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UNITED STATES v. PADILLA

August 15, 1997

UNITED STATES OF AMERICA, against FRANCISCO PADILLA, RAMON TORRES, a/k/a "Bienvenido Torres" a/k/a "Chichi," and AGRIPINA FERNANDEZ, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 I made the following rulings in open court following the June 6, 1997 hearing: (1) all motions to suppress post-arrest statements on the grounds that (a) defendants were not advised of their Miranda rights, and (b) if they were advised of their rights, they did not voluntarily waive them, are denied; (2) Torres' motion to suppress the physical evidence seized from his apartment is denied; (3) all motions to compel disclosure of the identities of informants and witnesses are denied except as required by Fed. R. Crim. P. 16; (4) all motions for production of evidence are denied except as required by Brady, Giglio, and Fed. R. Crim. P. 35. See Transcript of Suppression Hearing, June 6, 1997, "Tr. I" at 195-202.

 For the reasons stated below, Padilla's and Fernandez' motions to suppress evidence obtained by electronic surveillance are denied. Fernandez's motion to suppress physical evidence seized from her apartment is granted in part and denied in part. Padilla's motion to suppress physical evidence and post-arrest statements on the ground that his arrest was unlawful requires a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).

 I. FINDINGS OF FACT

 A. Defendant Padilla

 On August 14, 1996, Special Agent Diane Ingalls submitted a sealed complaint to Magistrate Judge Andrew J. Peck in support of her applications for, inter alia, a warrant for the arrest of defendant Padilla and a warrant to search Padilla's residence at Apartment 1B, 2788 Kingsbridge Terrace, Bronx, New York. See Declaration of James Roth, Padilla's attorney, dated June 18, 1997, ("Roth Decl.") Ex. B. The complaint alleged that Padilla was an active participant in a heroin distribution conspiracy, and included details from 19 intercepted telephone calls in support of that charge. Id. Of the 19 calls, 9 described the participation of a man identified in the complaint as Francisco Padilla, a/k/a "Padi," a/k/a "Pali," a/k/a "Palillo." Id. But in a Report of Investigation by Special Agent Ingalls dated August 19, 1996, the government acknowledged that Palillo and Padilla are not the same man, and that the 9 telephone calls described in the complaint all referred to Palillo rather than Padilla. See Roth Decl. Ex. C. The only accurate information in the complaint concerning Padilla is that he was surveilled driving Eligio Momoyo on May 15, 1996, in what the DEA believes was a delivery of 129 grams of heroin. See Roth Decl. Ex. B.

 Magistrate Judge Peck issued the requested warrants on the morning of August 14, 1996. When federal agents and New York City police detectives arrived at 2788 Kingsbridge Terrace shortly thereafter to execute the warrants, they were informed by the building's landlord that Padilla was in fact domiciled in the basement apartment of 2788 Kingsbridge Terrace, rather than apartment 1B. See Tr. I at 8. Special Agent Harry Brady gave the following testimony:

 
Q. When you got to the door of apartment B, what happened?
 
A. Ms. Carney [the landlord] knocked on the door and asked for Mr. Padilla to come to the door. I wanted him to hear a familiar voice.
 
Q. What happened next?
 
A. Mr. Padilla came to the door.
 
Q. And what if anything did you say to him?
 
Q. In what language did you speak with Mr. Padilla?
 
A. When I asked him to come out, it was in English. I motioned for him to step outside from the doorway in English and ...

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