MEMORANDUM OPINION AND ORDER
LAURA TAYLOR SWAIN, District Judge.
Defendant Rafael Espino-Urvan, charged pursuant to 21 U.S.C. § 846 in a one-count Indictment with conspiracy to possess heroin with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), moves to suppress: the heroin found in the car that he was driving on the day of his arrest; cellular phones found in the car; all subsequent evidence recovered in a search of the phones; and statements allegedly made by Mr. Espino-Urvan to law enforcement following his arrest. The Court held an evidentiary hearing on Mr. Espino-Urvan's motion on November 29, 2012, which was continued on February 14, 2013. Drug Enforcement Agency ("DEA") Task Officer/IRS Special Agent Gerard Ricciardi ("SA Ricciardi"), Special Agent Sabrina May ("SA May") and Special Agent Kevin Larkin ("SA Larkin") testified. The Government also produced transcripts of consensual recordings of conversations between SA Ricciardi's confidential source (the "CS") and Mr. Espino-Urvan's co-defendant, Manuel Antonio Lantigua, from March 27, 2012 - the evening on which Mr. Lantigua and Mr. Espino-Urvan were arrested. After the suppression hearing concluded, the Court took the matter under advisement and the parties submitted post-hearing memoranda. The Court then granted Mr. Espino-Urvan's motion in its entirety.
The Government now requests that the Court reconsider the scope of its April 23, 2013, Memorandum Opinion and Order, which assumed without deciding that the police had reasonable suspicion to engage Mr. Espino-Urvan in a Terry stop and found that the Government had not carried its burden of proving that drugs were found in plain view in Mr. Espino-Urvan's automobile in the course of their stop. For substantially the reasons stated in the Government's letter to the Court and in light of Mr. Espino-Urvan's lack of opposition to this request, the Court grants the Government's request and will vacate the April 23, 2013, Memorandum Opinion and Order. In the remainder of this Memorandum Opinion and Order, which supersedes the earlier one, the Court concludes that suppression is warranted because the DEA agents did not have reasonable suspicion to conduct a Terry stop in this case and, thus, does not reach the issue of whether the Government carried its burden of proving that the drugs found in the car were in plain view. Accordingly, the Court's prior Memorandum Opinion and Order, docket entry number 36, is hereby vacated. This Memorandum Opinion and Order modifies and supersedes the April 23, 2013, Memorandum Opinion and Order.
The Court, having considered carefully the testimony and demeanor of the witnesses and the other evidentiary submissions, finds the essential facts as follows. In or about February 2012, based on information from the CS that Mr. Lantigua supplied heroin, the DEA began investigating Mr. Lantigua. (Nov. 29, 2012, Tr. 5:9-21.) SA Ricciardi and other DEA agents conducted surveillance of Mr. Lantigua's meetings with the CS, and were able to identify the car that Mr. Lantigua drove - a black Dodge Charger. (Id. at 5:22-6:3.) The DEA's investigation culminated on March 27, 2013, when, according to SA Ricciardi, the CS spoke with Mr. Lantigua and they agreeed on a meeting during which Mr. Lantigua would sell and the CS would ostensibly purchase a quantity of heroin for a set price. (Id. at 6:4-12.) Mr. Lantigua and the CS were to meet at a BP gas station, located on Third Avenue in the Bronx, New York, just off of the Cross Bronx Expressway. (Id. at 6:13-16.) SA Ricciardi's team set up surveillance at the site in advance of the meeting. (Id. at 6:17-23.)
SA Ricciardi was positioned on Third Avenue, across the street from the BP gas station and, while waiting for Mr. Lantigua to arrive, he maintained contact with the CS by telephone and was in communication with the other agents on his team. (Id. at 7: 19-21; 9:4-10.) The calls between the CS and Mr. Lantigua were recorded, but those between SA Ricciardi and the CS were not recorded. (Id. at 29:1-13.) The agents could have listened to the calls between the CS and Mr. Lantigua contemporaneously, but that was not done in this investigation. (Id. at 22: 21-23:3.) According to SA Ricciardi, when the CS told SA Ricciardi that "they're on their way, " the CS "made it sound like [Mr. Lantigua] was coming with somebody else. So I made everybody aware that [Mr. Lantigua] could be coming with another individual in the car. So I would arrange to have more agents approach that car because now we know that there are two in the car." (Id. at 9:16-10:13.) SA Ricciardi relayed this information to his team over the radio, telling them to watch for "Manny's car, they're on their way." (Id. at 10:18-19.)
In connection with the November 29, 2012, hearing, the Court also requested that the Government produce transcripts of the telephone calls that took place on March 27, 2013, between the CS and Mr. Lantigua. SA Ricciardi testified that he maintained regular telephone communication with the CS in order to stay "advised of the status of the proposed meet." (Nov. 29, 2012, Tr. 28:12-25.) SA Ricciardi also testified that he was not aware of any other conversations that Mr. Lantigua and the CS had on March 27, 2013, other than the phone calls that were recorded, or of any other meetings between the two of them. (Id. at Tr. 31:2-19.) The transcribed phone calls between SA Ricciardi and the CS were brief and mainly concerned the logistics of the meeting. At 7:03 p.m., when the CS asked how long he would be, Mr. Lantigua said "I'll call you once I got that." At 7:29, Mr. Lantigua said "I'm going to be, like, like fifteen minutes because I'm waiting for another vehicle to pick that up... Because I don't, I don't got a vehicle for that." At 8:09, when the CS again asked how long, Mr. Lantigua said that he was on the way and when asked if he wanted to meet "right there on Webster, " Mr Lantigua said "[n]o, I meet you right there at the gas, at the gas station." At 8:14 p.m., Mr. Lantigua told the CS "I'm right here."
SA May was a member of the surveillance team that evening. She set up surveillance on Third Avenue, northeast of 174th Street, facing the Cross Bronx Expressway, in front of the stoplight located at the intersection of 174th Street and Third Avenue. (Id. at 69: 7-15.) SA May first saw Mr. Lantigua's black Dodge Charger with Pennsylvania license plates (which she recognized from prior surveillance) driving east on 174th Street, when it stopped at a red light. A black Cadillac Escalade was behind the Charger at the light. (Id. at 69:16-19.) However, it was not until the cars turned onto Third Avenue that SA May suspected that the Escalade was following the Charger. (Id. at 81:9-12.) "Both vehicles slowly made a turn on to Third Avenue going towards the Cross Bronx Expressway. The Cadillac Escalade was following closely behind the Dodge Charger and they were both going unusually slow." (Id. 69:18-22.) SA May recalled that there are two northbound lanes on Third Avenue, so the Escalade could have passed the Charger at any time and the Escalade did not honk at the Charger or try to get around it. (Id. at 70:2-7.) SA May radioed to the rest of the team that she had just seen Mr. Lantigua's black Charger and that it looked like Mr. Lantigua's vehicle was being followed by another vehicle, which SA Ricciardi said that she described as a "black Escalade." (Id. at 10:22-11:1.)
During cross-examination, SA May acknowledged that, if the car behind the Charger had wanted to go into the gas station, which was on the right, it would not necessarily have passed the Charger on the left. (Id. at 83:4-84:2.) The two vehicles traveled "several yards" on Third Avenue together (id. at 77:19-25), which did not take more than seconds (id. at 78:18-19). SA May saw the Escalade turn right into the gas station, while the Charger made a U-turn and parked on Third Avenue across the street from the gas station. (Id. at 70:16-71:2.)
SA Ricciardi did not see Mr. Lantigua's vehicle until it went right past him, "made a U-turn and parked maybe two, three car lengths behind me." (Id. at 11:8-10.) SA Ricciardi said that he also noticed the black Escalade, which was "really going slow, " traveling with Mr. Lantigua's car. (Id. at 11:7-18.) "As [Mr. Lantigua] made a U-turn, the black Escalade made a right-hand turn into [the driveway of the gas station]... and went all the way deep into the parking lot" and "nooked" into the corner by the vacuums. (Id. at 11: 18-24.) According to SA Ricciardi, the Charger and the Escalade "appeared to be together" as they had been driving slowly on a busy street; the Charger made a U-turn, turning right, and the Escalade turned right into the parking lot of the gas station; and the CS confirmed that Mr. Lantigua had arrived by saying "they're there." (Id. at 12:5-16.).
The surveillance team surrounded both vehicles and SA Ricciardi approached the Escalade, the vehicle that had not been identified as belonging to Mr. Lantigua, and "waved" the driver, Mr. Espino-Urvan, out of the car. (Id. at 13:5-10.) SA Ricciardi had his gun drawn. (Id. at 55:20-56:1.) SA Ricciardi "mov[ed] [Mr. Espino-Urvan] to the rear of the vehicle... towards Third Avenue to the back of the car." (Id. at 13:13-18). When he went up to the Escalade to ask Mr. Espino-Urvan to step out of the car, SA Ricciardi did not see anything inside the car. (Id. at 45:19-20.) At the time of the hearing, SA Ricciardi was not sure if he had ever seen the package of drugs that SA Larkin testified that he subsequently recovered from the car. (Id. 46:3-15.)
While at the back of the car, SA Ricciardi questioned Mr. Espino-Urvan about the ownership of the car and his purpose in coming to the station. Mr. Espino-Urvan answered the questions. (Id. at 13: 21-25.) Meanwhile, after SA Ricciardi had removed Mr. Espino-Urvan from the Escalade, he saw SA Larkin approach the open driver's door of the vehicle, look in and give a "thumbs-up." (Id. at 14:15-15:8.) SA Ricciardi understood the thumbs-up sign as meaning that SA Larkin had found drugs. (Id. at 15:7-8.)
SA May pulled her car into the gas station behind the Escalade, and approached the car on the passenger side. The agents "ordered the driver out of the vehicle" and then SA May went to the rear of the vehicle with SA Ricciardi. (Id. at 71:10-23). SA May testified that, when she went up to the car with the other agents, she "couldn't see anything inside of the vehicle except for the driver." (Id. at 80:12-14.) She saw SA Larkin give a sign to indicate that drugs were in the car. (Id. at 71:12-15.) SA Ricciardi put Mr. Espino-Urvan under arrest and handcuffed him. (Id. at 15: 11-12.)
SA Larkin, who was also a member of the surveillance team, went first to the target vehicle, the Charger, which Mr. Lantigua was driving, and then returned to his car and "drove across the street into the gas station" to the Escalade. (Id. at 88:5-18.) SA Larkin testified that, when he arrived, he saw SA Ricciardi and SA May at the rear of the Escalade "with somebody" and so he went to the front of the vehicle, where the driver's side door was open. (Id. at 88:5-18.) SA Larkin further testified that, when he poked his head into the car to make sure that no one else was in the car, he saw a bag of heroin lying "on top" of the center console. (Id. at 88:22-89:19.) SA Larkin described the object he saw on the console as a plastic bag with an "off-whitish powdery substance that in [SA Larkin's] experience was a bag of drugs." (Id. at 89:15-17) On cross-examination, SA Larkin explained that he had been able to see the off-whitish powdery substance through the bag. (Id. at 92:16-23.) The drugs were in the compartment in the center console, which was open with the "flap" up. (Feb. 14, 2013, Tr. 18:1-21.) SA Larkin, at ...