The opinion of the court was delivered by: Gerald E. Rosen, District Judge.[fn*]
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTIONS
TO SUPPRESS EVIDENCE
Defendants Dharamdeo Babwah and Deodath Maharaj are charged
with money laundering and violation of the federal currency
reporting statutes. The charges against Defendants arise out of
a United States Customs Service investigation, surveillance and
subsequent search of residential premises located at 103-16
107th Street in Ozone Park, Queens on June 13, 1991.
Presently before the Court are Defendants Babwah's and
Maharaj's separately-filed Motions to Suppress Evidence of the
currency, bank deposit slips, and other financial records found
at the 107th Street premises, as well as statements made by the
Defendants to Customs agents during and after the search of the
The Court heard the testimony of the three Customs agents
involved in the June 13, 1991 surveillance and search —
Special Agents Robert Devine, Brian Aryai, and Steven Garsh —
and also received into evidence documentary evidence regarding
this matter on August 26 and 27, 1991, including the Affidavit
of U.S. Customs Special Agent James E. McAndrew, which was
originally submitted in support of a seizure warrant to seize
the contents of a bank account.
Based on the testimony and other evidence received by the
Court during the two days of proceedings on this matter, the
Court makes the following findings of fact.
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.
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 ...