United States District Court, Southern District of New York
January 15, 1991
UNITED STATES OF AMERICA
STANLEY CAMING, DEFENDANT.
The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
On August 27, 1990, defendant Stanley Caming was charged in
a two-count indictment with structuring financial transactions
in violation of Title 31 U.S.C. § 5324. Defendant now moves to
suppress evidence seized from his automobile at the time of his
arrest as well as a post-arrest statement made prior to advice
of his Miranda rights. Defendant also moves for production of
hand written notes of post-arrest statements.
In February 1989, the Department of the Treasury, Internal
Revenue Service ("IRS") commenced a year-long investigation of
defendant's involvement in illegal money structuring
transactions. The investigation involved review of voluminous
financial records, interviews with bank officials and
extensive surveillance of defendant. On March 30, 1990, a
United States Magistrate issued a warrant for defendant's
arrest. Special Agent Pinzino, the agent in charge of the
investigation, arranged to arrest defendant on the morning of
April 2, 1990. Affidavit of Stephen D. Pinzino, sworn to
December 14, 1990 ("Pinzino Aff.") ¶ 5.
On April 2, at approximately 5:00 a.m., Special Agent
Pinzino met IRS Special Agents Carroll, Cunningham and Bento
outside defendant's apartment building on East 27th Street in
Manhattan. For reasons of safety and out of consideration for
the health of defendant's wife, whom the Agents had previously
observed to appear frail and in poor health, the Agents
decided to arrest the defendant as he exited his apartment
building. Id. at ¶ 6.
After waiting three and one-half hours, the Agents had not
observed defendant emerge from the building. At 8:30 a.m., the
Agents checked the building's garage and discovered that
defendant's car was not there. The Agents proceeded to a
factory building on West 25th Street in Manhattan where they
had previously observed defendant. They were unable to locate
defendant or his car there.
The Agents then proceeded down the west side of Manhattan to
the Paerdegat Athletic Club in Brooklyn, where they had
observed defendant on numerous occasions. Arriving at the Club
at 9:30 a.m., the Agents spotted defendant's car in the Club's
parking lot. In order to avoid detection or arouse
suspicion,*fn1 the Agents
staked out positions on side streets outside the Club from
which they could observe the Club's parking lot exit.
Id. at ¶ 10. At approximately 10:30 a.m., the Agents observed
defendant's car leaving the Club. After the car had travelled
approximately 100 feet from the parking lot exit, the Agents
blocked defendant's car with their own.
Three Agents exited their cars; Special Agent Bento,
remained in his car. The Agents were all wearing jackets with
large yellow letters and yellow badges emblazoned on the
jackets, identifying them as United States Treasury Agents.
Pinzino Aff. ¶ 12. Special Agent Pinzino approached defendant's
car, "identified [himself] as an IRS agent, told defendant that
[they] had a warrant for his arrest and ordered defendant out
of his car." Id. Defendant stated "I'm dead," or "I'm a dead
man." Affidavit of Stanley Caming, sworn to September 29, 1990
("Caming Aff.") ¶ 5; Pinzino Aff. ¶ 13. Shortly thereafter,
Special Agent Cunningham handcuffed defendant and advised him
of his Miranda rights. Caming Aff. ¶ 6.
At the time of defendant's arrest, Special Agent Pinzino
conducted a search of the interior of defendant's automobile
and found on the front seat, in the glove compartment and
inside the driver's side sun visor, the following documents:
• 4 Dreyfuss Fund customer receipts in the name
of Jacqueline Gottleib
• Phone Message for Jacqueline Gottleib
• 2 Con Edison electricity bills for
• Chemical Bank monthly statement for account of
• Certified Mail receipt for Dr. Phillip Hodes
• Bill of Sale for a camcorder
• Receipt of delivery from Shephard's Distributor
and Sales Corp to Key Sales
• Dreyfuss Fund customer receipt in the name of
Mr. & Mrs. Gilbert
• Dreyfuss Fund customer receipt in the name of
Mr. & Mrs. Shaw
• Various personal papers with numerical
configurations, lists of things to do, and circle
Affidavit of David Cutner, Esq., sworn to on November 30,
1990, at ¶ 5. On the day following the arrest, Special Agent
Pinzino conducted an inventory search of defendant's vehicle
and recovered additional documents from under the passenger
side floor mat and the car's trunk. Pinzino Aff. ¶ 16.
Defendant now moves, pursuant to Federal Rules of Criminal
Procedure 12 and 41, to suppress the documentary evidence
seized from his car at the time of his arrest and during the
inventory search, as well as the post-arrest statement made
prior to being advised of his Miranda rights.*fn2 Defendant
also moves, pursuant to Federal Rule of Criminal Procedure
16(a)(1)(A), for production of the Agents' handwritten notes of
defendant's post-arrest statements.
I. Motion to Suppress
A. Search of Defendant's Vehicle
Defendant contends that the evidence seized from his
automobile during and subsequent to his arrest must be
suppressed since "[t]he agents used defendant's arrest as a
pretext for [a] warrantless search, apparently hoping that it
could be justified under the `search incident to a lawful
arrest' exception to the warrant requirement."
When a police officer has made a lawful custodial arrest of
the occupant of an automobile,
he may, as a contemporaneous incident of that arrest, search
the passenger compartment of the vehicle. See New York v.
Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768
(1981); see also Chimel v. California, 395 U.S. 752, 89 S.Ct.
2034, 23 L.Ed.2d 685 (1969) (lawful custodial arrest justifies
contemporaneous warrantless search of immediately surrounding
area). Where, however, it appears that the search and not the
arrest was the real purpose in effecting a warrantless search
of the premises, "and that the arrest was a pretext for or at
most an incident of the search," the search is unreasonable
under the Fourth Amendment. United States v. Sohnen,
298 F. Supp. 51, 56 (E.D.N.Y. 1969) (quoting Henderson v. United
States, 12 F.2d 528, 531 (4th Cir. 1926)); see United States v.
Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932);
McKnight v. United States, 183 F.2d 977, 978 (D.C. Cir. 1950).
In Sohnen, relied upon by defendant, United States Customs
agents were investigating a defendant in connection with the
illegal importation and possession of gold coins without a
license. After observing defendant collecting his foreign mail
on several occasions, the defendant was observed picking up a
package from his post office box. The Customs agents observed
the defendant leave the post office and drive off. By the time
the Customs agents reached their own car, defendant was out of
sight. The Customs agents drove directly to the defendant's
apartment, placed defendant under arrest and advised him of his
constitutional rights. The Customs agents told the defendant
that they would search the entire apartment unless he revealed
where his coins were kept.
The defendant showed the Customs agents a small room and
handed the Customs agents the package which he had just picked
up from the post office. The Customs agents searched the room
and seized a large quantity of gold coins, and records and
receipts of gold coin transactions. After completing the
search, the agents left the defendant but took the coins and
records. The agent who conducted the search of the defendant's
apartment testified that he had decided to arrest the
defendant when he observed the defendant pick up the package
at the post office but explained that he "planned to follow
the defendant in one last attempt to determine what the
defendant was doing with the coins, but lost sight of him. .
. ." Sohnen, 298 F. Supp. at 57.
Considering all these circumstances, the court found that
the purpose of the arrest was to conduct an exploratory search
for evidence rather than to apprehend the petitioner.
Id. The court rejected the agent's explanation that he had lost
sight of the defendant, observing that the agent could have
"made the arrest in the post office or on the adjacent
sidewalk. . . ." Id. In reaching its conclusion that the arrest
was a pretext for the warrantless search, the court relied upon
the Customs agents' immediate demand to search upon gaining
entrance to the apartment, their proceeding to search even
after the defendant handed over the package he had picked up at
the post office and their failure to take the defendant into
The circumstances here are materially different from those
present in Sohnen. Defendant presents no evidence that the
Agents contrived to arrest defendant in his car so as to
conduct a pretextual warrantless search of the vehicle. Here,
the Agents surveilled defendant's Manhattan apartment building
for three and one-half hours, from 5:00 a.m. to 8:30 a.m., in
an attempt to arrest defendant as he exited the building.*fn3
Only when this attempt proved unsuccessful did the Agents
search for defendant elsewhere, ultimately locating him at the
Paerdegat Athletic Club. The Court therefore finds that the
Agents contemplated neither an arrest of defendant in his car,
nor a search of the car, when setting out to arrest him.
The Agents staked out positions outside the athletic club
and arrested defendant as he drove his car from the club's
parking lot. Although the Agents concede having waited for
defendant to enter his car and begin to drive away, the record
indicates no improper purpose in doing so. Special Agent
Pinzino stated that the Agents' motivation was "to avoid
detection and not arouse suspicion." Pinzino Aff. ¶ 10.
In light of the circumstances of the arrest, which occurred
between 10:00 a.m. and 10:30 a.m. on a business day, and
defendant's statement that the Club's parking lot holds "about
150 cars," Caming Aff. ¶ 3, Special Agent Pinzino's explanation
is entirely credible. Common sense dictates that on a morning
during the work-week, a tennis club parking lot is not apt to
be full since the majority of patrons would normally be engaged
in their regular employment; more likely, such a lot would be
closer to empty. The Court accordingly finds that since Arnold
Marshel, the Club's owner, was apparently a target of the
investigation, the Special Agents' decision not to stake out
positions within the Club's parking lot, where their presence
would likely be conspicuous, and to arrest defendant as he
exited the Club's parking lot, indicates nothing more than
Agents' sound exercise of judgment in the execution of an
The record fails to suggest that the Agents, by deliberately
waiting to arrest defendant as he exited the Club, improperly
manipulated the situation in order to conduct a search of
defendant's vehicle. Rather than present evidence indicating
that the arrest was "pretextual" or merely "an incident of the
search," so as to fall within the rationale of
Sohnen, the record indicates that the Agents made a concerted
effort to arrest defendant "in an open area . . . alone,
outside his apartment building." Pinzino Aff. ¶ 6. The
circumstances thus fail to indicate that the arrest was a mere
pretext for a search. See United States v. Barbanell,
231 F. Supp. 200 (S.D.N.Y. 1964) (testimony that agents would have
arrested defendant as he walked down street indicated that
delay in arrest was not pretext for search).
B. The Inventory Search
Routine inventory searches of vehicles lawfully impounded by
police are reasonable under the Fourth Amendment. Florida v.
Wells, ___ U.S. ___, ___, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1
(1990). The validity of such searches is not limited to
situations where impoundment is pursuant to a forfeiture
statute. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct.
3092, 3097, 49 L.Ed.2d 1000 (1976).
Defendant has not suggested any impropriety in the execution
of the inventory search itself. He argues rather that since
the initial search of his car was improper, the subsequent
inventory search was also improper.*fn4 Accordingly, having
conducted a lawful search of the vehicle incident to
defendant's arrest, the Agents properly impounded defendant's
vehicle and conducted a search of its contents.
Opperman, 428 U.S. at 369, 96 S.Ct. at 3097.
C. Post-Arrest Statement
Defendant moves for suppression of his post-arrest statement
"I'm dead," made to the Agents immediately prior to their
advising defendant of his Miranda rights. Defendant argues that
the Agents' failure to advise him of the reasons for his arrest
mandates suppression of the post-arrest statement. Defendant
admits, however, that his statement was spontaneous and made
immediately after the Agents advised that he was being placed
under arrest, before the Agents had initiated any
interrogation. See Caming Aff. ¶ 5. The record is clear that at
the time of the statement, defendant understood that he had
been placed under arrest. Id. None of the inherently compelling
circumstances of station-house
interrogation were present and there is no evidence of
coercion or deception. The Court finds that defendant's
statement was voluntary and spontaneous. Accordingly, it shall
not be suppressed. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966); United States v. Vigo,
487 F.2d 295 (2d Cir. 1973).
The Court rejects defendant's argument that the Agents'
alleged failure to advise defendant of the reason for his
arrest, in violation of IRS internal procedures,*fn5 mandates
suppression. Defendant concedes that his statement was made
not in response to custodial interrogation but was made
spontaneously before the Agents had administered the
Miranda warnings. The Agents' resulting inability to initiate
or complete advice of the Miranda warnings is irrelevant to a
determination of whether defendant's post-arrest statement
should be suppressed. See Miranda, 384 U.S. at 444-45, 86 S.Ct.
at 1612. The Court defers until the time of trial a
determination of defendant's argument that the post-arrest
statement in issue is irrelevant and unfairly prejudicial, and
should therefore be excluded under Federal Rules of Evidence
402 and 403. See Fed.R.Crim.P. 12(e).
II. Motion for Production of Handwritten Notes
Defendant moves for the production of the Agents'
handwritten notes which form the basis for a typewritten
memorandum of arrest which has been turned over to defendant.
The Federal Rules of Criminal Procedure provide, in relevant
"the government shall permit the defendant to
inspect and copy . . . the substance of any oral
statement which the government intends to offer
in evidence at the trial made by the defendant
whether before or after arrest in response to
interrogation by any person then known to the
defendant to be a government agent."
Fed.R.Crim.P. 16(a)(1)(A). Here, the government has, at
present, fully complied with Rule 16(a)(1)(A) by providing
defendant with the typewritten memoranda of his statements
prepared from the Agents' handwritten notes. See United States
v. Koskerides, 877 F.2d 1129, 1133 (2d Cir. 1989); United
States v. Elusma, 849 F.2d 76, 79 (2d Cir. 1988), cert. denied,
489 U.S. 1097, 109 S.Ct. 1570, 103 L.Ed.2d 936 (1989).
Defendant's request for an in camera viewing of the handwritten
notes is premature as the case has yet to proceed to trial. See
18 U.S.C. § 3500; Koskerides, 877 F.2d at 1133-34;
United States v. Sanchez, 635 F.2d 47, 64-65, n. 18 (2d Cir.
For the reasons set forth above, defendant's motions for
suppression of physical evidence and a post-arrest statement,
and for production of handwritten notes of defendant's
post-arrest statement are denied.