The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
This is a motion to suppress certain evidence on the grounds
that defendant Nelson Omar Tabar-Laro (Tabar-Laro) was arrested
on December 26, 1989 by special agents of the Federal Bureau of
Investigation (FBI) without probable cause.
The Court resolves this motion without a hearing because the
parties do not dispute any material facts. Tabar-Laro's
affidavit states that on December 26, 1989, he arrived at a
location in New York City as a passenger in "a white jeep-type
vehicle" (the Jeep) driven by defendant Miguel Munoz (Munoz).
Tabar-Laro Aff. at 2, ¶¶ 7-10 (May 12, 1990). The other
passengers were defendants Enrique Houellemont (Houellemont)
and Hector Garcia (Garcia). Id. At this location, Munoz had a
conversation with defendant Rodolfo Rodriguez (Rodriguez). Id.
"Munoz then left the jeep, went to a phone booth, and returned.
Garcia then left the jeep. Munoz then drove the jeep away." Id.
Shortly thereafter the agents pulled the Jeep over and arrested
the occupants including Tabar-Laro.
Whether there was probable cause for the arrest depends on
how that sequence of events and other events which occurred in
close proximity to them appeared to the arresting agents.
Probable cause to arrest a person exists if the
law enforcement official, on the basis of the
totality of the circumstances, has sufficient
knowledge or reasonable trustworthy information to
justify a person of reasonable caution in
believing that an offense has been or is being
committed by the person to be arrested.
The affidavit of Special FBI Agent Robert Daniel Shea sets
forth the knowledge and information in the arresting agents'
possession at the time of the arrest. The FBI was aware that
Rafael Gonzalez (Gonzalez) was being held captive in New York
City in connection with an aborted sale of narcotics. They were
also aware that Gonzalez's captors had placed several calls
from New York City to Gonzalez's relatives in Pennsylvania
threatening violence to Gonzalez unless a ransom was
forthcoming. During the telephone conversations the voices of
others giving instructions to Gonzalez could be heard in the
background. In addition, Gonzalez had spoken during these
conversations referring to his captors in the plural. Shea Aff.
at 1-2, ¶ 2 (May 14, 1990).
The kidnappers arranged with Gonzalez's brother, who was
acting in cooperation with the FBI, for the payment of a
ransom. Gonzalez's brother was instructed to arrive on December
26, 1989 at a restaurant at 177th Street and Broadway and then
dial a beeper number. Id. at 2-3, ¶ 3. FBI agents were in a car
across the street from the restaurant and had a listening
device attached to Gonzalez's brother. Id. After Gonzalez's
brother dialed the beeper number, the agents saw defendant
Rodriguez arrive and meet with Gonzalez's brother at
approximately 5:45 P.M. Id. Rodriguez then threatened
Gonzalez's brother that he would have Gonzalez killed. Id.
At approximately 5:51 P.M., the agents observed Rodriguez
leave the restaurant to speak to Munoz, the driver of the Jeep
parked across from the restaurant. Id. at 3-5, ¶ 4. Defendant
Tabar-Laro was seated in the Jeep. Then at 5:53 P.M., Rodriguez
and Munoz went to a pay telephone on the street and made a
call. Id. At 5:58 P.M. Gonzalez's brother and Munoz were
observed utilizing the same pay telephone. Id. Simultaneously,
Gonzalez's relatives received a call from an unidentified
Hispanic male who then put Gonzalez's brother on the telephone.
Id. at 5, ¶ 5. While on the telephone, Gonzalez's brother
stated that he was ill, which was a prearranged signal to the
FBI that he believed his life to be in danger. Id. After the
ended, Rodriguez and Gonzalez's brother went to Gonzalez's
brother's car and Munoz returned to the Jeep. Id. at 5-6, ¶¶ 6,
7. Both vehicles drove off towards the Bronx, where the FBI, on
the basis of traced telephone calls, believed Gonzalez was
being held. Id. While the vehicles were proceeding north on
Audubon Avenue with the Munoz/Tabar-Laro/Houellemont Jeep
trailing less than one block behind the vehicle carrying
Gonzalez's brother and Rodriguez, the agents stopped both
vehicles and arrested the defendants Rodriguez, Munoz,
Houellemont and Tabar-Laro. Id.
This recitation of the agents' observations and knowledge is
not contradicted by Tabar-Laro. There can be no doubt that
there was probable cause to arrest Rodriguez as a kidnapper.
The issue is whether there was probable cause to arrest
Tabar-Laro, who was observed doing nothing but sitting as a
passenger in the Jeep. Association with criminals by physical
proximity, conversation, or companionship is insufficient to
support probable cause. United States v. Patrick, 899 F.2d 169,
174-175 (Weinstein, J., dissenting) (citing Ybarra v. Illinois,
444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) and
Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917
(1968)); United States v. Moreno, 897 F.2d 26, 31 (2d Cir.
1990). The Court finds that the agents' observations and
knowledge constituted probable cause for believing that
Tabar-Laro "was not just a mere innocent traveling companion
but was traveling and acting in concert" with Rodriguez in the
kidnapping. United States v. Patrick, 899 F.2d at 172.
The agents were aware that several individuals were probably
involved in the kidnapping. The agents also were aware that the
kidnappers had threatened to engage in violence. To carry out
such threats and for purposes of assuring Rodriguez's security
during the expected delivery of the ransom it was logical for
the agents to suspect that several members of the kidnapping
team would arrive at the restaurant. The telephone calls and
interactions between Rodriguez and Munoz raised probable cause
that Munoz was part of the kidnapping team. Munoz's
accompanying Gonzalez's brother at the pay telephone confirmed
this. And then when Munoz drove off in the same direction as
Rodriguez, there was probable cause to believe that the other
men in the Jeep with Munoz were involved in assuring security
for Rodriguez. At the time of arrest, Tabar-Laro was no longer
just a bystander in the eyes of the objective "person of
reasonable caution," he had appeared to be privy to the
Rodriguez/Munoz 5:51 P.M. conversation at the Jeep and he was
now part of a car full of men whose function was to serve as
security for the kidnapping or ransom.
Tabar-Laro's argument that he was in the car only because he
had asked Munoz for a ride is a question for the jury to
decide. The Court denies Tabar-Laro's motion because the arrest
was made after the agents possessed sufficient information and
knowledge to support a probable cause belief that Tabar-Laro's
sitting in the car constituted active participation in the