The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
The six-count indictment in this criminal case involves
allegations of passing counterfeit currency on four occasions,
plus conspiracy and firearm counts. Defendant Paz has moved for
suppression of evidence seized during his arrest,*fn1 based on
a warrantless entry into his apartment. By Order of September
5, 1990, as amended by on October 15, 1990, the Court granted
a hearing on the suppression motion, which was conducted on
November 2, 1990.
In early January 1990, a Confidential Informant (hereinafter
"C/I", or the "Informant") reported to the United States Secret
Service that certain persons were dealing in counterfeit $10
notes in the vicinity of 607 West 190th Street ("the
Building"). The Secret Service secured the assistance of the
Informant in setting up an undercover "buy." The Informant and
a Secret Service Agent ("the Agent") allegedly met with
defendants on several occasions to discuss the sale of
counterfeit currency. These conversations were taped. The
defendants allegedly made arrangements to sell to the Informant
and the Agent $50,000 in counterfeit $10 bills in exchange for
$15,000 real currency.
On January 24, 1990, the Informant and the Agent allegedly
again discussed the transaction with defendants in front of the
Building. The Secret Service stationed a back-up team of agents
in the area. After further negotiation, Mr. Paz allegedly
entered the building with the Informant and then emerged with
$48,950 in counterfeit bills. Mr. Paz allegedly gave the bills
to the Agent in exchange for $15,000 genuine currency.
The Secret Service team then moved in to arrest the dealers.
At approximately 6:00 p.m. one agent arrested Garcia on the
sidewalk in front of the Building. Tr. 18. The arresting agent
called out that Garcia had a gun. Id; Tr. 61. The Agents saw
the Informant exiting the Building. The Informant told Special
Agent Mooney that Mr. Paz was in Apartment 1B of the Building,
and that he believed that another individual was also in
Apartment 1B. He further indicated that Mr. Paz was "possibly
packing," i.e., in possession of a firearm or weapon. Tr. 61.
The Informant also returned to Agent Zimmerman the "flash
roll," the stack of bills he was to show to the dealers to
convince them that he had the money to consummate the
deal.*fn2 However, the roll was no longer rubber-banded
together, but had been unsealed and was simply "a ball of
money," or a "fistful." Tr. 19. Agent Zimmerman interpreted
this as an indication that "the defendants had gone through the
money and were aware that they weren't going to receive their
$15,000 in genuine as they had thought." Tr. 18-19.
Several agents then proceeded to the doorway of 1B. They did
not have a warrant to enter or search the premises or to arrest
Mr. Paz. Agent Zimmerman indicated that the strategy was to
"knock, identify, and see if either the defendants would let us
into the apartment or if they would come out of the apartment
to us." Tr. 13. Failing that, he said he intended to secure the
apartment and obtain a warrant. Tr. 13. He testified that he
repeated those instructions to his agents at the door of
Apartment 1B. Tr. 19, 30. This information was independently
confirmed by Agent Mooney on the witness stand. Tr. 59, 62.
Agent Mooney testified that when the agents arrived at the
door, the apartment door was not completely latched shut. He
described the door's position as "maybe an inch or two ajar
where you can see the door jamb itself against the light
colored paint against the dark door, not where it would be
visible but where you would see the door jamb, you knew it
wasn't mesh with the door frame itself." Tr. 63. There is some
factual discrepancy as to the actual condition of the doorknob,
but it is uncontested that it was damaged in some way.*fn3
Agent Mooney testified that he identified himself as a police
officer and then knocked on the door, approximately one
overhanded knock with a closed fist. Tr. 64. Agent Zimmerman
also testified that he observed Agent Mooney knock on the door
and yell, "Police." Tr. 20. Agent Mooney testified that his
knock caused the apartment door to swing open "just under a
foot." Tr. 64. Agent Zimmerman's testimony corroborates that
the door swung open when Agent Mooney knocked. Tr. 30. However,
Mr. Paz swore out an affidavit saying that he heard no knock or
announcement prior to the police's entry. Affidavit of Rafael
Paz, dated June 12, 1990, (hereinafter "Paz Affidavit"), ¶¶ 3,
4. His "common-law wife," Ms. Rodriguez, also testified that
she was in the kitchen cooking at the time and only heard the
"noise that the door made when it was broken." Tr. 85.
Agent Mooney and Agent Zimmerman each testified that Mooney
then yelled "Police" again, but that he did not enter the
apartment at that point. Tr. 30, 79. Mooney testified that from
his vantage point he was able to peer into the apartment and
get a partial view of Mr. Paz through the bedroom door. Tr. 64.
He testified that from that angle he could see doorway of the
bedroom and just to the left of the right-hand corner portion
of the bedroom. Tr. 64-65. However, Ms. Rodriguez testified
that she was never able to see into the first room when
standing outside her front door. Tr. 98.
In the doorway Agent Mooney testified that he saw Mr. Paz's
head and upper chest, but not his hands. Tr. 65. He further
stated that he had eye contact with Mr. Paz, that Paz "looked
startled at me and then turned swiftly" out of Agent Mooney's
line of vision, into the bedroom. Id. Agent Mooney asserted
that he then announced "police" again, entered the apartment
and proceeded towards the doorway of the bedroom. Tr. 66.
Agent Mooney testified that upon entering the bedroom, he
observed Mr. Paz "scrambling towards the left-hand corner,
towards the closet," id., apparently tripping as he ran. Id.
Agent Mooney testified that he again identified himself as the
police and directed Mr. Paz to stay on the ground. Id. Mr.
Paz's version differs in that he alleges the officers "threw me
to the floor and put a gun to my head." Paz Affidavit, ¶ 3.
Agent Mooney indicated that he then handcuffed Paz, asked his
name, and asked him whether he had any weapons, simultaneously
patting him down. Tr. 66. Agent Mooney testified that Mr. Paz
told him that he kept his gun in his back pocket. Id. Agent
Mooney then confiscated the gun and also a beeper found on his
The Fourth Amendment generally prohibits the warrantless
entry of a person's home, whether to make an arrest or to
search for specific objects. Illinois v. Rodriguez, ___ U.S.
___, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990) (citing
Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d
639 (1980) and Johnson v. United States, 333 U.S. 10, 68 S.Ct.
367, 92 L.Ed. 436 (1948)). The entry is presumptively unlawful
unless the Government can prove that the circumstances fit
under an exception to the warrant requirement. The exception
relied upon here is "exigent circumstances," which attaches if
the suspect is about to flee, evidence is about to be
destroyed, or life is about to be threatened.
The Second Circuit has adopted the factors set forth in
Dorman v. United States, 435 F.2d 385, 392-3 (D.C. Cir. 1970)
(in banc), as "guideposts intended to facilitate the district
court's determination of whether exigent circumstances
existed." United States v. MacDonald, 916 F.2d 766, 769 (2d
Cir. 1990); see United States v. Martinez-Gonzalez,
686 F.2d 93, 100 (2d Cir. 1982); United States v. Crespo, 834 F.2d 267,
270 (2d Cir. 1987), cert. denied, 485 U.S. 1007, 108 S.Ct.
1471, 99 L.Ed.2d 700 (1988). The Dorman factors have been
summarized as follows:
(1) the gravity of violent nature of the offense
(2) whether the suspect `is reasonably believed to
(3) `a clear showing of probable cause . . . to
believe that the suspect committed the crime';
(4) `strong reason to believe that the suspect is
in the premises being entered';
(5) `a likelihood that the suspect will escape if
not swiftly apprehended'; and
(6) the peaceful circumstances of the entry.
United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert.
denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978)). The
Dorman factors are meant to be "illustrative," not
Sometimes the presence of a solitary factor
suffices, see, e.g., United States v. Gallo-Roman,
816 F.2d 76, 79-80 (2d Cir. 1987) (destruction of
evidence), alternatively, a combination of several,
see, e.g., United States v. Callabrass,
607 F.2d 559, 563-64 (2d Cir. 1979), cert. denied,
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