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UNITED STATES v. JARAMILLO

June 1, 1993

UNITED STATES OF AMERICA,
v.
LUIS JARAMILLO, Defendant.



The opinion of the court was delivered by: EUGENE H. NICKERSON

 NICKERSON, District Judge:

 Defendant Luis Jaramillo, indicted for unlawfully possessing a semi-automatic pistol, moves to suppress it. He contends that the detective who seized it had neither probable cause nor reasonable suspicion to pat him down.

 I.

 At the evidentiary hearing John Saager, a New York City Police Department detective, testified in substance as follows.

 On January 21, 1993 at about 11:30 at night Saager and other members of the so-called Drug Enforcement Task Force went to the La Taverna Bar, a neighborhood bar at 97th Street and 37th Avenue in Corona, Queens County, New York. As they entered the bar the officers yelled "police" and told everyone to "freeze".

 Jerry Speziale, the officer who first went in, saw a man take a gun from his waistband and throw it into the lap of a second person, who in turn threw the gun to the floor. Speziale and a uniformed officer went directly to those two people, while Saager approached another man sitting at a table right next to the two.

 Just as Saager did that, defendant came out of the bathroom, which was about twelve feet from where the other two were sitting. Saager grabbed him and placed him up against the wall.

 Speziale recovered the gun and put the two people who had handled it under arrest. He then started searching the people who had been "frozen" and on patting down defendant felt a pistol strapped to defendant's ankle underneath the right pants leg. Speziale then seized the gun.

 Prior to their entry into the bar the officers had heard from an informant that a kidnapping and a killing had taken place there. At the suppression hearing, when defense counsel sought to probe the reliability of the informant, the Assistant United States Attorney objected, saying that because of "the situation surrounding the confidential source" she would not rely on the informant's statement. She argued that the officers' entry without a warrant was proper because there was public access to the bar, and that the events occurring after that entry justified the stop and frisk of defendant.

 The court does not consider the testimony as to the information received from a confidential informant, even though the court must therefore decide the motion on an artificially restricted state of facts.

 Defendant urges that the Supreme Court's decision in Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), is controlling. In that case an Illinois state court issued a search warrant based on a statement by a reliable informant that on the previous day in a bar he saw 15 to 25 tinfoil packets on the person of the bartender and behind the bar, that on other occasions he had observed tinfoil packets on the bartender and in a drawer behind the bar, and that the bartender advised him that he would have heroin for sale the following day. The warrant authorized a search of the bar and of the bartender.

 Officers then went to the bar, announced their purpose, and said that they were going to conduct a cursory search for weapons. An officer frisked, among others, Ybarra, who was standing at the bar, and felt "a cigarette pack with objects in it." The officer ...


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