The opinion of the court was delivered by: CAROL E. HECKMAN
REPORT AND RECOMMENDATION
This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendants have moved to suppress evidence seized during their arrest without a warrant on September 1, 1992. An evidentiary hearing was held on March 3, 16 and 18, 1993. For the following reasons, Defendants' motion should be granted.
On August 28, 1992, acting on a tip from an informant, Buffalo Police Detective James Krause purchased two glassine bags containing a white powder, later determined to be heroin, from Defendant Jose Velez at 25 Mariner Homes, Buffalo, New York (T2, pp. 130-35).
Krause's entry into the apartment was observed from a distance by Detectives Grisanti and Clementi, who were parked in a surveillance vehicle on the street outside (T2, p. 131). Krause was also wearing a hidden microphone, which Detectives Grisanti and Clementi used to monitor, but not record, his conversations with the Defendants. While inside the small foyer of the Mariner Homes residence, Krause observed Velez enter the kitchen and retrieve the two small glassine bags from a brown pouch on top of the refrigerator (T2, pp. 132-33). Krause gave Velez $ 40.00 for the two bags (T2, p. 133). Velez, a native of Puerto Rico, speaks no English. Krause speaks no Spanish. The two communicated largely with hand signals.
On August 31, 1992, again under the observation of Detectives Grisanti and Clementi, Detective Krause returned to the same address and purchased one glassine bag containing a white powder, later determined to be heroin, from Defendant Velez for $ 20.00 (T2, pp. 135-36). On this visit, Krause observed Defendant Minerva Rivera reach in the pocket of her dress and take out a brown pouch from which she retrieved the glassine bag (T2, pp. 137-38). Krause recognized the pouch as the same one he had observed Velez retrieve from the top of the refrigerator the night before (T2, pp. 138-39). After hearing Defendant Rivera speak broken English, Krause inquired about the possibility of returning the next night to purchase twenty more bags of heroin. The Defendants spoke to each other briefly in Spanish, and Rivera informed Krause that he could come back the next night to purchase twenty bags for $ 300.00 (T2, p. 139).
Krause returned to 25 Mariner Homes in the early evening of September 1, 1992, accompanied by a surveillance team which included Detectives Grisanti, Clementi, Niemann and Wells (T2, pp. 140-41). Krause knocked on the door, and was let in by Velez. They proceeded to the kitchen where, in the presence of another individual later identified as Wilson Velasquez, Velez produced eighteen glassine bags containing a white powder. Rivera then entered the kitchen and produced two more bags from the brown pouch in her dress pocket. Krause gave Velez $ 300.00, and left the residence. As he left, the door closed behind him (T2, pp.142-48).
Detectives Niemann and Wells were waiting around the corner of the Mariner Homes building. As before, Detectives Grisanti and Clementi were in the surveillance van parked on the street approximately 50 yards from the apartment. When the officers saw Krause emerge, they met together briefly and decided to enter the apartment. Krause then approached the 25 Mariner Homes residence again, and knocked on the door. Velez came to the door, and Krause indicated to Velez that he had a problem with the purchase. As soon as Velez opened the door, Krause pushed his way inside. Detectives Niemann, Wells, Grisanti and Clement rushed into the residence behind Krause, identifying themselves as police officers. Each of the officers but Krause was armed and wearing a bullet-proof vest plainly identifying them as Buffalo Police narcotics officers (T2, pp. 150-51; T3, pp. 16-17).
As he was entering, Krause grabbed Velez by the arm and took him into the kitchen. Velez did not resist. Krause ordered the other officers to search Rivera for drugs. Detective Niemann immediately ran upstairs, reacting to what he believed was the sound of footsteps. He saw a .22 caliber rifle propped against a wall in a bedroom. Niemann retrieved the rifle and determined that it was not loaded. He searched the bedroom closet and looked under the bed, but observed no other weapons or suspects. Niemann then went back downstairs to assist the other officers (T2, pp. 110-14).
Detectives Grisanti, Clementi and Wells had rushed into the living room, where they encountered Rivera and Velasquez, who offered no resistance. Grisanti ordered Velasquez to get down on the floor in the middle of the room. Rivera was seated on a couch which was situated against one wall, and Clementi ordered her to remain seated. Clementi conducted a search of Rivera's person, and searched the immediate vicinity where Rivera was seated, but found nothing. Clementi then searched the living room, which was described as approximately fourteen by sixteen feet in size. Directly across from the couch where Rivera was seated, at a distance of approximately twelve feet, was a sliding glass door. The door was covered by drapes or vertical blinds which extended to approximately six inches from the floor. Clementi found a brown pouch on the floor underneath, but not concealed by, the drapes. Krause identified the pouch as the one from which Rivera had retrieved drugs during the previous transactions. Clementi opened the pouch and found sixteen glassine bags containing white powder, later determined to be heroin (T1, pp. 23-27).
While Clementi was searching the living room, Krause conducted a search of the kitchen. Velez remained seated at the kitchen table, under watch by another officer. Krause looked on top of the refrigerator, and began opening cabinets. He opened a cabinet above the stove and observed a brown paper bag. Krause touched the bag and felt the shape of a handgun. He opened the bag and removed a loaded .32 caliber pistol (T2, pp. 153-54; T3, pp. 22-23).
At no time during the arrest or during any previous transaction did Krause or the other officers observe Velez, Rivera or Velasquez carrying a firearm.
Velez, Rivera and Velasquez were arrested and charged with various drug-related felonies under state law. Those charges were eventually dropped in favor of presentment to a federal grand jury. On November 6, 1992, Velez, Rivera and Velasquez were indicted on charges of distribution of heroin, possession with intent to distribute heroin, and conspiracy to possess and distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and use and possession of firearms in relation to drug trafficking, in violation of 18 U.S.C. §§ 924(c) and 2.
Velez and Rivera move to suppress the drugs and weapons seized during their arrest on the ground that the warrantless entry by the arresting officers was unjustified since they had sufficient opportunity to obtain a warrant but failed to do so. The government contends that exigent circumstances required the officers to act without delay, justifying the warrantless entry, security sweep, and seizure of evidence in plain view.
A warrantless entry may be justified by exigent circumstances where the law enforcement agents were confronted by an urgent need to render aid or take action. United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc), cert. denied, 498 U.S. 1119, 112 L. Ed. 2d 1177, 111 S. Ct. 1071 (1991); Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385, 391 (D.C.Cir. 1970) (en banc). The test for determining whether exigent circumstances existed sufficient to justify warrantless entry "is an objective one that turns on the district court's ...