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UNITED STATES v. NOLASCO

August 23, 1996

UNITED STATES OF AMERICA, against LUIS JOSE NOLASCO, JR., JOSE MARIA BAUTISTA, MIGUEL ANGEL VARGAS, a/k/a "Chino," JUAN NUNEZ, a/k/a "Tite," Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 Mr. Nunez now moves pursuant to Fed. R. Crim. P. 12(b)(3) to suppress all physical evidence seized at the time of his arrest. Mr. Nunez also moves pursuant to Fed. R. Crim. P. 12(b)(3) to suppress any and all statements made by him at the time of his arrest. The Court conducted an evidentiary hearing on the defendant's motion on August 8, 1996.

 Mr. Nunez argues, first, that the United States Drug Enforcement Administration (DEA) had no probable cause to arrest him; and second, that he was not properly given Miranda warnings subsequent to his arrest. *fn1" For the reasons that follow, the defendant's motion to suppress is denied.

 I.

 After considering all of the evidence, including the credible testimony of Special Agent David Cali and Detective Pedro Colon at the evidentiary hearing, the Court makes the following findings of fact. In February 1996, Special Agent Cali was contacted by a confidential informant ("CI") (Transcript of August 8, 1996 hearing at 21.) Special Agent Cali had worked with this CI since 1992 on various cases, and the CI had always provided him with reliable information. Id. at 21, 22.

 The CI advised Special Agent Cali that he had been paged by "Tite," who was later identified as Mr. Nunez, and who offered to sell the CI kilogram quantities of cocaine. Id. at 22. The CI said that he met thereafter with three men -- Tite; "Chino," later identified as the defendant Miguel Angel Vargas; and a third man later identified as Jose Marie Bautista -- at an auto parts store located at 187th Street and St. Nicholas Avenue in Manhattan. Id. at 22, 23. Tite offered to show cocaine to the CI. Id. at 23, 24. The CI provided his pager number to Tite and Chino, and Tite provided the telephone number of the auto parts store to the CI. Id. at 23. The CI had a couple of further chance meetings with Tite. Id. at 23, 24.

 Thereafter, on the morning of March 21, 1996, the CI informed Special Agent Cali that he had received a telephone call from Tite from the auto parts store. Id. at 24. The CI told Special Agent Cali that Tite had told the CI that he had received a shipment of cocaine and asked if the CI was interested in buying some. Id. Special Agent Cali then instructed the CI to call Tite and make arrangements to buy cocaine. Id. With Special Agent Cali recording and listening in on the conversation, the CI telephoned Tite. Id. at 24, 25. Special Agent Cali was unable to understand the substance of the conversation because it was conducted in Spanish. Id. at 25. After the conversation, the CI told Special Agent Cali that he had spoken to Tite and Chino about the cocaine and that he had arranged a meeting. Id. at 25. Special Agent Cali never received or reviewed a transcript of this conversation prior to Mr. Nunez's arrest. Id. at 47, 50, 56.

 On the afternoon of March 21, 1996, Special Agent Cali and other agents observed the CI as he met with Chino in front of the auto parts shop. Id. at 26. Special Agent Cali did not observe Mr. Nunez. Id. The CI wore a body wire to this meeting, but Special Agent Cali never received or reviewed a transcript of this conversation. After the meeting, the CI told Special Agent Cali that he had made arrangements to purchase five kilograms of cocaine from Chino for $ 19,800 per kilogram. Id. at 27. He said that Tite and Chino would deliver it to him. Id. at 27-28.

 On the morning of March 22, 1996, the CI advised Special Agent Cali that he had spoken with Tite who had confirmed that the 5 kilogram sale of cocaine would occur. Id. at 31. Later that morning, Special Agent Cali again monitored and recorded a call made by the CI to the auto parts shop. Id. The CI told Special Agent Cali that he had spoken to Tite and Chino and had confirmed the arrangements for the sale. Id. at 32. The transaction was to occur the next day at 92nd Street and Broadway in Manhattan. Id. Special Agent Cali never received or reviewed a transcript of this conversation prior to Mr. Nunez's arrest. Id. at 47, 50, 56.

 After this last telephone conversation, Special Agent Cali arranged for surveillance of the auto parts shop. Id. at 32, 33. The officers conducting the surveillance observed two people, later identified as Mr. Vargas and Mr. Nunez, talking in front of the auto parts shop. Id. at 33.

 A second DEA team conducted surveillance at 92nd Street and Broadway, the site at which the drug transaction was to occur. Id. at 34, 35. The surveillance team observed a blue car parked on the street. Id. at 35. The car matched the description of the automobile that the CI had told Special Agent Cali would be used for the transaction. Id. at 34, 35. The agents observed Mr. Vargas and a man later identified as the defendant Jose Maria Bautista standing by the car. Id. at 35, 36. The CI then met with the men. Id. Then a third man, later identified as defendant Luis Jose Nolasco Jr., got out of the car, removed two bags from the trunk of the car and walked down the street with ...


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