People v. Salazar

• Decision Date: 24 September 1975
• Citation: 83 Misc.2d 922,373 N.Y.S.2d 295
• Parties: The PEOPLE of the State of New York v. Francisco SALAZAR et al., Defendants.
• Court: New York Supreme Court

Page 295

373 N.Y.S.2d 295

83 Misc.2d 922

The PEOPLE of the State of New York v. Francisco SALAZAR et al., Defendants.

Supreme Court, New York County, Part E.

Sept. 24, 1975.

Sterling Johnson, Jr., Special Asst. Dist. Atty., (Lawrence M. Herrmann, New York City, of counsel), for plaintiff.

Finger, Goldberg & Finger, Kew Gardens (Stanley S. Zinner, Yonkers, of counsel), for defendants Salazar, Padilla and Valenzuela.

John A. Ciampa, Forest Hills, for defendant Mejia.

Kassner & Detsky (Paul E. Warburgh, Jr., New York City, of counsel), for defendant Sarmiento.

James W. Randolph, New York City, for defendant Rojas.

Thomas H. O'Rourke, New York City, for defendant Lopez.

DECISION ON MOTION TO SUPPRESS TANGIBLE EVIDENCE

LISTON F. COON, Judge:

This has been a combined hearing to suppress tangible evidence seized by police as a result of a series of events occurring on September 3, 1974. Some of the moving papers are in the form of a motion to controvert a search warrant but the thrust of the entire proceeding is to suppress items seized at two locations, one being Apartment 1B at 445 West 48th Street, Borough of Manhattan (hereinafter referred to as 48th Street) and the other being Apartment 6A at 327 West 30th Street, Borough of Manhattan (hereinafter referred to as 30th Street). The former apartment was regarded as being occupied by the defendant Mejia and the latter apartment was regarded as being 'utilized' by the defendant Sarmiento (Mono) and one 'Oscar' whose identity was not firmly established at the hearing. Also involved in the overall picture is a defendant known as Evangelista Navas Villabona a/k/a Mario Rodriguez and a defendant known as Estella Bonilla Following are the Court's finding of facts and conclusions of law.

Nocua, a/k/a Estella Rodriguez, purportedly the common-law wife of defendant Navas. While there are numerous indictments pending against the latter two and while the original search warrant application involved their apartment in the Borough of Queens, they are not part of this proceeding. It might be added that another apartment in the Borough of Queens was involved in the search warrant application but the Queens warrants were not issued until September 4, 1974.

Findings of Fact

For many months prior to September 3, 1974, there was an on-going investigation being carried out by the Special Assistant District Attorney of the Special Narcotics Parts of New York County and a combined task force of various law enforcement agencies. The investigation included the use of extensive court-authorized eavesdropping warrants, undercover agents, surveillance teams and informants. The aim was to identify and eventually arrest and prosecute individuals involved in large-scale trafficking of narcotics, principally cocaine, being conducted in the United States from the source of supply in Colombia, South America. As a result of the investigation literally dozens of persons were discovered to be enmeshed in the web of the cocaine traffic. Many persons were arrested and many others identified in an overall conspiracy in the cocaine trade. It developed that an organization existed with various persons holding certain levels of command in the multi-tiered operation. Other foreign countries were involved and persons moved in and out of the United States, some as couriers, or 'mules', for the purpose of smuggling the drugs and some of the individuals regarded as among the 'higher-ups' were seen and identified in this country. Among these was one Alberto Bravo, regarded as a top echelon principal.

Towards the end of August, 1974, the investigation was marching towards a climax. Some of the top people including Alberto Bravo and one Bernardo Roldan were no longer visible in the United States. From the wiretaps it appeared to police authorities and to the prosecutors that others were in the process of attempting to leave and that the large-scale operations at least were going to be curtailed.

A command decision was made to 'move in' on those regarded as the main traffickers and dealers. Search warrants were to be sought and arrests contemplated.

Very early in the morning of September 3, 1974, the operation went into 'high gear'. The District Attorney's office started to assemble the information for inclusion in the application for the search warrants, along with Detective Luis Ramos, who, as one of the main principals of the investigation, had been working on the case for a long time. He furnished information gleaned from wiretap intercepts In the early morning of September 3, 1974, Police Officers Mulligan and Finley were detailed to go to Apartment 6B at 30th Street to set up a surveillance of Apartment 6A. This was accomplished by peering through a peephole in the door. By radio they were in touch with fellow officers outside the building. Beginning at around 2 p.m. considerable activity was seen and heard. Rustling of paper inside Apartment 6A and movement of furniture were heard. Persons were seen to leave the apartment carrying packages. These were wrapped so that no contents were visible. The information was communicated to the officers outside the building who reported that the persons did not exit the building with the exception of one Bello (arrested but not a defendant here). Mulligan and Finley deduced that narcotics were being moved but that it was to some other part of the building. This information was communicated to superiors, including Detective Manning.

and surveillance reports over the past several days. He was in contact with other officers throughout the day and passed this information on to the prosecutors. Meanwhile surveillance was maintained of the 30th Street and 48th Street apartments. Special attention was given to ascertain the movements of the defendants Mejia and Sarmiento, as well as others deemed to be involved.

Meanwhile Detective Manning was also involved in the surveillance of the defendant Mejia along with Lt. O'Shea and Detective Caracappa. In the vicinity of the 48th Street apartment, Mejia was observed standing on a street corner. Navas (Mario Rodriguez) was seen to arrive in an automobile. He was carrying a red plastic bag similar to a shopping bag. They entered the building where Apartment 1B was located and then were seen to leave the building. Manning and the others then left the area but a Detective Palazzotto was advised of the events and told to set up a surveillance in the 48th Street area. He did not immediately see Mejia but his instructions were to notify his superiors if he saw Mejia. Although he had previously been told that he could arrest Mejia on charges of conspiracy, he did not have a specific instruction to do so at this point, it being somewhere around 2:30 p.m.

An event was then to take place which precipitated a whole new course of activity. The defendants Sarmiento and Ramirez were arrested on a street in Queens. A wave of consternation apparently swept those in charge of the operation. The search warrant application was not yet completed, let alone its presentation to a judge or issuance of any warrants. The fear apparently was that the arrest of Sarmiento might have been observed by a confederate who would communicate the same to those at 30th Street and 48th Street and that flight or at least disposal of any narcotics at those locations would take place. Sarmiento was arrested apparently shortly after 3 p.m Orders went out to enter and secure the 30th Street apartment and Detective Palazzotto was directed to arrest Mejia sometime later at about 5 p.m. when he observed Mejia arrive back at his apartment building. The order was somewh qualified in that he was told to effect the arrest if he 'saw it fit.'

At about 4 p.m. the 30th Street apartment was entered by police officers without notice to any occupant. Involved were a Sgt. Troglio, a Sgt. Geberth and Detective Manning. Troglio and Geberth burst through a rear window covered by venetian blinds. The apartment door was opened by one of them to admit Manning. There were back-up officers with Manning including Detectives Caracappa and Rodriguez.

Inside the apartment was found the defendant Lopez. Shortly thereafter the defendant Rojas was arrested outside the building and brought to Apartment 6B and eventually to 6A. Inside 6A a preliminary search of the apartment was made by Manning. By visual observation he observed a brown paper bag containing money. He also opened two closets, saw packages deduced by him to contain narcotics and a bag containing two pairs of shoes with torn soles covered with a white powder. Nothing was touched and orders to merely secure the apartment pending arrival of a search warrant were followed out. Defendant Lopez was under arrest since custody was maintained over him.

As indicated, Detective Palazzotto observed the defendant Mejia at about 5 p.m. Mejia arrived at the apartment building in a taxicab accompanied by the defendants Padilla and Valenzuela. They entered the building carrying shopping bags. After a short period to set up security measures, Palazzotto went to Apartment 1A and knocked on the door. It was opened a few inches by Mejia. Palazzotto identified himself, showed his shield and told Mejia he was under arrest. A chain still held the door partially closed. As Mejia retreated several steps, Palazzotto forced the door open, breaking the chain, and entered the apartment with gun drawn. Present were Mejia, Paddilla, Valenzuela and also the defendant Salazar. All were placed against the wall, frisked and placed under arrest. On a bed was a large quantity of United States currency and a cardboard with names and figures on it.

Again, as in the case of 30th Street, the officers' orders were to secure the apartment pending arrival of a search warrant. No defendant was or would have been permitted to leave. A preliminary search of the apartment was made for other persons and weapons. Later after being joined by Sgts. Geberth and...