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U.S. v. PEREZ

March 9, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
VICTOR PEREZ, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM AND ORDER

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.

BACKGROUND

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 ...

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