Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



February 23, 1993


The opinion of the court was delivered by: CAROL E. HECKMAN


 Defendant Askew moves to suppress the statement made following his arrest. Defendant Askew also moves to suppress the narcotics seized at the time of his arrest, alleging that he was arrested without probable cause and that the narcotics were seized as a result of a warrantless search in violation of the Fourth Amendment. For the reasons set forth below, it is recommended that the suppression motions be denied.


 A suppression hearing was held on November 25, December 8 and December 15, 1992. Following the hearing, a briefing schedule was set, and the motions were argued in open court on February 16, 1993. During the course of the hearing, the Government presented the testimony of Deputy Sheriff Charles Torres, Deputy Sheriff William Nichols, Deputy Sheriff Michael E. Johnson (all working as part of a DEA Task Force), and DEA Agent Mark Peterson. In addition, Defendant Askew testified that on the night of his arrest he was driving a Chevy Baretta owned by his mother, which his mother had given him exclusive permission to drive.

 There are three counts in the indictment. The first charges all four Defendants with conspiring on August 27 and August 28, 1992 to distribute 500 grams or more of cocaine in violation of Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(b) and 846. The second count charges Defendants Williams, Askew and Boddie with distribution of cocaine on August 27, 1992, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The third count charges Brooks, Williams and Askew with unlawful distribution of 500 grams or more of cocaine on August 28, 1992, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(b) and 18 U.S.C. § 2.

 The indictment followed criminal complaints which were filed against the Defendants on August 28, 1992. According to the affidavit of Deputy Sheriff Michael Johnson in support of the complaint, on August 27, 1992, Johnson purchased approximately one ounce of cocaine from Defendants Williams, Askew and a third unidentified subject, later identified as Carlos Boddie. At the time of this purchase, arrangements were made to purchase an additional one kilogram of cocaine from Askew and Williams later in the evening at a restaurant in the Town of Hanover, New York.

 Pursuant to the prior arrangement, at approximately 1:10 a.m. on August 28, 1992, Johnson met with Defendants Williams, Askew and Brooks in the parking lot of the restaurant in Hanover. At that time, Brooks handed 1,005 grams of cocaine to Johnson. The three Defendants were then arrested by DEA Task Force Agents. Boddie was arrested when he appeared in court to witness the arraignments of co-defendants Brooks, Williams and Askew.


 The testimony at the suppression hearing established the following facts. Deputy Johnson testified that on August 27 and 28, 1992, he was operating in an undercover capacity pretending to be a purchaser of controlled substances (T2 at 20). *fn1" Johnson arranged a meeting in the early morning hours of August 28, 1992 with Defendants Williams, Askew and Brooks at the Calico Jack's Restaurant in Hanover, New York. Johnson testified that a black Chevy Baretta driven by Askew pulled into the parking lot, with Williams in the front seat as a passenger and Defendants Brooks in the back seat. Johnson recognized Askew and Williams from a meeting he had with them at approximately 8:00 p.m. that evening, August 27. The black Chevy had been used for the previous meeting as well.

 Williams introduced Brooks to Johnson and then Johnson spoke to Brooks about the kilogram of cocaine (T2 at 23). Brooks, Williams and the agent were standing outside the car. The agent asked to see the cocaine, and one of the Defendants retrieved a package from the trunk of the car. At first, Johnson testified that he believed that it was Askew who retrieved the package from the trunk of the car and handed it to Brooks (T2 at 23). Subsequently, Johnson testified that his attention was on Brooks and that he knew could not state with certainty that Askew handed Brooks the package from the trunk of the car (T2 at 30-32).

 Brooks then handed the package to Johnson (T2 at 24). The package was wrapped in brown paper with a piece of duct tape. Johnson peeled the duct tape back, examined the contents of the package and satisfied himself that the package indeed contained cocaine. He then handed the package back to Brooks. Brooks tossed the package through an open window into the front passenger seat of the car.

 At that point, the three Defendants were arrested. After their arrest, Johnson returned to the car and took the cocaine out of the front passenger seat. The package was subsequently tested and proved to be cocaine.

 On cross examination, Johnson testified that "I can't be 100% totally positive that Mr. Askew was the one who retrieved it from the trunk. But someone walked to the trunk, handed the package to Mr. Brooks, and Mr. Brooks handed it to me" (T2 at 30). Johnson later repeated that he did not remember who retrieved the package from the trunk (T2 at 31-32).

 The testimony at the hearing also established that after the Defendants were placed under arrest at the parking lot of Calico Jack's, they were taken to the Chautauqua County Sheriff's Department substation in Hanover for processing. Deputy Sheriffs William Nichols and Charles Torres interviewed Askew.

 Deputy Torres testified that he read Askew his Miranda rights by using a preprinted state police Miranda rights card (T1 at 19). Askew stated that he understood his rights (T1 at 20-21). A copy of the Miranda card was marked Government Ex. 1 at the hearing.

 After Askew was advised of his rights, he was questioned by Deputy Nichols. Askew provided biographical information as to his address, date of birth, etc. and then stated that "he was being paid about $ 500.00 to drive these guys up to Calico Jack's" (T1 at 22). Torres then left the room and had no further knowledge of conversations with Defendant Askew (T1 at 22).

 On cross examination, Torres testified that even though during other custodial interrogations he had other defendants sign written waiver of rights forms, no such form was used in this case (T1 at 38). Torres did not ask Askew how far he had gone in school nor did he ask him whether he had been read his Miranda warnings on previous occasions (T1 at 41). Torres also testified on cross examination that there was some discussion of the Defendant's cooperation before he left the room, but he was not sure of the details (T1 at 43-45, 52-54).

 Deputy Sheriff Nichols testified that on August 28, 1992, he assisted in the arrest of the Defendants, including Defendant Askew, in Hanover (T2 at 4). After Askew was advised of his rights, he stated that he knew nothing about the drugs and had just been making $ 300.00 or $ 500.00 for driving some people to Hanover (T2 at 5).

 During cross examination, Nichols testified that after the Defendant was given his rights, Nichols had asked the Defendant if he knew what kind of trouble he was in and stated that he was "in serious trouble" (T2 at 12). The Defendant acknowledged that he was in trouble, but stated he was only driving a car. Nichols advised Askew that he could probably help himself out if he did in fact cooperate (T2 at 15) but that he would have to speak to Agent Peterson about any benefits (id.).

 Askew told Nichols that "he kind of indicated he did" wish to cooperate (T2 at 12) but did not want anyone else on the street to find out (T2 at 6). Nichols then asked Askew if he knew where the cocaine came from and Askew stated, "Ty Brown" (id.). At that point, Nichols summoned Agent Peterson because he was not familiar with the background of the entire case (T2 at 6). After Peterson's arrival, Nichols went in and out of the room and therefore could not testify as to further statements made by the Defendant.

 Peterson testified that he was at the Hanover substation and was advised by Nichols that Askew was interested in cooperating and answering questions that evening (T3 at 5). After entering the room, Peterson asked whether Askew had been given his Miranda warnings and Askew stated that he had in fact been given those warnings (T3 at 5). Peterson asked Askew if there was anything that he could do on that particular evening to assist the agents in their investigation. Askew responded that he thought it would be hard because he had gone through an intermediary and would have to pay for the first kilogram to obtain additional quantities (T3 at 6). The intermediary was identified as Co-Defendant Larry Brooks, who had obtained the kilogram of cocaine from the source, Tyrone Brown (T3 at 7).

 On cross examination, Peterson testified that Askew had been arrested at approximately 1:00 a.m. on August 28, 1992 and arrived at the substation about 15 minutes later (T3 at 12). Peterson began to speak to Askew at approximately 1:45 a.m. (T3 at 13). Peterson testified that he let Askew know that he was looking for cooperation to occur that evening (T3 at 19). Peterson suggested to Askew that if something could not be done that evening, that Askew would not be able to benefit from any cooperation (T3 at 20). Peterson told Askew that the best way, if not the only way, he could help himself out would be by cooperating (T3 at 21). However, Peterson could not recall the specific words he used with Askew (T3 at 20). Once again, Peterson indicated to Askew that his cooperation would have to occur that evening (T3 at 22).


 Defendant Askew makes three arguments in support of his motion to suppress. First, he argues that there was insufficient probable cause for his arrest based on his mere presence at the scene. Second, Askew argues that the seizure of the cocaine from the car should be suppressed because it was a warrantless search in violation of his Fourth Amendment rights. Finally, Askew argues that his statements to law enforcement agents at the Sheriff's substation in Hanover were taken in violation of his Fifth Amendment rights.

 Each of these arguments will be addressed in turn.

 1. Probable cause to support the arrest of Defendant Askew.

 It is undisputed that Askew was present with Brooks and Williams when they were arrested in Hanover, New York, and that one kilogram of cocaine was seized immediately after the arrest. However, it is also true that Deputy Sheriff Johnson was unable to state with certainty that Defendant Askew opened the trunk of the car and handed the package of drugs to Co-Defendant Brooks. Indeed, there was no testimony of any statements or conversation involving Askew at the scene of the crime.

 The record contains two very brief references to Askew's previous involvement in the investigation. Johnson testified that he had known Askew before meeting him in the early morning on August 28 based on a meeting that had occurred at approximately 8:00 the previous day, August 27 (T2 at 21). Johnson also testified that he had been previously negotiating with Defendants Williams and Askew (T2 at 29). Both of these statements were made without any further elaboration.

 Defendant Askew therefore argues that there was insufficient probable cause to support his arrest, stating that his mere presence at the scene of the crime is insufficient. Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979).

 This argument is not supported by the record. First, Askew's involvement in the narcotics sale on August 28 goes beyond mere presence. He was driving the car in which the Defendants arrived to meet Deputy Johnson and which was used to transport the drugs. Second, the affidavit in support of the complaint, which is part of the Court's file in this case, clearly shows that Defendant Askew was involved in a sale of narcotics to Johnson on August 27, the previous evening. Finally, Johnson examined the package which had been located in the trunk of the car and determined that it contained cocaine. All of these facts demonstrate that the Government had probable cause to arrest Defendant Askew on August 28, 1992.

  2. Seizure of the cocaine from the car.

 Defendant argues that the cocaine seized from the car must be suppressed because it was obtained without a search warrant.

 At the outset, it is important to address the Government's point that the Defendant has failed to establish standing. At the date of oral argument on the suppression motion, the Defendant was allowed to reopen the suppression hearing record to establish that the car in question is owned by Defendant's mother and that the Defendant had been given exclusive permission to drive the vehicle. This is sufficient to establish standing to challenge the seizure of the cocaine from the car. See, e.g., United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir.), cert. denied, 444 U.S. 955, 62 L. Ed. 2d 328, 100 S. Ct. 435 (1979).

 In support of his argument for suppression, the Defendant relies on United States v. LaSanta, 978 F.2d 1300 (2d Cir. 1992). In that case, the defendant was arrested on the doorstep of his house pursuant to an arrest warrant. Agents then seized his vehicle, which was parked in the driveway, without a warrant. Upon conducting an inventory search of the vehicle, a canister containing cocaine was discovered under the driver's seat.

 In justifying this warrantless seizure of the car, the Government relied on the civil forfeiture statute, 21 U.S.C. § 881(b)(4), and argued that it was unnecessary for the government to establish any of the traditional exceptions to the Fourth Amendment's warrant requirement. The Second Circuit disagreed, finding that a warrantless seizure must meet one of the recognized exceptions to the Fourth Amendment's warrant requirement even when based on the forfeiture statute. The Court expressly found that no exigent circumstances existed because the defendant was already under arrest, and that none of the other exceptions to the warrant requirement were present. Accordingly, the Court held that the evidence obtained as a result of the seizure had to be suppressed.

 The Government argued in LaSanta that the seizure was justified because probable cause existed to believe that the vehicle had been used in connection with narcotics trafficking. This apparently was unchallenged by the defense. 978 F.2d at 1303. But, according to the Second Circuit, probable cause to believe the car had been used in drug trafficking is not enough to search the car. Id.

 The Second Circuit in LaSanta did not cite or discuss the Supreme Court's 1991 decision in California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). In that case, the Supreme Court held that all automobile searches are governed by a singular rule. Overruling Arkansas v. Sanders, 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979), the Court stated: "The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." Id., 111 S. Ct. at 1991, 114 L. Ed. 2d at 634. In other words, if the police have probable cause to believe that a container located in the car seat contains a controlled substance, that probable cause allows the police to enter the car, seize the package and open it. A search of the entire vehicle, however, would not be supported by probable cause and would be unreasonable under the Fourth Amendment. Id.

 The Acevedo case discussed this rule as the "automobile exception" to the Fourth Amendment warrant requirement. The Court's reasoning appeared to be based on exigent circumstances -- i.e., that cars are movable objects and that evidence may readily be lost if warrantless searches are not permitted. The Supreme Court did not address the question of whether the "automobile exception" would apply if there were no exigent circumstances.

 In this case, Deputy Sheriff Johnson had probable cause to believe that the package located on the front passenger seat of the car contained cocaine. He had previously discussed a drug transaction with Brooks, examined the package, and determined that it appeared to be cocaine. Johnson then handed the package back to Brooks, who threw it into the car and onto the passenger seat through an open window. The Defendants were then arrested and the package was retrieved from the car.

 Defendant nevertheless argues that there was plenty of time to obtain a warrant because, like LaSanta, the occupants of the car had all been placed under arrest, and there were no exigent circumstances requiring a search prior to obtaining a warrant. According to Defendant, Acevedo does not apply to justify the search because there was no danger that the car would be driven away with the contraband inside.

 It is true that exigent circumstances did not exist at the time the search was conducted. All of the Defendants were in custody, including the driver of the vehicle, and there was no risk that the vehicle would be driven away with the contraband inside. However, the exigency requirement was refined by the Supreme Court in Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970). In Chambers, the Court found that if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct the search either immediately or some time after the driver had been arrested, so long as both probable cause and exigent circumstances existed at the time the vehicle was first stopped.

 The same reasoning applies in this case. At the time that Brooks placed the package on the front seat of the car, Johnson would have been entitled to seize the package: having just examined it, he had probable cause to believe it contained cocaine, and at that time exigent circumstances were present. Instead, Deputy Johnson reasonably decided to delay seizure of the package of cocaine until after the Defendants were placed under arrest in order to make sure the undercover operation succeeded. See, e.g., U.S. v. Mackey, 626 F.2d 684 (9th Cir. 1980).

 This case is distinguishable from LaSanta because there the drugs were discovered incidentally during an inventory search of the car after the defendant had been arrested, and the presence of the drugs was not the basis for the arrest. Or, stated another way, in LaSanta exigent circumstances never existed prior to the Defendant's arrest because the agents were unaware of the presence of drugs in the car. These factual differences are significant and provide a basis for distinguishing these two cases.

 Accordingly, the seizure of the drugs was permissible under Chambers, Acevedo and Mackey.

 3. Statements to Law Enforcement Agents.

 Defendant contends that immediately after he was given his Miranda rights, the agents at the substation in Hanover told him that he could be "facing a lot of jail time" and in a "lot of trouble," but that he could only help himself by cooperating immediately with the investigation. Defendant contends that the agents thereby coerced him into revealing details which implicated him more directly in the crime, and that his incriminating statements should be suppressed as involuntarily made.

 Defendant relies on United States v. Anderson, 929 F.2d 96 (2d Cir. 1991), which held that statements by law enforcement officers advising the defendant that he must choose between having an attorney present or forego any favorable treatment for cooperating in the investigation rendered the defendant's confession involuntary. According to the Second Circuit, such statements by the officers are false and misleading since it is commonplace for defendants represented by counsel to cooperate with authorities, and since individuals routinely provide cooperation on matters completely unrelated to the crimes with which they are charged. Thus, according to the Court, such statements "may have created in [the defendant's] mind a false sense that he must confess at that moment or forfeit forever any future benefit that he might derive from cooperating with the police agents." 929 F.2 at 200.

 As Anderson recognizes, in assessing the voluntariness of a defendant's waiver of his right to remain silent, the reviewing court must determine whether the statements were "obtained under circumstances that overbear the defendant's will" at the time they were given. Anderson, supra, 929 F.2d at 99. "Whether a confession is a product of coercion may only be determined after a careful evaluation of all the surrounding circumstances, including the accused's characteristics, the conditions of interrogation, and the conduct of law enforcement officials." Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973)).

 The record in this case does not reveal any particularly overbearing circumstances pertaining to the conditions of interrogation, other than the inherently coercive custodial setting in which the statements were obtained. Nor does it reveal any particular characteristics of the accused, such as his familiarity or lack of familiarity with the criminal process or his knowledge of the rules regarding the benefits of cooperating with the government, which assist the court in determining whether the statements were freely given. Thus, the crucial factor to consider, as in Anderson, is the conduct of the law enforcement officials during their interviews of Defendant.

 The record reveals that Defendant was advised of and understood his Miranda rights (T1 at 19-21). Agent Nichols then asked Defendant if he knew "he was in a lot of trouble" (T2 at 5) and "if he knew what kind of trouble he was in" (T2 at 12). Defendant responded that he believed he was in trouble but that he was only driving the car (T2 at 12-13). Nichols then asked Defendant "if he wanted to cooperate" (T2 at 14) and "told him he probably could help himself out if he cooperated" (T2 at 15). Defendant indicated that he might be interested in cooperating but that he did not want anyone "on the street" to find out (T2 at 6 at 13).

 At that point Agent Peterson was brought in to interview Defendant because of his familiarity with the investigation (T2 at 6). Agent Peterson asked Defendant "if there were anything he could do on that particular evening to assist us in furthering our investigation with regard to obtaining additional quantities of cocaine from the source of supply" (T3 at 6). Defendant responded that it would be difficult to obtain additional cocaine since it would involve an "intermediary" and would require payment of the balance owed for the kilogram seized (T3 at 6). He identified the intermediary and the source (T3 at 7).

 On cross-examination, defense counsel elicited Peterson's testimony that the "tone" of the conversation between Peterson and Defendant was that "if something couldn't be done that evening, [Defendant] wasn't going to get the benefit of this cooperation that [Peterson was] specifically looking for" (T3 at 20). However, Peterson testified that he did not verbally express[] that to [Defendant]. He may have inferred that from our conversation."

 As the government points out, the conduct of the agents here is similar to the conduct of law enforcement officials found not to be unduly coercive in United States v. Bye, 919 F.2d 6 (2d Cir. 1990). In that case, the agent discussed the sentencing guidelines with the defendant and informed him that if he cooperated, the sentencing judge could impose a lesser sentence than otherwise required under the guidelines, and that "it would be more beneficial to him if he cooperates early in the investigation." Id. at 7. The Court found that the mere mention of the possible sentence and the benefits to be derived from early cooperation did not convert an otherwise improper encounter into a coercive or overbearing one. Id. at 8.

 Upon review of the record, I agree with the government that this case is closer to Bye than it is to Anderson. The Anderson case was primarily concerned with the false and misleading nature of the agent's repetitive positing of a "now or never" choice to the defendant -- i.e., that the defendant could choose either to cooperate with the government or to contact an attorney and forego cooperation forever. Here, no such choice was presented to Defendant. Despite defense counsel's efforts on cross-examination, this court cannot infer that Agent Peterson ever gave Defendant this type of "now or never" option. Peterson may, by the "tone" or tenor of the conversation, have encouraged Defendant to cooperate "that evening" in order to benefit, but the record does not support a finding that Defendant was directly misled into believing that he had no choice but to cooperate then and there or forfeit any chance of ever obtaining such benefits.

  Accordingly, I find that the prosecution has sustained its burden of demonstrating by a preponderance of the evidence that Defendant waived his Miranda rights, and that the waiver was not the product of coercion on the part of the officers conducting the interviews.


 Based on the foregoing, it is recommended that Defendant Askew's suppression motion be denied.

 Respectfully submitted,


 United States Magistrate Judge

 DATED: Buffalo, New York

 February 23, 1993

 Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

 ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.

 ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3).

 Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).

 The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 30(a)(3) or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.

 Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Government and the Defendants.


 United States Magistrate Judge

 DATED: Buffalo, New York

 February 23, 1993

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.