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UNITED STATES v. ADAMES

May 9, 1995

UNITED STATES OF AMERICA against WILL ADAMES, Defendant.


The opinion of the court was delivered by: DENNY CHIN

 Chin, D.J.

 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. *fn1"

 The motion is granted. My findings of fact and conclusions of law follow.

 The Facts

 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). *fn2" 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). *fn3" 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). *fn4" 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). *fn5" 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). *fn6"

 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 ...


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