US v. Yanes

• Decision Date: 20 October 1987
• Docket Number: Crim. No. H-87-35 (PCD).
• Citation: 671 F. Supp. 927
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Rafael E. YANES, a/k/a "Ralph" George R. Gorski, a/k/a "Whitey" Joseph W. Cabrera.

671 F. Supp. 927

UNITED STATES of America v. Rafael E. YANES, a/k/a "Ralph" George R. Gorski, a/k/a "Whitey" Joseph W. Cabrera.

Crim. No. H-87-35 (PCD).

United States District Court, D. Connecticut.

October 20, 1987.

Donna Fatsi, Asst. U.S. Atty., Hartford, Conn., for U.S.

Arnold B. Abrams, Abrams & Nugent, Meriden, Conn., for defendant Cabrera.

Thomas G. Dennis, Federal Defender, Hartford, Conn., for defendant Gorski.

RULING ON PENDING MOTIONS

DORSEY, District Judge.

Defendants are charged with drug transaction violations arising out of a proposed sale of one kilogram of cocaine on April 27, 1987. Cabrera and Gorski were arrested at the point of consummation of the sale in Hartford. Yanes, a Florida resident and the alleged source or owner of the cocaine, was subsequently arrested in Florida. Pending are the following motions:

(1) By defendant Cabrera to suppress items taken from his person or from a vinyl bag after his arrest.

(2) By defendant Gorski to suppress items taken from him after his arrest.

(3) By defendant Gorski to suppress statements allegedly made by him after his arrest.

Facts

Defendant Gorski, as he came to be identified, was suggested by an FBI informant as of April 6, 1987, to be interested in selling cocaine. FBI Agent Foster undertook to follow up on the matter. Further information from the same source predicted that Gorski would come to Connecticut on April 16, 1987, to discuss drug transactions. Foster arranged for the person meeting Gorski to wear a transmitter and for FBI agents to monitor the meeting. As predicted, Gorski arrived in Connecticut on April 16 and his conversations were overheard to propose drug dealing. Defendant Yanes was to be the source of the drugs, which were to pass through Gorski to a buyer in Connecticut. The conversations suggested that Gorski was familiar with the sale of cocaine in large quantities and had a feasible plan for and willingness to import cocaine into Connecticut. The conversations also suggested Gorski's prior drug dealing. Gorski undertook to arrange the purchase from Yanes and delivery by a carrier from Florida to the buyer in Connecticut. The prospective buyer was to seek a price from Yanes, after which Gorski and the buyer would arrange to consummate the sale. Later, the prospective buyer talked by phone with Gorski and Yanes to firm the transaction.

On April 26, an actual date for the consummation of the sale of one kilogram of cocaine was arranged between Gorski and the buyer. On April 27, Gorski arrived. He allegedly had arranged the delivery of the drugs in the range of 5 p.m. to 6 p.m. on April 27 by a courier who was to arrive in Hartford by bus. Gorski's conversations were overheard by agents and some were recorded. As planned, Gorski met at the bus terminal a man (Cabrera) whose appearance was consistent with Gorski's earlier description of his courier. Gorski was seen to take from the man a black travel bag and the two walked to meet the buyer at his car. Agents watched the pair throughout. When the three met, they were surrounded by agents and defendants were arrested. The bag was taken by Foster and both defendants were frisked and handcuffed.

Both defendants were read their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Both stated that they understood their rights. The travel bag was opened at the scene. No weapons were found, but a wrapped package which Foster recognized as appropriate in size and form to contain a kilogram of cocaine was found. This recognition stemmed from extensive experience with the form and manner in which cocaine has been packaged by those who deal in cocaine. The wrapped package was punctured and the contents were field tested for cocaine. Gorski and Cabrera were brought to the FBI office. Gorski originally stated he would talk later, but that he did not wish to make a statement then. About fifty minutes later, he sought to make a deal if he gave a statement, but Foster declined to do so. Gorski did not discuss the facts of the case, but did make statements concerning others allegedly engaged in drug trafficking.

No search warrants had issued. The search of the vinyl bag was regarded by the agents to be based on then-existing probable cause, as incident to a lawful arrest and as a security precaution, as warranted by exigent circumstances. Defendants were searched incidental to their arrest.

Probable Cause

Through monitoring of several of Gorski's conversations, the agents learned of a proposed drug transaction in detail. Without more, the plan was only a plan and this information alone would not have provided probable cause for the arrests, seizure and search. However, the agents' information was closely corroborated by Gorski's conduct on April 27, 1987. Specifically, at the bus station, Gorski met Cabrera, a man who fit Gorski's prior description of his drug courier; Cabrera carried a bag and Gorski brought Cabrera with the bag to meet the prospective purchaser at a point a few blocks from the bus station. The conduct of Gorski and Cabrera, down to their meeting with the prospective buyer of the cocaine, corroborated the transaction, the plan for its consummation, and the time, place and participants in the transaction. Arkansas v. Sanders, 442 U.S. 753, 761, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979); United States v. Gonzalez, 555 F.2d 308, 312 (2d Cir.1977). At that point, there was a reasonable basis to believe that Gorski was about to deliver a kilogram of cocaine to consummate the previously arranged sale. There was also a reasonable basis to believe that the bag contained the cocaine, evidence of the crime. Probable cause then existed and made the arrests and seizure of the bag, its contents, and the personal items on the persons of both Gorski and Cabrera lawful. Dyke v. Taylor Implement Mfg., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); United States v. Nersesian, 824 F.2d 1294, 1317 (2d Cir. 1987).

Exigent Circumstances

The government must justify the search of the bag without a warrant under the prevailing circumstances. An immediate search of the bag would be permitted if exigent circumstances existed. Sanders, 442 U.S. at 763 n. 11, 99 S.Ct. at 2593 n. 11; Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). A warrant was not readily available. Nor could the agents have been prepared with a warrant. Until Cabrera arrived by bus and met Gorski, he could not have been identified, nor was the bag's existence and relevance known. It was Cabrera's arrival and the transfer of the bag to Gorski which confirmed the information the agents had from Gorski. As analyzed above, only at that point did probable cause exist for believing that the bag contained the cocaine to be sold.¹

As personal luggage, the bag was subject to the limitations of the fourth amendment. Sanders, 442 U.S. at 764 n. 13, 99 S.Ct. at 2593 n. 13.² In Sanders, the Court rejected the warrantless search of a drug courier's luggage taken by police from the trunk of the courier's taxicab. Despite the existence of probable cause to believe that the courier's suitcase contained marihuana, a fact which made the seizure lawful, id. at 761, 99 S.Ct. at 2591; Chambers, 399 U.S. at 50, 90 S.Ct. at 1980, a search must be independently justified by an exception to the warrant requirement. Sanders, 442 U.S. at 766, 99 S.Ct. at 2594. That the seizure was lawful did not make the search lawful. "We are not persuaded ... that under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), if the police were entitled to seize the suitcase, they were entitled to search it." Id. at 765 n. 14, 99 S.Ct. at 2594 n. 14. There is a "significant difference between the seizure of a sealed package and a subsequent search of its contents." United States v. Ross, 456 U.S. 798, 812 n. 16, 102 S.Ct. 2157, 2166 n. 16, 72 L.Ed.2d 572 (1982). Exigent circumstances could justify a warrantless search. Sanders, 442 U.S. at 763 n. 11, 99 S.Ct. at 2593 n. 11.

Exigent circumstances are one of the few "jealously and carefully drawn" exceptions to the need for a search warrant which are limited to "those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence outweigh the reasons for prior recourse to a neutral magistrate." Id. at 759, 99 S.Ct. at 2591; United States v. United States District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972). The question here "is whether the agents, rather than immediately searching the suitcase without a warrant, should have taken it, along with respondent, to the police station and there obtained a warrant for the search." Sanders, 442 U.S. at 762, 99 S.Ct. at 2592. Where "`there was not the slightest danger that the luggage or its contents could have been removed before a valid search warrant could be obtained,'" id., quoting United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977), the exemption from the need for a warrant is not present. In this instance, the mobility of the bag, its proximity to the defendants, the fact that the events took place on the open street, and the presence of Cabrera are all factors that must be considered in determining the presence of exigent circumstances. "The exigency of mobility must be assessed at the point immediately before the search — after the police have it securely in their control." Sanders, 442 U.S. at 763, 99 S.Ct. at 2593.

The bag belonged to Cabrera. It was turned over to Gorski.³ At the scene of the arrest, it had been taken from Gorski, both defendants were placed under arrest and handcuffed, and the bag was placed on the ground, all in the presence of several agents, all of whom had their guns drawn. The bag was thus not accessible to either defendant. It was not mobile in...