The opinion of the court was delivered by: Spatt, District Judge.
The instant motion raises the issue of whether a defendant was
"reasonably" stopped and frisked within the dictates of the
Fourth Amendment to the United States Constitution where the
sole basis for the stop was the fact that the defendant was in
proximity to or accompanied a person about whom the police had
a particularized reasonable basis to stop and/or probable cause
to arrest. Because the instant record is devoid of any evidence
of criminal activity, danger or other exigency as to the
defendant prior to his stop and frisk, the Court finds that
there was no reasonable suspicion upon which to stop the
defendant, no danger necessitating a frisk of the defendant
and, therefore, any evidence obtained by the police as a result
of the stop and frisk must be suppressed at trial.
Defendant Victor Perez ("Perez") faces trial under a one count
indictment charging him with conspiring to distribute and
possess both cocaine and cocaine base (colloquially known as
"crack").*fn1 Perez moves to suppress evidence seized from
his person at and after the time of his allegedly unlawful stop
and subsequent arrest.*fn2
A hearing was held on September 22 and November 17, 1989 before
Chief Judge Platt with respect to Perez's suppression motion.
Four witnesses testified at the hearing: Pedro J. Velazco, a
Drug Enforcement Administration ("DEA") group supervisor of a
DEA Intelligence Unit, James Peterson, a New York City Police
Department detective, and Howard Messing, also a New York City
Police Department detective, were called to testify by the
Government; Larissa Capellan, a resident (along with defendant
Adam Diaz) of 295-305 Bennett Avenue, apartment 7-F in
Manhattan, was called to testify by defendant Diaz. The
testimony relevant to the instant motion is summarized below.
In the early evening of June 1, 1989, agent Velazco and at
least eight other agents, investigators or officers went to
295-305 Bennett Avenue to effectuate a search warrant of
apartment 7-B, which was thought to be Mr. Diaz's apartment.
(Transcript ["Tr."] at pp. 7 and 19) Agent Velazco and the
investigators with him broke open the door and entered into
apartment 7-B, which they soon realized was not Mr. Diaz's
apartment. (Tr. at pp. 7 and 20)
As a result of their error, at least six agents or
investigators went back into the seventh floor hallway of
295-305 Bennett Avenue and waited while other agents attempted
to communicate with the United States Attorney's Office,
apparently in an effort to correct the search warrant. (Tr. at
pp. 7, 21 and 28) Detective James Peterson, meanwhile, was told
to maintain surveillance in a car parked on the street outside
295-305 Bennett Avenue, "in hopes of the subject vehicle or one
of the subjects
showing up at the apartment." (Tr. at pp. 51-52 and 54)
Agent Velazco then went down to the first floor of the
building, and observed that Mr. Diaz's name was on mailbox 7-F.
(Tr. at p. 8) Velazco went back upstairs to the seventh floor
hallway, and approximately twenty five minutes later he
observed a woman, later identified as Larissa Capellan,
approach apartment 7-F with a key. (Tr. at pp. 8 and 25) Agent
Velazco approached the woman, identified himself, and asked her
if she would talk to him. Ms. Capellan informed him that she
lived in apartment 7-F and "asked us to come in." (Tr. at pp.
8-9 and 26)*fn3 Agent Velazco then told Ms. Capellan why he
was in the apartment building, and read Ms. Capellan "her
constitutional rights in Spanish." (Tr. at p. 9)*fn4 Agent
Velazco asked Ms. Capellan if she would consent to him
searching her apartment and gave her a Consent Search Form (in
English), which Ms. Capellan read, indicated she understood and
signed. (Tr. at pp. 9-11 and 30-31)
Detective Howard Messing then searched apartment 7-F. (Tr. at
pp. 12 and 27) The search revealed a "kilo press" ("which
compresses cocaine into brick form") and what appeared to be
records of drug transactions (tr. at pp. 16-17), as well as
rubber bands, weights and a strainer (with what appeared to be
cocaine residue on it). (Tr. at pp. 70-72)
Soon after the search of apartment 7-F, detective Peterson
observed two men (later identified as Mr. Diaz and Mr. Sanchez)
pass in front of his vehicle and walk into a parking lot
directly across the street from 295-305 Bennett Avenue. (Tr. at
pp. 52-53) Detective Peterson observed that Mr. Diaz was
carrying a red and white plastic bag with "something in it"
(tr. at p. 53), and that Diaz "seemed to be very cautious" but
did nothing suspicious. (Tr. at p. 57) Detective Peterson also
testified that he could not recall whether Mr. Sanchez was also
carrying a bag. (Tr. at p. 65)
After Diaz and Sanchez passed, detective Peterson radioed agent
Velazco and gave a description of Diaz. (Tr. at pp. 53-54 and
58) Detective Peterson testified that agent Velazco instructed
him "to maintain surveillance on him [Diaz], and have the other
members of the team [who also had radios] go to that location
and basically stop the people, and ID them." (Tr. at pp. 59-60)
Detective Peterson did not observe Perez until after Diaz and
Sanchez walked past his vehicle and into the parking lot across
the street. (Tr. at p. 65) Moreover, detective Peterson
testified, regarding Perez, that "I couldn't see from where I
was if he was carrying anything. It was very dark and no
lighting in the lot, so I couldn't really see." (Tr. at p. 66)
Detective Peterson observed Perez standing near a telephone in
the parking lot (he could not remember whether or not Perez was
talking on the telephone) and Diaz and Sanchez walk over to
Perez. (Tr. at p. 66)
Agent Velazco testified that after the recovery of the kilo
press and the apparent drug records (tr. at pp. 16 and 39), and
while in apartment 7-F, he received a radio transmission from
detective Peterson, who was parked in an unmarked police car on
the street opposite 295-305 Bennett Avenue.
(Tr at p. 13)*fn5 Detective Peterson informed agent Velazco
that two Hispanic males were approaching his location and
specifically described one of the suspects, a description which
agent Velazco determined fit the description of Diaz. (Tr. at
pp. 13 and 36-37) Agent Velazco then advised detective Peterson
"to make a stop" and "that I was on my way down." (Tr. at pp.
13 and 53) Agent Velazco testified that he ordered the "stop"
on the basis of the items he had already found in apartment 7-F
(tr. at pp. 41-42), and that "[a]nybody with Mr. Diaz was to be
stopped." (Tr. at pp. 30 and 43) Detective Velazco added to his
testimony concerning who was to be stopped as follows:
Q: No matter how many people were there?
A: It could have been 17, they would have been stopped.
Q: Regardless of any connection unknown or known concerning ...