the officers, despite their reasonable grounds for detaining Rojas, engaged in actions that were so intrusive that they converted an otherwise lawful investigative stop into an arrest. In order to be valid, an investigative detention must be no more intrusive than the circumstances warrant.
Rojas argues that the officials did not act reasonably, relying principally on the fact that a gun was drawn on him when he was initially stopped.
"A display of guns by the police, however, does not automatically convert a stop into an arrest." United States v. Nargi, 732 F.2d 1102, 1106 (2d Cir. 1984). Rather, there are several factors that a court must consider in determining whether an investigative stop escalated into an arrest: the amount of force used; the need for such force; the extent to which the suspect's movement was restrained; the number of agents involved; and whether guns or handcuffs were used. United States v. Perea, 986 F.2d 633, 644-45 (2d Cir. 1993). Also relevant are the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of the day, and the reaction of the suspect to the approach of the officers. Nargi, 732 F.2d at 1106 (citing United States v. Harley, 682 F.2d 398, 402 (2nd Cir. 1982)); see also United States v. Alexander, 907 F.2d 269 (2d Cir. 1990) (approaching a car with guns out, ordering the suspected narcotics trafficker out of the car and frisking him was not an arrest since "a law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself and an obligation to protect innocent bystanders").
Rojas relies on several cases that hold that a "Terry stop" had escalated to the level of an arrest where, inter alia, guns were drawn. In each of those cases, however, additional factors contributed to the conclusion that the stop involved was actually an arrest. In Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994), for example, the court held that a seizure was an arrest where six officers in six vehicles drew weapons on three suspects -- with no reasonable basis to assume that they were armed -- and then ordered them out of the car, placed them in handcuffs after a pat-down and forced them to lie on the ground. The court stated that it was not any single factor that converted the investigative stop into an arrest, but the cumulative effect of the police actions. Id. at 646. See also United States v. Moreno, 897 F.2d 26, 31 (2d Cir. 1990) (officers, with guns drawn, slammed defendant up against a wall); United States v. Ceballos, 654 F.2d 177, 184 (2d Cir. 1981) (officers, with guns drawn, surrounded defendant with their vehicles and ordered defendant out of a car).
These cases all involved a greater degree of intrusiveness than was present in the stop of Rojas. He was approached in a public place during the daytime by only two officers. Only one gun was drawn, and he was neither handled nor handcuffed during the investigative stage of his detention. Nor was he detained for a lengthy period of time -- it was only minutes after the initial stop that the officers saw the contents of his bag, which gave rise to probable cause for his arrest.
As the Second Circuit recognized in Alexander, Nargi and Harley, a police officer has the right and responsibility to protect herself by drawing her weapon when she deems it prudent. Since this case involved suspected narcotics traffickers, who are often armed, I conclude that it was reasonable for Sergeant Elders to have her weapon drawn at the time she and Investigator Schwartz approached Rojas, and that the initial stop and questioning of Rojas was not an arrest requiring probable cause.
Rojas contends that he never consented to a search of his bag and never waived his Miranda rights. He also contends that even if he did both, he did not do so voluntarily. The voluntariness of a consent to search and to waive Miranda rights depends on the "totality of the circumstances" and is an issue of fact for the trial court. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); United States v. Hernandez, 5 F.3d 628, 632 (2d Cir. 1993); United States v. Moreno, 897 F.2d 26, 33 (2d Cir. 1990); United States v. Marin, 669 F.2d 73, 82 (2d Cir. 1982). Being in custody of or being confronted by police does not render a person incapable of voluntary consent. United States v. Puglisi, 790 F.2d 240, 243 (2d Cir. 1986). Furthermore, there is no requirement that a person be informed of his right to refuse in order for a consent search to be valid; a consent to search does not have to be "knowing" as long as it is voluntary. Schneckloth, 412 U.S. at 234, 247-48; Moreno, 897 F.2d at 33.
In this case, the evidence shows that Rojas understood English
and voluntarily consented to the search of his bag. Although the presence of unholstered weapons can in some instances signals coercive police behavior, United States v. Vasquez, 638 F.2d 507, 524-25 (2d Cir. 1980), that did not occur here. Sergeant Elders had her weapon drawn only as a precaution, and there is no evidence that she used it in a manner that coerced Rojas to consent to a search of the bag. The presence of a gun does not necessarily render consent involuntary, United States v. Rothberg, 460 F.2d 223, 224 (2d Cir. 1972), especially if it was unholstered "only as a precaution." United States v. Miley, 513 F.2d 1191, 1204 (2d Cir. 1975). From the totality of the circumstances in this case, I find that Rojas' consent to the search of the black duffel bag was voluntary.
I also find that his subsequent waiver of his Miranda rights was knowing and voluntary. Rojas was advised of his rights more than once, he understood them and he chose to waive him. In his statements to the questioning officers, he voluntarily consented to a search of his apartment. There is no evidence of coercion in connection with any of these consents. Accordingly, Rojas' motion to suppress is denied.
B. Humberto Llanos
Defendant Llanos has moved to suppress evidence seized from his person and from the 48th Street location on the grounds that he was arrested without probable cause and that the search of the apartment was illegal.
As discussed above, the circumstances of the day's events, as observed by the surveillance team, gave rise to a reasonable suspicion that Rojas and Llanos were engaged in narcotics trafficking. Indeed, even if Llanos had not actively participated in the suspicious behavior of that day, his association with Rojas alone may have created a reasonable suspicion. United States v. Tehrani, 49 F.3d 54, 60 (2d Cir. 1995) (finding defendant was reasonably detained because he was travelling with the suspect).
Llanos makes much of the fact that he was not free to leave the hallway of the 48th Street location. All that signifies, however, is that a seizure occurred, and a seizure is not necessarily an arrest. Tehrani, 49 F.3d at 60. Llanos was seized in the hallway, not inside a home, and was not subjected to physical force. Five policemen were present, but one was talking to Mosquera and at least one more was standing at the staircase apart from Llanos. Although at least one gun was drawn, it was pointed down. As discussed above, the mere presence of an unholstered weapon is not enough to convert a valid Terry stop into an arrest. Nargi, 732 F.2d at 1102.
Although Llanos was required to go into the apartment with the officers, he was moved only several feet, and the length of his investigative detention was brief. The composition book containing narcotic records was found within minutes of the initial detention, and the discovery of similar notations on pieces of paper in Llanos' wallet occurred shortly thereafter.
I conclude that the initial detention of Llanos did not exceed the permissible limits of a Terry stop.
Moreover, a contrary finding would not require the suppression of the evidence seized from Llanos, because I further conclude that the initial seizure of Llanos was supported by probable cause. Probable cause to arrest exists when the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989); see also Dunaway v. New York, 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979). In order to establish probable cause, there need not be a "prima facie showing of criminal activity." United States v. Travisano, 724 F.2d 341, 346 (2d Cir. 1983). Probable cause is instead a "fluid concept" that turns on the particular facts in each case. Illinois v. Gates, 462 U.S. 213, 232, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). Moreover, a determination as to probable cause depends upon the totality of the circumstances "as seen and weighed not by scholars, but as understood by those versed in the field of law enforcement." United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981).
Here, the agents had received information that Rojas was engaged in narcotics trafficking. During the period from approximately 2:30 to 3:30, Rojas and Llanos engaged in a series of suspicious activities that were indicative of such criminal activity. Those activities included a visit to the 48th Street location, which Llanos entered. A short time after Rojas and Llanos went separate ways, Rojas was arrested -- with 10 kilograms of cocaine -- apparently on his way to the 48th Street location. Llanos himself also returned there a short time later. Because of Llanos' suspicious activities with Rojas, and because of the very strong inference that Rojas was heading for the 48th Street location to meet Llanos when Rojas was intercepted by the police, there was probable cause to believe that Llanos was involved in a drug trafficking offense with Rojas.
Llanos contends that he did not consent to the search of his wallet, in which Detective Calvacca found the "post 'ems" matching the narcotics records in the composition book. I find otherwise. Consent can be by word or by deed. Llanos effectively consented to a search of the wallet by handing it Calvacca in response to Calvacca's request for identification. There is no indication that Llanos' will was overborne, and the motion to suppress evidence seized from the wallet is accordingly denied. In any event, even if there was no consent, I would uphold the seizure of Llanos' wallet as a lawful search incident to arrest, as I conclude that there was probable cause to arrest him when he walked out of the apartment into the hallway.
Llanos also seeks the suppression of evidence seized from apartment 3F. As set forth below, that search was conducted lawfully with the consent of Mosquera, and thus Llanos' motion is denied in this respect as well.
C. Armando Mosquera
Mosquera has moved to suppress the statements he made to the officers and the evidence seized from apartment 3F on the ground that they were the product of an illegal seizure and an illegal search. He claims that since he had not been observed at all prior to his appearance in the doorway of apartment 3F, there was no reasonable suspicion to support an investigative detention of him, let alone an arrest. Mosquera cites Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), in support of his contention that he was unreasonably detained in the doorway of his apartment. However, Ybarra held that merely being present in a public place where the police had a warrant to search, without any connection to the suspects, did not justify a Terry stop. See also United States v. Jaramillo, 25 F.3d 1146 (2d Cir. 1994) (no reasonable suspicion existed when defendant was in a public place and had no known connection to the suspects of the investigation).
Here, Mosquera was found in a private place -- an apartment -- and obviously had a connection to Llanos, as to whom there was both reasonable suspicion and probable cause. He also had a connection to the cocaine already seized from Rojas, as Rojas and Llanos had gone to that building earlier that afternoon, Llanos had entered it, and Rojas appeared to be returning there with the cocaine when he was arrested. While Mosquera's connection to Rojas' criminal activity was weaker than that of Llanos, it nevertheless constituted a reasonable suspicion to detain and question Mosquera. See United States v. Barlin, 686 F.2d 81, 87 (2d Cir. 1982) (finding reasonable suspicion to detain a person who was previously unknown to investigating agents but arrived on the scene of the investigation "against a background" of suspected criminal behavior and seemed to be acting in relation to the suspect). The fact that Officer Soto was holding a gun when he approached Mosquera did not transform the investigative stop into an arrest. The gun was pointed down, and it was reasonable under the circumstances to have it unholstered as a precaution. Finally, the brief handcuffing of Mosquera during the security sweep did not transform the stop into an arrest.
Mosquera voluntarily consented to the search of apartment 3F. The fact that he did not speak English and was new to this country is hardly significant. Officer Soto spoke with him in Spanish and obtained his consent in Spanish. Although Mosquera makes much of the fact that he was not advised of his right to refuse to consent, there is no requirement that such advice be given in order for consent to be voluntary. Schneckloth, 412 U.S. at 234, 247-48; United States v. Forero-Rincon, 626 F.2d 218, 224 (2d Cir. 1980).
Mosquera also claims that he did not have the authority to consent to a search of apartment 3F and, specifically, to consent to a search of the bedroom. He further contends that a search of the traps under the floorboards of the closet exceeded the scope of consent even if his consent was authorized and voluntary.
Consent to search a dwelling is valid only if obtained from someone who has access and authority or a substantial interest in the property. United States v. Gradowski, 502 F.2d 563, 564 (2d Cir. 1974). Generally, any co-tenant can consent to a search of a dwelling because co-tenants have common authority over the property. United States v. Cataldo, 433 F.2d 38, 40 (2d Cir. 1970). In the case of roommates, while any one roommate can consent to a search of common areas and her own room, she cannot consent to a search of a bedroom if it does not appear that she has authority to do so. United States v. Orejuela-Guevara, 659 F. Supp. 882, 886 (E.D.N.Y. 1987).
Even if the person who consents to a search does not have actual authority to consent, the search will be valid if there was an objectively reasonable belief that the consenting person had such authority. United States v. Matlock, 415 U.S. 164, 169, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). In Matlock, the court looked to whether the person had purported to be the resident of the dwelling and whether there was any evidence indicating this was false. Id. at 175-78.
If the consenting person lacked actual authority, it is the government's burden to show that it was objectively reasonable to believe that he had authority to consent. It is not always enough for the government to claim that the person said he had that authority. Instead, the government must point to evidence, such as a name on the lease or clothes and personal effects in the dwelling, supporting the claim or, at the very least the lack of evidence calling the statement into doubt. Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990); see also United States v. Gonzalez Athehorta, 729 F. Supp. 248 (E.D.N.Y. 1990) (when a woman who claimed to live in the premises showed a license that listed an address in another state, the circumstances "cried out" for further investigation about whether she had authority).
Here, Mosquera has failed to demonstrate that he lacked the authority to consent. In any event, it was objectively reasonable for the officers to conclude that he had such authority. Mosquera appeared at the door of a one-bedroom apartment in his underwear. There was no one else present in the apartment. He claimed to live there and his clothes and personal effects were in the apartment. Applying the standard set forth in Illinois v. Rodriguez, 497 U.S. 177, 111 L. Ed. 2d 148, 110 S. Ct. 2793, I conclude that there was no reason for the officers to have suspected that Mosquera did not live there. Unlike multiple bedroom "roommate" cases, the apartment here had only one bedroom, and the appearance of Mosquera at the door in his boxer shorts amply supported the officers' reasonable reliance on his apparent authority to consent to the search. I conclude that there was valid apparent authority for Mosquera to consent to a search of apartment 3F.
The standard for determining the scope of consent is "objective reasonableness," which is defined by the expressed object of the search unless a limitation is specified. Florida v. Jimeno, 500 U.S. 248, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991). Because Mosquera did not limit his consent in any way, the officers were authorized to search the apartment anywhere that might reasonably house evidence of narcotics trafficking. While the officers did not have permission to cause physical damage to the apartment, United States v. Restrepo, 890 F. Supp. 180, 196-97 (E.D.N.Y. 1995), opening the "traps" in the floor of the bedroom closets did not amount to physical damage. The floorboards were loose (Aug. Hear. at 97), and the investigating officers did not need to pry anything open in order to examine the contents of the "traps."
Finally, Mosquera claims that statements he made to police during the search should be suppressed since he had not yet been read his Miranda rights. However, I conclude that the information requested from Mosquera before any narcotics were found "falls within the benign category of 'basic identifying data required for booking and arraignment.'" United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986) (quoting United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1113 (2d Cir. 1975)). These "pedigree" questions were not intended to elicit incriminating responses. United States v. Adegbite, 846 F.2d 834 (2d Cir. 1988), after remand, 877 F.2d 174, cert. denied, 493 U.S. 956 (1989). For these reasons, the statements Mosquera made before the discovery of drugs in apartment 3F will not be suppressed. Because I do not conclude that the statements elicited after the discovery of the drugs fall in the category of "basic identifying data," those statements may not be elicited at trial.
For the foregoing reasons, the defendants' motions to suppress are denied, except with respect to the statetments elicited from Mosquera after the discovery of narcotics in his apartment. To that limited extend, Mosquera's motion is granted.
JOHN GLEESON, U.S.D.J.
Dated: Brooklyn New York
November 1, 1995