United States v. Moore, 78 CR. 661 (TPG).

• Decision Date: 26 January 1979
• Docket Number: No. 78 CR. 661 (TPG).,78 CR. 661 (TPG).
• Citation: 463 F. Supp. 1266
• Parties: UNITED STATES of America v. Royce N. MOORE, Michael Palmer, and Sheila Richardson, Defendants.
• Court: U.S. District Court — Southern District of New York

463 F. Supp. 1266

UNITED STATES of America v. Royce N. MOORE, Michael Palmer, and Sheila Richardson, Defendants.

No. 78 CR. 661 (TPG).

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

January 26, 1979.

Lawrence K. Feitell, New York City, for defendant Moore.

Robert P. Leighton, New York City, for defendant Palmer.

Alvin Geller, New York City, for defendant Richardson.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York by Henry H. Korn, Asst. U. S. Atty., New York City, for United States.

OPINION

POLLACK, District Judge.

Indictment 78 Cr. 661 charges Michael Palmer and Sheila Richardson with conspiracy to distribute cocaine and all three defendants with possession of and intent to distribute cocaine. Each defendant moved to suppress the physical evidence seized at the scene of their arrest. The defendant Moore moved also to suppress certain statements that he made to agents of the Drug Enforcement Administration (DEA) shortly after his arrest. The motions were referred to the undersigned for an evidentiary hearing. For the reasons shown hereafter, the motions will be denied in all respects.

On August 9, 1978, DEA Agent Glauner and the defendant Palmer began to negotiate a sale of cocaine. Glauner knew from DEA reports that Palmer had sold cocaine to undercover agents before. The negotiations between Glauner and Palmer took place in numerous telephone calls and two meetings in person. At the first of these meetings, Palmer showed Glauner a white powder that he said was cocaine and offered to sell Glauner up to one-half an ounce. Glauner declined Palmer's offer, saying that he needed at least four to six ounces. On August 22, Palmer agreed to sell Glauner six ounces of cocaine for $10,000. Palmer told Glauner that he had met with his supplier in a building on 89th Street and York Avenue in Manhattan and instructed Glauner to meet him that afternoon on the corner of 89th and York to close the deal.

At 1:45 in the afternoon of August 22, DEA agents on that corner observed Palmer entering the apartment building at 1725 York Avenue and then leaving the same building 15 minutes later. Glauner arrived in the area by car, Palmer joined him, and they parked on a side street. Glauner allowed Palmer to count the $10,000, but refused to give Palmer the cash until Palmer gave Glauner the cocaine. Palmer then got out of Glauner's car and reentered the building at 1725 York Avenue.

Agent Hall followed Palmer into the vestibule of the building and overheard Palmer telling the doorman that he wanted to go to Apartment 18-E. Hall then identified himself to the doorman as a federal agent investigating Palmer and asked whom Palmer had gone up to see in Apartment 18-E. The doorman told Hall that Palmer had gone up to see a woman named Sheila Richardson. Hall then directed Agent Aponte to stay with the doorman and asked the doorman whether he could go up to the 18th floor. The doorman said he could. As Hall arrived on the 18th floor, Palmer walked out of Apartment 18-E. Hall went down the stairway to the 17th floor, where he took the elevator and found Palmer was also on it, and they descended together to the lobby. From there Hall followed Palmer until he observed him re-joining Glauner in the car.

Palmer told Glauner in the car that he was dealing with a woman who was afraid and would not let the drugs out of the apartment until she had the money. Palmer and Glauner discussed the matter, and Glauner suggested that Palmer bring half of the cocaine, Glauner would give Palmer all of the cash, and Palmer could then bring the rest of the cocaine. Palmer then got out of the car and returned to 1725 York Avenue. Glauner advised Hall by radio that Palmer was dealing with a woman who would not let the drugs out of her apartment.

Agents Hall and Maddox followed Palmer into 1725 York Avenue and up to the 18th floor. From ten feet away from the door to Apartment 18-E, the agents could hear conversation in that apartment but could not make out what was being said. Agent Hall put his ear to the door and heard a conversation between a man and a woman whom he later identified as Palmer and Richardson. Palmer said: "He's got all the money. I counted ten thousand." Richardson replied: "No way I can let it out of this apartment." Palmer then said: "I tried. Well, I tried." Richardson replied: "I tried too, but we will have to pass. Tell him we'll pass."

Moments later Palmer opened the door; Richardson was standing immediately behind him; and Hall and Maddox stepped forward and arrested them both.

Hall then searched Palmer and Richardson in the entryway. Palmer was carrying a camera case which Hall handed to Maddox and Maddox searched for weapons. Inside the camera case was a block of mannitol.

As Maddox guarded Palmer and Richardson, Hall walked into the rest of the apartment to see if anyone else was there. Richardson grabbed Hall and shouted: "Don't go back there, there is nobody back there." Hall shook Richardson off, opened the door to the larger of the two bedrooms, and found Moore lying with his torso across the bed and his legs on the floor. Under Moore's legs were a plastic bag containing white powder and a gym bag. In the side pouch of the gym bag, Hall saw two more bags of white powder. Hall arrested Moore, advised him of his rights, and took him out of the larger bedroom and into the hallway.

Hall then checked the smaller bedroom for other people but found no one. Hall did, however, observe certain items of evidence in plain view on top of the dresser in the smaller bedroom. These included a triple beam scale, a mortar and pestle, and an open pocketbook that contained a plastic bag of black capsules. Hall later directed other agents to seize this evidence, and as they were doing so they discovered other evidence in plain view. This evidence included two bricks of mannitol, 98 rounds of 9mm ammunition, and two boxes of zip-lock bags, all found on top of the dresser, and two plates of glass and $1,952.55 in cash found on top of the bed.

Just after Hall checked the smaller bedroom, Agent Bell arrived, and Hall directed him to seize the gym bag that had been under Moore's legs in the larger bedroom. As Bell did so, he saw a bag of white power inside the main part of the gym bag.

At about this time, Richardson apparently had an unexpected bowel movement and was brought into the smaller bedroom to change clothes. Hall asked Agent Maddox to guard the door to the bedroom. Richardson then opened a drawer of the dresser, put something in it, and closed it again. Hall returned a few minutes later and asked Maddox where the bag of capsules was that Hall had seen in the bedroom earlier. Maddox replied that Richardson had just opened a drawer and put something in it. He then opened the drawer that Richardson had opened and took out the bag of capsules.

Agents Hall and Tuerack then brought Moore back into the larger bedroom. Hall reminded Moore of his rights and asked whether Moore understood that he had a right to remain silent. Moore said that he did. Hall then said he thought it would be in Moore's best interests to cooperate with the DEA: "In other words, I would like you to help us and we'll help you." Moore said that he would not talk to the agents until he saw the evidence that they had against him. Tuerack brought in the black gym bag and a bag of white powder that had been inside it. Moore said that he didn't know anything about that. Hall told Moore that he had seen Moore carrying the bag into the building. Moore then said: "Well, it might be my bag, but I don't know anything about what's in it." Moore asked Hall what he meant by "cooperation," and Hall explained that he meant cooperation in arresting the supplier of the cocaine in the bag. Moore said, "That can be dangerous." Hall and Tuerack assured Moore that his cooperation would be kept secret, but Moore repeated that it would be too great a risk.

While in the larger bedroom, the agents observed and seized certain additional items of evidence in plain view. On a shelf in an open closet they found a bottle of inositol, a cutting ingredient, measuring spoons, and a strainer. On top of the night table, the agents found a playing card and a business card, both with traces of white powder.

In the living room, the agents found in plain view a clear plastic tray with traces of white powder and a leather portfolio. Agent Vellotta asked Moore if he could look inside the portfolio, and Moore consented. Inside the portfolio were a photograph of Richardson and Moore, Palmer's business card, an address book, and a pocketbook. Some days later Moore's counsel asked the DEA to return Moore's property, and the agents made an inventory of what was seized and what was to be returned. During this inventory, the agents discovered a chunk of cocaine and one-half a tablet of qualude inside the pocketbook that they had found in the leather portfolio.

In order to find a container for the evidence that the agents had accumulated, Bell went into the smaller bedroom and saw a shopping bag on the shelf of an open closet. He took the bag off the shelf and found in it a quantity of mannitol.

Agent Tuerack went into the larger bedroom to seize the clothing that he saw in plain view in the open closet, to be used as evidence of Moore's connection with the bedroom, and to get clothing for Moore to wear to court. After handing Moore the clothing that he had chosen to wear, Tuerack reached back into the closet to seize the remaining clothes in plain view. As he did so, he kicked a hard object on the floor, which he saw was a gun.

The defendants now argue that the presence of the agents in the common areas of 1725 York Avenue violated the Fourth Amendment; that the agents arrested Palmer and Richardson without probable cause; that even if the agents had probable cause, they needed a warrant before arresting anyone in the apartment; that all of the evidence was seized...