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March 11, 1993



The opinion of the court was delivered by: LESLIE G. FOSCHIO


 This matter was referred to the undersigned by the Hon. William N. Skretny, on July 30, 1992, for disposition of all pretrial matters including report and recommendation on any dispositive motions. The matter is presently before the court on Defendant Clark's motion to suppress statements and physical evidence, filed August 17, 1992.


 Defendant Clark was indicted in a three count indictment, dated June 12, 1992, charging violations of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(B), and 21 U.S.C. § 844(a). Specifically, Clark is charged with possession of cocaine and the unlawful possession of cocaine with intent to distribute.

 Clark filed a motion to suppress statements and physical evidence on August 17, 1992. The motion also requested a court order granting certain discovery requests which, according to counsel relative to this matter, have since been resolved. See, Transcript of Suppression Hearing, dated October 27, 1992, at page 190-191. The Government responded to the suppression motion on September 11, 1992. A two-day evidentiary hearing on the motion was heard by the court on October 16, 1992 and October 27, 1992. The Government presented four witnesses, Officer Steven Ritchie, Detective Captain Jeffrey St. Onge, Lieutenant John Cross, and Officer Neil Livergood, each a member of the City of Lockport, New York Police Department. The defense did not present any witnesses. Three exhibits were entered into evidence: Defendant's Exhibit A, a drawing of the cocaine packet at issue, Government's Exhibit 1, the search warrant, and Government's Exhibit 2B, a photograph.

 Following the hearing, Clark submitted a memorandum of law on December 3, 1992. The Government filed its memorandum of law on December 11, 1992. Oral argument on the matter was held on December 22, 1992, at which time the motion was deemed submitted.

 For the reasons as set forth below, Clark's motion to suppress statements and physical evidence should be GRANTED.


 On March 2, 1992, a search warrant was issued to search the premises of 275 Genesee Street, Lockport, New York. (T.I. 4-5). *fn1" The warrant authorized the search of the premises of "Upstairs Apartment, Number Seven" for cocaine and other controlled substances, drug paraphernalia, and records demonstrating drug sales. There was no authorization to search any identified persons and the application provided no probable cause as to any such individuals. See, Government Exhibit 1. Apartment One in the same building was also searched pursuant to the landlord's consent. (T.I. 52). The warrant was executed on March 4, 1992 at about 8 p.m. by City of Lockport police, including Officer Steven Ritchie. (T.I. 4-6).

 As Officer Ritchie exited the building, he observed Defendant Clark on the sidewalk within the boundaries of the property at 275 Genesee Street. (T.I. 8-10). Clark left a crowd of bystanders who had gathered in front of the property and began to walk towards Ritchie. (T.I. 11-12, 58). Ritchie asked Clark what he was doing, to which Clark replied in a sarcastic tone that he was just "walking." (T.I. 12). Ritchie proceeded to take Clark over to one of the police cars parked on the street, had Clark put his hands on top of the car, and patted him down in a check for weapons. (T.I. 12). No weapons were found. (T.I. 12). Ritchie then asked Clark for identification; Clark immediately complied. (T.I. 13).

 Detective Captain St. Onge was standing on the other side of the police car while Ritchie was speaking with Clark. (T.I. 14). After Clark produced his identification, Ritchie asked St. Onge if he wanted to speak with Clark. (T.I. 14). St. Onge approached Clark, asked Ritchie if he had been searched for weapons, and, even though Ritchie indicated that Clark had already been searched, proceeded to again search Clark. *fn2" (T.I. 15, 59-60). St. Onge, however, did not limit his search to a pat down, but, rather, thrust his hand inside Clark's coat pocket and discovered a small plastic bag containing two white chunks of substance. *fn3" (T.I. 15). Clark immediately accused St. Onge of planting the substance in his pocket. (T.I. 15, 62). Clark was arrested and transported to the police station, charged with criminal possession of a controlled substance. (T.I. 17-18).

 Prior to taking Clark to the station, St. Onge gave instructions over the police radio to locate a 1984 Renault which Clark had been driving during the earlier controlled buy. (T.I. 63). When St. Onge was subsequently informed that the vehicle had been located, parked on a city street approximately one block away from 275 Genesee Street, he left directions to conduct continual visual surveillance of the vehicle in the event anyone went back to the vehicle, and, if not, to impound the vehicle after 2 a.m. as it was illegal to park on a city street after 2 a.m. At that time, an inventory search of the vehicle would be conducted "for the purposes of finding whatever might be in that vehicle." (T. 64-65). Officers Jurasz and Livergood of the City of Lockport Police Department conducted the surveillance of the car. (T.II. 133-134). *fn4"

 Clark posted bail and was released from the Lockport jail at midnight on March 5, 1992. (T.I. 65). Shortly thereafter, Officer Jurasz reported over the police radio that a vehicle, a 1980 Chevrolet, had pulled up alongside the Renault she was surveilling, that a male passenger had gotten out of the vehicle, entered the driver's side of the Renault, then exited the Renault and returned to the first vehicle. (T.II. 138-139). She then reported that a female had exited the Chevrolet, entered into the Renault, and that both vehicles began to drive away together. Livergood was informed that the male passenger had reentered the Chevrolet prior to that vehicle pulling away from the Renault. (T.II. 138). (T.II. 139). At that point, there was no indication that, the Renault, Clark's vehicle, was believed to also contain contraband. Following the vehicles for approximately one quarter of a city block, Officer Jurasz pulled over the Renault on suspicion of equipment violations (T.II. 181); Officer Livergood stopped the Chevrolet after that vehicle was observed making a right hand turn without a signal. (T.II. 141). At that time, Livergood could only see the female driver in the Chevrolet, but as the car was pulled over, a person "popped up" on the passenger side of the vehicle. (T.II. 142). This person was later ascertained to be Defendant Clark. (T.II. 143). Upon seeing the individual "pop up" inside the vehicle, Livergood called for assistance, and Lockport Police Officer Colbey arrived on the scene within minutes. (T.II. 145).

 Just prior to Colbey's arrival, Clark began to exit the vehicle, but Livergood immediately ordered him back into the car. (T.II. 146). When Colbey arrived, he approached the driver's side of the Chevrolet, while Livergood walked over towards the passenger side. (T.II. 147). Livergood checked the area next to the car between the curb and the sidewalk, looking for drugs that may have been thrown out of the vehicle. (T.II. 147). Finding none, he then returned to his patrol car and radioed-in the vehicle's registration information. (T.II. 148). Upon learning that the vehicle's registration was valid, Livergood again approached the passenger side of the vehicle, and rechecked the area outside the vehicle for drugs. (T.II. 149). Unlike his first inspection, Livergood proceeded to search underneath the car with a flashlight. (T.II. 149). Livergood discovered a plastic "baggie" underneath the car which contained a substance the officer believed, based upon its appearance and wrapping, to be illegal drugs. (T.II. 149). Without any further analysis of the substance, Livergood then arrested Clark for narcotics possession. (T.II. 150). A brief struggle ensued, after which Clark was put in the patrol vehicle, read his Miranda warnings by the officers, and again taken to the police station. (T.II. 150-151). Clark was not questioned in the vehicle. (T.II. 152). The two females who were driving the Renault and the Chevrolet were also taken into custody for the alleged vehicle and traffic violations, rather than being given standard summonses and released at the scene. (T.II. 153). According to Officer Livergood, the arrests of the females were made "because of the drugs." (T.II. 154). The record indicates, however, that the women were never charged with any drug offenses, but only for vehicle and traffic violations. (T.II. 154, 178).

 Clark was separated from his companions at police headquarters. (T.II. 153). His Renault was impounded as, according to St. Onge, it is the normal procedure of the Lockport Police Department to impound vehicles for traffic infractions when drugs are suspected in order to subject the vehicle to an inventory search. *fn5" (T.I. 97-98).

 Upon arrival at the station, Livergood was joined by Desk Lieutenant Cross, whereupon Clark offered to give a statement in exchange for not involving his two female companions in the investigation. (T.II. 152-153). Clark was taken into a room and given his Miranda warnings for a second time by Officer Livergood. (T.I. 113). Clark indicated to Livergood that he understood his rights. (T.I. 114). Clark then complained that the police had broken into his Renault and stolen $ 2500 in cash from the car. (T.II. 155). He further stated that he knew the police had taken the money, because if his friends had broken into the car, they would have taken the money and the drugs which Clark stated were also in the vehicle. (T.II. 155). Clark then offered to make a formal statement, and was handed a form to use in writing his statement on which the Miranda warnings were imprinted. (T.II. 156). After reading the form, Clark indicated that he wished to speak with counsel before he gave a written statement and the interview was terminated. (T.II. 156).

 Clark was then taken from the room and brought to the booking area, a short distance away, at which point Detective Captain St. Onge, who had been advised of Clark's arrest, arrived. (T.II. 156). St. Onge did not speak to Clark directly, but spoke with the other officers in the room about Clark while Clark was in the same room and within earshot. (T.I. 118). Clark then accused St. Onge of stealing the $ 2500, to which St. Onge replied, "I suppose you're going to say I planted that crack there, too." (T.I. 68, T.II. 156). Clark then responded, "no, that was there. I'm talking about my $ 2500, you took my $ 2500." (T.I. 68). At the time of this encounter, St. Onge was aware that Clark had previously invoked his right to counsel. (T.I. 118).


 Under the standard as established in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), a limited investigative stop of an individual may be made if it is based on a "reasonable suspicion supported by articulable facts that criminal activity 'may be afoot'." United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989) (quoting, Terry, supra, at 30). The standard for determining whether a particular stop is justified by reasonable suspicion is an objective one and is not based upon the subjective views of the detaining officer. See, United States v. Nersesian, 824 F.2d 1294, 1316 (2d Cir.), cert. denied, 484 U.S. 958, 98 L. Ed. 2d 382 , 108 S. Ct. 357 (1987).

 In this case, both the Government and Clark agree that Officer Ritchie's initial stop of Clark outside of the premises of 275 Genesee Street was justified under Terry. However, Clark argues that the subsequent actions of St. Onge in front of 275 Genesee Street violated his rights under the Fourth Amendment. Additionally, Clark claims that, after his release on bail, the stop of the vehicle in which he was a passenger was pretextual and a further violation of the Fourth Amendment, and was only made based upon the officers' use of the information that drugs had been seized from Clark earlier during the allegedly illegal search conducted by St. Onge at 275 Genesee Street. Finally, Clark contends that the statements which were made at the police station after his second arrest were obtained in violation of his Fifth Amendment rights as, at the time the statements were made, he had already invoked his right to counsel. *fn6"

 The Government, in its response, concedes that when St. Onge searched Clark's coat pocket he went beyond the permissible scope of Terry. However, the Government argues that St. Onge's search of Clark was supported by probable cause, as, in the circumstances of this particular case, i.e., that, at the time of St. Onge's search of Clark, a search was being executed at a location where drug deals had previously taken place, and that St. Onge had recently conducted a controlled buy of drugs from Clark, *fn7" exigent circumstances were present justifying the warrantless search of Clark. Additionally, the Government claims that the later stop of the vehicle in which Clark was riding was not pretextual as there is no evidence that the stop of the vehicle would not have been made in the absence of an impermissible purpose. Alternatively, the Government contends that the vehicle stop was justified under Terry. The Government also claims that the cocaine found under the car was abandoned by Clark, and therefore, its seizure did not violate any of Clark's constitutional rights. Finally, the Government contends that Clark's statements at the police station following his second arrest were spontaneous and voluntary and were otherwise obtained without any violation of Clark's rights under Miranda v. Arizona.

 1. The Search Outside of 275 Genesee Street

 Under Terry, an officer may conduct a limited protective search for weapons where, during a justified investigatory stop, he reasonably believes that the individual he is searching is armed and dangerous to the officers or to others. Terry, supra, at 24. In Sibron v. New York, 392 U.S. 40, 65, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), the Court stated that a search for weapons "consists solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault." "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." United States v. Terry, 718 F. Supp. 1181 (S.D.N.Y. 1989), aff'd, 927 F.2d 593 (2d Cir. 1991) (quoting, Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972)).

 As indicated above, the Government and Clark agree that the initial pat down of Clark by Officer Ritchie was justified under Terry v. Ohio. The issue then is whether the subsequent pat-down of Clark by Detective St. Onge immediately following Ritchie's pat-down of Clark, and the additional search into Clark's inside coat pocket by St. Onge during the second pat down were permissible. Clark argues that the search into his coat pocket and the resulting seizure of cocaine were illegal. The Government responds that, under the circumstances of this case, St. Onge did not violate Clark's Fourth Amendment rights by searching inside his coat.

 The Government concedes that St. Onge's search of Clark went beyond the scope of Terry v. Ohio, but argues that the search was based on probable cause, and therefore, the search was proper. The Second Circuit has held that a search which is more intrusive than a Terry search is tantamount to a warrantless arrest and must be based upon probable cause. See, United States v. Ceballos, 654 F.2d 177, 182 (2d Cir. 1981); United States v. Terry, supra, at 1186. See also, United States v. Vasquez, 612 F.2d 1338, 1345 (2d Cir. 1979), cert. denied, 447 U.S. 907, 64 L. Ed. 2d 857, 100 S. Ct. 2991 (1980) (a maximal intrusion, even if technically short of an arrest, must be based on probable cause). Probable cause exists where "the facts and circumstances within [the officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Dunaway v. New York, 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979).

 In United States v. Terry, the court held that a search by a police officer in which the officer opened the defendant's jacket, observed a bulge, and reached under the defendant's sweatshirt, removing a brown paper bag containing narcotics was supported by probable cause where the defendant had been observed at a location suspected of being used for narcotics sales immediately prior to the stop, had engaged in evasive driving after leaving that location, and the driver of the vehicle in which defendant was riding gave the police a false statement as to their whereabouts immediately prior to the stop of the vehicle. The court specifically noted, however, that "a brief presence at a location suspected to be used for the sale of narcotics and possession of a brown paper bag by a person of the same description as the suspected purchasers [would] not [in itself] constitute probable cause," but rather, the evasive driving and false statement, in conjunction with the presence at the suspect location, led to the court's determination of probable cause. United States v. Terry, supra, at 1186 (emphasis added) (distinguishing United States v. Ceballos, 654 F.2d 177 (2d Cir. 1981)).

 In this case, the court concludes that Detective Captain St. Onge's search of Clark's inside coat pocket was not supported by probable cause. Clark had not been observed going into or coming from the location which was being searched, but was only outside the premises standing in an area occupied by on-lookers from the neighborhood. *fn8" He was not the subject of the search warrant directed to the premises at 275 Genesee Street as no individuals were described in the warrant or in the supporting application. The only basis on which St. Onge reached into Clark's pocket during the instant search was that St. Onge had previously conducted a controlled buy of narcotics, apparently two days earlier, (T. 77), during which Clark was wearing the same coat and where the drugs Clark was allegedly selling on that occasion were observed by St. Onge to have been stored in his inner coat pocket. *fn9" The court finds that this, in itself, does not rise to the level of probable cause required to determine that the search was proper under relevant case law. See, e.g., United States v. Rodriquez, 750 F. Supp. 1272, 1275 (W.D.N.C. 1990), aff'd, 972 F.2d 343 (4th Cir. 1992) (court held officer's conduct improper where the officer reached directly into the defendant's pocket "knowing full well that no weapon was there . . . [the officer] believed the lump (in defendant's pocket) to be cocaine and intended to retrieve it" - cocaine admissible, however, as it would have been inevitably seized following defendant's valid warrantless arrest); United States v. Rivera, 738 F. Supp. 1208 (N.D.Ind. 1990) (motion to suppress granted where officer reached into defendant's pocket solely to retrieve contraband). Moreover, there was no indication in St. Onge's testimony that he had received any later trustworthy information connecting Clark with narcotics possession on March 4, 1992. The fact that he was, at the time of the search, on a public sidewalk near a house where a search warrant for possible narcotics had been executed does not alter this conclusion, absent any indication directly associating him with criminal activity in the house.

 In Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), officers equipped with a search warrant authorizing a search of a tavern and its bartender for narcotics entered the tavern and proceeded to pat down the tavern's patrons for weapons. Subsequently, after noticing what felt like a cigarette pack, one officer reached into the defendant's pocket and retrieved packets containing heroin. The Court held that the search and seizure of the defendant contravened the Fourth Amendment as, regardless of the fact that the officers possessed a valid search warrant to search the tavern and its ...

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