U.S. v. Rosario, 959

• Decision Date: 03 November 1980
• Docket Number: No. 959,D,959
• Citation: 638 F.2d 460
• Parties: UNITED STATES of America, Appellee, v. Victor ROSARIO, Defendant-Appellant. ocket 79-1356.
• Court: U.S. Court of Appeals — Second Circuit

Page 460

638 F.2d 460

UNITED STATES of America, Appellee, v. Victor ROSARIO, Defendant-Appellant.

No. 959, Docket 79-1356.

United States Court of Appeals Second Circuit.

Argued April 1, 1980.

Decided Nov. 3, 1980.

Mel A. Sachs, New York City, for defendant-appellant.

Diane F. Giacalone, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty. for the Eastern Dist. of New York, Miles M. Tepper, Asst. U. S. Atty., Brooklyn, N. Y., on brief), for appellee.

Before VAN GRAAFEILAND and NEWMAN, Circuit Judges, and GOETTEL, District Judge. ^*

VAN GRAAFEILAND, Circuit Judge:

Appellant was convicted, after a plea of guilty in the United States District Court for the Eastern District of New York, of knowingly and intentionally possessing with the intent to distribute approximately one-eighth of a kilogram of cocaine. The cocaine was found in appellant's apartment when Drug Enforcement Administration agents searched it with his consent. At the time of the plea, it was agreed that appellant preserved his right to appeal Judge Bramwell's denial of his motion to suppress the drugs seized by the government and admissions made concurrently therewith. Basic to Judge Bramwell's denial was his finding that appellant's arrest which preceded the seizure and admissions was not unconstitutionally defective. This finding was based on a simple set of facts.

On May 3, 1979, Special Agent Stuart Stromfeld and several other DEA agents had appellant under surveillance. At approximately 11:00 p.m. Stromfeld was standing in a doorway on Vector Avenue in Queens near a parked automobile in which two men were seated. Other DEA agents were stationed nearby. While Stromfeld was so concealed, he saw appellant leave a building carrying something cupped in his hands, cross the street, and enter the parked car. Stromfeld then left the doorway and approached the car at the rear side window on the driver's side. From this position he watched while appellant showed the two men in the car what he had been surreptitiously carrying, a clear plastic bag containing a white or light-colored powder.

As appellant was displaying the bag to the man in the rear seat, he saw Stromfeld, who displayed his gun and badge at the car window. Appellant immediately concealed the bag between his legs. When he got out of the car and spread his legs in response to Stromfeld's command, the bag fell to the ground. It contained cocaine.

After being advised of his rights, appellant consented to the search of his apartment, also located in Queens. There the DEA agents saw a large sum of money and additional drugs in a bedroom and apprehended appellant's roommate who was in the apartment. Appellant and his roommate then gave written consent to a search of the apartment, in the course of which additional drugs were found. Both appellant and his roommate admitted their implication in the purchase and sale of drugs.

Challenging the legality of his arrest, appellant quarrels with the district court's finding that Stromfeld saw white powder in the plastic bag. Appellant points to testimony by Stromfeld that there were some lumps in the bag and suggests that Stromfeld might reasonably have concluded that the bag, which was so furtively transported to the car and concealed between appellant's legs, contained camphor balls or white mints. However, Stromfeld, an agent with twelve years experience, was familiar with the white powdery appearance of cocaine, and the sum and substance of his testimony was that the contents of the bag had that appearance. Indeed, because the material in the bag was in fact cocaine, it is unlikely that it would have any other appearance. Certainly we are not prepared to hold that the district court's finding of fact was clearly erroneous.

Given this factual finding, the legality of the arrest is fully supported by the surrounding facts. A plastic bag which contains a substance that looks like cocaine, which is carried furtively to a car containing two men at 11:00 p.m., and which is displayed for inspection by the two men, is not likely to contain camphor balls or white mints. The district court did not err therefore in concluding that there was probable cause for appellant's arrest. See United States v. Canieso, 470 F.2d 1224, 1228 (2d Cir. 1972).

Following his arrest, appellant indicated a desire to cooperate with the police and did in fact cooperate for a period of several weeks. The district court found that appellant voluntarily consented to the search of his apartment, and that finding has ample support in the record. There was no basis therefore for suppressing the incriminating evidence uncovered during the search. See United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976).

There is no merit in appellant's contention that there was no factual basis for his plea and that it was not voluntarily and intelligently made. Appellant admitted that his roommate and codefendant intended to sell the drugs found in the apartment and that appellant was holding the drugs for him in the apartment. Colloquy between the district judge and appellant showed that appellant was informed concerning aiding and abetting in the commission of an offense. Appellant's plea was knowingly made and factually supported.

We likewise find no merit in appellant's contention that the district court did not comply with Rule 11 requirements, in that he failed to advise appellant that he faced a mandatory minimum jail sentence and a possible lengthy special parole term. Appellant did not face a mandatory minimum jail sentence, see 21 U.S.C. § 841, and he was advised that a special parole term might be for his lifetime.

The judgment appealed from is affirmed.

GOETTEL, District Judge (dissenting):

On the evening of May 3, 1979, appellant Victor Rosario, while sitting with two other persons in a parked car on Vector Avenue in Queens, New York, was arrested by agents of the Drug Enforcement Agency ("DEA"). During the ensuing "pat down," the agents discovered cocaine in his possession. After being advised of his constitutional rights, Rosario indicated a willingness to cooperate with the agents, informed them of the source of the narcotics, and consented to a search of his apartment. During this search the agents arrested an accomplice and discovered a large amount of cash, one-eighth of a kilogram of cocaine, and certain narcotics paraphernalia. Subsequently, both Rosario and his accomplice were indicted for possession with intent to distribute 150 grams of cocaine and for conspiring to do so. ¹

The Government presented only one witness, Special Agent Stuart Stromfeld of the DEA, at the customary suppression hearing. Agent Stromfeld testified that while on duty the night of May 3, at approximately 11:00 p. m., he had observed Rosario enter a building located on Vector Avenue. He stated that soon thereafter Rosario, apparently holding something cupped in his hands, left the building and entered a nearby car. Agent Stromfeld testified that he then walked up to the car on the side opposite to the side Rosario had entered and, attempting to position himself in a "blind spot" where he would not be seen, looked through the rear window of the car. He testified that while so positioned he saw Rosario holding, and then showing a plastic bag-a "baggie"-to the other two persons in the automobile. The agent initially testified that the baggie appeared to contain a white-colored powder. Upon further examination, however, the agent modified his testimony and stated that the baggie actually contained a number of round lumps surrounded by some powder, the color of which could have been a "light tan or a light yellow or it could have been many different colors." At the time he observed the contents of the baggie, it was late in the evening and, evidently, very dark. Apparently there was no light on in the car.

As he showed the baggie to the other occupants of the car, Rosario noticed that they were being watched. Realizing that he had been observed, Agent Stromfeld, who had earlier taken out his badge and gun, opened the door of the car and, with the help of other agents on the scene, arrested all three occupants. During the "pat down" of Rosario, as mentioned earlier, the agents found the plastic bag, which Rosario apparently had hastily tried to conceal. ² This bag was eventually determined to contain cocaine. ³

On cross-examination, defense counsel attempted to learn why the agents had been observing Rosario. While the witness acknowledged that the agents had followed Rosario from his home to the Vector Avenue address, the Government objected to defense counsel's attempt to ascertain the reasons why Rosario was being watched. Nor was the duration or extent of the apparent surveillance made known. The agent further testified that his arrest of Rosario was based on his one observation of what was taking place in the darkened car.

Since Rosario's consent to the search and the search itself closely followed his arrest without any significant intervening event, the crucial question in determining the propriety of all of these events is whether the arrest was made with probable cause. ⁴ If the arrest itself was not proper, the evidence gathered as a result of the arrest would have to be excluded as being the fruits of an illegal arrest. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); United States v. Tucker, 610 F.2d 1007 (2d Cir. 1979).

The district court, finding that the DEA agents had had Rosario "under surveillance that day concerning drug transactions" and had seen Rosario hold up a plastic bag containing a white powder, and that the secreted bag dropped from between Rosario's legs when he stood up, held that there was probable cause for the arrest. Such findings of fact, however, as limited as they are, are not borne out by the record.

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