People v. Henry
| Decision Date | 20 November 1991 |
| Parties | The PEOPLE of the State of New York, v. William HENRY, Defendant. |
| Court | New York Supreme Court |
Darcel Clark, New York City, for the People.
Howard Meyer, New York City, for defendant.
The defendant is charged with criminal possession of more than sixteen ounces of marijuana. P.L. § 221.25. He made a motion to suppress marijuana, currency and information derived from documents in his wallet seized from him on February 1, 1991, after his vehicle was stopped on a highway in the Bronx. The parties agreed to proceed on a stipulated record in lieu of a hearing. The record consists of the omnibus motion papers, three appendices, and the memoranda submitted on the issue of whether suppression should be granted. For the reasons set out, the defendant's motion to suppress is granted in part and denied in part. The marijuana may be used by the People; the currency and information from the wallet, as well as records of defendant's conversations about the incident that took place on February 1, 1991, are suppressed.
Most of the information necessary to determine the legality of the search and seizure was supplied by Special Agent J. Michael Smith's affidavits, which are part of the appendices. Agent Smith's training and expertise was not challenged by the defendant. At the time of the seizure, Smith had been with the Drug Enforcement Administration (DEA) for three and one-half years. He had participated in over 250 narcotics related arrests. He had extensive training in narcotics investigations, including the methods of operation used by traffickers, the methods of importing and distributing narcotics, and the use of codes to conduct narcotics transactions. Before joining the DEA, Smith had been a police officer in New Jersey for seven years and had participated in over 100 narcotics arrests.
The seizure of evidence from the defendant was an offshoot of a joint investigation undertaken by the DEA and New York State law enforcement authorities. The purpose of the investigation was to identify the members of a drug dealing organization, its suppliers and customers, and to locate stash and distribution locations. The investigation began at least as early as September 27, 1990, when several eavesdropping warrants were issued permitting the authorities to gather information concerning narcotics trafficking being done by a large number of people including Angel Martinez and his brother Mickey.
Through the wiretaps, surveillance and a confidential informant, Agent Smith had established, by January 17, 1991, that the Martinez organization used an apartment at 2230 University Avenue in the Bronx to store and package heroin for sale; that 2160 Walton Avenue was being used to store narcotics and narcotics packaging paraphernalia; and that 1120 Wyatt Avenue was a location used by the organization to discuss their narcotics business. Moreover, Smith was aware that the DEA's wiretaps "show[ed] a pattern of conversations that are coded, cryptic and carefully worded." According to Smith, the intercepted conversations contain repeated references to "iron and board" and "for clothes," which he believed to be references to narcotics packaging paraphernalia. Narcotics, Smith averred, were discussed in terms of "food," "bottles," "cases of beer," and "clothes."
It is evident from the Smith affidavit dated February 7, 1991, that the search and seizure at issue here was made because of conversations intercepted between December 26, 1990, and January 31, 1991, and because of surveillance conducted by agents involved in the investigation. Wiretapped telephone calls on December 26, 1990, indicated that Angel and Mickey were each told by other members of the drug ring that a new source of supply was available. The next day, December 27, 1990, Angel called the defendant (whom he called "Phil") at the defendant's liquor store, Patterson Wines and Liquors, in Putnam County to arrange a meeting. Subsequent taped conversations and surveillance showed the defendant met with Angel and Mickey and discussed with them packages, meetings, and deliveries. The defendant also said he needed to "get something" from Angel, which the agents interpreted to mean he needed payment for a delivery. Defendant was also seen arriving at a meeting in a grey and black Chevrolet truck.
On January 29, 1991, Angel called the defendant at the home of his girlfriend, Martha Sweeney. The defendant told Angel that he had The defendant also said:
Bill: Umh, umh, remember what I left, left.
Angel: Yeah.
Bill: Latest thing.
Angel: Umh-huh.
Bill: It was sixteen (16)?
Angel: Yeah.
Then they agreed to speak on January 31, 1991, to set up a time to meet the next day, February 1, 1991.
Based upon his knowledge of the investigation, Agent Smith believed that the defendant told Angel he had narcotics (a "bunch") for him and Angel could get them at "15" if he did the "whole bunch." Smith further believed that the defendant reminded Angel of the last deal, on January 16, 1991, and that the price of that deal was "16."
On January 31, 1991, at 11:25 p.m., Angel called the defendant at Martha Sweeney's home. The defendant told Angel he had "ten (10) things packed up" and Angel could "just take the ten (10) don't worry about it." They agreed to meet at 11 o'clock the next morning at a site they had already discussed. The site was not specified in the conversation. Also, the defendant told Angel, "I need you to bring something, whatever you can bring for me."
On February 1, 1991, the DEA agents put the defendant under surveillance. They followed the defendant from the Sweeney home to a bank and then to his liquor store. At the store, they observed him putting a large brown cardboard box into his Blazer. Then they followed him as he drove from Putnam County into the Bronx. The agents stopped him on the Henry Hudson Parkway. There is nothing to show that the agents were in uniform or carried identification or that they showed any identification to the defendant. With machine guns and handguns drawn, the agents forcibly removed the defendant from his vehicle. He was handcuffed and told to lie face down on the ground. Meanwhile, DEA agents searched his truck. They found $70,000 in small denominations of cash and a small amount of marijuana in a brown leather shoulder bag. The shoulder bag also contained personal papers belonging to the defendant and Martha Sweeney. These papers, the cash, and the marijuana were seized.
In the rear of the Blazer, the agents found a cardboard box. They opened it and found approximately ten pounds of marijuana packaged in ten separate plastic bags. This was also seized. Finally, Agent Kerrigan removed the defendant's wallet from the truck and discovered that it contained a piece of paper with Mickey's telephone number and Angel's beeper number. Kerrigan made a note of this and then replaced the paper.
The defendant was put into a BMW while still in handcuffs. He was advised of his Miranda rights and told that he was stopped because he matched the description of a person who had just robbed a bank in Westchester County. The People have conceded that this story was a lie; the DEA stopped him because they believed he was carrying drugs in his vehicle.
After the defendant was interrogated, he was told he was not the bank robber, and he was released. He was allowed to get into his truck and leave.
In his motion to suppress, the defendant asserts that there was no probable cause to stop the truck and search it. He also presents several other theories to justify suppression of the evidence. Each of these arguments will be treated below.
Later that evening, Angel was overheard discussing the quality of narcotics with someone from the grocery store. Before the second meeting, the defendant demanded that Angel bring him "something," Angel met with another member of his drug operation and picked up a plastic bag. When Angel drove to the location where he was to meet the defendant, he did not simply give him the plastic bag but instead directed the defendant to a remote location near the Henry Hudson Parkway. It seems probable that if the defendant were only arranging to sell wine, such elaborate measures would not be necessary.
With this background, Smith's interpretation of the January 29 and 31 conversations between the defendant and Angel was entirely reasonable. These conversations, and the DEA's surveillance on February 1, 1991, when the defendant was seen loading a cardboard box into his truck, gave the agents probable cause to believe that the defendant intended to sell drugs to Angel and that the drugs would be found in the Blazer. Because no warrant was needed the presence of probable cause justified the stop of the truck and the search for narcotics. People v. Blasich, 73 N.Y.2d 673, 681, 543 N.Y.S.2d 40, 541 N.E.2d 40 (1989). Because the agents did not know what drug was involved, what amount was being delivered or how it was packaged, they could not anticipate where in the truck the drugs were placed. Accordingly, their search of the entire truck and the containers in it was appropriate. United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982); People v. Langen, 60 N.Y.2d 170, 469 N.Y.S.2d 44, 456 N.E.2d 1167 (1983), cert. denied, 465 U.S. 1028, 104 S.Ct. 1287, 79 L.Ed.2d 690 (1984). Once the agents found narcotics of any kind, it was lawful for them to seize it.
It is, however, a different story with respect to the $70,000 in currency found in the leather bag. The justification to search the truck for narcotics did not give the agents justification to seize everything found in the...
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