United States v. Bradford

• Decision Date: 19 June 1980
• Docket Number: Crim. No. H 80-1.
• Citation: 496 F. Supp. 366
• Parties: UNITED STATES of America v. William Standish BRADFORD, Ulysses José Orduz, Scott Paul Garman and William Edward Moran, Jr.
• Court: U.S. District Court — District of Connecticut

496 F. Supp. 366

UNITED STATES of America v. William Standish BRADFORD, Ulysses José Orduz, Scott Paul Garman and William Edward Moran, Jr.

Crim. No. H 80-1.

United States District Court, D. Connecticut.

June 19, 1980.

Holly B. Fitzsimmons, Asst. U. S. Atty., Bridgeport, Conn., Richard Blumenthal, U. S. Atty. for the District of Connecticut, for the United States of America.

F. Mac Buckley, Buckley & Santos, Hartford, Conn., for defendant William Standish Bradford.

Richard L. Albrecht, Cohen & Wolf, P. C., Bridgeport, Conn., for defendant Ulysses José Orduz.

Maxwell Heiman, Furey, Donovan & Heiman, P.C., Bristol, Conn., for defendant Scott Paul Garman.

Arthur P. Meisler, Flaherty, Marder, Kallet & Meisler, Vernon, Conn., for defendant William Edward Moran, Jr.

JOSÉ A. CABRANES, District Judge:

RULING ON MOTION TO SUPPRESS

The four-count indictment in this case charges defendants Ulysses José Orduz and William Edward Moran, Jr. with the distribution of cocaine on or about December 11, 1979, and accuses Orduz, William Standish Bradford and Scott Paul Garman of the knowing and intentional possession of cocaine with intent to distribute it, on or about January 3, 1980; the latter three defendants are also charged with conspiracy to violate the federal narcotics laws. The defendants have moved to suppress (a) a tape recording of a telephone conversation between Orduz and an informant cooperating with the Drug Enforcement Administration ("DEA"); (b) evidence seized from the persons of defendants Orduz, Bradford and Garman after their arrests on January 3, 1980; and (c) statements made by those defendants to law enforcement officers after they were arrested.

After an evidentiary hearing on this motion, at which the court heard the testimony of Special Agent Michael W. Meyrick, the DEA agent in charge of the investigation of this case, the court makes the findings of fact and conclusions of law set forth in the discussion below, and determines that the motion to suppress should be denied, except as to statements made by the defendants in response to interrogation by DEA agents after their arrests in Manchester, Connecticut on January 3, 1980, but before they were advised of their constitutional rights.

The Tape Recording of Orduz' December 11 Telephone Conversation

On December 11, 1979, Orduz talked by telephone with a person who, unbeknownst to him, was an informant working with the DEA. The testimony of Special Agent Meyrick establishes that this informant, whose identity has not been disclosed,¹ voluntarily came to the offices of the DEA to assist it in its investigation of possible violations of the narcotics laws by Orduz.² The informant told Meyrick that he had arranged to purchase approximately one ounce of cocaine from Orduz and that he was going to place a telephone call to Orduz to establish the time and place of the purchase.³ The informant then made the call, in Meyrick's presence, in the DEA's Hartford office.⁴ His conversation with Orduz was simultaneously recorded on a DEA tape recorder and monitored by Meyrick, who listened to it through an earphone.⁵

Although the government did not obtain a warrant authorizing the DEA to record and monitor the telephone conversation, its eavesdropping was permissible, under both Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Fourth Amendment to the United States Constitution, if one of the parties to the conversation gave his prior consent to it. See 18 U.S.C. §§ 2511(2)(c), (d); United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 1125, 28 L.Ed.2d 453 (1971). As White makes clear, "however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with authorities." United States v. White, supra, 401 U.S. at 749, 91 S.Ct. at 1125. See also Hoffa v. United States, 385 U.S. 293, 302-03, 87 S.Ct. 408, 413-14, 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427, 438-40, 83 S.Ct. 1381, 1387-88, 10 L.Ed.2d 462 (1963); United States v. Bonanno, 487 F.2d 654, 657-58 (2d Cir. 1973). The admissibility of the December 11 telephone conversation therefore depends upon the consent of the informant.

Orduz' contention that the government has failed to establish such consent to the interception and monitoring of the informant's conversation with Orduz is without merit. Although the informant's own testimony on this issue would have had greater probative force than that of Special Agent Meyrick, "there is no rule requiring the production of the best witness" on the question of consent to such eavesdropping. United States v. Bonanno, supra, 487 F.2d at 659. See also United States v. Fuentes, 563 F.2d 527, 533 (2d Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977); United States v. Gladney, 563 F.2d 491, 493 (1st Cir. 1977). In a case such as this one, "it will normally suffice for the Government to show that the informer went ahead with a call after knowing what the law enforcement officers were about." United States v. Bonanno, supra, 487 F.2d at 658-59. That test was clearly met by Meyrick's testimony—which was not shaken upon cross-examination—that the informant (a) voluntarily came to the DEA with the information that Orduz had agreed to sell him cocaine; (b) stated that he intended to call Orduz to make specific arrangements for that transaction; and (c) went ahead with the telephone call, from the DEA's office, in Meyrick's presence, while Meyrick was listening to the conversation through an earphone. The preponderance of the evidence on this point establishes the informant's consent to the taping and monitoring by the DEA of his conversation with Orduz. The eavesdropping was therefore permissible under the applicable statute and the Fourth Amendment.

The Post-Arrest Searches and Seizures

Bradford, Garman and Orduz have challenged the admissibility of evidence seized from them at the DEA office in Hartford, approximately thirty minutes after their arrests at or near a McDonald's restaurant in Manchester, Connecticut on January 3, 1980.

Special Agent Meyrick had arranged to purchase cocaine from Bradford and Orduz at the McDonald's restaurant that day.⁶ In the course of the transaction, Meyrick went into the men's room of the restaurant with Bradford to inspect the cocaine which Bradford had agreed to sell him, while Garman, Orduz and Special Agent Gary Sloboda of the DEA (who had accompanied Meyrick to the restaurant and whose true identity apparently was likewise undisclosed) sat at a table.⁷ Garman made two attempts to enter the men's room while Bradford and Meyrick were in it; in each case, Special Agent Sloboda blocked his path.⁸ Garman then, in Meyrick's words, "walked over and met with Mr. Orduz, who was seated at the table, at which point Mr. Orduz got up, walked over to the men's room and did enter the men's room."⁹ Orduz "advised Mr. Bradford that he didn't like the looks of things outside the men's room, and .. suggested that the transaction be terminated."¹⁰ Bradford expressed his agreement with this suggestion, and put the cocaine which he had shown to Meyrick back into a shoulder bag that he was carrying.¹¹ Meyrick, Orduz and Bradford then left the men's room; when Orduz and Bradford "headed for the nearest exit," Meyrick signaled to other undercover DEA agents in the restaurant and parking lot to arrest Bradford, Orduz and Garman.¹²

Orduz was arrested in the parking lot of the restaurant by DEA agents.¹³ Garman, who had gone into the men's room after the others left it, was arrested there.¹⁴ Bradford ran from the parking lot to a nearby wooded or brushy area abutting Interstate Route 84, throwing his shoulder bag and another, unidentified, object away as he ran.¹⁵ DEA agents pursued Bradford and, after a chase which lasted about thirty seconds, subdued and arrested him.¹⁶ After their arrests, the defendants were subjected to "pat-down" searches for weapons and contraband.¹⁷ With the exception of a cannister of "mace" found in Bradford's pocket, nothing was seized as a result of these searches.¹⁸

Bradford, Orduz and Garman were then driven to the DEA office in Hartford, approximately fifteen minutes away, where they were fingerprinted, photographed and asked for their personal histories.¹⁹ DEA agents conducted strip searches and searched the wallets and papers carried by the suspects; some of this material was seized as evidence.²⁰ The defendants contend that the searches and seizures conducted in Hartford violated their Fourth Amendment rights.

Searches such as the ones under attack here, which are made without the prior approval of a judge or magistrate, "are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). See also Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971). One of those exceptions to the search warrant requirement applies to "searches incident to arrest." The Supreme Court expounded upon the principle governing such searches in Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2039-40, 23 L.Ed.2d 685 (1969):

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by

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