The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Defendant Manuel Suarez ("Defendant") moves to suppress statements made to officers after his arrest. (Notice of Motion, dated June 29, 2006.) As grounds for the suppression, Defendant claims that (1) the arresting officers did not have probable cause to arrest him; and (2) the arresting officers did not inform him that he had the right to an attorney and the right to remain silent before they questioned him around 10 A.M. on March 6, 2006. (Affidavit of Manuel Suarez, sworn to June 8, 2006 ("Def.'s Aff.") ¶ 12.) For the reasons that follow, Defendant's motion is denied.*fn1
A. Probable Cause for Arrest
"Probable cause to arrest exists where the facts and circumstances are sufficient 'to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested.'" Rothstein v. Carriere, 373 F.3d 275, 292 (2d Cir. 2004) (quoting United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983)).
At a hearing held on September 18, 2006, Agent Gillespie of the Drug Enforcement Agency (DEA) testified that from the beginning of February 2006, he was an active participant in a DEA investigation in conjunction with the Hudson County Prosecutor's office, and the Hoboken Police Department. (Transcript dated September 18, 2006 ("9/18 Tr.") at 4.)*fn2 Investigators conducted court ordered wiretapping on the telephones of Defendant's co-defendants, Praylow, Garcia and Gonzalez, and identified Defendant as a person heard in over 100 calls. (Id. at 5-6.) In these telephone calls, a participant identified himself as "Murder" and was referred to as "Murder" by those speaking to him. (Id. at 7, 8.) Agent Gillespie testified that he had personally listened to approximately 25 calls in which he had heard "Murder" speaking. (Id. at 35.)
Based on the intercepted information, the investigators set up surveillance in places where "Murder" planned to meet various co-conspirators: "[t]hey said that they were going to meet at a certain location. We were able to observe that meeting . . . based on information that we received from wiretaps. . . and we would observe Manuel Suarez at that location at a certain time." (Id. at 7-8.) Defendant's location or action would match with those that were discussed as relating to "Murder" or "C Murder" on the intercepted phones. (Id.) As a result, investigators concluded that Defendant, of whom they had a "prior arrest photo," (id. at 41), was the person known as Murder. (Id. at 8.)*fn3
During early telephone intercepts, there were numerous "pertinent" calls, in which Defendant was an alleged participant, identifiable as conversations consistent with "drug trafficking activities, distribution as well as collecting money for the organization." (Id. at 10.) Although the speakers used coded language, referring to bricks of heroin as "CDs," the surveilling agents observed the suspects distributing what they believed were "bricks of heroin." (Id. at 11.) Agent Gillespie testified that he concluded these conversations pertained to narcotics due to "observations based on the [investigation] as well as [his] experience and training from listening to intercepts." (Id. at 11.) During some of the surveillances, Agent Gillespie personally witnessed several of the defendants, including Mr. Suarez, distributing "bricks of heroin." (Id.)
Agent Gillespie testified that on March 5, 2006, the day before the arrest, "[t]here were a series of telephone calls throughout the day regarding money pick-ups, that they were collecting money for the organization." (9/18 Tr. at 13; see also Affidavit of Police Officer William Downey, dated March 6, 2006 ("Downey Aff."), attached to Defendant's Memorandum of law, dated June 29, 2006, as Ex. A. at ¶ 5.) As these calls were "intercepted [by agents working] in the wire room, that information was immediately . . . transmitted to [the surveilling officers.]" (9/18 Tr. at 45.) Next, there were a series of calls between Defendant Johnny Garcia (who was in Florida) and Rory Praylow, in which Praylow was instructed to go to New York City to pick up an amount of heroin. (Id. at 13.) In another call, Praylow told Garcia that he was with Gonzalez and Suarez, headed to Manhattan. (Id. at 14.) During this conversation, Suarez got on the phone and informed Garcia that they would meet at the same spot as last time, 211 and Broadway. (Id. at 15.) Later, close to midnight, Suarez, using his phone, was instructed, by Praylow, to get in the car with the drug supplier and not to look around. (Id.)*fn4 Another call to Garcia confirmed that they had picked up the drugs, but were uncertain about the amount. (Id. at 17.) In a later call, Praylow told Garcia that they had picked up the "whole five."*fn5
Agent Gillespie testified that subsequent calls revealed that "[the defendants] were going to meet at a Hess gas station in Hoboken, New Jersey." (Id. at 19 ("There was a series of calls that Suarez, Gonzalez and Praylow were en route to the Hess Gas station. Numerous people were calling [asking] . . . are you on your way[?] It looked like numerous people were waiting on their arrival.").) As a result, "[he and officers] established surveillance in the vicinity of the Hess gas station." (Id. at 18.) Though Agent Gillespie stated that he was not positioned with a view of the station, other officers were. (Id. at 21.) Using "point-to-point radios," (id. at 19), these officers "put [the information] over the radio so that [the rest of the officers] could be given a clear picture as to what was going on." (Id. at 21.)
At around midnight on March 6, 2006, officers, including Agent Gillespie, observed several "high-end vehicles" park along side the gas station; no one in the vehicles used the gas pumps. (Id. at 19-20, 48.) Later, a maroon Lincoln Navigator arrived; officers identified Defendant as the driver of the car, and two co-defendants as passengers. (Id. at 21.) Once the Lincoln Navigator was parked, one of the co-defendants, Gonzalez, "exited the rear of the vehicle and went around to the tailgate section and opened up the tailgate." (Id.) Believing that the suspects were about to conduct a drug deal, officers "arrested all of the individuals" on the scene. (Id. at 22.) A search warrant, obtained the following morning, resulted in the discovery of "four handguns and 100 bricks of heroin . . . [i]nside a hidden compartment" of the Lincoln Navigator. (Id. at 22-23.)
At the hearing, the Defense argued that the evidence had not shown that Agent Gillespie ever personally conducted surveillance to confirm that "Murder" was in fact the Defendant, and did not personally identify the Defendant driving the Lincoln Navigator before his arrest. Defense counsel claimed that by not calling witnesses to those events, the Government has not provided evidence of probable cause for arrest because the defense could not cross examine those witnesses.
However, the testimony of Agent Gillespie provided sufficient information for the Court to determine that there was probable cause for the arrest. (See id. at 69.) It was not necessary for Agent Gillespie to identify "Murder," as the defendant, or to identify Defendant as the driver of the Lincoln, for the officers to have had probable cause to arrest the defendant. Prior to the arrest, the telephone intercepts of calls between Praylow, Garcia and Gonzalez made sufficiently clear that there was a high likelihood that a purchase of drugs had occurred in Manhattan, and that a distribution of drugs, to persons who were calling Praylow and Gonzalez, was about to occur at the Hess gas station The gathering of vehicles next to the Hess station and the arrival of the Lincoln Navigator across the street around midnight with Praylow, Gonzalez and the Defendant as occupants and Gonzalez's conduct thereafter were adequate grounds to arrest the occupants of the Lincoln Navigator. Thus, the intercepts transmitted to Agent Gillespie, and the other ...