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UNITED STATES v. FOREMAN

February 2, 1998

THE UNITED STATES OF AMERICA,
v.
MICHAEL FOREMAN, Defendant.



The opinion of the court was delivered by: BAER

 Hon. Harold Baer, Jr., District Judge:

 Defendant Michael Foreman ("Foreman") moves for an order granting the following relief: (1) suppression of the physical evidence seized from Foreman's vehicle at or after his arrest on December 10, 1996; (2) suppression of all statements made by Foreman to any law enforcement personnel after his arrest on December 10, 1996. On January 26-28, 1998, I held a suppression hearing on this matter. For the reasons set forth below Foreman's motion to suppress the evidence seized from his vehicle is denied, and his motion to suppress certain post-arrest statements is granted in part and denied in part.

 I. Background

 On December 10, 1996, police officers conducted a surveillance at the intersection of Olinville and Allerton Avenues in the Bronx and observed Foreman, who had been identified as a drug dealer by individuals in the community (Tr. *fn1" at 16-17), standing on a street corner engaged in conversation with other individuals. Officer Berdecia testified in some detail that after an hour or so he observed the defendant in what he characterized as a hand-to-hand drug transaction with a light-skinned male. Tr. 36-37. Foreman then got into his car and left the area; at that time the police made no effort to apprehend him. Tr. at 39. Foreman returned, as expected by the police, to the same location several hours later. When he left the area for a second time in his car, Officer Berdecia observed him make a U-turn on Allerton Avenue and then pull in front of a liquor store. Tr. 40-41. Officer Berdecia radioed the field team at that time and instructed them to arrest Foreman. Tr. at 44. Foreman was arrested by the officers after he had exited his car. *fn2" Officer Von Kessel, a member of the back-up team, testified that as he walked alongside the passenger side of Foreman's car he looked in through the windshield and saw a clear plastic bag containing a white powder on the front passenger seat (which was later determined to be 29.8 grams of a mixture containing cocaine), which he then secured. Tr. at 187-90. Foreman contends that Von Kessel's testimony is untrue and that, although there was cocaine in his glove compartment, there was no cocaine on the passenger seat, Tr. at 323, a not implausible scenario. Following Foreman's arrest, his car was transported to the 49th Precinct in Brooklyn where it was searched and inventoried. Tr. at 66, 130.

 Foreman was eventually arraigned and released in Bronx Criminal Court. He was represented by counsel at the arraignment. Tr. at 343-44. On December 16th, Foreman returned to court where he was arrested on a federal arrest warrant. Foreman was then driven back to the 49th precinct by Officers Heber and Berdecia on December 16th, and later turned over to federal agents. He was charged with the identical conduct in federal court as he was in state court, but as a federal, rather than a state offense. Tr. at 348. Foreman contends that the federal agents failed to advise him of his constitutional rights, while Agent Maggiacomo testified that Foreman was read his rights directly from the DEA Form 13A and that during the reading and the defendant's response his partner and an officer from the 49th precinct were present for all or at least part of the proceeding. Tr. at 70-71, 277-80, 347.

 II. Discussion

 A. The Evidence Seized from Foreman's Automobile

 Foreman contends that the physical evidence seized from his car should be suppressed because the officers lacked a sufficient basis to stop him and search his vehicle. The Government contends that it had probable cause to stop Mr. Foreman and search his automobile based on the illegal u-turn and the hand-to-hand transaction which the police officers observed. I find that the search was valid for any number of reasons.

 First, Officer Von Kessel testified that he saw the cocaine through the windshield of Foreman's car on the passenger seat. Tr. at 187. Assuming Von Kessel's testimony is true, the cocaine is admissible under the "plain view" exception to the Fourth Amendment warrant requirement. This exception "'authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.'" U.S. v. Scopo, 19 F.3d 777, 782 (2d Cir. 1994)(quoting Illinois v. Andreas, 463 U.S. 765, 771, 77 L. Ed. 2d 1003, 103 S. Ct. 3319 (1983)), cert. denied, 513 U.S. 877 (1994). Here, I find that the police had the authority to stop and arrest Foreman based on their observation of the hand-to-hand transaction and the U-turn. Officer Von Kessel then allegedly saw the cocaine on the seat of the car, and the incriminating nature of the cocaine was immediately apparent to him. Thus, the police were justified in stopping Foreman and in seizing the cocaine. See Scopo, 19 F.3d at 782.

 Even if Von Kessel found the cocaine in the glove compartment, where Foreman testified it was, the cocaine would nevertheless be admissible. It is well-established that the police may conduct a warrantless search on an automobile and all containers found therein, provided that at the time of the search, there is probable cause to believe that contraband is secreted at some unspecified location within the automobile. California v. Acevedo, 500 U.S. 565, 114 L. Ed. 2d 619, 111 S. Ct. 1982 (1991). Given the hand-to-hand transaction witnessed by Officer Berdecia, I find that there was sufficient probable cause to believe that Foreman had stored drugs somewhere in his car.

 Moreover, the police were also permitted to contemporaneously conduct a warrantless search of Foreman's automobile and the passenger compartment as a search incident to a lawful arrest. See U.S. v. Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996)(when occupant of an automobile is subject of a lawful arrest, the Fourth Amendment permits officers to contemporaneously conduct a warrantless search not only of occupant but also of passenger compartment and any closed or open containers found in this area of the automobile); U.S. v. Scopo, 19 F.3d 777 (2d Cir. 1994)(police officers who had probable cause to stop and arrest defendant who had engaged in traffic violation, were entitled to search the defendant and his grab space and in the car); U.S. v. Muyet, 946 F. Supp. 302, 306 n. 6 (S.D.N.Y. 1996) (same). The police had probable cause to stop and arrest Foreman due to their observation of the hand-to-hand transaction and the U-turn and were therefore permitted to search his passenger compartment and any containers therein.

 Foreman contends that since he was outside of his car at the time of the arrest, even assuming there was probable cause to arrest him, there was no probable cause to search the car. Foremans was stopped by the police when he had exited his auto and was walking away to go into the liquor store. Tr. at 46, 342. Although the testimony is not clear exactly how far from the car he was when he was stopped, he was somewhere near the front of his car. Tr. at 46, 186-88. At most he was midway on his way across the sidewalk to the liquor store or no more than a few feet from his car. Thus, I find that Foreman's car and its passenger compartment were in the immediate surrounding area such that the search incident to a lawful arrest exception applies. See, e.g., Rodriguez v. U.S., 878 F. Supp. 20, 24 (S.D.N.Y. 1995) (where suspect was arrested at a public telephone in front of the building where his car was parked, and because suspect had been observed with drugs as a result of a surveillance there was probable cause to arrest him, and DEA agents were entitled to search his car); Cf. U.S. v. Strahan, 984 F.2d 155 (6th Cir. 1992)(search of car invalid where defendant was 30 feet away from vehicle). In any event, because of the several grounds on which the search must be validated, even if the car was not within Foreman's "grab space," the drugs are admissible.

 Finally, even if the search of Foreman's car on Allerton Avenue was illegal, the cocaine would nevertheless be admissible because it would have been discovered pursuant to the lawful inventory search that was conducted at the precinct by Officer Berdecia. "When a person is arrested in a place other than his home, the arresting officers may 'impound the personal effects that are with him at the time to ensure the safety of those effects or to remove nuisances from the area'" and may conduct an inventory search of the property to avert any danger the property may pose, protect the property and protect the police from claims of theft or negligent treatment of property. See U.S. v. Perea, 986 F.2d 633, 643-44 (2d Cir. 1993). Such an inventory search need not be justified by probable cause. See South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). Furthermore, if permitted by the applicable procedure, an officer may search containers in the car in the course of an inventory ...


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