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UNITED STATES v. CABASSA

January 9, 1992

UNITED STATES OF AMERICA, against JOSE MANUEL CABASSA, Defendant.


The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P PATTERSON, JR., U.S.D.J.

 Defendant Jose Manuel Cabassa was arrested on June 19, 1991 and subsequently charged in a two-count indictment with: (1) possession with intent to distribute over 500 grams of a mixture containing a detectable amount of cocaine within 1000 feet of a school; and (2) unlawful use and carrying of firearms during and in relation to a drug trafficking crime. Cabassa moves for an order requiring: (1) disclosure of the identity of a confidential informant; (2) the suppression of all evidence seized in violation of the Fourth Amendment and all fruits thereof, including, but not limited to, any and all statements or admissions made by the Defendant; (3) the suppression of all statements made in violation of the Fifth and Sixth Amendments and all fruits thereof; and (4) the suppression of any evidence that was derived from any prior illegal seizures of evidence or statements.

 On December 2, 1991, Cabassa executed an affidavit in support of parts (2) and (3) of his motion, and the Court held an evidentiary hearing on those parts of the motion on December 10, 1991. On December 23, 1991, Defendant filed a post-hearing memorandum in support of his motion to suppress evidence, and he filed a corrected copy on December 27, 1991.

 At the hearing, the Government established by a preponderance of the evidence that in the Spring of 1991 a confidential informant ("CI") operating under the supervision of Special Agent James McCormick, a Drug Enforcement Agency ("DEA") agent assigned to the Westchester Drug Enforcement Task Force, told Agent McCormick that a man called "Manny" was a supplier of cocaine. The CI had supplied reliable information in the past, and this information had resulted in five investigations involving the arrest of over ten defendants and the seizure of at least 11 kilograms of heroin.

 Agent McCormick also testified that the CI reported that he or she had had several conversations with Manny about buying cocaine and that Manny had given him or her a telephone number (212-876-3941) at which Manny could be reached. On June 18, 1991, the CI reported to Agent McCormick that in a conversation on the telephone Manny had told the CI that he would sell him or her a kilogram of cocaine at his apartment at 158 East 119th street, that he was going on vacation soon, and that he wanted to sell the cocaine before he left on vacation. The CI also told Agent McCormick that he or she had visited Manny at his apartment on 119th street, that Manny had firearms in his apartment, and that Manny was "a shooter." The CI provided a general description of Manny and said that Manny had another apartment on East 120th street for which the CI did not have an address.

 DEA agents conducted a subscriber check on the telephone number which the CI claimed belonged to "Manny." The check revealed that the telephone number was subscribed to a female name and provided the address: 158 East 119th street, apartment 4F, New York, New York ("the 119th street apartment") Having confirmed some of the information received from the CI, two DEA agents, Eileen Dinnan and Mark Nemier, were dispatched in the early afternoon of June 19, 1991 to the United States Attorney's Office to prepare an application for a search warrant for the 119th street apartment. Eight or nine agents, including Agent McCormick, were dispatched to stake out the building at 158 East 119th Street while awaiting the issuance of the search warrant.

 While Agent Dinnan was at the United States Attorney's Office preparing her affidavit in support of the search warrant, agent McCormick became apprehensive. Because the agents who were assigned to the stake-out were white and had with them DEA vests and identification, he feared that their prolonged presence in that inner city area would arouse suspicion and that Manny would be alerted. The apartment building being watched was a fairly large one, and the agents observed a number of persons carrying packages enter and exit it. Agent McCormick believed the building had more than one exit, and he was not sure that Manny could be identified among those leaving. He also understood from the CI that Manny was leaving on vacation and was anxious to dispose of the cocaine.

 At about 3 p.m., having determined that it would be unwise to wait longer for the search warrant, Agent McCormick and other agents approached the entrance to 158 East 119th street. The agents met Roland White, the building's superintendent, in the building's entrance, told him they were getting a search warrant, and asked him where in the building Manny lived. Mr. White stated that Manny lived in Apartment 4F, and he accompanied the agents to the apartment door. On instructions from the agents, Mr. White knocked on the door, and, upon Manny's inquiry of "Who's there," Mr. White announced himself. Cabassa opened the door, and the agents, with guns drawn, forced the door open wider, subdued Cabassa, and handcuffed him. During a security sweep of the apartment, the agents found in plain view: narcotics for personal use, stamps, glassine envelopes, ammunition, and loaded clips for automatic weapons.

 Agent McCormick stated that thereafter, around 3:25 p.m. Cabassa consented to a search of the apartment and opened one of two safes which contained jewelry and about $ 18,000 in cash. In the course of the search, the agents recovered nine guns, a silencer, drug paraphernalia, stamps, drug records, ammunition for the various weapons, and approximately one kilogram of cocaine. Cabassa also took the agents to an apartment at 438 East 120th Street, New York, New York ("the 120th Street apartment") where five more guns were seized.

 Cabassa called Mr. White to testify as to the manner in which the agents gained access to the 119th Street apartment. He also called his nephew, George Encinarcio, to corroborate that Cabassa was not going on vacation until July 11, 1991. Mr. Encinarcio testified that when he arrived at the 119th Street apartment at 3:50 p.m., the apartment was messed up as a result of the search. He also testified that he overheard Agent McCormick's conversations on the telephone and that Agent McCormick was concerned that he would have to release Cabassa because the agents had entered the apartment without a search warrant.

 DISCUSSION

 I. DISCLOSURE OF THE IDENTITY OF THE ...


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