rang the bell. Defendant Chen op[ened the door. The agents went inside, informed Chen that he was under arrest for violation of narcotics laws, and performed a "normal routine security sweep of the residence for security of other agents who were going to execute the search warrant for the residence." (12/4., p. 43).

 The structure at 134 Highway Avenue has been described by Agent Counihan as an "ordinary bi-level house," (12/4 Tr., p. 43), and by defendant Chen as a "two family ... 'mother-daughter' house" (Chen Affidavit, p. 1). The house, which is owned by defendant Chen's wife, (12/4 Tr., p. 91), has three entrances: a front entrance, which was used by the agents in this case; a side entrance leading to the downstairs level; and an entrance from the backyard which leads to the upstairs portion of the house. In addition, access ...

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