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September 15, 1994


The opinion of the court was delivered by: KIMBA M. WOOD


 Defendant James Collins is charged with knowingly possessing a firearm in interstate commerce after having been convicted previously of a crime punishable by imprisonment for a term exceeding one year. He moves to suppress all evidence concerning the gun seized from him on the ground that the search violated his Fourth Amendment rights. A suppression hearing was held on July 7, 1994, and the parties submitted both pre- and post-hearing memoranda. For the reasons set forth below, the court grants the defendant's motion to suppress.


 Testimony at the July 7, 1994 suppression hearing revealed the following uncontroverted facts. On February 14, 1994 four agents of the Drug Enforcement Administration ("DEA") went to the Milford Plaza Hotel ("hotel") based on information obtained from the DEA's Bogota, Columbia office regarding the suspected drug activity of Delio Mosquera ("Mosquera"), reportedly a guest in the hotel. Upon their arrival, the DEA agents were assisted in locating Mosquera's room by Eduardo Santiago ("Santiago"), the hotel's security officer. When the DEA agents identified themselves at Mosquera's door, Mosquera consented to a search of the room, where the agents discovered approximately 750 grams of heroin. Mosquera was then arrested.

 Shortly after the arrest, the telephone in the hotel room rang. Mosquera told the DEA agents that the caller was likely to be his New York heroin connection, and DEA Agent Rafael Reyes ("Reyes"), posing as Mosquera, answered the telephone, and made arrangements to meet with the unidentified female caller in order to complete the drug transaction. The woman informed Agent Reyes that she was currently with another person in an automobile that could not be left unattended, but that she could meet him in front of the hotel in twenty minutes.

 Rather than follow that plan, the woman knocked on the door of the room in which Mosquera and the DEA agents were located, approximately ten to fifteen minutes after the telephone call. Agent Reyes admitted the woman, later identified as Carmen Giraldo ("Giraldo"). After she instructed him to accompany her to a second, undisclosed location to exchange the money for the heroin, he placed her under arrest. Because of the woman's earlier reference on the telephone to a car, Agent Brian Connelly ("Connelly") went downstairs after her arrest to look for the car that had brought her to the hotel. After observing nothing unusual, Agent Connelly returned to the room upstairs.

 At roughly this same time, Santiago observed a car double-parked in front of the hotel. At the suppression hearing, Santiago testified that he was suspicious of the car because he had approached it twice to verify that its occupants were, in fact, waiting for someone inside the hotel, and on each occasion the car drove around the block in an evasive manner. Santiago testified, and the DEA agents confirmed, that when the DEA agents came downstairs after the arrests in the hotel room, Santiago promptly reported to them that he had observed a car outside the hotel that he had concluded was suspicious. Santiago did not tell these agents the factual basis for his conclusion. Rather, Santiago simply reported that a suspicious car was parked outside, and the agents thereafter prepared to search that car.

 (The "suspicious" car was, in fact, wholly unconnected to the drug transaction that had recently unfolded inside the hotel. Instead, the car was a livery cab that contained the driver in the front seat, and the defendant and his five year old nephew in the back; the cab driver had been instructed to remain parked outside of the hotel while the defendant's sister-in-law attempted to secure accommodations for her family for the evening. At the suppression hearing, the cab driver and the defendant contradicted Santiago's claim that the cab had twice driven around the block; both testified that the cab had remained stationary for the entire time that the defendant's sister-in-law was inside the hotel.)

 After escorting defendants Mosquera and Giraldo to a government vehicle, Agents Reyes and Connelly, along with two New York City Police Department officers who had been dispatched to the hotel to assist the DEA agents with their search of the car, approached the livery cab in which the defendant was waiting, and knocked on the windows. The driver, Ramon Perez ("Perez"), was instructed to surrender his keys, and to exit the automobile. (Transcript of the Suppression Hearing of July 7, 1994 ("Tr.") at 112, 163).

 There is a dispute as to what occurred next. *fn1" The court does not need to resolve that dispute however, because the Terry stop itself was made without the reasonable basis required by law.


 The defendant contends that the seizure violated his Fourth Amendment rights because it ran afoul of the guidelines enunciated in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) and its progeny governing so-called investigatory stops. The court agrees.

 Terry held that even a limited investigatory stop by law enforcement officers implicates the Fourth Amendment because such a stop clearly constitutes a seizure. Terry, 392 U.S. at 16. However the Court also held that so long as the investigating officer has "a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot'," U.S. v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989) (quoting Terry, 392 U.S. at 30), such a limited stop for questioning does not offend the Constitution, even in circumstances where probable cause for arrest may be lacking. See also U.S. v. Glover, 957 F.2d 1004, 1008 (2d. Cir. 1992). Under certain circumstances, an officer may not only briefly detain an individual for ...

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