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July 26, 1993


The opinion of the court was delivered by: WILLIAM M. SKRETNY



 Presently before this Court are defendant Askew's objections to the Report and Recommendation ("R & R") of Hon. Carol E. Heckman, United States Magistrate Judge for the Western District of New York, recommending that this Court deny defendant's motion to suppress defendant's arrest, as well as certain physical evidence and statements obtained in connection with the arrest. For the reasons stated below, this Court will Accept the Report and Recommendation of the Magistrate Judge.


 The parties do not significantly object to any of the factual findings contained in Magistrate Judge Heckman's Report and Recommendation. Therefore, this Court accepts those findings, and will not repeat them here.

 On December 21, 1992, this Court entered a Referral Order referring all dispositive pretrial matters to Magistrate Judge Heckman for report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). On October 13, 1992, defendant filed his motion to suppress. Magistrate Judge Heckman filed a Report and Recommendation on February 23, 1993. Magistrate Judge Heckman found that sheriff department members, who were acting as agents for the Drug Enforcement Agency, had lawfully arrested defendant, had lawfully searched defendant's car, and had lawfully obtained statements from the defendant subsequent to his arrest. Magistrate Judge Heckman determined that defendant's arrest was lawful because his involvement in the crime went beyond mere presence. Magistrate Judge Heckman found that defendant was actively involved in the crime that evening. Magistrate Judge Heckman found that previous involvement in the investigation evidenced that the defendant participated on the night in question (R & R, p.3). Further, the Magistrate Judge found that the search of the car was supported by probable cause. The Magistrate Judge went on to find that the warrantless search was justified because exigent circumstances existed at the time the arrest was made (R & R, p.14). Lastly, the Magistrate Judge found that the agents did not coerce defendant into making his post-arrest statements and that the statements are therefore admissible as evidence against the defendant. For these reasons, Magistrate Judge Heckman recommended that this Court deny defendant's motion to suppress the arrest, the physical evidence discovered during the warrantless search of the automobile, and the post-arrest statements.


 In his Objection to Report and Recommendation of Magistrate Carol E. Heckman ("Objections"), defendant Askew objects to the following recommendations of Magistrate Judge Heckman: (1) that the arrest of the defendant was lawful, (2) that the search of the car which resulted in the seizure of physical evidence was lawful, and (3) that the statements obtained from the defendant subsequent to his arrest, while in custody, were not coerced (see Objections, pp.8-15).

 The Arrest

 Defendant has the requisite standing to challenge the validity of the arrest since he has a personal right not to be arrested absent probable cause.

 Defendant argues that the law enforcement agents based the arrest merely upon defendant's presence at the scene of the crime, and that such a basis will not support a lawful arrest under the Fourth Amendment (Objections, p.15, citing Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979)). Defendant further contends that some of the factual basis for Magistrate Judge Heckman's decision that probable cause existed in this case was never brought forth in the suppression hearing. The facts in question involve an alleged agreement between defendant and agent Johnson to arrange for the purchase of cocaine that resulted in defendant's arrest. An affidavit made part of the Court's file supports the prior arrangement. Officer Johnson did not comment thoroughly about the prior meeting during the suppression hearing, although Magistrate Judge Heckman does refer to Johnson's testimony (R & R, pp.9 and 10).

 Assuming arguendo that facts in the affidavit should not have been considered by Magistrate Judge Heckman, this Court would still find that probable cause for defendant's arrest existed. Defendant drove the car in which the cocaine arrived. Neither party disputes that one of the defendants brought the cocaine out of the trunk of the car that the defendant had driven to Calico Jack's. Such involvement raises defendant's position to more than simply a bystander.

 A case cited in the Ybarra opinion fails to persuade this Court otherwise. United States v. Di Re 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948) involved transactions in counterfeit gasoline ration coupons. Defendant arrived at a gasoline station in a car. Defendant was sitting in the passenger seat. An informant was in the back seat and indicated to the agent that the man driving the car had sold him the counterfeit coupons. The agent arrested the passenger and the driver after conducting a search. The court held that the passenger's mere presence in the automobile did not subject him to being searched. In other words, there existed no probable cause to search the passenger.

 This Court, despite the factual similarities in Di Re, does find that probable cause existed in the present case.


Probable cause exists where "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution that" an offense has been or is being committed. Brinegar v. United States 338 U.S. 160, 175-176, 69 S. Ct. 1302, 1310-1311, 93 L. Ed. 1879. citation omitted.

 In Brinegar the Court held that law enforcement officers had probable cause to arrest the defendant. Defendant was apprehended by Alcohol Tax Unit Investigators who suspected him of smuggling liquor into Oklahoma from Missouri. The investigators based probable cause on the fact that one of them had arrested defendant previously, and had also on other occasions witnessed defendant loading his car up with liquor in Missouri. Such loadings consisted of more liquor than could be used for his own personal consumption. The investigators also testified that his car appeared weighted down.

 The present case contains facts which are similar to Brinegar. Although the a dramatic car chase is missing, the law enforcement agents in the present case knew defendant. Such knowledge was brought forth in the suppression hearing (R & R, pp.9-10). Whereas a laden car in Brinegar may not have been sufficient probable cause for the arrest, when coupled with the fact that the investigators were familiar with Brinegar, the Court found probable cause. In the present case, the presence of defendant at a cocaine transaction may not in itself be sufficient to create probable cause, but because the agents knew defendant, they had probable cause to conclude that his presence went beyond mere happenstance. Further, the fact that defendant drove the car may give rise to a permissible inference that he was more than merely present. This contrasts with the facts of Di Re, wherein the Court suppressed the arrest of a passenger. Moreover, in Bailey v. United States the District of Columbia Circuit held that the fact that defendant was a driver indicated involvement and refuted a notion that he was merely an innocent passenger. Bailey v. United States 128 U.S. App. D.C. 354, 389 F.2d 305, 310 (D.C. Cir. 1967). *fn1"

 At oral argument before this Court, the government contended that merely the events that night in Calico Jack's parking lot were sufficient for the police to find probable cause to make a public arrest of the defendant.


In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879.

 This Court finds that such a standard was met in the present case. *fn2" All defendants appeared to be involved in the transaction at Calico Jack's. Askew's apparent involvement was heightened by the fact that he drove the car.

 Suppression of Physical Evidence

 The parties do not dispute the facts that led up to the seizure of the cocaine from the car. The car arrived at Calico Jack's. Defendant Askew drove the car. One of the defendants retrieved a parcel from the trunk. The defendant who had retrieved the cocaine from the trunk then handed the package to defendant Brooks. It was then given to undercover agent Johnson, who examined the contents of the package and determined the contents to be cocaine. The agent then told defendant Brooks that he would have to go inside of the bar to get money. At this point, Brooks put the cocaine onto the car's front seat through an open window. The agent lifted his hat. The lifting of the hat signalled the other officers, who moved in and placed the defendants under arrest. Agent Johnson then recovered the cocaine from inside of the car.

 This Court will not suppress the cocaine recovered from the car, because the agents' limited intrusion was supported by probable cause to believe that the car contained contraband, and because the scope of the intrusion was restricted solely to the package of cocaine from the front seat.

  In order to have evidence suppressed, a defendant must show that he has standing to challenge the search, that evidence was obtained unlawfully, that the unlawful conduct resulted in the evidence sought to be suppressed (nexus), and that no subsequent event cured the violation of defendant's rights.

 Here, defendant has established standing. The defendant had exclusive control of the car on the night in question (R & R, pp. 2 and 11). See United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir.), cert. denied, 444 U.S. 955, 100 S. Ct. 435 (1979) (Defendant found to have had complete control and dominion over a car by virtue of the fact that he had permission to use the car and the car key. Such dominion allowed him the right to exclude others from it and gave rise to his standing to object to a search of the car.). See also Rakas v. Illinois 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (Defendant denied right to challenge search because status as a passenger did not give defendant a legitimate expectation of privacy.). Despite having standing, however, defendant Askew fails to show that the agents executed the search unlawfully.

 Defendant contends that this Court should find the search unlawful because the police had ample time to obtain a warrant before the search, both before the arrests and after, but the police nonetheless failed to obtain a warrant. Defendant argues that the search is not made lawful by any of the exceptions to the warrant requirement. The defendant cites United States v. Lasanta 978 F.2d 1300 (2d Cir. 1992), as support for his objection. The facts in the instant case differ substantially from Lasanta. Agents arrested defendant Lasanta in front of his house and then seized his car under the civil forfeiture statute, 21 U.S.C. § 881(b)(4). A later inventory search of the car uncovered cocaine. The search of the car was done without a warrant, and the government argued that the search did not have to comport with any of the exceptions to the warrant requirement because the civil forfeiture statute allowed for seizure of the automobile and consequently, its search. The Second Circuit disagreed, finding that Congress could not overrule a provision of the Constitution. A search must be supported by probable cause, and cannot be conducted solely by virtue of a statute.

 One of the fundamental differences between Lasanta and the present case is that in Lasanta, the entire car was searched. Here, only the package was recovered and searched. An exhaustive search of the car was not performed. The present case parallels California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) far more than Lasanta. In Acevedo, agents followed a man home after he picked up a package containing marijuana. Later, while police kept the house under surveillance, Acevedo, the defendant, entered the house and exited carrying a bag approximately the same size as one of the marijuana packages the agents had previously observed. The defendant put the bag in his car trunk. The police subsequently stopped the defendant and recovered the drugs from the car. The police officers did not have a warrant to search the car. The Supreme Court held that the search was constitutional.


In the case before us, the police had probable cause to believe that the paper bag in the automobile's trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment. . . . The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. Id. at 1991.

 Acevedo reveals that the search in the instant case passes constitutional muster. Justice Scalia noted in his concurrence that the Fourth Amendment protects against unreasonable searches, not warrantless searches. Id. at , 111 S. Ct. at 1992.

 In the present case, the police had probable cause to recover the cocaine package from the front seat of the car, according to the standard enunciated by Acevedo. The agent already knew what was in the package 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


 United States District Judge

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