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June 11, 1990


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


Defendant Geraldo Hernandez was arrested by Deputy U.S. Marshals on December 11, 1989 pursuant to a probation violation warrant issued in the Southern District of Florida based, inter alia, on his possession of a 12 gauge shotgun and a .357 magnum revolver. The arrest was effected in an apartment in which were present also two unidentified males and Betty Barrow, a friend of Hernandez's. Hernandez has moved to suppress items seized at the time of the arrest which the government intends to introduce at trial, the list of which reads like the property master's inventory for a play about a narcotics dealer: a .357 magnum revolver (which provides the basis for the underlying charge in this case and bears a serial number different from the one that gave rise to defendant's probation violation charge in Florida), the six bullets found therein, a triple beam Ohaus scale, a beeper, a cellular telephone, a quantity of currency, and a Florida driver's license bearing defendant's picture and a name different from his own. The loaded revolver was found when one of the arresting officers ran his hand under the mattress of the bed on which Barrow had been seated and near which she lay handcuffed. The other items were found elsewhere in the apartment. Because the testimony at a suppression hearing on March 20 and 26, 1990 convinces me that this evidence was seized pursuant to constitutionally permissible precautions incident to the lawful arrest of defendant, the motion is denied.


At some time after November 1, 1989, Inspector William Scott, a Deputy U.S. Marshal in the fugitive apprehension squad with about 20 years of experience, learned that the FBI had executed a search warrant at an apartment previously occupied by Hernandez and found the shotgun and revolver that gave rise to the probation violation charge, along with narcotics paraphernalia. Based on that, and on Hernandez's prior conviction in Florida for unlawful trafficking in weapons, he considered Hernandez highly dangerous and likely to be armed. On December 11 he learned that Hernandez was residing on West 36th Street between Ninth and Tenth Avenues and driving a gray Cadillac with the license plate AWG 799. Carrying the Florida warrant for defendant's arrest, he and Deputy U.S. Marshal Jack McCallum began canvassing superintendents of buildings on that block, showing them a picture of Hernandez, and learned that Hernandez in fact was living in apartment 2-R at 412 West 36th Street. (Tr. 17-20).

They sat in their parked car for several hours until they saw a gray Cadillac bearing license plate AWG 799 travel east on 36th Street and enter a parking lot on Ninth Avenue. Scott "observed Geraldo Hernandez exit the driver's side, carrying a black attache case and something else. I also noted two unidentified males exit the passenger side of the same vehicle." (Id. at 21) As the trio walked toward 412 West 36th Street, Scott noted that Hernandez "kept pulling up his belt, like something was falling," which suggested defendant was carrying a gun, and that the two males followed behind him, apparently as "his backup to intervene in case there was any trouble on the street." (Id. at 22)

Scott called for backup of his own, which arrived in the person of about ten deputies. He briefed the newly arrived deputies on Hernandez's background and divided his force into three teams: a containment team to assure that the subject did not escape the building, itself divided in two to cover both the roof and the window of Hernandez's apartment; an arrest team "to control the occupants in the apartment to avoid any kind of armed confrontation"; and a "search team . . . to protective sweep to make sure there was no weapon within reach or any hidden subject in the closet or other place in the apartment." (Id. at 25)

After the occupants of the apartment failed to respond to two knocks and Scott's identification of himself and the others as "police," the deputies used a hydraulic door opener to gain rapid access to the apartment. Scott and others saw Hernandez straight ahead of them in the living room and arrested him. As they entered, Scott saw Hernandez toss a bag toward the bathroom. The bag contained currency.

Deputy U.S. Marshal Timothy Hogan, his weapon drawn, entered a bedroom immediately to the right of the apartment door, where he found Barrow seated on the bed. He told her to raise her hands, and then put his hand on the small of her back and handcuffed her, placing her face down between the bed and a dresser. As he did so, and while crouched over her, he ran his hand across the top of the bed, underneath the bed, and between the mattress and the box spring to assure that there were no weapons within her reach at the time or that could be within her reach should he place her on the bed. He had planned to place her on the bed because it was easier to see her there than on the floor, it was more comfortable, and she was blocking access to the remainder of the room so long as she lay between the dresser and the bed. As he ran his hand between the mattress and box spring, he felt and removed the gun. He called over his shoulder "gun" to notify other deputies that he had found a weapon, and simultaneously emptied the weapon, placing the bullets in his pocket and the gun in his belt. (Tr. 162-70)

Barrow, called by the defendant, testified at the hearing that she had terminated a romantic relationship with the defendant by the date of the arrest, and was present in the apartment only to give Hernandez the title to an automobile. She testified that no gun was seized while she was in the bedroom, thereby necessarily suggesting that the gun was recovered after she had been taken out of that room. (Tr. 226-30) However, Barrow's testimony in this regard is suspect not only by virtue of her association with defendant but also as the result of the numerous contradictions and improbabilities in her testimony, including the contradictions between her testimony at the hearing and her testimony before a grand jury as well as her claim that she had no suspicions of Hernandez's illegal activities despite his frequent absences for days at a time while they were living together, accounted for only by his claim that he was driving a cab. (Tr. 236-50) With respect to the circumstances surrounding recovery of the gun, she was unworthy of belief.

After placing Barrow in the custody of another deputy and attending to other duties outside the apartment, Hogan returned and noticed the cellular telephone on top of a bookcase in the living room, and pointed it out to Scott, who seized it; the telephone appeared to be the same one Scott had seen Hernandez carrying on the street. (Tr. 171-74; 47-48) Also found apparently in plain view in the apartment were the beeper and the driver's license. (Tr. 37-38, 44-45) Two agents who opened a closet in the living room where Hernandez was arrested found the triple beam scale. (Tr. 36-37)


Hernandez bases two arguments on these facts. First, he argues that the conduct of the marshals in the circumstances described above exceeded the scope of the "protective sweep" incident to the arrest of Hernandez, permitted under Maryland v. Buie, ___ U.S. ___, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) and related cases. Second, he argues that the seizure of evidence necessarily resulted from a warrantless search of Hernandez's apartment that was not justified by exigent circumstances. He concludes that the evidence therefore must be suppressed. For the reasons set forth below, I believe Hernandez is wrong in his first argument; there is no need to reach the second.

Buie is only the most recent of a long series of cases in which the Supreme Court has tried to strike a balance that would protect both the safety of law enforcement officers and the Fourth Amendment rights of citizens in the unruly circumstances that attend confrontations between those officers and potentially violent criminal suspects. Those confrontations have included investigative stops on the street, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and on the highway, Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), execution of search warrants, Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), and arrests. Buie, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In each instance, the Court faced the issue of what steps a law enforcement officer may take with respect to either a person or a place, whether by way of search or detention, in order to assure safety or, in the case of an arrest, prevent destruction of evidence, without engaging in an unreasonable search or seizure.

Thus in Terry, the Court held that when a police officer, drawing "specific reasonable inferences . . . from the facts in light of his experience," concludes that "he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest," 392 U.S. at 27, 88 S.Ct. at 1883, may conduct a search "reasonably designed to discover guns . . . or other hidden instruments. . . ." Id. at 29, 88 S.Ct. at 1884. In Long, the Court extended that principle to "the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden . . . if the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the ...

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