United States v. Gomez
| Citation | 495 F. Supp. 992 |
| Decision Date | 15 November 1979 |
| Docket Number | No. S79 Cr. 624 (LPG).,S79 Cr. 624 (LPG). |
| Parties | UNITED STATES of America v. Jorge Heldibrado GOMEZ, Irma Mejia-Londono, a/k/a "Irma Mora", Hever Puertas-Serna, a/k/a "Ever Serna", and Henry Serna, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Barry Slotnick, New York City, for Jorge H. Gomez.
F. Luis Caraballo, Brooklyn, N. Y., for Irma Mejia-Londono.
David S. Zapp, New York City, for Ever Serna.
Frank Ortiz, Brooklyn, N. Y., for Henry Serna.
Mary Ellen Kris, Mary Jo White, Asst. U. S. Attys., New York City, for United States.
Defendants Jorge Heldibrado Gomez, Irma Mejia-Londono, a/k/a "Irma Mora", Ever Serna and Henry Serna were indicted for conspiracy to violate §§ 812, 841(a)(1) and 841(b)(1)(A) of Title 21 of the United States Code and for possession with intent to distribute cocaine in violation of the same statutory sections. In addition, Gomez was indicted for using a firearm during the commission of a felony in violation of § 924(c) of Title 18 of the United States Code. After the arrest of defendants, officers of both the Drug Enforcement Agency ("DEA"), the New York City Police Department who were assigned to DEA and an investigator from the Immigration and Naturalization Service ("INS") conducted searches at five locations and took statements from the defendants. Defendants now move to suppress the evidence so seized and the statements so made. Following a three day evidentiary hearing,1 this court grants in part and denies in part the motions before it.
The facts found by this court, after hearing the testimony and assessing the credibility of the various witnesses, are as follows. Agent William F. Mockler, Jr., a group supervisor with the DEA, testified regarding the background of the surveillance that precipitated the challenged searches. In 1977 an informant, previously found reliable, advised Mockler that Irma Mejia, the part owner of a Queens jewelry store, was heavily involved in cocaine trafficking in New York City. From 1977 until August 15, 1979, the name "Irma", followed by one of two telephone numbers, appeared on different documents seized in narcotics investigations. The DEA traced these numbers to a phone at 340 East 80th Street listed to Henry Serna and to a phone in another Queens jewelry store. Investigations during the 1977 to August 1979 period also uncovered other papers which the DEA suspected to be records of narcotics transactions in which Mejia appeared as a monthly multi-kilogram cocaine purchaser. In July 1979, the DEA arrested a suspect in Queens and recovered large amounts of cocaine and other drug paraphernalia. Among the papers seized from the suspect were Irma's name and phone number at a jewelry store and the name "Henry" with a telephone number traced to the East 80th Street apartment. Both were accordingly believed to be customers of the suspect. Mockler, unable at that time to follow this lead, passed this information along to another DEA group to pursue it before Mejia became alerted to the Queens arrest.
Having received this information, New York City police officer Sergeant Richard Werdann obtained a positive identification of Mejia. Thereafter, Werdann and fellow officer Detective William Frawley set up surveillance on August 15th at 2 P.M. at 340 East 80th Street. At approximately 5 P.M. Werdann observed Henry Serna, Mejia and a baby in a red Mustang exit the garage. The car was being driven by Serna and was followed to West 83rd Street and Amsterdam Avenue. Serna parked, got out and spoke for several minutes with an Hispanic female. Serna reentered the car and drove to Broadway and 83rd Street where he parked at the curb. A male Hispanic approached the car on the driver's side and conversed with the occupants for a few minutes. Werdann then followed the car to 625 Columbus Avenue, saw it leave that location, and then followed it to West 99th Street and Broadway. After parking the vehicle at a hydrant, Serna left the car to make a phone call from a phone booth on the corner as he looked in the direction of the upper floors of an apartment building located at 243 West 99th Street. Werdann next observed Serna walking toward the entrance of the building at 243 West 99th Street at approximately 6:00 P.M. and, at this point, contacted his headquarters to request the assistance of a supervisor.
Special Agent Patrick Shea, an assistant group supervisor of DEA and a specialist in South American cocaine traffickers, responded to the call. From previous experience Shea knew that the Upper West Side of Manhattan was an area of heavy narcotics activity. At the scene at 6:20 P.M. Shea observed Serna emerge from 243 West 99th Street carrying a gold colored plastic bag labeled "Fashion Boutique" which he placed in the rear of his car. Serna was observed getting into the Mustang and was then followed by the agents, in separate cars, back to 625 Columbus Avenue. Serna entered the restaurant, leaving the bag in the car, and emerged five minutes later from the restaurant. The surveilling agents, communicating over car radios, discussed the events that they had witnessed and reasonably concluded that the bag contained either narcotics or money. They determined, therefore, that if Serna returned directly to his apartment the bag contained only money, the fruits of a completed narcotics transaction and they would not intercept him; but if Serna entered another building with the bag, then the bag contained narcotics and a deal was about to "go down", and they would intercept him.
The red Mustang was followed to Bennett Avenue. All three occupants emerged and headed toward the rear entrance to 295 Bennett Avenue, Serna carrying the plastic bag and Mejia the baby. Frawley, who was directly behind Mejia and Serna, observed them walk down a path leading to the rear entrance. As soon as he saw them enter the building, he ran to the doorway. Frawley raced to the doorway followed by Shea, who had been observing Frawley. Neither attempted to stop Serna or Mejia prior to their entering the building. Once inside the building, Frawley located the door to the stairwell. As both agents entered the stairwell, they heard the door closing on the next landing and ran up to the second floor where they went into the hallway and heard voices and the release of a door chain. They immediately headed around the corner to the direction of the sounds. Frawley, who was then about fifteen feet from apartment 2A, testified that Mejia was no longer in sight but that Serna was just walking over the threshold of the apartment door. Both agents yelled "police" as they held their shields in their hands and ran toward the door. The door was slammed just as they reached it. The agents knocked on the door, and then banged and kicked, announcing loudly that they were police and requesting that the door be opened. Shea put his ear to the door a few times and heard voices, the scurrying of feet and the sound of water running through the pipes. Werdann, who entered the building moments after Frawley and Shea, followed the sounds up to the second floor. As he approached apartment 2A, Werdann saw Shea and Frawley knocking on the door with their shields still in their hands. Werdann, followed by Frawley, then went outside and located the windows of the apartment. Werdann saw Serna at the window and with his shield in hand, yelled to him that he was a police officer and requested that he come out. Serna retreated and Mejia appeared. Werdann repeated the message to Mejia before she too withdrew. Two officers joined Shea in front of the door and kicked while Shea banged. After approximately seven to ten minutes from the time the door was slammed, one of the occupants opened the door. The agents entered the apartment, placing Serna, Mejia and Gomez, the other occupant, under arrest.
The officers conducted a protective search to insure that no other occupants were present. During the course of the search, they observed the bathroom floor flooded, white powder on top of the toilet bowl and a clear plastic bag floating inside the bowl. Werdann also observed white powder on the kitchen floor and on the bedroom floor what appeared to be the gold "Fashion Boutique" bag from which now protruded two clear plastic bags with white residue. Werdann also stated that he saw a large amount of money in an open safe and in a closet and a loaded .38 caliber pistol on a table. Shea further observed an exposed scale in the kitchen.
Following DEA's standard procedure in cases of an arrest involving suspected illegal aliens, Shea called for an INS investigator. Investigator Victor Rita responded and after Detective Ramos gave the suspects their Miranda warnings, Rita interviewed them to determine their alien status. Gomez displayed satisfactory proof of his status as a legal alien, and Rita did not question him further. Mejia, on the other hand, told Rita that she was a Colombian national and had entered the United States illegally. Rita asked Mejia to complete two forms: a rights waiver and a contact report. He then asked Mejia to furnish proof of the biographical information that she had supplied. She responded that she was not carrying any such proof but had the documentation at home. Rita then interviewed Serna, who stated that he had entered the United States on a visitor's visa. Rita determined, however, that Serna was also an illegal alien because it appeared that his visa had long since expired. At the behest of Rita, Mejia and Serna separately executed consent to search forms for their apartment at East 80th Street. Rita advised them of their right to withhold consent to the search and that although he would search for documentation to verify their identification and alien status, he would be accompanied by a DEA agent and that anything found could be used...
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