United States v. Baltazar

• Decision Date: 25 June 1979
• Docket Number: No. 79 CR 146.,79 CR 146.
• Citation: 477 F. Supp. 236
• Parties: UNITED STATES of America v. Jose Manuel BALTAZAR, Beatrice Lopera, Alexandra Escobar, Luis Tobon Gonzalez, and Jesus Espinal, Defendants.
• Court: U.S. District Court — Eastern District of New York

477 F. Supp. 236

UNITED STATES of America v. Jose Manuel BALTAZAR, Beatrice Lopera, Alexandra Escobar, Luis Tobon Gonzalez, and Jesus Espinal, Defendants.

No. 79 CR 146.

United States District Court, E. D. New York.

Decision June 25, 1979.

Memorandum and Order September 6, 1979.

E. R. Korman, U. S. Atty., E.D.N.Y. by Harvey J. Golubock, Asst. U. S. Atty., Brooklyn, N. Y., for United States.

Marion Seltzer, Legal Aid Society, Brooklyn, N. Y., for defendants.

PLATT, District Judge.

Defendant, Jose Manuel Baltazar, has moved to suppress the fruits of a warrantless search, seizure and arrest executed on March 5, 1979 by New York City detectives. Defendant and four other persons arrested at the same time and location, Beatrice Lopera, Alexandra Escobar, Luis Tobon Gonzalez, and Jesus Espinal, were indicted in federal court for violating Title 21, United States Code Section 841(a)(1) and Title 18, United States Code Section 2, possession with intent to distribute one hundred seventy-eight (178) grams of cocaine hydrochloride, a Schedule II narcotic drug controlled substance. All five defendants moved to suppress all items seized from, and all statements made by, them at the time of their arrest on the grounds that the same were obtained in violation of defendants' constitutional rights. Pursuant to these motions, a hearing was held on April 20, May 3, May 4 and May 24, 1979.¹ Although Jose Manuel Baltazar is now the only defendant in this case who has not pled guilty or against whom the indictment has not been dismissed,² an analysis of the legal issues raised by his motion, and in particular the question of defendant's standing to have evidence suppressed, requires a rather detailed summary of the testimony received at the hearing.

I THE SUPPRESSION HEARING

The Court heard testimony from four witnesses: Detective Thomas Healy of the New York City Police Department; Special Agent Richard K. Crawford of the Drug Enforcement Administration; and two Spanish language interpreters, Jack Trabout and Manuel Ras, called by defendants.

Detective Healy testified that as a member of the Queens Homicide Task Force he had been assigned to investigate a double homicide that had occurred in Queens on October 18, 1978 (Tr. 12-13, 103, 109, 113, 116-118, 148).³ In late January or early February of 1979, Agent Crawford, a member of Group Five of the Drug Enforcement Agency's ("DEA") New York Joint Task Force, informed Det. Healy that a visit to an apartment located at 2534 Crescent Street in Astoria, Queens, might prove useful in the latter's homicide investigation (Tr. 105, 120, 303, and 319-320). Having learned that certain individuals he wished to interview "had at one time or other stayed at that apartment in Astoria" and that one of the two deceased had been "a frequent visitor" there (Tr. 109 and 113), Det. Healy went to the Crescent Street address on February 27, 1979 and was let into the apartment by the building superintendent. The apartment had been abandoned but, after rummaging through garbage he found "a memo book or a little memo pad" which contained the address of an Apartment 6D located at 88-10 178th Street in Queens (Tr. 104-109, 119-120, 125, 127-130, 158, 238).

On March 4, 1978 (Tr. 161), Detective Healy went to the 178th Street address where he spoke to the building superintendent. The superintendent thought that "at least two males and two females" were living in Apartment 6D, but he did not know their names (Tr. 153-156). He had a floor plan or a list of all the apartments which associated the name Guttierez with Apartment 6D (Tr. 285-286). Detective Healy consulted the building directory; although he could not remember at the hearing the name listed for Apartment 6D, he did remember that it was not Guttierez. He did not check for a name on the mailbox (Tr. 153-156). Presumably in order to learn more about the occupant or occupants of Apartment 6D, Det. Healy proceeded that same day to the premises of the Famma Realty Corporation where he requested a copy of the lease for that apartment and was given an application for a lease on the apartment. It dated from December, 1978, listed as the prospective tenant one Severinno Gutierrez, and was signed by one Beatriz Valasquez Gutierrez⁴ (Tr. 15-16, 156-157, 159-163, 181-186, 285). Detective Healy testified that the "person at the realty company could only recall that it the applicant for a lease was a male and that the person Gutierrez spoke Spanish and the person in the realty office thought that the person was from Colombia" (Tr. 157).

Sometime around nine o'clock in the evening of the following day, March 5, 1979 (Tr. 187), Detective Healy and three fellow police officers (Tr. 152, 236) returned to the 178th Street address to interview the occupant or occupants of the apartment listed in the notebook found in the abandoned Crescent Street apartment (Tr. 16, 177, 187). Det. Healy spoke to the building superintendent again (Tr. 163) and either on this occasion or during their meeting of March 4th the superintendent indicated that the occupants of Apartment 6D were Spanish-speaking persons from Colombia and "roughly stated their ages and complexions and builds" (Tr. 178). One of the superintendent's descriptions matched the description of an individual sought by Det. Healy in connection with his homicide investigation (Tr. 177-179, 238).⁵ In order to determine the likelihood that somebody would actually be in the apartment at that time, Det. Healy went to the garage and found a car in the space leased to Apartment 6D (Tr. 164-165).

As Detectives Healy and Fasullo took the elevator to the sixth floor, Detective Hudson stationed himself outside the building on the street below the windows of Apartment 6D and Detective Alleyne proceeded up the stairs and stationed himself on the sixth floor landing in the stairwell (Tr. 167-168; 171-172). Upon reaching the sixth floor, Det. Healy, accompanied by Det. Fasullo (Tr. 16, 171, 192), proceeded to Apartment 6D "listened for a second" at the apartment door but heard nothing (Tr. 192-193), and knocked on the door. He testified that he heard a female voice from within the apartment "but . . . couldn't make out what she was saying." (Tr. 16, 171, 193). Detective Healy then uttered the name on the lease application: "Severinno, Severrino Gutierrez" (Tr. 17, 193, 193a). Defendant Beatrice Lopera then opened the door halfway or a little more than halfway (Tr. 18, 194). This permitted Det. Healy an unobstructed view (Tr. 197) into the living room of the apartment. He could see a couch located approximately twenty-five to thirty feet from where he stood, placed up against the wall to his left and positioned in a manner perpendicular to the doorway (Tr. 19, 197-198, 255-256). In front of and parallel to the couch was a coffee table (Tr. 18, 100-102). A brown leather handbag was on the coffee table (Tr. 19, 21, 29). On the other side of the coffee table and facing the couch were two easy chairs (Tr. 18, 100-102, 255). When Miss Lopera opened the door, Det. Healy observed three other persons in the apartment. Defendants Alexandra Escobar and Jose Manuel Baltazar were seated on the couch, Miss Escobar being positioned closest to the door (Tr. 18, 20, 32, 255, 277-278); defendant Luis Tobon Gonzalez was seated in the easy chair closest to the door (Tr. 18, 32, 255, 277-278).

On direct examination, Detective Healy testified that when defendant Lopera opened the door he displayed his detective's shield in his left hand and said: "I am a police officer. Where is Severinno Gutierrez?" (Tr. 17, 195-199). On cross-examination, he testified that he first repeated the name Severinno Gutierrez and then displayed his shield saying: "Police—policia" (Tr. 195-196). As he spoke, Miss Lopera began backing away from the door (Tr. 19, 195-196). Detective Healy did not move his feet, walk towards Miss Lopera or touch the door (Tr. 196-197), but when she did not respond he repeated the name Severinno Gutierrez (Tr. 18, 194-195).

At this time, Detective Healy observed Mr. Baltazar, who was seated approximately twenty-five feet away at the far end of the couch, "come forth off the couch and reach his right hand behind the brown leather bag" (Tr. 20, 21). Det. Healy testified that the bag was so positioned on the coffee table that he could not see what the defendant was reaching for (Tr. 20-21, 198) and testified that

"I got aroused, I thought he may be reaching for an arm, a pistol.

* * * * * *

"I watched him intently and I went to my pistol, I had my pistol on the right side, I let go of the safety release on the holster, and I had it in my hand and I took the gun halfway out of the holster." (Tr. 22)

When Mr. Baltazar's hand came back into view from behind the leather bag, he was holding by its tip "a clear plastic bag containing white powder" (Tr. 22, 198). Detective Healy testified that he saw Mr. Baltazar take the glassine bag containing white powder and place it "inside his coat in the area of his left armpit" (Tr. 23, 194, 196, 198, 339, 361-362).

Detective Healy testified that based on his experience⁶ he then believed the glassine bag secreted by Mr. Baltazar to contain cocaine (Tr. 23-24). He stated to Detective Fasullo, who was standing to his right: "Joe, there's coke" (Tr. 24) or "Gee, it's coke" (Tr. 199). Det. Healy then entered the apartment "walking rapidly."⁷ As he neared the coffee table, he noticed that the brown leather handbag was open and contained money (Tr. 29). He displayed his shield which was still in his left hand and he still had his right hand on his pistol in his holster. As he approached the people in the living room he repeated "Policia, policia, policia" and as he approached Mr. Baltazar he motioned that Mr. Baltazar (who presumably had resumed his seat on the couch) should stand and said "Stand up, ariba, up" (Tr. 24-25, 198-199, 263).

As Mr. Baltazar rose from the couch, Detective Healy replaced his...