The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
By motion dated October 21, 2011, Defendant Edgar Sanchez-Manzanarez (the "Defendant") moved to suppress physical evidence and his post-arrest statements on the grounds that he was unconstitutionally seized in violation of the Fourth Amendment. On November 4, 2011, the Government filed a response to the Defendant's motion, arguing that the motion should be denied without a hearing. Oral argument was held by the Court on November 8, 2011.
On December 1, 2011, the Court ordered that an evidentiary hearing be held in the matter after determining that the parties' submissions did "not provide sufficient facts to allow the Court to make a determination on the motions in front of it." (Order Dec. 1, 2012, ECF No. 12.) The evidentiary hearing was held on December 7, 2011. On January 6, 2012, the parties submitted post-hearing briefs.
For the reasons set forth below, the Defendant's motion to suppress is denied in part and granted in part.
II. FACTUAL BACKGROUND*fn1
Special Agents Dudley Harris ("SA Harris"), Mynor Mazariegos ("SA Mazariegos"), and Kevin Wood ("SA Wood") of the Drug Enforcement Administration ("DEA") each testified at the evidentiary hearing. SA Harris has worked in law enforcement for 22 years, and has been with the DEA for the last 11 years. (Transcript of Dec. 7, 2011 Evidentiary Hearing ("Tr.") at 3-4.) SA Mazariegos has worked for the DEA for approximately 15 years, and is fluent in both English and Spanish. (Tr. at 57-58.) SA Wood has worked for the DEA for two years. (Tr. at 61.) Neither SA Harris nor SA Wood speak Spanish. (Tr. at 7, 77.)
SA Harris and SA Wood testified that the Defendant's arrest in this case was part of a larger investigation into drug trafficking which involved the assistance of a confidential source (the "source"). (Tr. at 4, 61.) The source has been working with the DEA for approximately two years (Tr. at 4), and was mainly involved with a cocaine trafficking organization based in Utah and California (Tr. at 61-62). During that time, the source has provided reliable information that has led to arrests and the seizure of narcotics. (Tr. at 5.)
On or about July 17, 2011, SA Harris received information from the source indicating that the source had spoken with a narcotics broker in Utah named Homero Chavez ("Chavez") and a narcotics supplier in Mexico named Jose Luis ("Luis") about purchasing a quantity of heroin that was to arrive in New York City in the near term. (Tr. at 5-6, 62.) The source had additional telephone conversations with these individuals on July 19th and 20th, 2011. (Tr. at 7.) SA Harris monitored and recorded these calls (which were in Spanish), and was debriefed by the source on the sum and substance of each conversation. (Tr. at 7.) On July 19, 2011, the source spoke with Luis and Chavez, and was informed that the heroin was in route to New York City, and that the persons carrying the drugs (the "couriers") would arrive the next day. (Tr. at 8, 63.) On July 20, 2011, Luis informed the source that the couriers had arrived in New York City, and that he would contact the source later that day with their exact location. (Tr. at 8.) As shown by the transcripts of the recorded conversations, the plan was for the source to meet the couriers, and to test the heroin before purchasing it. (Dec. 7, 2011 Evidentiary Hearing ("Hearing"), Gov. Ex. 8.) At approximately 4:00 p.m. on the afternoon of July 20, 2011, Luis told the source that the couriers were at the Hotel Pennsylvania (the "Hotel"). (Tr. at 8; Gov.'s Post-Hearing Mem., Ex. C ("Ex. C") at 3.) In addition, Luis told the source that the couriers had been unable to secure a hotel room because they had only cash, and the hotel required a credit card to check in.*fn2
(Tr. at 11; Ex. C at 2.) Luis asked the source if he could rent the couriers a room at another hotel instead. (Ex. C at 3.) When the source asked Luis for the couriers' phone number, Luis informed the source that the couriers "don't have a cell phone, they just have a radio." (Ex. C. at 4.) The source told Luis to give the couriers the source's phone number so that they could call him and relay their location to him. (Ex. C at 10.) The source promised that he would then "go and get them." (Ex. C at 11; see Tr. at 63.)
Upon learning of this information, a group of approximately seven agents,*fn3 including SA Harris and SA Wood, drove to the Hotel, which is located on the east side of 7th Avenue, in between 32nd Street and 33rd Street, in Manhattan. (Tr. at 12, 32; Hearing, Gov. Ex. 1.) The agents arrived at the Hotel around 4:30 p.m. (Tr. at 32), and set up surveillance on 7th Avenue close to the main entrance of the Hotel, with agents north and south of the entrance, as well as an agent in the lobby (Tr. at 13). As they were setting up the surveillance, SA Harris spoke with the source again, and asked the source if he could obtain a physical description of the couriers from Luis. (Tr. at 13.) Soon thereafter, the source called SA Harris and said that he had received a phone call from a telephone number with a 212 area code, and that he had spoken in Spanish with a young male, who sounded like he was probably in his thirties. (Tr. at 13.) The source told SA Harris that the male indicated that he was wearing a red shirt and was carrying a black suitcase. (Tr. at 13.) SA Harris understood this individual to be one of the couriers who had tried to check into the Hotel. (Tr. at 13-14.) After receiving this information, and while on surveillance, SA Harris made the following notation in his log book: "CS gets call from pay phone 212 # H/M [Hispanic male] 30 tells CS  red shirt black bag." (Gov.'s Post-Hearing Mem., Ex. D; Tr. at 51.)
SA Wood testified that after he arrived at the Hotel, he proceeded to Penn Station "to look for a drug dog with any of the law enforcement agencies that operate down in the station." (Tr. at 67.) Meanwhile, SA Harris received information from another agent conducting surveillance that a subject wearing a red shirt with a black bag was in the lobby of the Hotel. (Tr. at 15.) The subject then exited the Hotel and initially walked southbound on 7th Avenue while talking on a cell phone. (Tr. at 15, 34.) A short time later, SA Harris observed the subject, who was a young, Hispanic male (later identified as the Defendant), standing on 7th Avenue in the vicinity of 32nd Street. (Tr. at 16.) SA Harris testified that he confirmed that the Defendant "appeared to be waiting for somebody," and was "look[ing] up and down 7th Avenue." (Tr. at 16.) At this point in the afternoon there was heavy vehicle traffic on 7th Avenue, as well as fairly heavy pedestrian traffic on the sidewalk. (Tr. at 17-18.) After about ten or fifteen minutes, SA Harris determined that the Defendant was by himself, and made the decision to approach the Defendant. (Tr. at 17.)
SA Harris and the five other agents*fn4 approached and surrounded the Defendant. (Tr. at 16-17, 36.) SA Harris, who was wearing a badge on a chain around his neck, identified himself as law enforcement. (Tr. at 18.) SA Harris asked the Defendant for identification, and the Defendant provided him with a Mexican passport, (Tr. at 38), as well as a "USA B1/B2 Visa/BCC" card and a "Permanent Resident Card" (Tr. at 18; Gov.'s Post-Hearing Mem., Ex. A ("Ex. A")). SA Harris observed that the names and dates of birth differed on the two cards.*fn5 (Tr. at 19; see Ex. A.) According to the identification provided, the Defendant was either 21 or 22 years of age. (See Ex A; Tr. at 56-57.) SA Harris told the Defendant that he was conducting an investigation, and asked the Defendant where he was coming from. (Tr. at 19.) At this point, the Defendant indicated that he was more comfortable speaking in Spanish.*fn6 (Tr. at 19.)
SA Harris testified that he made a phone call to SA Mazariegos, a native Spanish speaker, and told SA Mazariegos that he needed his help translating for a Spanish-speaking suspect. (Tr. at 19, 58.) SA Harris testified that he asked SA Mazariegos to explain to the Defendant that "we were law enforcement conducting an investigation," and to "ask him for consent to search his personal belongings." (Tr. at 19-20.) SA Harris then handed the telephone to the Defendant, and observed the Defendant speak with SA Mazariegos in Spanish on the phone. (Tr. at 20.) SA Harris testified that the Defendant began nodding his head while speaking on the ...