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UNITED STATES v. TAVAREZ

March 9, 1998

UNITED STATES OF AMERICA,
v.
JOHNNY TAVAREZ, Defendant.



The opinion of the court was delivered by: KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 Defendant Johnny Tavarez ("Tavarez") moves to suppress physical evidence seized from his apartment following a search and statements made by him following his arrest, alleging that law enforcement officers violated his constitutional rights under the Fourth and Sixth Amendments. The Court held an evidentiary hearing on these claims on February 4 and 5, 1998. For the reasons set forth below, Tavarez's motion to suppress is denied.

 BACKGROUND

 On March 6, 1995, the New York City Police Department obtained a warrant to search Tavarez's apartment, located on the third floor at 603 West 185th Street in Manhattan, for cocaine and drug-related evidence. The warrant was a "no-knock" warrant, meaning that the police were not required to knock and announce themselves before entering the apartment. See Search Warrant, dated March 6, 1995 ("Search Warrant"), attached to the Gov't's Mem. of Law as Exh. "B." On March 9, 1995, Officer Kevin Grogan ("Officer Grogan") and several other police officers executed the Search Warrant. It is undisputed that when the officers arrived at Tavarez's apartment, they neither knocked nor announced themselves before forcibly entering the apartment. Tavarez also claims that the police officers ransacked the apartment in a violent manner. Affidavit of Johnny Tavarez, sworn to Sept. 10, 1997, ("Tavarez Aff.") P 2. During the search, the police officers found, inter alia, drugs, guns, ammunition, cash and drug records.

 On September 26, 1996, a federal grand jury sitting in the Southern District of New York returned a one-count indictment charging Tavarez with conspiracy to distribute and to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. ยง 846. Thereafter, a warrant for Tavarez's arrest was issued. On December 17, 1996, at approximately 7:00 a.m., Tavarez was arrested in Apartment 5A at 571 Academy Street, in Manhattan. Suppression Hearing Transcript ("Tr.") at 73. Special Agent David Higgins ("Higgins") of the Federal Bureau of Investigation ("FBI") supervised the arrest. Higgins was assisted by approximately six other law enforcement agents, including Special Agent Jose Flores ("Flores"). Tr. at 73. Once Tavarez was placed under arrest, Higgins sought his consent to search the apartment. According to Higgins, Tavarez orally consented to the search without incident and without requesting counsel, and executed a "consent to search" form, written in Spanish. Tr. at 75-76; Consent to Search Form, Gov't Exh. "3." Tavarez, however, claims that he repeatedly told Higgins and the other agents that he would not sign the consent to search form without the assistance of an attorney. Tr. at 167. Tavarez concedes that he eventually signed the form, but claims that it was only as a result of the agents' threats to arrest his girlfriend, Martina Nunez ("Nunez"). *fn1" Tr. at 168. After a brief search, Tavarez was escorted out of the building. Tavarez claims that as he was being led out of his apartment he encountered his mother ("Mrs. Tavarez"), and told her, "Get me a lawyer. Get me a lawyer right now." Tr. at 170.

 Tavarez was transported by motor vehicle to FBI headquarters, located at 26 Federal Plaza in Manhattan. Tr. at 77. Higgins testified that he sat in the rear seat, behind the driver, next to Tavarez while Flores drove the vehicle. Higgins explained that this seating configuration is routine in order to minimize danger to the driver because there is no protective shield between the front and rear seats. Tr. at 107. According to the Government, during the car ride of approximately one hour Tavarez was advised of his constitutional rights, in English by Higgins and in Spanish by Flores, and at no time requested the assistance of counsel. Tr. at 77-78. Tavarez contends that he was alone in the car with Higgins and was nearly silent during the car ride. Tr. at 171-73.

 On September 19, 1997, Tavarez filed the instant motion seeking to suppress (1) the physical evidence seized from his apartment located on the third floor at 603 West 185th Street in Manhattan, in March 1995; and (2) the statements he made after his arrest in December 1996. Tavarez argues that the search of his apartment violated his constitutional rights under the Fourth Amendment. In addition, Tavarez claims that admission of his post-arrest statements would violate his Sixth Amendment right to counsel.

 DISCUSSION

 I. Physical Evidence

 Tavarez seeks to suppress the physical evidence seized from his apartment on two grounds: (1) that the police made an unannounced entry; and (2) that the police conducted the search in a violent manner.

 A. Unannounced Entry

 The Fourth Amendment provides that "[the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. Under the Fourth Amendment, police who are executing a search warrant are required to knock and announce themselves before forcibly entering the premises. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995). Exceptions to this "knock and announce" requirement exist, where either (1) the circumstances present a threat of physical violence; or (2) police officers have reason to believe that evidence is likely to be destroyed if advance notice were given. Id. at 936. Because felony drug cases frequently involve both of these ...


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