On August 31, 1994, defendant Will Adames was arrested by agents of the Drug Enforcement Administration ("DEA"). The next day, he was charged in a complaint with narcotics violations. On October 14, 1994, he was indicted, along with Rafael Perez Luna, for conspiring to distribute and possessing with intent to distribute more than 100 grams of heroin. Adames now moves to suppress physical evidence seized from and statements made by him on the day of his arrest. An evidentiary hearing was held on Adames's motion on April 4, 1995, and argument was heard on April 25, 1995.
The motion is granted. My findings of fact and conclusions of law follow.
At approximately 5:45 p.m. on August 31, 1994, as part of an ongoing investigation, Special Agents Anthony P. Farretta, Jr. and Armande Kaladi of the DEA were on surveillance in the vicinity of Colden Avenue in the Bronx. (H. Tr. 3-4, 44-50, 61-62). They observed Adames entering the building at 1642 Colden Avenue. Although he was not carrying anything when he entered the building, he was holding a brown paper bag when he left 15 minutes later. (H. Tr. 4, 62). He then got into an automobile and drove, by an indirect or "circuitous" route, to the corner of Powell and Olmstead in the Bronx. Farretta, Kaladi and two other DEA agents followed him in four separate vehicles. (H. Tr. 4-5, 62-63).
At the corner of Powell and Olmstead, Adames got out of the car, carrying the brown bag. He opened the trunk of the car, reached into the brown bag, and pulled out a grey, rectangular box. He dumped the remaining contents of the bag into the trunk, and placed the box back into the bag. (H. Tr. 6-7, 29; DX 1). Farretta had previously seen hundreds of similar boxes, in connection with the production or distribution of heroin; the boxes are used to hold glassine envelopes of the type used in the sale of heroin. (H. Tr. 6-7). Farretta had also previously seen Adames while on surveillance as part of an ongoing investigation of illegal drug activity. (H. Tr. 44-49).
Adames then closed the trunk of the car, turned away, walked across the street, and entered a "bodega." (H. Tr. 8, 29, 64). Both Farretta and Kaladi followed him into the bodega. (H. Tr. 64-65, 104-05; see also H. Tr. 29). While buying a bottle of water, Adames saw both Farretta and Kaladi; one was standing behind him and the other was at the door. Adames walked out, passing them. (H. Tr. 30, 104-05). Both Farretta and Kaladi followed Adames out of the bodega and followed him a few yards down the street. (H. Tr. 30, 65).
Farretta and Kaladi then stopped Adames by identifying themselves as police officers. (H. Tr. 31, 32, 65; see also GX 3501-B, at P 4 ("the other DEA agent and I stopped the defendant") (emphasis added)). Kaladi showed his badge to Adames. (H. Tr. 8-9, 65). Adames had his back to a wall, and he was flanked by Farretta on one side and Kaladi on the other. (H. Tr. 31). They were "relatively close" to him, each about an arm's length away. (H. Tr. 32). The time was shortly after 6 p.m.; the lighting was good; and, with the exception of a gentleman on the corner, there were no other people on the street, which was a public street. (H. Tr. 11).
At that point, Farretta said to Adames, in words or substance, "let me see what you have inside the bag." (H. Tr. 105, 106, 118).
Adames, who was holding the bag in one hand, with the top of the bag folded down to give him a handle to hold onto, gave Farretta the bag. (H. Tr. 106-07). He gave the bag to the agents because they were police officers and they had told him to give it to them. (H. Tr. 107). Without explicitly asking Adames for consent to search or open the bag, Farretta took the bag and opened it. (H. Tr. 108).
Without explicitly asking for consent to search or open the grey box that was inside the bag, Farretta then reached in and took the lid off the box. He saw empty glassine envelopes inside. (H. Tr. 9, 108; see H. Tr. 41-42).
The agents asked Adames where he was taking the box, and Adames responded by telling him Apartment 4D in a building subsequently identified as 2070 Powell Avenue. (H. Tr. 12, 66-67). The agents asked Adames several more questions: who was in the apartment; who was with the person who was in the apartment; and were there any weapons in the apartment. (H. Tr. 12). The two agents then instructed Adames to walk with them across the street to his car. (H. Tr. 12, 67, 109).
When they arrived at the car, the agents searched it. (H. Tr. 13).
Adames opened the trunk of the car, and eventually he gave the car keys to the agents, who did not return them. (H. Tr. 109-10).
After the car was searched, the agents asked Adames whether the windows to the apartment looked out onto the street; he responded that the windows were at the back of the building looking into the alley. (H. Tr. 13, 67-68). In response to questions from the agents, Adames also stated that he had been delivering these boxes for about a month and that he was being paid $ 60 for doing it. (H. Tr. 13-14, 67-68).
At some point, Mr. Adames was brought into the building at 2070 Powell Avenue, where he was handcuffed. (H. Tr. 17, 70-71). Eventually, Apartment 4D was searched pursuant to a search warrant and heroin and drug paraphernalia were recovered. (H. Tr. 21-22).
It is undisputed that Adames was not read his Miranda rights until later that evening, well after he was handcuffed. (H. Tr. 58; Adames Aff. P 7).
On August 31, 1994, Adames was 20 years old. He was born in a small town in the Dominican Republic and came to the United States in March 1986. He has lived with his parents since shortly after he arrived in the United States. His last grade of schooling was the eighth grade. He has worked as a car washer and as a "helper" in the repair of automobile transmissions. Spanish is his first language, although he is able to speak some English. (H. Tr. 100-04).
Adames's motion presents the following issues: (1) whether the agents' initial "stop" of Adames was "consensual"; (2) whether the agents had a "reasonable articulable suspicion" of criminal activity sufficient to justify stopping Adames; (3) whether Adames voluntarily consented to the search of the paper bag; and (4) whether Adames was in "custody" when the agents questioned him after the search of the car.
1. The "Stop"
The Fourth Amendment prohibits a warrantless "seizure" of a person unless there is a "reasonable articulable suspicion" of criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Not every police stop is a seizure. As the Supreme Court has held,
[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free 'to disregard the police and go about his business,' . . . the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.
Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991) (quoting California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991)). The key is "whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Bostick, 111 S. Ct. at 2387 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S. Ct. 1975, 1977, 100 L. Ed. 2d 565 (1988)).
The Government argues in the present case that "the stop was entirely a consensual stop" because the agents merely approached Adames and asked him to talk with them. (A. Tr. at 3). The Government notes that the encounter occurred on a public street during daylight hours and the agents did not display weapons or indicate to Adames that he was not free to leave. See Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion) ("law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions") (citations omitted); United States v. Masse, 816 F.2d 805, 809-10 (1st Cir. 1987) (Fourth Amendment not implicated where pre-arrest questioning was brief and took place in the afternoon on a public street); see also United States v. Springer, 946 F.2d 1012, 1016 (2d Cir. 1991) (there "is no requirement that an officer affirmatively advise an interviewee that he is free to leave or terminate the interview").
I find, however, that the stop here was not consensual. Taking into account all the circumstances surrounding the encounter, I find that the agents' conduct communicated to Adames -- and would have communicated to any reasonable person -- that he was not at liberty to ignore their presence and go about his business.
Adames was not simply approached on the street. Rather, he was followed by both agents into the bodega. They stood watching as he bought a bottle of water, and Adames could see that they were there watching him. They continued to watch him as he walked past them out of the bodega. They then followed him down the street and stopped him, identifying themselves as police officers and displaying a badge. They flanked him while he had his back to the wall, a mere arms-length away, thereby impeding his path and interfering with his ability to walk away. They did not then ask him if he was willing to answer questions; rather, they instructed him to show them what was in the bag. Clearly, under these circumstances, Adames could not have simply ignored the agents and gone about his business. Hence, the stop constituted a "seizure" within the meaning of the Fourth Amendment.
2. Reasonable Suspicion of Criminal Activity
The second issue is whether the agents had a "reasonable articulable suspicion" of criminal activity sufficient to justify detaining Adames without a warrant. Terry v. Ohio, 392 U.S. at 21-22. I find that they did.
The agents were involved in an ongoing investigation of illegal drug activities. Adames had previously been seen meeting with a subject of that investigation. He went into the building at Colden Avenue empty-handed and left a few minutes later carrying a bag. He took a circuitous route from Colden Avenue to Powell Avenue. He was seen handling a grey box of the type often used to hold glassine envelopes used for the illegal distribution of heroin. Under these circumstances, I find that the agents had a reasonable, articulable basis for suspecting Adames of engaging in criminal activity, and thus they were justified in stopping him.
3. The Search of the Bag
The more difficult issue is whether Adames voluntarily consented to the search of the paper bag. It is the Government's burden to prove by a preponderance of the evidence that consent was voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222-23, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854 (1973); see United States v. Matlock, 415 U.S. 164, 177-78 n.14, 94 S. Ct. 988, 996 n.14, 39 L. Ed. 2d 242 (1974). To determine voluntariness, a court must examine the totality of the circumstances, and no one factor is controlling. Schneckloth, 412 U.S. at 238; see United States v. Hernandez, 5 F.3d 628, 632-33 (2d Cir. 1993). As the Court wrote in Schneckloth,
Some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.