United States v. Del Porte

• Decision Date: 01 March 1973
• Docket Number: No. 72 Cr. 867.,72 Cr. 867.
• Citation: United States v. Del Porte, 357 F.Supp. 969 (S.D. N.Y. 1973)
• Parties: UNITED STATES of America v. Bernard Del PORTE and Pierre St. Jean, Defendants.
• Court: U.S. District Court — Southern District of New York

357 F. Supp. 969

UNITED STATES of America v. Bernard Del PORTE and Pierre St. Jean, Defendants.

No. 72 Cr. 867.

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

March 1, 1973.

Stuart Holtzman, Fed. Defender Services Unit, New York City, for defendant Del Porte.

Robert Blossner, New York City, for defendant St. Jean.

Whitney North Seymour, Jr., U. S. Atty., by Carter La Prade, Asst. U. S. Atty., New York City, for United States of America.

MEMORANDUM OPINION

PIERCE, District Judge.

Defendants Del Porte and St. Jean were arrested in Manhattan on July 17, 1972, following their negotiations with a person, later revealed as an informant for the New York Joint Task Force, for about ½ kilo of cocaine. Each defendant was charged in a one-count indictment with possession of cocaine with the intent to distribute it, a violation of Title 21, United States Code, Section 841. Each defendant made incriminating statements within three hours after the arrest.

The proceedings began with a hearing pursuant to identical motions on behalf of each defendant to suppress tangible evidence (355.6 grams of cocaine) seized at the time of their arrests, and the post-arrest confessions of each on the ground that they were tainted products of the alleged unlawful search and seizure of the cocaine. As the hearing commenced, counsel sought to broaden the hearing issues to include voluntariness of the confessions. All parties agreed to expand the hearing to encompass that issue, which the Court was bound to decide, in any event, pursuant to 18 U.S.C. § 3501.

Thus, there were three issues before the Court in the suppression hearing:

A. Was the warrantless search and seizure of the cocaine lawful?

B. If the search and seizure was not lawful, were the post-arrest statements tainted by it?

C. Were the post-arrest statements knowingly and voluntarily made?

Three local police officers, each a member of the New York Joint Task Force, testified at the suppression hearing. Each of the three participated in the surveillance and arrest of the defendants and each testified as to his individual role in other issues raised at the hearing. Investigator Michiel Glick of the New York State Police told of his role as chief contact with the informant who developed the case. New York City Patrolman Daniel Mullen testified as to the circumstances surrounding the taking of defendant St. Jean's written confession. And New York City Patrolman John Flood testified as to the circumstances surrounding both St. Jean's confession and the oral confession of defendant Del Porte.

Following testimony of these officers, and the testimony of defendant St. Jean on the issue of voluntariness, this Court denied each motion to suppress.

Thereafter, both defendants indicated a desire to be tried by the Court without a jury and in open Court each waived his right to trial by jury. Then, by stipulation, the proceeding was deemed a trial; testimony taken at the suppression hearing, which could have been admissible at a trial, was extrapolated into the trial; and, after several stipulations as to chain of custody, the cocaine and confessions were received into evidence. At that time, each defense counsel renewed his motions to suppress and again this Court denied each. Thereafter, the government called the informant Louis Oliveras, and then rested. Once again defense counsel renewed the motions to suppress and again this Court denied each. No evidence was offered by defendants, and all parties rested. On November 29, 1972, this Court found the defendants guilty as charged.

Because the defendants indicated an intent to appeal this Court's rulings on the suppression issues, and because of the extended and wide-ranging colloquy which accompanied the rulings on the several occasions when the motions were resurrected and denied, this Court announced that it would file this memorandum opinion setting forth its findings of fact and conclusions of law for the benefit of all parties on appeal.

A. THE SEARCH AND SEIZURE OF COCAINE

The Court finds the facts as follows: Louis Oliveras, after his arrest in January of 1972 on a drug charge, became an active informant for the New York Joint Task Force, supervised by his arresting officer, Investigator Michiel Glick. Officer Glick was in close, almost daily contact with Oliveras beginning in February of 1972. The informant's information had resulted in the initiation of three or four cases involving some arrests and the seizure of some narcotics, prior to the events in this case. Officer Glick, who has been on the force for eleven years and who was, at the time of these arrests, responsible for some ten informants, testified that Oliveras had never given him false information and the Court credits his statement to that effect.

On Sunday, July 16, 1972, Oliveras reported to Officer Glick that he had been approached the night before at Yellowfingers (a Manhattan eastside restaurant) by a waiter there with an offer to sell narcotics. Oliveras described the person who made the offer as dark-haired, in his early 20's, with a babyface. (He was later identified as St. Jean, one of the defendants in this case.) He also described negotiations for ½ kilo of cocaine at a price of $12,000. He told Officer Glick that the person who approached him had indicated that he was acting as an intermediary for a third person who had actual possession of the cocaine.

Officer Glick instructed Oliveras to proceed as if to purchase the cocaine from the intermediary and his "connection." Thereafter, on July 17, 1972, Oliveras inadvertently missed his meeting with the two sellers and was again instructed by Officer Glick to try to follow through with the transaction. At that meeting, the Officer and the informant agreed to a plan whereby Oliveras would drive his car by the corner of 96th Street and Park Avenue, with the sellers as passengers, as a prearranged signal to the Joint Task Force that the deal was on. It was also apparently agreed that from that corner, the car would proceed to a grocery store at 1729 Lexington Avenue where Oliveras would pretend to pick up the money for the cocaine. In fact, Oliveras had been given no funds with which to actually purchase the cocaine, and to the Officer's knowledge, Oliveras had no other source for funds. The stop at the grocery store, where Oliveras actually did work, was apparently a ruse to convince the sellers that Oliveras meant business.

At about 3 p. m., on July 17, 1972, the informant's car, with the informant and two passengers — one of whom matched the previously given description of the intermediary — was observed by Officer Flood passing the prearranged corner. The third person was later identified as Del Porte, a defendant in this case. Officer Flood reported by radio to Officer Glick and then proceeded to follow the informant's car to the grocery store, where all three occupants went in and then came out in a few minutes. Officer Flood observed the informant carrying a brown paper bag. He relayed his observations to Officer Glick.

The informant's car, with the three occupants, then proceeded to the vicinity of First Avenue and 78th Street tailed by Officer Flood's car. Officer Glick who was in a separate car, and apparently still in radio contact, proceeded on a parallel course to 79th Street and York Avenue. At First Avenue and 78th Street, Officer Flood saw the third man get out of the car empty-handed and approach a building on East 78th Street between First and York Avenues. The informant and the intermediary proceeded in the informant's car to York Avenue where they parked. Both Officer Flood and Officer Glick, who had parked their cars nearby, observed the two get out of the informant's car and begin to walk back west on 78th Street. Officer Glick confirmed then that the description of the man with the informant matched the description the informant had given earlier of the intermediary.

Officer Flood followed the informant and the intermediary on foot and testified that he observed the third man, whom he had seen in the car earlier, walking east toward them, and that upon meeting, the informant and the intermediary turned and all three walked east on 78th Street, toward Officer Flood. Officer Flood testified that the informant then made a hand signal, pointing to the package carried by the third person. Officer Glick, who had stayed behind on York Avenue near the cars, did not see this signal, but soon thereafter he did observe the three dealers walking toward York Avenue.

Officer Flood continued west on 78th Street at this time, ran around the block and returned to the cars only after the arrests had occurred. Meantime, as the three dealers entered the informant's car, the informant gave Officer Glick a hand signal, calling in the arresting officers. They did move in and confront all three persons as they sat in the car preparing to leave the scene. The package was seen by Officer Glick on the seat between the third person's knees. From his experience as a narcotics officer, Officer Glick estimated that the package — about the size and shape of a rolled tabloid newspaper — was about the size of a package required to carry ½ kilo of cocaine. The three were arrested and the package was seized. The package was later found to contain 355.6 grams (about ½ kilo) of cocaine.

The question before this Court is whether at the moment of the arrest, Officer Glick and the other arresting officers had probable cause to take both St. Jean and Del Porte into custody; whether at that moment the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendants had committed or were committing a narcotics offense. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

The evidence adduced at the hearing, and later supported in pertinent part by the informant himself...