participating in this activity was named "Elvis." The arresting
officer partially corroborated this information by connecting
Elvis Zabala to a car he garaged at 143 Bruce Avenue.
On March 23, 1998, an officer went to 143 Bruce Avenue and
interviewed the maintenance man in the building who confirmed
that they had received complaints about individuals carrying
large and apparently heavy bags into, and out of, apartment 7G.
On March 24, as the officers watched 143 Bruce Avenue, they
observed two individuals carrying full looking duffel bags into
and out of apartment 7G, placing them in an awaiting car and
driving away in a suspicious, surveillance-conscious manner. On
March 25 the officers saw Zabala and Garcia leave 143 Bruce
Avenue in the company of another male carrying luggage. He was
seen putting the luggage in the trunk of an awaiting black
Mercedes Benz and driving off with Zabala and Garcia. By this
time the officers had reasonably concluded that Garcia and Zabala
either lived in 7G or frequented the apartment. These
observations, again, partially confirmed the tip that the
apartment was possibly being used for narcotics related activity.
About a week later, on April 8, 1998, Garcia was observed
discarding a garbage bag that contained what police concluded
were cut paper money wrappers. On April 13 as the officers
continued their surveillance, they observed Zabala and
Ortiz-Pujols enter the apartment. Later that afternoon, two
Lincoln Town Cars arrived and parked in front of the building.
One of the cars was driven by defendant Pena. The cars waited in
front of the apartment for a brief period until Ortiz-Pujols
exited the building carrying a full looking duffel bag which he
put into the trunk of one of the waiting cars. Based on their
prior substantial experience in narcotics investigations, the
officers believed that one of the Town Cars was carrying
contraband and the other was serving as a security vehicle. The
cars in question proceeded in tandem to Manhattan, again driving
in a surveillance-conscious fashion. When they arrived in
Manhattan Zabala exited the car, carried the bag which the
officers believed to be contraband, to a building located at 1396
Third Avenue and then drove away.
That same night at approximately 6:00 p.m., the officers who
had remained at Bruce Avenue, saw a Lincoln Town Car park in
front of the building, followed by another Lincoln Town Car. The
officers observed Ortiz-Pujols leave 143 Bruce Avenue with Garcia
and a full duffel bag. Ortiz-Pujols placed the duffel bag into
the trunk of one of the waiting cars. Garcia and Ortiz-Pujols
then entered the car and drove off in tandem. Again, the next
day, the police saw Zabala and Ortiz-Pujols leave 143 Bruce
Avenue carrying a full duffel bag. The officers observed the
defendants walk to the two waiting Lincoln Town Cars. Based on
their prior observations, they reasonably concluded that one of
them served as a security vehicle. After Ortiz-Pujols and Zabala
placed the bag into the trunk of the car driven by Tavares, the
police converged on the defendants and arrested them.
Giving the facts, the practical, commonsense evaluation the law
requires, and in view of (1) the prior tip and the arresting
officers' extensive experience with narcotics investigations, (2)
the officers' reasonable understanding that narcotics activity
occurred in the area in question, and (3) the highly suspicious
behavior of the individuals in question, there was ample evidence
to reasonably indicate "the possibility of criminal activity or
the possibility that evidence of a crime will be found." This
constellation of facts, objectively viewed, establishes probable
cause. See Perea, 848 F. Supp. at 1104.
The fact that this behavior could be consistent with scenarios
not involving criminal activity is not determinative since
"innocent behavior frequently will provide the basis for a
showing of probable cause. . . . In making a determination of
probable cause the relevant inquiry is not
whether a particular conduct is `innocent' or `guilty', but the
degree of suspicion that attaches to particular types of
non-criminal acts." Illinois v. Gates, 462 U.S. 213, 245 n. 13,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Having determined that there was probable cause to arrest
Zabala and Ortiz-Pujols, the Court concludes that the arresting
officers, properly looked into and seized the bag found there. In
California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114
L.Ed.2d 619 (1991), the Supreme Court held that "the police may
search an automobile and the containers within it where they have
probable cause to believe evidence or contraband is contained."
See United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157,
72 L.Ed.2d 572 (1982) (Fourth Amendment does not require the
police to obtain a warrant to search a vehicle when they have
probable cause to believe it contains contraband or evidence of
criminal activity); United States v. Harwood, 998 F.2d 91, 96
(2d Cir. 1993). More recently in Wyoming v. Houghton, ___ U.S.
___, 119 S.Ct. 1297, 1304, 143 L.Ed.2d 408 (1999), the Supreme
Court held that "police officers with probable cause to search a
car may inspect passengers' belongings found in the car that are
capable of concealing the object of the search." Accord, Florida
v. White, ___ U.S. ___, 119 S.Ct. 1555, 143 L.Ed.2d 748, (1999)
(May 12, 1999).*fn1 This conclusion is reinforced by the fact
that, Tavares, the driver of the car gave the officers permission
to search the trunk and Zabala and Ortiz disclaimed ownership of
the bag. The defendants' argument that because the car was not
mobile, the automobile exception is inapplicable, is without
merit. The automobile exception has been applied flexibly, even
when the automobile is not immediately mobile. See California v.
Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)
(exception applied to parked mobile home).
Defendants Zabala and Garcia next challenge the events
surrounding the initial entry by police officers into apartment
7G at 143 Bruce Avenue. Garcia contends that the encounter in the
hall did not constitute a valid Terry stop. She also contends
that the officers did not obtain her voluntary consent to look
into the apartment (prior to its search pursuant to a warrant
they later obtained) and failed to advise her that she had a
right to refuse consent.
As previously noted, Judge Yanthis concluded that Garcia
voluntarily consented to permit the officers to enter apartment
7G during the course of a valid Terry stop. After Zabala and
Ortiz-Pujols were detained, three officers went to the 7th floor
at 143 Bruce Avenue. After Detectives Lyons, Moray and Negro
arrived at the 7th floor, Detective Lyons remained there while
Detective Moray and Negro left to secure a search warrant. While
leaving the 7th floor, Detectives Moray and Negro encountered
Garcia coming out of the elevator. The officers knew of Garcia's
prior connection to the apartment and, as she exited the
elevator, stopped her to question her to find out what her
purpose was on the floor. Guns were not drawn. Garcia was not
frisked, nor was she handcuffed or restrained in any manner.
Judge Yanthis correctly concluded that the government is
required to demonstrate that the consent to search was
voluntarily given and not the result of duress or coercion.
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973). The test of voluntariness is whether the
consent was a product of essentially free and unconstrained
choice and the question is one of fact to be determined from all
the surrounding circumstances. Id. at 248-249, 93 S.Ct. 2041.
The record reflects that Garcia opened the door to apartment 7G
herself for the officers and consented to allow them to look
inside. Detective Malone testified that Detective Moray asked
Garcia if "we can take a look inside." Detective Malone did not
hear Garcia's response but he saw her put the key in the door,
turn the key and opened it. Detective Lyons testified that
Detective Moray saw that Garcia was holding keys in her hand and
asked her whether those were the keys to apartment 7G. Garcia
answered yes. When asked whether she minded if the officers take
a look inside Garcia answered affirmatively. Then Detective Lyons
saw Garcia put the key in the door and unlocked the top lock,
after which she turned the knob and started to open it.
On the basis of this record, Judge Yanthis concluded, and this
Court agrees, that the government has demonstrated that the
consent to the initial entry into 143 Bruce Avenue, apartment 7G,
was voluntarily given by Garcia and was not a "mere acquiescence
in a show of authority." United States v. Wilson, 11 F.3d 346,
351 (2d Cir. 1993). Consent need not be expressed in any
particular form but "can be found from an individual's words,
acts or conduct." United States v. Deutsch, 987 F.2d 878, 883
(2d Cir. 1993).
Once the apartment was opened, the investigating officers
conducted a limited security sweep of the apartment during which
they observed a large quantity of cash in plain view in the front
room. Zabala and Garcia contest the validity of this sweep on the
grounds that: (1) it was not incident to an arrest, and (2) in
any event, there was no proper basis for the sweep.
The testimony at the hearing indicated that the arresting
officers had a reasonable basis to suspect that additional
individuals could be in the apartment. First, as previously
noted, upon opening the door, the officers noted a large amount
of cash and in addition, the officers heard noises apparently
emanating from a television and saw lights on in the apartment.
Detective Malone further testified that these observations caused
significant concern that someone was inside of the apartment.
Detective Malone testified that since the plan was to post
officers outside the door while a search warrant was obtained, he
believed that it would have been imprudent to leave officers in
that position without knowing whether, in fact, the apartment was
occupied. Moreover during their prior observations of activities
surrounding the apartment, other individuals who had not been
apprehended were seen in the company of those who had been
leaving and entering the Bruce Avenue apartment. The officers
also concluded that it was unlikely that large amounts of cash
would have been left unattended. These factors justified the
officers' apprehension that the apartment might have been
occupied and, especially in light of Garcia's consent to the
entry, justified the limited security sweep that occurred. See
United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995);
United States v. Deutsch, 987 F.2d 878 (2d Cir. 1993).
Next, Zabala claims the search warrant for apartment 7G was not
supported by probable cause. In determining whether a warrant was
sufficiently supported by probable cause, the reviewing court
considers the "totality of the circumstances." Illinois v.
Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
A magistrate or judge deciding whether to issue a warrant is
dealing with probabilities, not technicalities because "probable
cause is a fluid concept — turning on the assessment of
probabilities in particular factual contexts — not readily, or
even usefully, reduced to a neat set of rules." Id. at 231,
232, 103 S.Ct. 2317. The reviewing court should show substantial
deference to a probable cause determination made by a detached
and neutral judge, resolving any doubts in favor of upholding the
United States v. Rosa, 11 F.3d 315, 326 (2d Cir. 1993) (citing
United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983)).
Indeed, the duty of a reviewing court is simply to ensure that
the magistrate had a "substantial basis for . . . conclud[ing]"
that probable cause existed. Illinois v. Gates, 462 U.S. at
238-39, 103 S.Ct. 2317 (quoting Jones v. United States,
362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)).
Contrary to the defendants' contention, the warrant's
application, sworn to by Detectives Malone and DeLango
establishes probable cause. It details the background of the
investigation and the observations that the investigating
officers made on April 13, as well as the events that transpired
on April 14. The affidavit describes the circumstances under
which the bag containing $300,000 was seized, as well as what was
observed as a consequence of the security sweep of apartment 7G.
The affidavit went on to detail the experience and background of
the investigating officers and the basis for their belief that
the apartment was being utilized as a "stash house" for the
storage of U.S. currency and records generated during narcotics
Once the search of 143 Bruce Avenue occurred, officers
discovered various papers and other evidence which formed the
basis of warrant applications to search additional locations in
the Bronx as well as a safe deposit box and automobiles.
Defendants challenge the sufficiency of the affidavits upon which
these warrants were based. They have not, however, established
standing to do so and the challenge must be rejected for this
Next, Zabala, Ortiz-Pujol and Garcia seek to suppress
statements made on April 14 and 15. Having reviewed the record
herein, this Court finds that the statements that Zabala and
Ortiz-Pujols made disclaiming ownership of the duffel bag,
immediately after their seizure on April 14, were statements made
while they were in custody and in the absence of proper Miranda
warnings and for that reason are inadmissible. Tankleff v.
Senkowski, 135 F.3d 235 (2d Cir. 1998); Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Judge Yanthis concluded, as does this Court upon its review of
the record, that the confrontation of Garcia in the hallway in
front of 143 Bruce Avenue prior to her arrest was permissible
under Terry since it amounted to an investigatory stop; that
the statements made by Garcia at the police station between 8:30
p.m. and 4:30 a.m. are admissible since they were not the product
of police coercion and followed Miranda warnings; that the
statements made at the police department between Zabala and
Garcia were voluntarily made in front of the police officers
after Miranda warnings and were not the product of custodial
investigation. Finally, Judge Yanthis concluded, as does this
Court, that the so-called "reverse silver platter" doctrine has
no application to this case and that Garcia's severance motion
lacks merit and should be denied.
The Report and Recommendation of Magistrate Judge Yanthis is
adopted by this Court except to the extent objections have been