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February 23, 1993


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


 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.

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