before he seized it. Therefore, the agent in this case had more cause to recover the evidence than the agent in Acevedo.
Further, the search of the car was not an exhaustive search like in Lasanta, but only for and of one specific item like in Acevedo. Therefore, this Court will not suppress the product of the search. Additionally, this Court need not address exceptions to the warrant requirement, despite the fact that such exceptions may exist in this case. The search of the car conformed to the Fourth Amendment because it was reasonable, since the package was known to contain contraband and had been placed on the front seat through the open window.
This finding by this Court does not reject the holding by Magistrate Judge Heckman that exigency existed at the time of the arrest and therefore the search performed later would still meet the exception. Chambers v. Maroney 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970). Magistrate Judge Heckman correctly found that at the moment that probable cause for the arrest of the drugs existed, the moment that Agent Johnson examined the package, exigent circumstances presented themselves. Johnson was alone with the defendants who had just placed the drugs in the car. He could have performed a search at that moment due to the exigency. Officer Johnson properly delayed the making of the arrests to insure that the undercover operation succeeded. U.S. v. Mackey 626 F.2d 684 (9th Cir. 1980). See R & R, p.14. The exigent circumstances carried over until when Johnson actually performed the search.
Suppression of Custodial Statements Subsequent to Arrest
Magistrate Judge Heckman was correct in her determination that defendant was not improperly coerced into making an incriminating statement to law enforcement officials on the night of his arrest. Magistrate Judge Heckman carefully considered all the relevant factors, and concluded that the facts of the present case are closer to those in United States v. Bye, 919 F.2d 6 (2d Cir. 1990) than those in United States v. Anderson, 929 F.2d 96 (2d Cir. 1991).
This Court agrees. This Court has thoroughly reviewed the transcript of the suppression hearing, and has considered the statements that Agent Peterson made to defendant Askew. After doing so, this Court has concluded that, under the totality of the circumstances, defendant's statement was not a product of coercion. Unlike the defendant in Anderson, defendant Askew was never presented with a misleading "now or never" ultimatum, and his will was not overborne. See Anderson, 929 F.2d at 99 (court must determine whether statements were "obtained under circumstances that overbear the defendant's will."). Therefore, defendant's motion to suppress his statements will be denied.
The defendant's arrest was lawful. Although defendant's mere presence in the car would not be sufficient to support probable cause, the additional circumstances presented to the law enforcement agents was sufficient to support probable cause. This Court makes such a conclusion independent of the criminal complaint contained in the file. The search of the car was also lawful because it was based on probable cause, and was a search for a specific item rather than an exhaustive search of the car. Finally, defendant's custodial statements were lawful, because the law enforcement officials did not improperly coerce defendant or overbear his will. Therefore, defendant Askew's suppression motion will be denied in all respects.
IT HEREBY IS ORDERED that this Court ACCEPTS the Report and Recommendation of Magistrate Judge Heckman filed on February 26, 1993.
FURTHER, that defendant Askew's suppression motion is DENIED in all respects.
Dated: July 26, 1993
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge