United States v. Bravo
| Decision Date | 31 October 1975 |
| Docket Number | No. 75 Cr. 429 (JMC).,75 Cr. 429 (JMC). |
| Citation | 403 F. Supp. 297 |
| Parties | UNITED STATES of America, v. Alberto BRAVO et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Paul J. Curran, U. S. Atty. for the Southern District of New York by Michael Q. Carey and Peter M. Bloch, Asst. U. S. Attys., New York City, for the United States.
Murray Cutler, Brooklyn, N. Y., for defendant Carmen Gill.
Kassner & Detsky, Herbert S. Kassner, New York City, for defendant Libardo Gill.
The motion of defendants Carmen and Libardo Gill to suppress certain evidence seized on September 30, 1974 from their apartment at 580 Amsterdam Avenue in the Borough of Manhattan is hereby denied.
Based upon the evidence adduced at a hearing held on October 16 and 17, 1975, the Court finds the underlying facts to be as follows.
During the investigation into the death of one Luis Ramos, the telephone number and address of Apartment 3D at 580 Amsterdam Avenue came to the attention of the Manhattan Homicide Task Force of the New York City Police Department. Sergeant Gerald McQueen, Commanding Officer of the Task Force, and Detective Richard Powers visited the apartment at approximately 2:30 P.M. on September 30, 1974. Their purpose was to interview the residents of the apartment about the homicide.1 Det. Powers, with Sgt. McQueen standing behind him, knocked on the door. After hearing a noise which sounded to him as if the "peephole" in the door was being opened, Powers announced his identity and held his New York City Police Department Detective's shield in the direction of the peephole. Shortly, thereafter, the door opened approximately six or eight inches, at which time the police officers observed a male, who was later identified as Libardo Gill,2 standing in the doorway. Det. Powers again identified himself, continued to hold up his shield and requested that the officers be allowed to enter the apartment to speak with Mr. Gill. At the same time, he pointed towards the interior of the apartment, indicating that the officers would like to come in. Mr. Gill then stepped back as he opened the door completely and the police officers walked past him a few feet into the apartment. Mr. Gill closed the door behind them. Upon entering the apartment, Det. Powers and Sgt. McQueen found themselves in the living room.
The officers began to question Mr. Gill and soon thereafter their attention was drawn to a female, later identified as Carmen Gill,3 Mr. Gill's wife. She was seated in the living room at a table located approximately four feet from the officers. On the table was some United States currency in the form of bills, two cigarette butts between one and one-half inches long, an ashtray and some miscellaneous papers. The officers testified that the cigarettes appeared to be home-rolled, as they were thinner than manufactured brands and not as round. Although each of the cigarettes had at one time been burning, neither was lit when the police officers noticed them. Both Det. Powers and Sgt. McQueen concluded that the butts were "roaches", the remaining portions of partially smoked marijuana cigarettes. They reached this conclusion because the butts were on the table near the ashtray and apparently were being preserved, although through visual inspection it could not be determined whether the butts were actually composed of marijuana, as opposed to some other substance, such as tobacco.
Pointing to what he had concluded were marijuana cigarettes, Det. Powers asked the Gills, "Whose cigarettes are these?", at which time they both shook their heads from side to side and raised their arms, holding their palms upright, in a fashion indicating that they did not know the answer to that question.4 Without any further inspection of the alleged marijuana cigarettes or questioning of the Gills, Det. Powers placed them under arrest.
Det. Powers then proceeded to walk through the apartment to determine whether anyone else was present, even though neither he nor Sgt. McQueen had any reason to believe that there, in fact, was anyone else in the apartment at that time. While walking down the hallway which connected the living room with the kitchen, bathroom and bedroom,5 Det. Powers noticed two shopping bags just inside and to the left of the doorway to the kitchen. Sticking out of one of these bags were two or three bricks which Det. Powers concluded were made of marijuana. Inside the kitchen and to the right of the doorway was an open brown leather bag; by looking directly down into the bags not containing the "marijuana" bricks, Det. Powers could see what appeared to be loose marijuana in one and plastic bags containing a white powder in the other. He called all three bags to the attention of Sgt. McQueen and continued to look through the apartment for other persons.
His attention having been drawn to the bags, Sgt. McQueen walked into the kitchen and glanced down into them, also noticing the bricks and a bag of white powder. However, nothing was removed from the bags nor were they disturbed in any other manner.
Shortly thereafter, Det. Powers returned from his inspection of the premises and Sgt. McQueen instructed him to watch the two defendants. Sgt. McQueen went to the bedroom and placed a telephone call to the narcotics division of the police department. At this point, Carmen Gill pointed to the money that was on the kitchen table and moved her hand and arm downwards along her body as if to indicate that Det. Powers should put the money into his pocket.6 Det. Powers then asked Mrs. Gill why he should do that and she indicated to him, again by the use of sign language (pointing to Det. Powers, her husband and herself, then to the window and slapping her hands together), that it was to enable the Gills to escape. Det. Powers replied, "No, not enough, too small," and indicated the same by holding his thumb and index finger approximately one-half of an inch apart. Carmen Gill responded that she had more money and held her hands approximately six inches apart. Det. Powers asked her where, and she got up and began walking towards the large closet in the hallway. Powers followed her to the closet and, when she reached up in order to remove a shoe box from the shelf, he requested that she stop. She did stop—and Det. Powers removed the box from the closet and opened it himself, revealing a large sum of money. Mrs. Gill then indicated that she wanted to give Det. Powers and Sgt. McQueen two thousand dollars ($2,000). Det. Powers again responded that the offer was insufficient, and after a conversation about his family, was given the additional sum of one thousand dollars ($1,000) by the female defendant. She suggested that he buy his children something with the money and said, "Don't tell the other men," indicating this by putting her index finger over her lips.
At some point between the original offer of money and the removal of the shoe box from the closet, Sgt. McQueen returned from the bedroom, where he had been using the telephone, and was informed of the "bribe" offer. He then returned to the bedroom to place additional calls, including one to his boss and one to the Internal Affairs Division, whose responsibility it was to investigate police corruption.
Eventually, a Detective George Pagan of the Manhattan Robbery Squad and one Sergeant Nesbitt of the Internal Affairs Division arrived at the apartment. Det. Pagan could speak and understand Spanish and proceeded to converse with the instant defendants in that language. Subsequently, each of the four officers in the apartment was given the sum of five thousand dollars ($5,000) (in addition to the one thousand dollars ($1,000) already given to Det. Powers), and Det. Powers was dispatched to procure a search warrant. This was at approximately 4:00 P.M. At approximately 7:00 P.M. he returned with the warrant.7
What transpired between Det. Powers' departure and his return is unclear, but it is certain that there was no search of any cabinets, drawers or closets (other than the one from which the shoe box was removed) in the apartment prior to the execution of the search warrant.
After Det. Powers returned with the warrant, it was shown to both defendants and explained to them by Det. Pagan. At or about that time, the defendants were again placed under arrest, this time on a bribery charge, and were finally given a Miranda warning by Det. Pagan. Pursuant to the warrant, the premises were searched.8 Except for the three partially smoked marijuana cigarettes found on the table in the living room and on the hallway icebox, all of the marijuana and cocaine eventually seized from the apartment was located in the three bags found in the kitchen.
The search was completed between 7:00 and 9:00 P.M. on the evening of September 30, 1974, when the officers left the apartment with the defendants and in possession of the seized items.
The Court's inquiry into the admissibility of the instant evidence must begin with the initial entry into the Gills' apartment, as counsel for defendants contend that permission to enter was induced by a claim of lawful authority to do so. We find, however, that the facts do not support this assertion. There was no show of force by the officers nor did they demand entry in any manner whatsoever. When Det. Powers identified himself and Sgt. McQueen as police officers, and displayed his badge, Libardo Gill freely and voluntarily allowed them to enter his apartment. The Court is convinced that under the circumstances the entry into the Gills' apartment was made with the consent of the occupants, and hence, was lawful. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
Once the officers were lawfully in the living room of the apartment, they noticed Carmen Gill sitting at a table. Looking in...
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