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UNITED STATES v. MUNDY

November 12, 1992

UNITED STATES OF AMERICA
v.
THOMAS MUNDY, GREGORY GORMAN and JOHN BUSIELLO, Defendants.



The opinion of the court was delivered by: JACK B. WEINSTEIN

 Weinstein, J.:

 Defendants' motion to suppress evidence seized from defendant Busiello's automobile is denied. Search and seizure of the vehicle and its contents were permissible under recognized exceptions to the warrant requirement -- police community caretaking and exigent circumstances.

 I. FACTS

 Defendant Mundy, a hardworking trucker, had just won $ 5,000,000 in the Florida lottery. He quickly acquired a style of living that left him short of cash. To replenish his funds he negotiated in Florida with two Drug Enforcement Administration ("DEA") confidential informants to purchase up to thirty kilograms of cocaine to be shipped from Colombia and delivered in New York. In tape-recorded telephone conversations, Mundy told one informant that he had partners, one of whom he identified as a "mob" friend from California. Mundy boasted to the informant that another partner had a black gym bag filled with cash.

 To close the deal Mundy arranged to meet with one of the informants on March 25, 1992 in the lobby of the Ramada Inn at La Guardia Airport. The hotel had a busy parking lot, with cars coming and going. A major highway, the Grand Central Parkway, located nearby, had active traffic. Exactly how and where the transaction was to take place was undecided.

 Mundy and co-defendant Gorman arrived at the hotel together in a rented Pontiac. Gorman, a California resident, had never been seen by the DEA agents.

 The informant and Mundy continued their discussion in the informant's hotel room where their actions were secretly recorded on DEA videotape equipment. Mundy produced over $ 14,000 in cash but the informant demanded that Mundy first show him more cash before the cocaine was produced. Mundy agreed.

 While Mundy rented a room, Gorman placed a telephone call. Gorman was overheard saying, "I'm at the Ramada. Everything is good. Bring as much as you can."

 Shortly thereafter defendant Busiello entered the hotel parking lot driving a grey Porsche. Gorman approached the car and entered it. When he and Busiello exited the car, Gorman was carrying a black gym bag. A few minutes later, Mundy returned to the informant's room carrying the black bag. The informant was shown approximately $ 80,000 in cash from the bag and told that Mundy and his associates were ready to deal for ten kilograms of cocaine. Mundy then left the room with the bag.

 Minutes later Busiello and Gorman were observed seated in the hotel bar. The black bag was hanging from Busiello's chair. Almost at once agents arrested all three defendants and seized the bag which contained $ 78,000 in cash. By this time it was dark, the parking lot was busy with cars and pedestrians entering and leaving and traffic was heavy on the adjacent parkway.

 Because three defendants had been arrested, requiring two agents to guard each of them, there were only two agents left to guard the Pontiac and Porsche. Since the DEA agents had only known of Mundy's identity and were uncertain how the sale was to be consummated, arrest warrants for Gorman and Busiello or search warrants for the two cars could not be obtained before the arrests.

 After securing the keys from Busiello and Gorman, an agent immediately drove each of the two cars to a DEA parking lot on Tenth Avenue in Manhattan. A routine standard DEA inventory search of the cars was then conducted. $ 14,780 in cash was found in the unlocked glove compartment of the Porsche; a cellular phone was on the floor near the front passenger seat. The phone had been used to receive the phone message from Gorman to bring cash.

 Defendants move to suppress the evidence seized from the Porsche as the product of an illegal warrantless search. Current Supreme Court ...


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