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U.S. v. PAZ

December 19, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RAFAEL PAZ, A/K/A "QUICO" AND PEDRO GARCIA, A/K/A "PALACO," A/K/A "OSCAR GARCIA," DEFENDANTS.



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.

BACKGROUND

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 person.

Mr. Paz seeks to suppress the evidence seized from him by challenging the constitutionality of the agents' entry into the apartment. The Court now addresses the questions of: (1) whether the warrantless search was justified by "exigent circumstances," and (2) whether the police complied with the "knock and announce" requirements of 18 U.S.C. § 3109.

DISCUSSION

I. Exigent circumstances

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
  charged;
  (2) whether the suspect `is reasonably believed to
  be armed';
  (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 "exhaustive":

  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,
  446 U.S. 940 [100 ...

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