United States v. Morales
| Decision Date | 04 October 1982 |
| Docket Number | No. 82 Cr. 0441 (PNL).,82 Cr. 0441 (PNL). |
| Citation | 549 F. Supp. 217 |
| Parties | UNITED STATES of America, v. Guillermo Vallejo MORALES, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Asst. U. S. Atty., Warren Neil Eggleston, New York City, for plaintiff.
Lawrence M. Herrmann, New York City, for defendant.
Defendant moves to suppress evidence found by DEA agents in a nylon bag that was in the defendant's possession at the time he was stopped by DEA agents, immediately prior to his arrest. An evidentiary hearing was held on July 21, 1982, at the conclusion of which I made findings of fact and directed that briefs be submitted. The motion to suppress is now denied.
The government's principal witness at the hearing was Agent Richard L. Moser of the Federal Bureau of Narcotics. Agent Moser testified that, in the course of an investigation of large scale heroin smuggling into the United States from Italy, he became aware of the name "Lidilia Vergara." Her telephone number had been found on a person arrested for involvement in heroin smuggling. Transcript at 9, 10 (hereinafter cited as "T."). Thereafter, in 1981, the name was found in the personal telephone book of Giuseppi Gallina, currently under indictment for the shipment of about 10 kilograms of heroin into the United States from Italy. T. 9, 10. The listing there was associated with the name "Salvatore Calabria." T. 10. Calabria is presently under indictment for smuggling and is a fugitive from justice. T. 8.
Pursuant to a court order, a pen register was installed on Vergara's phone, which had been traced to an apartment on West 46th Street in New York. T. 10. A review of the telephone records revealed telephone calls to a supermarket 55 blocks away from the apartment. T. 10, 11. Agent Moser testified that the market is owned by an individual believed to be involved in heroin smuggling. T. 10. He believed that the group on which the investigation focussed was responsible for smuggling perhaps as much as forty kilograms of heroin into the United States. T. 9.
On June 3, 1982, Agent Moser went with a Special Agent Coleman of the Drug Enforcement Administration to the apartment that they had identified as that of Lidilia Vergara. T. 12. In the vestibule of the apartment building, they spoke with an unidentified man who had a key to the building. T. 13. This man informed them that a woman named Lidilia and a man were living in the apartment. T. 13. He also reported heavy traffic to and from the apartment. T. 14-15. Moser testified that, in his experience, heavy traffic in a residential apartment can be an indication of narcotics activity. T. 17.
The agents went to the apartment, knocked on the door and identified themselves as police officers. T. 15. A few minutes passed before a woman who identified herself as Vergara answered the door. T. 15. Vergara admitted the agents into the apartment to question her. T. 15. When Agent Moser heard a sound in another room, he asked if anyone else was in the apartment. T. 15. Vergara answered that her husband was the only other person there. T. 15. Shortly thereafter, a man walked through the room in which the agents were questioning Vergara. T. 16. Vergara identified him as her brother-in-law. T. 16. After a short time, the agents asked Vergara to come to their office for questioning and she agreed. T. 16. According to the agent, she seemed pleased that the agents would be leaving. T. 18.
After the agents and Vergara left the apartment, Agent Moser drove the car around the block and positioned it at the corner of 46th Street so that he could see the entrance of Vergara's building. T. 18. The two agents sat in the front seat and Vergara sat in the back. Within a few minutes, the agent spotted three men leaving the building. T. 18. One of the men was the man Vergara had identified as her brother-in-law. T. 18. The men began walking westward toward the car. T. 18. As they approached, Vergara said something in a loud voice in Spanish and appeared to become agitated and disturbed. T. 19-20. Agent Moser testified that when the three men noticed the car, they stopped and appeared confused. T. 24, 28. He testified that the defendant, who was carrying a nylon handle bag on his shoulder, crossed 46th Street. T. 24. He characterized the group's course as an "evasive, fragmented crossing." T. 66.
Agent Moser, who had moved the car up the block, now got out of his car and approached the defendant, saying, "Hey, I want to ask you some questions" or something similar. T. 29. The defendant then removed the bag from his shoulder. T. 29. As he did so, the bag brushed Agent Moser's arm. T. 29. Moser felt a hard object in the bag strike his arm. He then ordered the defendant to put the bag down. T. 29, 39, 41. He told the defendant to move away from the bag and the defendant did so. T. 29, 39. Moser did not draw his weapon, but he exposed it to view. T. 39.
Moser then reached down and opened the duffle bag. T. 29. He first pushed aside some clothing, T. 84, and then saw some thermos bottles and a paper bag partially concealing some money. T. 29. Pushing a bit further into the bag, he saw a scale that was also partially concealed by a bag. T. 29. Toward the bottom of the bag, Agent Moser saw a paper bag, partially opened. T. 29. Inside the bag was a clear plastic bag containing white powder. T. 29-30. At that point, he drew his weapon and ordered the men against the wall. T. 30.
Moser walked back to his car and placed the bag on top of it. T. 30. He again went through it quickly. T. 30. He then patted down the three suspects and told Agent Coleman to radio for assistance. T. 30.
Vergara and the three men were all brought to the agents' offices for processing. T. 30-31. At headquarters, the defendant was searched and a small quantity of cocaine was found on his person. T. 78. The contents of the bag were removed. T. 31. When the thermos bottles were opened, they were found to contain packets of cocaine wrapped in paper. T. 31. The bag also contained strainers, T. 35, some laminated plastic cards, T. 31, and a long handled spoon, T. 35. Agent Moser testified that these last articles are used to process cocaine. T. 32, 36. A small bag was found to contain $890 in one dollar bills. T. 34. The white powder that Agent Moser saw on the street was ultimately found to be nonnarcotic.
Finally, on cross-examination, Moser testified that Agent Coleman had remained in the car until after he had placed the suspects under arrest. T. 71. He testified that, at the time of the stop, he did not know what Agent Coleman was doing or where she was, T. 70-71, and that he was concerned for her safety as well as his own when he approached the defendant on the street. T. 71.
Agent Coleman's testimony basically confirmed that of Agent Moser up until the time he approached the defendant. She testified that she was thereafter occupied pacifying Lidilia Vergara and could not say what had occurred. T. 106-07. When she next focused on the street, Agent Moser had his gun drawn and was telling the men to move against the wall. T. 107.
The only witness for the defendant was Ariosto Gumercindo Vergara, Lidilia Vergara's brother. He testified that he had not left the building with the defendant. Rather, he and his wife had met the defendant and another man outside the building. T. 131-32. The four of them then walked down the street together for some distance and then separated. T. 132-33. He further testified that Agent Moser "tore the bag off the shoulder" of the defendant. T. 133. Finally, he testified that Lidilia Vergara had been translating the agents' instructions into Spanish when she spoke out loudly while the three men were on the street. T. 134.
At the end of the hearing, I made certain findings of fact. I first stated that, as to any inconsistencies concerning what happened on the street, I was disposed to accept Agent Moser's version of events over that of Agent Coleman, whose attention was otherwise directed. T. 155. Agent Moser was the agent most closely observing the suspects at that time. T. 155. I found that Agent Moser did have facts supporting a reasonable suspicion that the persons he stopped were conducting criminal activity, T. 152, and therefore had an appropriate basis for a Terry stop. T. 152. After detailing the evidence on which I based that finding, T. 152-57, I withheld decision on the validity of the various searches to permit both sides to submit legal memoranda on certain issues. T. 157-67.
The government conducted searches on four occasions during the course of events described above. They were: (1) the initial curbside search; (2) the second search of the bag after Agent Moser had placed it atop the car; (3) the search of the defendant's person after his arrest; and (4) the headquarters search of the bag.1 The government contends that the initial curbside search of the duffle bag was lawful as part of a weapons search incident to a Terry stop, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It relies on a number of theories, including search incident to arrest, to justify the subsequent search of the duffle bag at DEA headquarters. The defendant contends that the agents lacked the reasonable suspicion requisite for a Terry stop, that the agents search of the duffle bag was in fact not a search for weapons, and that Terry does not authorize a search of the bag even for weapons. The defendant further contends that the headquarters search cannot be justified as a search incident to arrest or by any other exception to the warrant requirement.2
I find that Agent Moser had "reasonable suspicion, based on specific, objective and articulable facts, that the defendant was involved in criminal activity." See United States v. Delos-Rios, 642 F.2d 42, 45 (2d Cir.), cert. denied, 451 U.S. 941, 101 S.Ct. 2025, 68 L.Ed.2d 330 (1981). Agent Moser was entitled to rely on the...
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