The opinion of the court was delivered by: CAROL E. HECKMAN
This case was referred to the undersigned to hear and report on all pretrial motions pursuant to 28 U.S.C. § 636(b)(1)(a) and (b).
Defendant Diotte is charged in the three-count indictment with possession of cocaine with intent to distribute, conspiracy to commit the same offense and possession of cocaine. The charges arise out of the seizure of 100 pounds of cocaine on January 20, 1993, pursuant to the search warrants issued by the undersigned. Diotte moves to suppress the evidence seized pursuant the search warrants, arguing that the information contained in the supporting affidavit is insufficient to establish probable cause and is based on illegally obtained information. Co-defendant Thomas originally joined Diotte in the motion, but later withdrew his motion.
For reasons set forth below, Defendant's motion should be denied.
Initially, both Defendants in the case moved to suppress (1) statements made to Government agents upon arrest, and (2) evidence seized pursuant to two search warrants. Testimony was heard on the Defendants' statements on March 18 and April 18, 1993. On May 19, the Government changed its position and announced that it would not be using the Defendants' statements at trial. The focus of the hearing then became the search warrant application, and a further hearing was held on May 19.
The hearing established that two search warrants were signed at 5:12 p.m. on January 20, 1993, both based on the identical application. The first was a search warrant for a 1981 Cadillac Deville registered to Defendant Thomas, which Thomas had been observed driving prior to his arrest. Upon execution of this warrant, the agents found two duffle bags in the trunk containing approximately 45 kilograms of cocaine.
The second search warrant, signed at the same time, was for a 1988 Ford tractor trailer observed in the immediate vicinity of Defendant Diotte prior to his arrest. Upon search of the tractor, the agents found a small quantity of cocaine believed to be for personal use, as well as documents and tools.
The warrants incorporate by reference a search warrant and application dated January 18, 1993 for a 1986 Mercury Grand Marquis. The prior search warrant application established that the 1986 Mercury was parked in the Hilton parking ramp in Buffalo, New York from January 13 through January 18 under continuous surveillance by the DEA. On January 14, a dog trained in the detection of narcotics alerted to the vehicle.
The application in support of the two January 20 search warrants established that on January 19, 1993, Defendant Thomas entered the United States via the Rainbow Bridge in Niagara Falls driving his 1981 Cadillac Deville. He then met at the Buffalo Hilton with two Hispanic males, Carlos Arango and Julio Masso. Arango and Masso had previously occupied the 1986 Mercury Grand Marquis. Thomas then left his Cadillac at the Hilton and took a cab to the Sheraton Inn near the Walden Galleria parking lot, where he registered.
On January 20, 1993, Carlos Arango drove the 1981 Cadillac to the Walden Galleria parking lot within view of Thomas' room. Shortly thereafter, Thomas met with Arango in the J.C. Penney's parking lot at the Galleria Mall. Thomas then crossed Walden Avenue and met with a white male (later identified as co-defendant Diotte) in the parking lot of the truck stop on Walden Avenue in the immediate vicinity of the 1988 Ford tractor trailer.
Meanwhile, in the Hilton parking lot, agents observed Masso loading duffle bags into the trunk of the 1986 Mercury. In mid-afternoon of January 20, Arango and Masso drove the 1986 Mercury to the J.C. Penney parking lot and transferred the duffle bags to the trunk of Thomas' 1981 Cadillac. Thomas then got into the 1981 Cadillac and drove it across Walden Avenue to the truck stop previously mentioned. Diotte got into the 1986 Cadillac and left the area with Thomas. The agents observed a false compartment in the bottom of the 1988 Ford trailer.
Defendant argued that the information contained in the application in support of the warrant is insufficient to establish probable cause. I previously held that this issue can be determined by reference to the search warrant and the application in support thereof and it does not require an evidentiary hearing. U.S v. Caming, 968 F.2d 232, 235-236 (2d Cir.), cert. denied, 121 L. Ed. 2d 339, U.S. , 113 S. Ct. 416 (1992).
However, by presenting pictures of the tractor trailer, Diotte convinced the court that there was a factual question as to whether the false compartment in the 1988 tractor trailer could have been observed without an actual search of the trailer. ...