On June 13, 1991 Special Agents Robert Devine and Brian Aryai
of the U.S. Customs Service were engaged in a surveillance of
a residence located at 103-16 107th Street in Ozone Park,
Queens (referred to herein as the "premises" or the
"residence") in connection with an ongoing Customs Service
money laundering/currency reporting violation investigation
which was precipitated by the seizure of a large amount of
currency a week earlier from a bank account of Juan Carlos and
Sara Ve Agreda.
Both Agent Aryai and Agent Devine are experienced Customs
investigators. Agent Aryai testified that he has been a Customs
Special Agent for 8 years. Agent Devine, who has been a Customs
Service Special Agent for 4 1/2 years, testified that he has
been involved in approximately 100 money-laundering and
During their surveillance of the 107th Street premises on the
morning of June 13, 1991, Agents Devine and Aryai, stationed in
separate cars, observed Defendants Babwah and Maharaj exit the
residence with a female, who was subsequently identified as
Mrs. Agreda. The three got into a red BMW and Defendant Babwah
proceeded to drive away, with Defendant Maharaj in the front
passenger seat and Mrs. Agreda in the back seat. Agents Devine
and Aryai followed them.
The two agents, (one of whom stayed at virtually all times
directly behind the red BMW), observed the Defendants drive in
an evasive manner — they kept zigzagging and
squaring-the-blocks every block rather than proceeding on a
direct route to their ultimate destination on Liberty Avenue.
They further observed the Defendants continuously look into the
rear view mirrors as if to see whether they were being
followed, and appear to make several telephone calls on a
cellular telephone in the car.
At the corner of 121st Street and Liberty Avenue, all three
occupants of the BMW got out of the car and entered Lefferts
Realty. A short time later, Defendant Maharaj returned to the
car and retrieved a large brown paper bag, and went into the
Citibank directly across the street from Lefferts. Agent Devine
followed him into the bank.
Devine observed Maharaj proceed to the back of the bank and
meet with a bank employee. The two of them then went to a
teller's window and Devine overheard the teller discussing the
currency transaction reports ("CTR's") that banks are required
to submit to the Government for deposits in excess of $10,000.
Devine observed Defendant Babwah come into the bank two minutes
later, speak briefly with Maharaj then leave. Defendant Maharaj
subsequently left the bank as well, leaving the brown paper bag
with which he had entered with the bank employee. He proceeded,
as had Babwah, to return to Lefferts Realty office across the
street. A few minutes later, the Defendants and Mrs. Agreda
returned to the BMW and drove away.
Agents Devine and Aryai continued to follow them but their
evasive driving tactics proved successful — the agents had
managed to maintain their surveillance for a while despite the
Defendants' having run a red light, but when the Defendants ran
a second red light, the agents were cut off by a truck crossing
the intersection. As a result, they lost sight of the BMW.
Having lost sight of the car, the agents returned to resume
surveillance of the 107th Street residence. Later that day,
again while stationed in their separate cars near the
residence, Devine and Aryai observed Defendant Maharaj park a
different car around the corner from the 107th Street
residence, proceed to enter the premises and then leave a few
minutes later with a large suitcase. Upon exiting, Maharaj
walked toward Liberty Avenue and met up with Defendant Babwah
and Mrs. Agreda who were waiting in the red BMW.
Agents Devine and Aryai followed them. Once again, the
Defendants took an evasive, zigzagging route to their ultimate
destination — a house near 116th Street and
Atlantic Avenue. All three occupants of the BMW got out of the
car there, entered the house, and then exited with more
suitcases which they put in the car then drove away.*fn2 The
agents continued to follow them.
When the Defendants resumed their circuitous driving tactics,
Devine and Aryai put their flashers on, Agent Aryai put his
siren on, and they pulled the BMW over. When the BMW slowed
down to pull over, Agent Devine pulled his car diagonally in
front of the BMW, and Aryai pulled in behind it. Both agents
testified that Defendants could not have driven away without
hitting the agents' cars.
Agent Aryai testified that Defendant Babwah, who was driving
the BMW, "bolted" out of the car after he and Agent Devine had
pulled them over and asked, "What's the problem?" Aryai shouted
to him with his megaphone to get back into the car. Babwah
complied and got back into the BMW. Both Agent Devine and Agent
Aryai then exited their cars simultaneously and approached the
BMW. They identified themselves as Customs agents to the
occupants of the car and told them that they were investigating
money laundering. At the time, the agents were not wearing any
kind of uniform and did not display their weapons. Agent Aryai
then told Defendant Babwah to get out of the car, and to put
his hands up. When he did, Aryai patted him down. Defendant
Maharaj and Mrs. Agreda remained inside the car. Agent Devine
told Defendant Maharaj and Mrs. Agreda to keep their hands
where he could see them.
After patting down Defendant Babwah, Agent Aryai asked him
for his registration for the BMW. Babwah said that the BMW was
not his, that it belonged to a friend, and he produced copies
of registration and insurance certificates which showed the
registered address as the 107th Street residence. The agents
then asked Babwah whether they could search the car and
luggage. Babwah consented to the search but said that the
luggage belonged to Mrs. Agreda. Mrs. Agreda confirmed that the
suitcases belonged to her. She said she was on her way to the
airport, but she had no objections to a search of her luggage.
Neither of the agents asked Defendant Maharaj for his consent
to a search of the car or luggage.
Accompanied by Defendant Babwah to the rear of the car, the
agents opened the trunk and searched the trunk and suitcases.
No narcotics or currency, or any evidence of a crime were
found; all that was in the suitcases was clothing, personal
items, and some candy bars.
Thereafter, Agent Aryai asked Babwah, "Have you ever been to
this address [the 107th Street address on the car
registration]?" He said "No." The agents then asked whether the
occupants of the car would come to the 107th Street premises
with them. They agreed. They asked Mrs. Agreda to ride with
Agent Aryai, and asked Babwah's consent to Agent Devine riding
in the BMW with Babwah and Maharaj. Babwah consented to the
arrangement and Agent Devine got in the back seat of the BMW,
while Defendant Maharaj stayed in the front passenger seat
while Defendant Babwah drove. Devine testified that he did not
ask the Defendants anything during the ride to 107th Street,
nor did he give Defendants any directions to get to the 107th
Once the group arrived in front of the 107th Street premises,
both Defendants Babwah and Maharaj denied ever having been at
the house, and further denied ever having been on that block.
Agent Aryai then confronted them with having previously seen
them at that residence, and the Defendants then changed their
story. First they said they had been there a few times but
still denied living there. Defendant Babwah subsequently said
that the residence was his friend Juan Carlos Agreda's house,
but he was staying there for a while. Then he again changed his
story and said, "I lied. I live here," and produced the key to
the front door.
Agent Aryai testified that he then said to Defendant Babwah,
"Since you live here, can we go upstairs and search?" Aryai
said that Babwah verbally consented. Agent Aryai then
hand-wrote a consent form on a blank piece of paper and
Defendant Babwah signed that handwritten form.*fn3 Aryai
testified that he usually carries extra blank consent forms but
he did not have any with him on June 13th. Neither of the
agents asked Defendant Maharaj for his consent to search the
The two agents then went into the residence and did a
security sweep. After they had done so, Agent Aryai told
Babwah, "We're looking for guns, cash and narcotics," and
Babwah responded that there were none.
Agent Devine sat in the kitchen with Defendant Maharaj and
Mrs. Agreda, while Defendant Babwah went with Agent Aryai, who
conducted the actual search.
Aryai found a large brown paper bag in the bedroom closet
which contained $7,098 in singles. Babwah first told Agent
Aryai that that money was not his. Then, 10 minutes later he
said he had lied and that the money was his and that as far as
he knew, there was no more cash in the house. Aryai continued
his search of the closet. As he approached a duffel bag, Babwah
grabbed the bag and said there was more money in it. The duffel
bag in fact contained $168,700 in cash.
Babwah originally said that the money was his profits from
his fruit and vegetable stand. When Agent Aryai asked him what
all that cash was doing in his house and why he didn't put the
money in the bank, Babwah changed his story — he told Agent
Aryai that he had brought most of the money in from Trinidad
all in one trip. He also told Aryai that he knew the federal
currency reporting requirements regarding bringing money into
the United States. Aryai then placed Defendant Babwah under
arrest and read him his Miranda rights. Agent Aryai testified
that while reading Defendant Babwah his rights, Babwah verbally
said "yes" when asked if he understood them and he also said
"yes" when asked if he was agreeing to waive his rights.
Case Agent Steven Garsh subsequently arrived at the premises
and after being apprised of the situation — but being unaware
that Agent Aryai had already placed Defendant Babwah under
arrest — Garsh also informed Babwah that he was under arrest,
and Garsh then also read Babwah his rights. As with Agent
Aryai, Garsh testified that when he read Babwah his Miranda
rights, Babwah said that he understood them and wanted to
Meanwhile, Agent Devine had been sitting at the kitchen table
with Defendant Maharaj and Mrs. Agreda. After they had engaged
in some small talk, Defendant Maharaj told Agent Devine that he
once had brought $30,000 in cash from Trinidad on one occasion.
He explained how he and two friends carried just under $10,000
each into the country to avoid having to report it. Agent
Devine immediately placed Defendant Maharaj under arrest and
read him his rights. Agent Devine testified that when he read
Defendant Maharaj his rights, Maharaj said that he understood
them and would continue to answer Devine's questions.
Maharaj then showed Agent Devine one bank deposit slip
(Devine found two more deposit slips after reading Maharaj his
rights in a little black case where Maharaj kept his passport).
The deposit slip had the 107th Street residence address on it.
When Agent Devine asked Maharaj why he used the 107th Street
residence as his address on the bank slips, Maharaj admitted
for the first time that he lived there.
The foregoing factual narrative is based upon the testimony
of the three Customs agents — Agents Devine, Aryai and Garsh
— and the documentary evidence submitted
by the Government. Defendants did not put on any testimony or
other evidence to contradict the agents' version of the events,
and the Court finds the agents' unrebutted testimony to be
Both Defendant Maharaj and Defendant Babwah now move to
suppress the evidence of the currency and the deposit slips
retrieved from the 107th Street premises and further move to
suppress any statements made by them during and after the
The gist of Defendants' argument is that they were illegally
seized and detained by Agents Devine and Aryai as of the moment
that they were pulled over by the agents in the car. Defendant
Babwah contends that his illegal seizure taints his consent to
the search of the 107th Street premises and, thus, they argue
that the evidence found by the agents during the June 13, 1991
search of the premises must be suppressed. He further argues
that because he was illegally detained, the statements he made
to the agents on June 13th regarding the source of the currency
and the importation of it from Trinidad must be deemed to be
Defendant Maharaj argues that because he never consented to
accompanying the agents back to the 107th Street premises and
never consented to the search of the premises, the coercive
nature of the events of June 13 renders any statements made by
him to Agent Devine regarding his money importing activities
must be deemed involuntary and, thus, the statements and the
physical evidence found by or given to the agents while in the
residence that day must be suppressed as violative of the
Fourth and Fifth Amendments.
The Government's position is that the Defendants were not
seized prior to being placed under arrest at the 107th Street
residence. According to the Government, prior to the point in
time when the Defendants were placed under arrest, they were
free to leave and go their own way.
III. LEGAL DISCUSSION
A. A FOURTH AMENDMENT "SEIZURE" OCCURRED WHEN THE AGENTS
PULLED DEFENDANTS OVER IN THE BMW.
The threshold issue in this case is whether Agents Devine's
and Aryai's initial contact with the Defendants when they
pulled them over in the BMW constituted a "seizure" within the
meaning of the Fourth Amendment. Only if the Defendants were
"seized", are they vested with any right to constitutional
safeguards. United States v. Mendenhall, 446 U.S. 544, 553, 100
S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980); United States v. Lee,
916 F.2d 814, 819 (2d Cir. 1990); United States v. Sugrim,
732 F.2d 25, 28 (2d Cir. 1984); United States v. Galindo-Hernandez,
674 F. Supp. 979, 982 (E.D.N.Y. 1987).
In United States v. Mendenhall, supra, the Supreme Court
stated, "We adhere to the view that a person is `seized' only
when, by means of physical force or show of authority, his
freedom of movement is restrained." 446 U.S. at 553, 100 S.Ct.
at 1876. The Court went on to delineate examples of
circumstances that might indicate a seizure and held that a
person has been "seized" within the meaning of the Fourth
in view of all of the circumstances surrounding
the incident, a reasonable person would have
believed that he was not free to leave. Examples
of circumstances that might indicate a seizure
even where the person did not attempt to leave,
would be the threatening presence
of several officers, the display of a weapon by an
officer, some physical touching of the person of
the citizen, or the use of language or tone of
voice indicating that compliance with the
officer's request might be compelled.
446 U.S. at 554-555, 100 S.Ct. at 1877. [Citations