United States v. Ocampo

• Decision Date: 02 June 1980
• Docket Number: No. 80 CR 00061.,80 CR 00061.
• Citation: 492 F. Supp. 1211
• Parties: UNITED STATES of America v. Daniel OCAMPO, Theodoro Hernandez, Carlos Cardona, Jose Vincente Otero, Nicholas A. Munoz-Velasquez, Defendants.
• Court: U.S. District Court — Eastern District of New York

492 F. Supp. 1211

UNITED STATES of America v. Daniel OCAMPO, Theodoro Hernandez, Carlos Cardona, Jose Vincente Otero, Nicholas A. Munoz-Velasquez, Defendants.

No. 80 CR 00061.

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

June 2, 1980.

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Edward R. Korman, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., for United States of America; Thomas G. Roth, Asst. U. S. Atty., Brooklyn, N. Y., of counsel.

Diller, Schmuckler & Asness, New York City, for defendant Ocampo; Martin Schmuckler, New York City, of counsel.

Axelrod & Warburgh, New York City, for defendant Hernandez; Paul E. Warburgh, Jr., New York City, of counsel.

Ira Leitel, New York City, for defendant Cardona.

Edward S. Panzer, New York City, for defendant Otero.

Santangelo, Santangelo & Cohen, New York City, for defendant Munoz-Velasquez; George Santangelo, New York City, of counsel.

BARTELS, District Judge.

This suppression motion raises questions concerning the sufficiency of the evidence necessary to satisfy the legal and constitutional standards applicable to unwarranted arrests, investigative stops, consent searches, plain view seizures, auto searches, warranted apartment seizures, post-arrest statements, and photographic and in-court identifications. Defendants Daniel Ocampo, Theodoro Hernandez, Carlos Cardona, Jose Vincente Otero, and Nicholas Antonio Munoz-Velasquez are charged in a two-count indictment with distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and conspiracy to violate 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846.¹ Claiming their arrests and the resulting searches and seizures violated their Fourth Amendment rights, defendants now move pursuant to Fed.R.Cr.P. 12(b)(3) to suppress certain evidence thus obtained, including approximately $700,000 in cash. A lengthy hearing was held at which evidence of the circumstances surrounding the arrests and searches was adduced and the issues presented were argued by all counsel. After consideration of the evidence and the pertinent legal questions raised, the Court hereby renders the following memorandum opinion containing its findings of fact and conclusions of law as required by Fed.R. Cr.P. 12(e).

FACTS

A. Background

Over the period of the past several years, Drug Enforcement Administration ("DEA") Task Force Group 5, under the supervision of Special Agent William Mockler, Jr., has been investigating what is believed to be a large and sophisticated organization engaged in Colombian cocaine trafficking and controlled by one Jose Patino. In July 1979, members of Group 5 arrested Patino and seized from him certain documents. Together with papers seized in October 1978 from Heldar Pulgarin, a suspected drug associate of Patino, these documents constituted essential elements in the continuing investigation by Group 5 leading to the arrests and seizures in this case.

During his eleven years experience with the DEA, of which two years have been devoted to investigation of Colombian narcotics activities, Agent Mockler became familiar with the bookkeeping practices of narcotics dealers, and, based upon this expertise, he testified as an expert concerning the meaning of the Patino and Pulgarin documents. Seized from Patino, who was convicted for narcotics offenses, was a telephone and address book (Govt. Ex. 3) containing certain names and telephone numbers which, through decoding, Agent Mockler was able to decipher and learn the identities of persons thought to be Patino's colleagues and customers in cocaine trafficking. Among those identified were Daniel Ocampo, known as "Chino," address 1401 55th Street, Brooklyn; Theodoro Hernandez, known as "Negro," address 23-35 Broadway, Astoria, Queens; and Jose V. Otero, known as "Vicente," address 42-37 Hampton Street, apartment 2J, Elmhurst, Queens.

Seized from Pulgarin, who was convicted on a weapons charge, were several slips of paper (Govt. Exs. 1, 2) containing various names, telephone numbers, and figures suggesting narcotics transactions.² The name "Daniel" appeared on one of the slips next to Ocampo's phone number and on another slip next to the figure "1,000." Mockler's examination of DEA files also revealed that Ocampo had been arrested in Colombia in 1971 for possession of cocaine and that a government informant had stated that Ocampo was involved in drug traffic in Brooklyn. Ocampo's association with Tulio Enrique Ayerbe, a known narcotics dealer listed in Patino's book as "Toby," was confirmed by Group 5 members through pen register data showing calls from Ayerbe's phone to that of Ocampo and by observation of a meeting between Ocampo and Ayerbe.

Mockler's conclusion that "Negro" was a nickname for Hernandez was based on information from a reliable informant and documents seized around the time of Patino's arrest from a Bayside apartment for which Patino had rent receipts (Govt. Ex. 54). Those documents evidenced cocaine transactions involving "Negro" and listed debits in his name for attorney's fees and a bond. The amount of this bond was exactly the amount forfeited by Hernandez in 1978 when he failed to appear for an Immigration and Naturalization Service ("INS") deportation hearing after he had been turned over to INS by DEA agents who had arrested him on a narcotics charge. From a pen register placed on the phone of Ayerbe, Mockler obtained the number for an apartment at 23-35 Broadway in Astoria, which number was identical to that listed for "Negro" in Patino's address book.

B. January 22, 1980

On January 22, 1980, members of Group 5, with this background information in mind, conducted a surveillance outside Ocampo's apartment building at 1401 55th Street in Brooklyn. As they sat in a car parked across the street, the officers observed Daniel Ocampo's wife come in and out of the building at two to three minute intervals between 5:00 and 5:55 P.M. looking around as if she were expecting someone. At 6:00 P.M., a car appeared with two occupants, subsequently identified as Louis Ibarguan (the driver) and Manuel Vasquez, known in Patino's book as "Korea." Vasquez entered the building and returned to the car five minutes later carrying an umbrella. The car then drove to 1163 43rd Street in Brooklyn, where Vasquez again left the car and entered the building. As Ibarguan made several turns around the block, Vasquez emerged briefly from the building, looked around, and reentered the building. At 6:45 P.M., he emerged again, this time carrying a large yellow shopping bag, got in the car, and proceeded out of the area. When Vasquez and Ibarguan were stopped several minutes later by the surveilling officers, the yellow shopping bag was searched and found to contain three bags of cocaine and $27,500 in cash.³

Following the arrest of Vasquez and Ibarguan, one of the officers found in the back seat of the suspects' vehicle a New York State vehicle registration in the name of Gustavo Rodriguez (Govt. Ex. 4) showing residence at 104-40 Queens Boulevard in Rego Park. Inquiry at that address revealed that Vasquez was the occupant of apartment 19D. Pen register data from a device placed on Ocampo's phone at 1401 55th Street showed that seven calls were placed from that address to Vasquez' phone at the Rego Park apartment on January 22, 1980 between 9:20 and 11:35 P.M.

C. January 25, 1980

On January 25, 1980, between 1:30 and 7:30 P.M., New York City Police Officer Stuart Prakin and New York State Police Investigator Michael Purpura, both members of Group 5, conducted a surveillance of the sixth floor of the apartment building at 1440 Ocean Parkway in Brooklyn. In addition to having information that the subscriber for the telephone in apartment 6C was Daniel Ocampo, the officers noted that his name appeared on both the mailbox and the doorbell in the lobby, and they discovered that the apartment was leased to him. Officer Prakin observed that the windows of the apartment had heavy curtains and steel gratings which, based on his experience, he knew to be characteristic of narcotics "stash pads." Officer Prakin was told by a neighbor that she did not believe the apartment was occupied, that various well-dressed South American men had been seen at unusual hours, and that they usually carried suitcases, cardboard boxes, or bags. She described one of these men as a middle aged male Hispanic with characteristics matching those obtained from Ocampo's DEA file. Officer Prakin also talked to another neighbor who confirmed this information.

D. January 28, 1980

On January 28, 1980, Officer Prakin was again surveilling apartment 6C at 1440 Ocean Parkway when he saw a man matching Ocampo's description and carrying a brown paper shopping bag and a brown leather shoulder bag let himself into the apartment with a set of keys. Three minutes later he emerged from the apartment carrying only the shoulder bag and drove away in a 1979 blue Chevy Caprice Classic, license plate 289 UXE. At 5:35 P.M., he returned and again entered the apartment, and approximately an hour and ten minutes later he left carrying a blue and white flight bag (Govt. Ex. 10). With Investigator Purpura, Officer Prakin followed him to 1401 55th Street, where Ocampo double-parked, entered the building, and five minutes later returned carrying a medium-size cardboard box, which he placed in the trunk. He then entered the car and drove off.

Officer Prakin and Investigator Purpura followed Ocampo to the Burger King restaurant located at Caton Avenue and Dahill Road in Brooklyn. Soon thereafter, they were joined in other vehicles by Detective Kenneth Robinson, of the New York City Police Department, and DEA Special Agent Thomas Deignan pursuant to Agent Mockler's instructions from DEA headquarters. After parking his vehicle in the restaurant lot, Ocampo walked to the telephone booth on the corner of Dahill Road and Caton Avenue...