Petition — Patino v. United States

Court, U.

FILED

JUN 23 1980

WICHAEL RODAK, JR., CLERR

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1979

No. FQ. 2023

JOsE Patino,

Petitioner,

v.

Untrep States oF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Epwarp S. Panzer

Attorney for Petitioner

299 Broadway

New York, New York 10007

(212) 349-6128

Paut E. WarsureH, Jr.

Cuarues F’, AxELROD

Of Counsel

TABLE OF CONTENTS

PAGE

ee ea, au hunt anGaeeeaneeehs 1

SS ss) Cn ees ssa eh aeene as kaeees 2

Questions Presented ................cseeeeneeeeees 2

Constitutional Provisions Involved ................ 2

es ii eehs ed enaeaas eee habe’ 2

Reasons FoR GRANTING THE WRIT:

I—The Court of Appeals was in error in con-

cluding that the investigatory stop of peti-

tioner was based on reasonable suspicion and

in failing to suppress all seized items as the

product of an illegal arrest ................ 5

II—The Court of Appeals was in error in con-

cluding that petitioner consented to the search

of his shoulder bag and the search of two

I 605 654 6 RAEN oRb 6 eda ieletewes 7

Il1i—The Court of Appeals was in error in con-

cluding that the indictment should not be

dismissed because of improper police conduct

in the course of the investigation .......... 10

REFER TALE Fi eae Rn = po SA Ay ROPE A 11

INDEX TO APPENDIX

Opinion in the Court of Appeals for the Second

BR eee ESE EIDE Nena ee EE a a 12

Opinion of the Disteiet Cort coi... iene sscccseses 14

Constitutional Provisions Involved ................ 35

ii TaBLE oF CaSsES

PAGE

Arkansas v. Sanders, —— U.S. —— 99 S.Ct. 2586

CIB ac rene ed eb een ccc ccccccces 6

Bumper v. Norih Carolina, 391 U.S. 543, 548, 20 L.Ed.

pe. eee CED Gale edese c-0 7,8

Calanotte v. United States, 208 F.2d 264, 266 (CA6

| Bae eee eee fee Laid 8

Channel v. United States, 285 F.2d 217 (CA9 1960) . .7, 8,9

Dunaway v. New York; —— U.S. —— 60 L.Ed.2d

ee ee ee 6

Henry v. United States, 361 U.S. 98, 103 (1959) .... 6

Higgins v. United States, 209 F.2d 819 (CA DC 1954) 9

Judd v. United States, 190 F.2d 649 (CA DC 1951) .. 7,8

Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 ... 7

Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1967) ... 5,6

United States v. Alberto, 120 F.Supp. 171 (S.D.N.Y.

i arse cc cc cece cccces 8

United States v. Barnes, 433 F.Supp. 137 (S8.D.N.Y.

1977) aff’d 604 F.2d 121 (CA2 1979) .......... 6

United States v. Brignoni-Ponce, 422 U.S. 873, 452

ee irc a secret ccccscccces 5

United States v. Broward, 594 F.2d 345, 351 (CA2

ee eee ci bg eco vcssccccccccs 10

United States v. Chadwick, 433 U.S. (1977) ........ 6

United States v. D’ Angiolillo, 340 F.2d 453, 456 (CA2

ENE TE 10

United States v. Dien, 609 F.2d 1088 (CA2 1979) ... 6

United. States v. Ester, 422 F. Supp. 736 (S.D.N.Y.

eer ce cecscscccsesccce 6

TABLE OF CASES iii

PAGE

United States v. Farowlo, 506 F.2d 490, 493 ........ 7

United States v. Gregory, 204 F. Supp. 884 (S.D.N.Y.

| Ee ee acne rennet ke Prentice mr ny wae 8

United States v. Kowal, 197 F. Supp. 401, 403, 405

CAPE SUG ak acdicavctgeuwceecteesences 8

United States v. Mapp, 476 F.2d 67, 78 (CA2 1978)... .* 7

United States v. Pate, 222 F. Supp. 998 (N.D. Il.

| rr ener pei rr. res Per rey 9

United States v. Reincke, 229 F. Supp. 132 (Conn

SEE. ota bdis RUD ARAN RE k6t Shaws 56 8 o500 08RD 8

United States v. Richiarante, 445 F.2d 126, 129 (CA2

BE cc Wks pOTUAN ELK bk ds 3446 Vanenaeiesees 8, 9

Tnited States v. Ruitze-Estrella, 481 F.2d 723 (CA2

| NETS ee ee oy eT eT eT ee T Pee TCT ere 8

United States v. Smith, 308 F.2d 6657 (CA2 1962) .. 8

United States v. Washington, 249 F.Supp. 40 (D.C.

1965) aff’d 401 F.2d 915 (CA DC 1968) ....... 6

IN THE

Suprene Cont of the United States

OCTOBER TERM, 1979

+

Jose Patino,

Petitioner,

v.

Untrep States or AMERIOA,

Respondent.

+.

vr

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Jose Patino, respectfully prays that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit in this

case.

Opinions Below

The Court of Appeals affirmed petitioner’s judgment of

conviction by summary order. (Appendix, infra, 12). The

opinion of the district court (Appendix, imfra, 14) is

reported at 482 F. Supp. 245.

Jurisdiction

The judgment of the Court of Appeals was entered on

May 20, 1980. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

2

Questions Presented

1, Whether the Court of Appeals was in error in con-

cluding that the investigatory stop of petitioner was based

on reasonable suspicion and in failing to suppress all

seized items as the product of an illegal arrest.

2. Whether the Court of Appeals was in error in con-

cluding that the petitioner consented to the search of his

shoulder bag and the search of two apartments.

3. Whether the indictment should have been dismissed

because of improper police conduct in the course of the

investigation.

Constitutional Provisions Involved

The Fourth Amendment to the United States Constitu-

tion.

The Fifth Amendment to the United States Constitution.

The pertinent text of the foregoing provisions is set

forth in Appendix, infra, 35.

Statement of the Case

Petitioner, Jose Patino, was charged in a one count in-

dictment with conspiracy to distribute and possess with

intent to distribute quantities of cocaine in violation of

Sections 841(a)(1), 846 of Title 21, United States Code.

He was convicted under this indictment based on his

guilty plea entered in the United States District Court

for the Eastern District of New York.

Petitioner moved for suppression of a quantity of cocaine

and other items seized from him on the ground that his

Fourth Amendment rights had been violated. After an

3

evidentiary hearing the diptriet court denied petitioner’s

motion to suppress.

Thereafter, petitioner pleaded guilty to the indictment

preserving with the consent of the government his right

to appeal to the district court’s denial of his suppression

motion. The district court then sentenced petitioner to a

term of imprisonment of eight years with a special parole

term of ten years. The Court of Appeals affirmed the

conviction.

Initiated by information received from a confidential

informant, the prosecution in the instant case arose out

of a Drug Enforcement Administration investigation con-

cerning a cocaine trafficking ring operating in Queens, New

York. The informant advised that the ring used red cars,

beepers for communications, and stash locations to store

cocaine.

In the fall of 1978 and continuing into 1979, surveillance

was conducted of various individuals associated with the

ring. Petitioner was observed on several occasions. On

October, 1978, he was seen driving a red Chevrolet iden-

tified by the agents as one of the cars used to deliver

cocaine. He was observed wearing a voice activated

beeper, and agents observed him opening the trunk of

another car which had been involved in a drug transaction.

On January, 1979, petitioner was seen in the company of

one Victor Crespo, a known cocaine dealer.

In April, 1979, surveillance began of Apartment 11F,

41-40 Union Street, suspected in connection with the op-

eration of the drug ring.

On July 10, 1979, a Detective Robinson learned from

the superintendent of 41-40 Union Street that he had not

recently seen anyone going out of Apartment 11F although

the rent for July and August had been paid. With Robin-

son staying out of sight the superintendent opened the

door to Apartment 11F. Robinson looked inside and then

4

proceeded to waik in. Inside the apartment, Robinson

found a machine for detecting counterfeit bills, a pile of

rubberbands with a $10 bill on top, and an adding machine

which contained a figure of over $100,000.

On July 26, 1979, petitioner was stopped by Drug En-

forcement Administration agents as he was leaving Apart-

ment 11F carrying a shoulder bag and a black leather car-

rying case. The agents did not recognize petitioner from

their previous encounters until after he told them his

name. They then asked if they could look through the

carrying case. No guns were found. The agents then re-

quested to be let into Apartment 11F. Petitioner opened

the door and was followed in by the agents. With no ob-

jection from petitioner, the agents began to search the

apartment and the shoulder bag petitioner had been carry-

ing. Again no guns were found.

Petitioner was then escorted by agents to an address he

gave as his home in a government car. He was then driven

by agents in a government car to 66-01 Burns Court, an

address found on a money order receipt taken from the

shoulder bag. Using keys given to them by petitioner,

agents opened the door of Apartment 1CC and walked in.

Inside they discovered cocaine and guns.

The following day agents returned to Apartment 1CC,

66-01 Burns Court, with a search warrant. They seized

cocaine, guns and other evidence pursuant to the warrant,

most of which had been discovered the previous day dur-

ing the warrantless search.

5

REASONS FOR GRANTING THE WRIT

The Court of Appeals was in error ia concluding

that the investigatory stop of petitioner was based

on reasonable suspicion and in failing to suppress all

seized items as the product of an illegal arrest.

The police have no license to stop individuals in public

places on a bare suspicion or on intuition that they may

be criminals, and it certainly does not permit random

stops in an effort to turn something up. Terry v. Ohio,

392 U.S. 1, 20 L.Ed.2d 889 (1967); United States v. Brig-

noni-Ponce, 442 U.S. 873, 45 L.Ed.2d 607 (1975). “In

every case the police officer must be able to point to specific

and articulable facts which taken together with reasonable

inferences from those facts reasonably warrant intrusion.”

Terry v. Ohio, supra, 392 U.S. at 21.

At the time of the stop, the agents did not even know

the identity of the person they were stopping. It was

after the stop that they realized that it was petitioner.

The only thing that the agents could point to to justify

the stop was that a number of telephone calls had been

made to and from the telephone located in the apartment.

The telephone calls were several months prior to the date

on which they stopped petitioner and therefore their value

as a basis for stopping petitioner had obviously dimin-

ished.

Further, the Terry stop was intended to apply to those

situations where a police officer discovers suspicious ac-

tivity of which he was previously unaware. It is this ele-

ment of surprise that poses the possibility of danger to

the officer and public and therefore, requires prompt ac-

tion. A Terry stop does not apply to the subject of a

continuous police investigation where a necessity for

prompt action does not exist. To allow such stops would

6

eliminate the requirement of warrants contrary to the ad-

monition of Terry. Moreover, the doctrine enunciated in

Terry does not cover investigative stops such as the one in

this case. See Dunaway v. New York, —— U.S. ——, 60

L.Ed.2d 824, 834 (1979).

Therefore, from the moment he was escorted back into

the apartment and seated petitioner was under arrest.

See: United States v. Barnes, 443 F.Supp. 137 (S.D.N.Y.

1977) aff’d 604 F.2d 121 (CA2 1979); United States v.

Washington, 249 F.Supp. 40 (D.C. 1965), aff’d 401 F.2d

915 (CA DC 1968). The agents could not say that he could

leave and petitioner believed that he could not leave. His

liberty of movement was restricted. Henry v. United

States, 361 U.S. 98, 103 (1959).

No probable cause existed for petitioner’s arrest. All the

events giving rise to the information possessed by the

agents occurred many months prior to the arrest.

Since the arrest was improper the search of petitioner’s

shoulder bag on probable cause principles also was im-

proper. See: United States v. Ester, 442 F.Supp. 736

(S.D.N.Y. 1978). Moreover, a warrant was needed to

search the bag. Arkansas v. Sanders, —— U.S. ——, 99

S.Ct. 2568 (1979); United States v. Chadwick, 433 U.S. 1

(1977) ; United States v. Dein, 609 F.2d 1038 (CA2 1979).

7%

The Court of Appeals was in error in concluding

that petitioner consented to the search of his shoulder

bag and the search of two apartments.

When consent is relied upon to justify a warrantless

search, the burden is on the government to prove by

clear and positive evidence that the consent was freely and

voluntarily given. Bumper v. North Carolina, 391 U.S.

543, 548, 20 L.Ed.2d 797 (1968). Consent is not lightly to

be inferred. “Voluntariness is a question of fact to be

determined from all the circumstances . . .”. Schneck-

loth v. Bustamonte, 412 U.S. 218, 248-249. See: United

States v. Faroulo, 506 F.2d 490, 493 (CA2 1974); United

States v. Mapp, 476 F.2d 67, 78 (CA2 1973). In order to

be voluntary, consent must be unequivocal, specific, and

intelligently given. Judd v. United States, 190 F.2d 649

(CA DC 1951); Channel v. United States, 285 F.2d 217

(CA9 1960). In determining voluntariness consideration

is given to a multitude of factors including the subjective

state of the person; subtle coercive police questions; the

custody status of the person; information given to the

person about his rights; number of police involved; and

knowledge of the person that the police have weapons.

In the instant case from an examination of “all the cir-

cumstances” it is obvious the government has not satisfied

its burden that the petitioner’s consent was freely and

voluntarily given. Immediately upon the petitioner’s exit

from his apartment he was stopped by two agents who dis-

played badges and told him they were federal agents.

His shoulder bag was taken from him. He was not given

Miranda warnings but was immediately questioned. Peti-

tioner was suffering from severe apprehension and anxiety

and was in a panic mentally. He was escorted back into

the apartment. The petitioner was told to be seated and

then additional agents totaling at least eight arrived and

entered. Some of their guns were partially visible and at

times the agents placed their hands at the ready to use

them when there were knocks on the door. Petitioner was

not free to leave and believed that he was in custody.

Petitioner’s acquiescence to the search of the Unicon

Street apartment and his shoulder bag were both equivocal

and based on submission to apparent lawful authority. A

mere disclaimer that petitioner is not guilty or the prem-

ises are not his, with a reply such as “so go ahead and

search”, is not sufficiently specifie to provide voluntary

consent, Judd v. United States, supra; United States v.

Smith, 308 F.2d 6657 (CA2 1962). Even where the defend-

ant denied his guilt and encouraged the search, it has been

held the consent was not voluntary. Channel v. United

States, supra. See: Calanotte v. United States, 208 F.2d

264, 266 (CA6 1953)... “The house is yours, you won’t find

any narcotics here.’ United States vy. Kowal, 197 F.Supp.

401, 403, 405 (DCRI 1961). “We are going to look around

and search the place. Do you mind?” “No go right ahead.”

The prosecutor’s burden of proving voluntary consent

cannot be met by merely showing acquiescence to a claim

of lawful authority. Bumper v. North Carolina, supra.

United States v. Ruiz-Estrella, 481 F.2d 723 (CA2 1973).

Consent searches must be carefully scrutinized for evi-

dence of coercion or duress, especially in the absence of a

written waiver or warning concerning one’s Fourth Amend-

ment rights. United States v. Richiarante, 445 F.2d 126,

138 fn 1 (CAT 1971).

The apparent lawful authority and overwhelming physi-

cal presence of armed officers negates any consent that

was based on the equivocal responses of petitioner, rather

than establishing freely given consent, the circumstances

indicate mere resignation to an inevitability. United States

v. Alberto, 120 F.Supp. 171 (S.D.N.Y. 1954). See: United

States v. Gregory, 204 F.Supp. 884 (S.D.N.Y. 1962) (‘you

can look if you like’); United States v. Reincke, 229

9

F.Supp. 132 (Conn. 1964). The threatening atmosphere

continued to exist as he was chauffeured from place to

place. In the cars that transported him petitioner was

always placed in the back seat with one agent while another

drove. At the various locations there was always a mini-

mum of four or five agents guarding him.

At the Burns Court apartment petitioner’s panic was

heightened by the anticipation of what would be discov-

ered. Under the circumstances there certainly could not

have been any consent by petitioner to the entry by the

agents into the apartment. Voluntary consent under these

circumstances was highly improbable. Higgins v. United

States, 209 F.2d 819 (CA DC 1954); Channel v. United

States, supra; United States v. Pate, 222 F.Supp. 998

(N.D. Ill. 1963).

The fact that petitioner made no objection to the use

of the keys could not have been considered permission to

enter the apartment. In fact, the agents believed at the

time, that petitioner had no association with any apart-

ment in the building other than that he had friends liv-

ing there. Therefore, they should have known that peti-

tioner could not have consented to their entry. A person

with no present interest in premises cannot authorize police

entry into them. The entry into the apartment at Burns

Court was completely unlawful.

Moreover, the entry into the Burns Court apartment

was beyond the scope of any consent extracted from peti-

tioner. There was no request to search the apartment,

nor to have him accompany them in the process of such

search. Petitioner’s response was a disclaimer of any

right to consent to a use of the keys and clearly did not

authorize a search of the apartment but at best an ab-

sence of objection to testing the key. “A consent search

is reasonable only if kept within the bounds of the actual

consent”, United States v. Richiarante, 445 F.2d 126, 129

(CA7 1971).

10

The Court of Appeals was in error in concluding

that the indictment should not be dismissed because

of improper police conduct in the course of the in-

vestigation.

On July 10, 1979, Detective ‘Robinson without any legal

authority whatsoever, entered Apartment 11F at 41-40

Union Street. Detective Robinson’s conduct at the very

least was grossly improper and at the very most the

crime of Criminal Trespass. As an experienced police

officer he knew he had no right to enter the apartment.

The rent was paid and the superintendent could not give

him permission to enter. But in disregard of law he

entered and examined the apartment and its contents.

Under these “limited and extreme circumstances” the

indictment should have been dimissed. See: United States

v. Broward, 594 F.2d 345, 351 (CA2 1979).

“Those whose duty it is to enforce the law must

obey the law themselves. Violations such as those in

this case Bre at best short-sighted. Their immediate

effect may be to jeopardize investigations and prose-

eutions which otherwise might be fruitful. The ulti-

mate, and more serious, effect is a loss of public re-

spect for the law and law enforcement agencies.”

United States v. D’ Angiolillo, 340 F.2d 453, 456 (CA2

1965).

11

CONCLUSION

For the foregoing reasons the petition for a writ of

certiorari should be granted .

Respectfully submitted,

Epwarp S. Panzer

Attorney for Petitioner

299 Broadway

New York, New York 10007

(212) 349-6128

Cuares F’, AxeELRop

Paut E. Warsures, Jr.

Of Counsel

12

Appendix A—Opinion of the United States Court of

Appeals for the Second Circuit.

UNITED STATES COURT OF APPEALS

Sroonp Circuit

At a Stated Term of the United States Court of Ap-

peals, in and for the Second Circuit held at the United

States Court House, in the City of New York, on the 20th

day of May, one thousand nine hundred and eighty.

Present:

HonorasBLtE Henry J. FRIENDLY

HownoraBLE WILFRED FEINBERG

HonorasBte Wim H. TimBers

Circuit Judges

80-1033

vv

Unrrep Srates or AMERICA,

Appellee,

—against—

Jose Patino,

Appellant,

+.

ww

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by counsel.

On ConsmDERATION WHEREOF, it is now hereby ordered,

adjudged and decreed that the judgment of said District

Court be and it hereby is ArrmMep.

18

Appendix A—Opinion of the United States Court

of Appeals for the Second Circuit.

After his motion to suppress various items of evidence

was denied, appellant pleaded guilty to conspiracy to vio-

late the narcotics laws but reserved his right to challenge

on appeal the denial of his motion. We agree with the

district court’s disposition of the motion, substantially for

the reasons set forth in Judge Neaher’s memorandum and

order, dated December 28, 1979. Based on the record be-

fore us, the district judge did not err in concluding that

the investigatory stop of appellant was based on reason-

able suspicion and that appellant voluntarily consented to

the subsequent searches conducted by the agents. More-

over, the failure of the agents to give appellant Miranda

warnings before his arrest would not require the suppres-

sion of the statements appellant had_ made consenting to

the various searches. See Unifed States v. Faroulo, 506

F.2d 490, 495 (2d Cir. 1974). Finally, although we do not

condone any possible misconduct by Detective Robinson

during the course of the investigation, we agree with the

district court that under the facts of this case dismissal

of the indictment would not be an appropriate remedy.

/s/ Henry J. Friendly

Henry J. Frienpiy

/s/ Wilfred Feinberg

‘Witrrep Frernserc

/s/ William H. Timbers

Wiuam H. Tipsrs

Cireuit Judges

14

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

Unirep States or AMERICA,

v.

Jose Pattno-ZaAMBRANO, Defendant.

No. 79 CR 465.

United States District Court,

E. D. New York

Dee. 28, 1979.

Proceeding was instituted on motion to suppress evi-

dence in narcotics prosecution. The District Court, Neaher,

J., held that: (1) agents had reasonable suspicion to stop

defendant and to detain him briefly when he left apartment

which had been under surveillance, and (2) scope of stop

was not impermissibly broadened by agents’ request that

defendant accompany them into apartment because any

further detention and search of certain bags in apartment

were valid as based upon defendant’s consent.

Motion denied.

Edward R. Korman, U. S. Atty., Eastern District of

New York, Brooklyn, N.Y. by Rhonda C. Fields, Vivian

Shevitz, Asst. U. S. Attys., Brooklyn, N.Y., for plaintiff.

Axelrod & Warburgh, New York City by Paul E. War-

burgh, Jr., New York City, for defendant.

MEMORANDUM AND ORDER

Neauner, District Judge.

Following a three-day evidentiary hearing and denial of

his motion to suppress various items of evidence, defend-

15

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

ant pleaded guilty to a one count indictment charging him

with conspiracy to distribute and possess with intent to

distribute quantities of cocaine in violation of 21 U.S.C.

§§ 841(a)(1), 846. He reserved his right to challenge the

court’s denial of his motion pursuant to procedure ap-

proved in cases such as United States v. Vasquez, —— F.2d

, , n. 2 (2 Cir., November 30, 1979) ; United States

v. Vasquez-Santiago, 602 F.2d 1069, 1070 n. 2 (2d Cir.,

1979); United States v. Price, 599 F.2d 494, 496 n. 1 (2

Cir., 1979). The following constitutes the court’s findings

of fact and conclusions of law on the motion to suppress.

Acting on information provided by « confidential in-

formant whose reliability had been tested, DEA agents in

a joint effort with State authorities began investigation

of an allegedly large scale cocaine ring operating in the

Queens area. The organization was reported to be highly

sophisticated in its use of “stash locations” for money and

cocaine, electronic beeper systems and new cars with

switched license plates. One such vehicle was specifically

identified by the informant as a red Chevrolet bearing a

license number 757-JKB.

On September 25, 1978, the agents received information

from their informant (allegedly employed by the drug ring

itself) that a cocaine transaction would occur later in the

day at a location in the vicinity of 67th Avenue and Queens

Boulevard. Nelson Gomez was arrested that day in pos-

session of a brown paper bag containing approximately

one kilogram of cocaine, after meeting with a man who met

him in a new red Chevrolet bearing license number 916-

IAX. The agents attempted but were unable to keep the

vehicle under surveillance.

Further investigation revealed that a red Chevrolet bear-

ing license number 573-FEJ and apparently belonging to

an “Antonio Villa” was the car whose vehicle identifica-

tion number matched that of the Chevrolet previously bear-

16

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

ing license 916-LAX, which was involved in the foregoing

narcotics transaction. Agents observed the ear parked at

108-50 62nd Drive, Queens, in an underground parking

space, which belonged to the occupant of apartment 5K,

“Antonio Villa.” The superintendent of the building later

identified ‘‘Villa’’ from a photograph the agents knew to

be that of Victor Crespo, a reputed “kingpin” of the Queens

cocaine traffic.

On October 6, 1978, the agents observed a blue Buick

with license plate number 609-HZC in front of 108-50 62nd

Drive. Investigation disclosed that license number 573-

FEJ was issued to the blue Buick although it was then on

the red Chevrolet parked in the garage at 108-50 62nd

Drive. Surveillance of the blue Buick between October 4

and 12, 1978, led the agents to believe that it was being

used in a series of narcoties transactions and, on the 12th

of October, two individuals, Edgar Lopez Cardona and

Gustavo Ceballos, were arrested at 85-25 68th Road in

Queens. The agents discovered in apartment 4-G at that

address over $127,000 in currency, an arsenal of weapons,

five pounds of cocaine and various records. The superin-

tendent of that building identified a picture of Victor

Crespo as looking like the man who rented the apartment.

At approximately the same time, Theodoro Hernandez

was arrested. He had been one of the men identified as

participating in the transactions that occurred during sur-

veillance of the blue Buick. Agents seized a small red

book with notations, among them a number, “VIPER 556

9612,” which recorded voice-activated beeper messages.

The following day, October 13, 1978, the agents attempted

to locate the last man identified as a result of surveillance

of the Buick. At apartment 2G of 99-44 62nd Avenue,

Queens, thought to be occupied by a male identified as

“Shorty,’’ the agents discovered a small quantity of co-

caine and two kilograms of cutting materials. The man-

17

Appendia B—Memorandum and Order of United

States District Court, Eastern District of New York.

agement of the building identified a picture of Victor

Crespo as the man who rented the apartment.

Defendant first entered the scene a few days earlier,

although Detective Robert Johnson testified that Patino’s

name first turned up in the investigation after the arrest

of Gomez September 25, 1978. On October 10, 1978, the

agents observed defendant driving a red Chevrolet bearing

license number 757-JKB in the vicinity of 108-50 62nd

Drive in Rego Park Queens, both the ear and the address

being already associated with the investigation through

information provided by the confidential informant. De-

fendant drove in an evasive manner to La Guardia Air-

port, went to the Sheraton Hotel, wore a voice-activated

beeper in his belt and finally proceeded to Corona where

he entered an automobile repair shop called Enfa Auto

Repairs.

At the garage defendant was observed opening the trunk

of another red Chevrolet bearing license number 916-TAX,

identified as being used during a narcotics transaction on

September 25, 1978. He returned to his own vehicle and

drove to a travel agency in Queens, Cupido Travel, later

asserted to be his place of employment. While defendant

remained inside the agency, another male drove his vehicle,

license 757-JKB, away and returned 30 minutes later.

Patino promptly walked out of the agency and proceeded

to 85th Street where he met Alonzo Isaza-Zapata. They

next met another man, Helder Victoria Pulgarin, who re-

moved a brown manila envelope from the trunk of a Volks-

wagon and handed the envelope to defendant. All three

men drove back to the vicinty of Cupido Travel. Patino

went to the trunk of his car, 757-JKB, removed a brown

bag, handed it to Isaza, who then drove away with Victoria.

The agents followed Isaza and Victoria and arrested them

shortly thereafter in possession of a number of weapons

18

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

subsequently found to have been stolen from an interstate

shipment. Also found were various documents in Vic-

toria’s possession, which included a list of numbers, among

them “VIPER 556-9612,” the same number found upon the

earlier arrest of Hernandez, and the number “FER 441-

0959,’ listed to Fernando Carmona at 85-31 120th Street,

Queens, apartment 4F.

On January 15, 1979, agents of the DEA observed de-

fendant at the Internationa] Arrivals Building at JFK Air-

port. Ther he met a man and a woman arriving on a flight

from Colombia. The agents recognized the male as Victor

Crespo, although this was not the name he gave the agents

upon questioning.

On February 1, 1979, agents again observed Patino and

Crespo, this time at 175-20 Wexford Terrace. Patino and

Crespo entered a car and Patino drove to Farmingdale

Airport, from which they departed on a charter aircraft.

On their return, Patino drove Crespo back to Wexford

Terrace.

Patino was next observed on February 2, 1979, when i..=0

delivered dry cleaned clothes to apartment 15X, 175-20

Wexford Terrace, which had been rented to Crespo and

his wife in September 1978. Patino then drove his vehicle

in front of the building and picked up Victor Crespo. They

proceeded to an address on 120th Street and picked up a

third male, identified as Fernando Carmona, who had been

previously linked to the cocaine organization (Carmona’s

telephone number was found upon the arrest of Victoria

on October 10, 1978), Carmona and Crespo then purchased

tickets for a Delta Airlines flight.

Investigation beginning in April 1979 led the agents to

interview the management of an apartment building ai

41-40 Union Street. Apartment 1F was leased to a Yolima

and Gaston Charles, whose lease application disclosed an

19

Appendia B—Memorandum and Order of United

States District Court, Eastern District of New York.

association with a jewelry shop linked to a woman sus-

pected of being a major cocaine trafficker, Irma Mejia.

Analysis of telephone records at the number listed at 41-40

Union Street reflected numbers also called by the occupants

of apartment 15X, 175-20 Wexford Terrace.

On July 10, 1979, Detective Robinson of the New York

City police interviewed the superintendent at 41-40 Union

Street. He was advised that the superintendent had not

seen anyone in or about apartment 11F for some time.

According to Detective Robinson, the superintendent

offered to knock to see if anyone was occupying the apart-

ment. After the superintendent opened the door, Robin-

son looked inside and observed on the dining room table

a machine, which he recognized as one for detecting coun-

terfeit money, an adding machine and various other items

consistent with illegal activity. He then entered the liv-

ing room, examined some of the items and saw an entry

of $100,000 on the adding machine tape. The following day

agents placed a pen register on the telephone at 41-40

Union Street.

In the subsequent days, information provided by the

superintendent and handy man at 41-40 Union Street re-

vealed activity at the apartment, which strengthened the

agents’ belief that certain individuals were using the apart-

ment to conduct an illegal enterprise.

Finally, on July 26, 1979, the events leading to defend-

ant’s arrest occurred. At approximately 3:30 p. m., infor-

mation was provided to the agents that a male hispanic

had arrived at 41-40 Union Street and had entered apart-

ment 11F. Contemporaneous examination of the pen regis-

ter tape revealed an outgoing call to a number Special

Agent William Mochler, the agent in charge of the investi-

gation, recognized as one for the voice-activated electronic

beeper associated with the organization. The agents main-

20

Appendic B-—Memorandum and Order of Umted

States District Court, Eastern District of New York.

tained surveillance outside apartment 11F throughout the

afternoon.

At approximately 6:15 p. m., a male hispanic left apart-

ment 11F and locked the door with a key. Upon seeing

the agents in the hallway, the man hesitated but then

walked to the elevator. Although the facts are disputed

from this point, the court credits the testimony of the

agents and finds that subsequent events unfolded in sub-

stantially the following manner.

Agent Mochler identified himself as a federal agent and

asked to speak with the man. Although defendant testi-

fied that he was subjected to a frisk, it is undisputed that

he did identify himself as Jose Patino. He then agreed to

answer the agents’ questions. He responded that he had

gone to the apartment to pick up the two bags he was

carrying for a friend and had taken a nap while at the

apartment. He also responded that a black bag in his

possession contained a money counting machine, which at

Mochler’s request ‘defendant permitted him ‘to inspect; he

stated he had picked the machine up for some friends and

that the apartment belonged to Yolima Charles. Defendant

thereafter gave the agents permission to inspect a maroon

bag the was also carrying and, after denyimg that the apart-

ment contained anything illegal, opened the door of the

apartment with his set of keys and permitted the agents to

enter to see for themselves. A search of the apartment

was conducted after defendant told the agents he had no

objection to such a search.

While the search was being conducted, the agents asked

Patino if they could search through the maroon leather bag,

which ‘he claimed belonged to his friend. He responded

that he had no objection since the bag was not his. Search

of this bag disclosed certain money order receipts for

apartment rentals, a voice-activated beeper and an airline

ticket for a flight to Baltimore the following morning. Ac-

21

Appendia B—Memorandum and Order of United

States District Court, Eastern District of New York.

cording to the agents’ testimony, the beeper was activated

during their examination of the contents of the bag and a

male hispanic voice stated in an excited tone, “Pepe, que

pasa, que pasa, Pepe?” Agent Mochler thereupon directed

other agents to go to apartment 1CC at 61-01 Burns Court,

Forest Hills, Queens, an address appearing on one of the

receipts found in the maroon handbag, as well as to other

locations revealed by the contents of the bag.

After leaving 41-40 Union Street, Patino agreed to ac-

company the agents to an address on 88th Street in Jack-

son Heights, Queens, which Patino claimed was his own

apartment. Unable to enter that apartment because one

of Patino’s friends allegedly possessed the key while he

was painting the apartment, Patino agreed to go with the

agents to the Burns Court address to meet the other agents.

Arriving at the building at 66-01 Burns Court, Agent

Mochler asked Patino if he had ever visited the address

before. He admitted that he had been there before to visit

friends. He permitted the agents to use a set of keys

found in the maroon bag to attempt to see if any of them

fit locks to apartments in the building, stating that he

had no objection to use of the keys since he claimed they

were not his. At the same time, other agents had deter-

mined that it was not possible to ascertain whether or

not apartment 1CC was currently occupied since there

were heavy draperies over the windows. Agent Mochler

did see a light in the apartment by looking under the

door. Accordingly, the agents entered the apartment with

guns drawn using one of the keys found in the maroon

bag.

They immediately smelled cocaine and, while checking

to see if anyone was in the apartment, observed in an

open closet large clear plastic bags of white powder later

found to contain approximately 40 pounds of cocaine. They

22

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

also observed an arsenal of weapons and other miscel-

laneous items. The apartment was thereafter searched

pursuant to warrant.

After the agents returned from their investigation of

apartment to 1CC, Patino declined to answer any further

questions without the assistance of a lawyer. He was

then placed under arrest and read his Miranda rights.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966).

Disoussion

Defendant contends that all the items seized from the

apartments and statements taken during the course of the

extended investigation should be suppressed because ob-

tained in violation of his Fourth and Fifth Amendment

rights. In analyzing these claims, we must begin with a

determination of the propriety of the agents’ actions when

they first stopped Patino outside apartment 11F at 41-40

Union Street. Although the government urges that the

court find no Fourth Amendment “seizure’’ since it claims

Patino was restrained by neither physical force nor show

of authority, see United States v. Price, 599 F.2d 494, 498-

99 (2 Cir. 1979); United States v. Wylie, 186 (U.S.App.

D.C, 231, 236-237, 569 F.2d 62, 67-68 (D.C.Cir 1977), cert.

denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978),

it is apparent that the initial encounter most certainly fell

within limits of the investigatory stop doctrine of Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967).

[1] As Judge Kaufman noted in his concurring opinion

in United States v. Vasquez, supra, this conclusion would

have given the court little reason to pause were it not for

“contrary dicta” of Dunaway v. New York, US. —,

99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). There the Court

intimated that the Terry doctrine may be confined to pro-

tective searches for weapons and may not be used to jus-

23

Appendia B—Memorandum and Order of United

States District Court, Eastern District of New York.

tify the investigative stops on reasonable suspicion with

which we have become familiar. See also Ybarra v. Illimois,

— US. —, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).

Holding to the view that Terry is not so limited until in-

structed otherwise by a higher court, the panel in Vasquez

determined over Judge Oakes’ dissent that the officers’

right to make the initial stop depends on a reasonable be-

lief that the suspect is engaging in criminal activity,

regardless of whether he is also armed and dangerous.

United States v. Vasquez, swpra, at ——. As the Court

stated in Adams v. Williams, 407 U.S. 148, 145, 92 S.Ct.

1921, 1923, 32 L.Ed.2d 612 (1972),

“The Fourth Amendment does not require a police-

man who lacks the precise level of information neces-

sary for probable cause to arrest to simply shrug

his shoulders and allow a crime to occur or a criminal

to escape. On the contrary, Terry recognizes that it

may be the essence of good police work to adopt an

intermediate response.”

Thus, investigation of possible criminal behavior, including

brief detention for questioning, is permissible even though

there is no probable cause to make an arrest as long as the

agents are able to point to specific and articulable facts,

which, taken together with rational inferences from those

facts, reasonably warrant that intrusion. See Brown v.

Texas, —— U.S. ——, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) ;

United States v. Brignoni-Ponce, 422 U.S. 873, 880-81, 95

S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, supra,

392 U.S. at 21-22, 88 S.Ct. 1868. See also United States v.

Vasquez, swpra; United States v. Nieves, 609 F.2d 642,

647-648 (2 Cir. 1979); United States v. Price, swpra, 599

F.2d at 500.

[2, 3] Upon such facts, ‘‘[a] brief stop of a suspicious

individual, in order to determine his identity or to maintain

24

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

the status quo momentarily while obtaining more informa-

tion may be most reasonable . . .’’ Adams v. Williams,

supra, 407 U.S. at 146, 92 S.Ct. at 1923. See United States

v. Brignoni-Ponce, supra, 422 U.S. at 882-83, 95 S.Ct. 2574.

Moreover, the Court of Appeals for this circuit recently

recognized that in appropriate circumstances the Terry

doctrine authorizes not only investigative stops but also

temporary detention of suspects and removal to a location

more conducive to effective interrogation. United States

v. Nieves, supra, at 648, citing United States v. Oates, 560

F.2d 45, 56-61 (2 Cir. 1977).

[4,5] Applying these principles, the court finds that the

initial encounter in the hallway of 41-40 Union Street justi-

fied as based on reasonable suspicion. It is settled that the

common areas of an apartment building are public places

in which individuals do not have a reasonable expectation

of privacy. See, e. g., Sibron v. New York, 392 U.S. 40, 50,

88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Umited States v.

Reed, 572 F.2d 412, 423 (2 Cir.), cert. denied, 439 U.S. 912,

99 S.Ct. 283, 58 L.Ed.2d 259 (1978). Thus, the agents were

justified in seeking to maintain the status quo by attempt-

ing to question Patino briefly in the hallway. The infor-

mation known to the agents, moreover, when they first

observed Patino leave the apartment amply satisfied the

requirement of articulable facts sufficient to warrant under

the Terry doctrine the limited intrusion that occurred. In-

vestigation of the Union Street apartment revealed an

association with a woman suspected of being a major

cocaine trafficker through information supplied by a re-

liable confidential source. Analysis of telephone records

at the Union Street apartment reflected numbers also called

by the occupants of apartment 15X of 175-20 Wexford

Terrace, an apartment associated with Victor Crespo,

under investigation as a major narcotics trafficker. Infor-

25

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

mation provided by the superintendent and handy man at

the Union Street address revealed behavior consistent with

the agents’ experience with other apartments employed by

the particular drug operation under investigation. Finally,

examination of the pen register on the telephone at Union

Street after the male hispanic arrived there on July 26,

1979, indicated that calls identified with the beeper system

known by that time to be part of the organization’s mode

of operation had been made. Thus, as the agents waited

outside the apartment, their belief that the apartment was

being used by a drug organization and that the occupant

was associated with it went far beyond mere suspicion or

intuition.

[6] When Patino left the apartment, moreover, the

agents’ reasonable suspicion that he was connected in some

manner with those under investigation was confirmed.

Agent Mochler testified that he recognized Patino as the

male seen driving a red Chevrolet 757 JKB on October 10,

1978, specifically identified by a reliable confidential in-

formant as being used by members of the drug organiza-

tion. This was the same day upon which Patino was

observed with Isaza and Victoria shortly before their ar-

rest for possession of weapons found to have been stolen

from an interstate shipment. The agents also recognized

Patino as the man observed opening the trunk of a vehicle

that had delivered cocaine to Nelson Gomez on September

25, 1978, shortly before his arrest. Finally, the agents

identified him as the man who had chauffeured Victor

Crespo, identified by reliable confidential sources as a

‘‘kingpin,’’ at various times in January and February 1979.

Thus, there was more than ample cause to stop Patino as

part of the agents’ continuing investigation when he left

the Union Street apartment. The fact that the agents did

not know the true identity of the individual they were about

26

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

to stop until immediately before they had actually made

the initial encounter is completely irrelevant in these

circumstances.

[7] Here, the agents maintaining surveillance on the

Union Street apartment suspected of having a connection

with the drug organization under investigation im-

mediately approached and stopped Patino when he left the

apartment. They thereupon identified themselves and

asked Patino for his identification. In view of the agents’

knowledge of the operation of the drug organization and

their reasonable suspicion of the Union Street apartment

and Patino as a part of it, this initial stop falls within the

category of less intrusive seizures that satisfy the Fourth

Amendment on grounds less rigorous than probable cause.

See United States v. Vasquez, supra, at ——, citing Duna-

way v. New York, supra, 99 S.Ct. at 2255; United States v.

Brignoni-Ponce, supra, 422 U.S. at 880, 95 S.Ct. 2574.

[8] The Supreme Court’s recent decision in Ybarra v.

Illinois, supra, —— U.S. , 100 S.Ct. 338, 62 L.Ed.2d

238, does not require a different result. There the Court

determined that a warrant based on probable cause to

search a tavern and its bartender could not be read to

authorize a search of each patron of the bar who happened

to be there. It rejected the State’s argument that a Terry

pat-down search was justified in the circumstances, which

it claimed yielded the probable cause to support a sub-

sequent warrantless search based on the exigencies of the

situation. While the Court did note in Ybarra that the

Fourth and Fourteenth Amendments provide individu-

alized protection against unreasonable searches and unrea-

sonable seizures, —— U.S. at ——, 100 S.Ct. 338, we are

not confronted here with a “generalized” cursory search

for weapons found repugnant by the Court in Ybarra. On

the contrary, the agents here had every reason to suspect

27

Appendiz B—Memorandum and Order of United

States District Court, Eastern District of New York.

that the individual who had access to the apartment at

Union Street, who upon entry used the telephone to dial

numbers associated with the beeper system employed by

the drug organization under investigation, and who was

identified upon leaving the apartment as an individual ob-

served on a number of occasions in circumstances strongly

suggesting his relationship to participants in the opera-

tion, was no mere bystander or innocent occupant of the

premises. The agents clearly had reasonable suspicion to

stop Patino and detain him briefly for the purpose of

identifying himself and explaining the circumstances of his

presence at the Union Street location. The facts suggest

no generalized seizure but the essence of good police work.

(9, 10] While defendant’s principal argument is prem-

ised on his claim that there was no basis whatever for a

Terry stop, implicit in his further argument that state-

ments were taken in violation of his Fifth Amendment

rights is a contention that the agents exceeded the limited

intrusion permitted by the Terry case; he appears to con-

tend that the encounter proceeded beyond a mere in-

vestigatory stop at the moment the agents recognized

Patino and developed into an actual arrest or “investiga-

tory seizure” prohibited by the decision in Dunaway v.

New York, supra. See United States v. Nieves, supra, 609

F.2d at 648 n.10. See also United States v. Vasquee-

Santiago, supra, 602 F.2d 1069. As the court noted in

United States v. Oates, swpra, 560 F.2d at 58, however,

“the issues involved in determining the propriety of stops,

arrests and searches must be resolved by an objective

rather than a subjective standard” (footnote and citations

omitted). Viewed in this manner, Patino’s detention in

the hallway for the purpose of determining his associa-

tion with the apartment under surveillance and_ his

presence at a location under suspicion of being used in

28

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

narcotics trafficking was clearly a permissible stop under

the Terry rationale and not an arrest. Cf. Ybarra v.

Illinois, supra; Dunaway v. New York, supra.

[11-13] Assuming, moreover, that the scope of the initial

stop encompassed Patino’s re-entry into the apartment

with the agents, the credible evidence supports a finding

that Patino voluntarily acquiesced in the agents’ request

that they return to the apartment, which is clearly con-

sistent with the conclusion that Patino was not under

arrest at that time. See United States v. Nieves, supra,

609 F.2d at 648 n.10. As in United States v. Magda, 547

F.2d 756 (2 Cir. 1976), cert. denied, 434 U.S. 878, 98 S.Ct.

230, 54 L.Ed.2d 157 (1978), the scope of the particular in-

trusion was not unreasonably related to the purpose for

the initial stop: the agents entered the apartment with

Patino’s agreement to confirm information he provided.

The agents had not drawn their guns. Patino was not

placed in handcuffs. The agents did not harass or in-

timidate him; the credible evidence revealed that he was

not physically restrained or humiliated in any manner.

Patino was simply asked certain questions designed to as-

certain his identity and association with the apartment,

and later asked if he would have any objection to the

agents accompanying him into the apartment from which

he had just exited. While this request could perhaps be

justified by a legitimate desire to remove Patino to a

location more conducive to effective interrogation (al-

though not as a pretext to gain entry to the apartment

to conduct an otherwise unlawful search), see United v.

Nieves supra; United States v. Oates, supra, or to in-

vestigate further the circumstances under which the agents

confronted Patino, it most certainly did not transform the

initial stop into an arrest, see United States v. Thevis, 469

F.Supp. 490, 501 (D.Conn.), af’d, (2 Cir. 1979); United

29

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

States v. Wylie, swpra, 569 F.2d at 77. See also United

States v. Thompson, 558 F.2d 522, 524 (9 Cir. 1977), cert.

demed, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978)

(use of force to compel investigatory detention after all-

night surveillance does not transform a proper stop into

an arrest). The situation is simply unlike that presented

in Dunaway v. New York, supra, where the police seized

petitioner from his home and transported him to the police

station for custodial interrogation without probable cause

to do so. See United States v. Nieves, swpra, at 648 n.10,

[14,15] The scope of the Terry stop was not impermis-

sibly broadened by the agents’ request that Patino ac-

company them into the apartment, moreover, since the

court finds that any further detention and the searches of

the bags and the Union Street apartment were valid as

based on Patino’s consent. See United States v. Brignoni-

Ponce, swpra, 422 U.S. at 881-82, 95 S.Ct. 2574; United

States v. Martinez-Fuerte, 428 U.S. 543, 567, 96 S.Ct. 3074,

49 L.Ed.2d 1116 (1976). See also Dunaway v. New York,

supra, 99 §.Ct. at 2256. Although mere acquiescence to

lawful authority or submission to express or implied

coercion cannot validate a search, Schneckloth v. Busta-

monte, 412 U.S. 218, 222, 98 S.Ct. 2041, 36 L.Ed.2d 854

(1973); Bumper v. North Carolina, 391 U.S. 548, 548-49,

88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v.

Price, supra, 599 F.2d at 503, the government can show

that the consent was freely and voluntarily given from the

totality of all the circumstances, Schneckloth v. Busta-

monte, swpra, 412 U.S. at 27, 93 S.Ct. 2041; United States

v. Price, supra, 599 F.2d at 508. Here, the government has

made such a showing.

The credible evidence revealed that the agents con-

fronted Patino in the public hallway outside the apartment.

The agents were not uniformed officers and did not have

30

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

their guns drawn when they made their initial contact.

After identifying themselves, they proceeded to inquire

into Patino’s identity and association with the apartment

under surveillance. They further inquired into the con-

tents of the two bags Patino was carrying out of the apart-

ment. To these questions, Patino replied that he had no

objection to the agents looking inside the bags. After

voluntarily answering certain other questions about the

contents of the apartment, Patino told the agents they

could go inside. Patino unlocked the door with the set of

keys he held, and once in the apartment told the agents

that he had no objection to their looking around to deter-

mine if there were anything there of an illegal nature.

He stated he had no objection since he claimed it wasn’t

his apartment. Until this time, the agents had neither

frisked Patino nor touched him in any manner. Only two

agents were present.

Thereafter, other agents arrived and conducted a thor-

ough examination of the apartment. During the search,

Patino sat in the living room and answered again that he

had no objection to a search of the maroon bag since he

disclaimed ownership of its contents with the exception of

a small leather bag containing his wallet and a newspaper.

[16, 17] The court’s independent observation of Patino

when he testified during the suppression hearing supports

the finding that he was in no manner overborne and that

his consents were freely and voluntarily given. Patino ap-

peared a composed and mature man of approximately 29

years of age. He answered questions put to him respon-

sively and intelligently. While he testified through a

Spanish language interpreter, he admitted living in this

country for over 12 years and speaking and comprehending

English with ease. He made no claim that he at any time

31

Appendixz B—Memorandum and Order of United

States District Court, Eastern District of New York.

failed to understand what was occurring or the agents’

various questions and requests. In these circumstances,

the case is almost indistinguishable from the facts of

United States v. Price, supra, 599 F.2d at 503, in which the

court observed that

‘¢‘Price’s disclaimer that the bag was not his and that

the agents could do whatever they wanted with it was

anything but ambiguous. It clearly signified consent

to the requested search of the bag which had been in

his exclusive possession at least from the moment he

was spotted by Agent Whitmore.”’

Accordingly, since the court credits the testimony of the

agents as to the facts surrounding Patino’s consent to the

searches and not his own testimony as to his subjective

fears of DEA agents, the government has clearly met its

burden of proving that the consents were voluntarily given.

It is the court’s conclusion, moreover, that Patino also

voluntarily agreed to accompany the agents to the apart-

ment at 37-43 88th Street claimed to be his own residence.

After satisfying themselves that the circumstances did not

warrant further immediate investigation at 88th Street,

the agents proceeded, again with Patino’s agreement to

66-01 Burns Court, one of the addresses disclosed by the

search of the maroon bag Patino carried out of the Union

Street apartment.

[18] The facts established at the evidentiary hearing

fully support the conclusion that Patino voluntarily accom-

panied the agents. First, there is no suggestion in the

record that he at any time requested that the agents permit

him to leave. Moreover, while there can be little doubt

that Patino was laboring under the knowledge of the extent

of his participation in the drug organization under investi-

32

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

gation, his behavior was consistent with a belief that his

compliance with the agents’ requests was the most effective

manner in which to deal with his precarious situation.

Finally, when confronted at Burns Court by the agents’

discovery of the arsenal of weapons and drugs, Patino was

wholly in control of his faculties and immediately informed

the agents that he no longer desired to cooperate before

speaking with an attorney. It is plain his compliance to

that point was tactical and hence sufficiently voluntary to

render the circumstances of his detention wholly distin-

guishable from those found objectionable in Dunaway v.

New York, supra.

[19] Having determined that Patino voluntarily accom-

panied the agents to the various apartments, there remains

the question of the propriety of the entry into the apart-

ment at 66-01 Burns Court. Although the government

argues with some force that exigent circumstances justified

the warrantless entry into the apartment,’ we prefer a

ground more consistent with the conclusions we have

already reached. For the reasons stated with respect to

Patino’s consent to search the bags and the apartment at

Union Street, Patino’s disclaimer that the keys in his pos-

session were not his and that the agents could do as they

liked with them clearly signified his consent to the search

of the apartment at 66-01 Burns Court that the key would

open, as proposed by the agents. Having made such a dis-

claimer, Patino cannot be heard to complain that the

*The government contends that the exigencies of the situation

justified the warrantless entry. It suggests that delay in obtain-

ing a warrant would have permitted the loss or destruction of

evidence or risked loss of capturing Victor Crespo, who they

‘“believed’’ was in the Burns Court apartment. In view of the

court’s ruling on the issue of consent, it is unnecessary to decide

whether the entry was proper under United States v. Reed, supra.

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

evidence discovered at 66-01 Burns Court can be offered

against him.*

[20] One final point must be briefly addressed. De-

fendant claims that he is entitled to dismissal of the indict-

ment because of alleged misconduct during the course of

the investigation. He suggests that Detective Robinson’s

entry into the apartment at 41-40 Union Street on July 10,

1979, fatally tainted the indictment, and invokes the court’s

supervisory powers under cases such as Umited States v.

Jacobs, 547 F.2d 772 (2 Cir. 1976), cert. dismissed, 436

U.S. 31, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1978), and United

States v. Estepa, 471 F.2d 1132 (2 Cir. 1972).

[21] This ‘‘most drastic remedy,’’ United States v.

Fields, 592 F.2d 638 (2 Cir. 1978), cert. denied, —— US.

——, 99 S.Ct. 2838, 61 L.Ed.2d 284 (1979), however, is

justified to achieve one or both of two objectives:

‘‘first, to eliminate prejudice to a defendant in a crimi-

nal prosecution; second, to ‘help translate the assur-

ances of the United States Attorneys into consistent

performance.’ ’’ Jd. at 647 (footnotes omitted).

2The government contends that Patino lacks the requisite

‘‘legitimate expectation of privacy’’ in both the Burns Court and

Union Street apartments to confer standing to challenge the

searches. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58

L.Ed.2d 387 (1978). Although defendant’s assertions at the time

he was stopped in the hallway in Union Street and at the hearing

were inconsistent in material respects, we resolve our doubts in

favor of conferring standing in view of our disposition of the

merits. Here, defendant was stopped having possession of keys

and money orders for payment of rent connecting him with the

apartments searched. Taken together with his assertions of owner-

ship at the hearing, while perhaps self-serving, they are sufficient

to establish defendant’s right to challenge the government’s ac-

so785 See United States v. Ochs, 595 F.2d 1247, 1253 (2 Cir.

34

Appendix B—Memorandum and Order of United

States District Court, Eastern District of New York.

Here, there is no evidence that prejudice to the defendant,

if any, is of the character that can only be cured by dis-

missal. In fact, although Detective Robinson’s entry into

the apartment may not have been proper,’ it is not evident

that defendant suffers any prejudice since the investigation

of the apartment began well before his entry and would

undoubtedly have continued notwithstanding the entry. As

the government points out, the DEA investigation had

already revealed that the Union Street apartment had been

rented by an individual not living at the apartment but

who had actually returned to South America. It had also

disclosed that a person suspected of being a major figure

in the cocaine traffic was listed as a reference on the lease

application, and finally that the telephone at the apartment

had transmitted and received calls by persons at numbers

also contacted by the occupants of Victor Cresop’s apart-

ment at Wexford Terrace. In these circumstances, the

illegal intrusion, if one occurred, did not taint subsequent

surveillance so as to render Patino’s stop and indictment

fatally defective. See United States v. Falley, 489 F.2d 33,

40 (2 Cir. 1973).

[22, 23] Nor do we believe that the facts warrant dis-

missal because of any widespread or continuous abuse or

official misconduct. At worst, the police officer’s entry was

the result of a possibly mistaken belief that the superin-

tendent’s willingness to open the door entitled him to gain

access to the apartment. Since there is no evidence that

the entry in fact did more than confirm the government’s

suspicions that the apartment was being used as part of

the drug organization under investigation, the officer’s

single mistaken appraisal of his authority, if such was the

*See Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11

L.Ed.2d 856 (1964); Chapman v. United States, 365 U.S. 610, 81

S.Ct. 776, 5 L.Ed.2d 828 (1961).

35

Appendix C—Constitutional Provisions Involved.

case, cannot standing alone vitiate the entire prosecution.

See United States v. Brown, 602 F.2d 1073 (2 Cir. 1979).

[24] Finally, we agree that Patino’s consent to searches

of both his bags and the apartment at Union Street dissi-

pated the taint, if any, of the officer’s entry. See United

States v. Galante, 547 F.2d 733, 740-42 (2 Cir. 1976), cert.

denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977) ;

United States v. Mullens, 536 F.2d 997, 999-1000 (2 Cir.

1976).

For these reasons the defendant’s motion to suppress

evidence was in all respects denied.

Appendix C—Constitutional Provisions Involved.

The Fourth Amendment to the United States Constitu-

tion:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.’’

The Fifth Amendment to the United States Constitu-

tion:

‘‘No person shall . . . in any criminal case. . .

be deprived of life, liberty, or property, without due

process of law... .”