Petition — Rosario v. United States

Office -Suvreme Court, U.S.

ke EL ED

“EB 29 198)

| ALEXANDER L. STEVAS,

Cl PRK

IN THE . gasses,

Supreme Court of the inited States

OCTOBER TERM, 1980

VICTOR ROSARIO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MEL A. SACHS

Attorney for Petitioner

233 Broadway

New York, N.Y. 10279

(212) 962-4545

DICK BAILEY PRINTERS, 290 RICHMOND AVE., S.I., N.Y. 10302

TEL.: (212) 447-5358 — (516) 222-2470 —- (914) 682-0848

QUESTIONS PRESENTED

1. Was appellant’s arrest illegal because it was made

without probable cause?

2. Was the evidence seized from the appellant and his

apartment the fruit of an illegal arrest?

TABLE OF CONTENTS

Page

ROG FI 6 5.6 ko eee oS eee eas i

pe PE TT POLE CT TOUTE eer Tee iii

SINE CIN opr OC ccs bee ae ks oe AG eras bees Vv

TT eee ON eer eT eee ere v

Constitutional Provisions Involved in the Case.... v

UIE OE HE Ro cok dc cede des ta adnuseeen 1

Reasons for Granting the Writ .................. 4

POINT I—

Appellant’s Arrest Was Illegal Because it Was

Made Without Probable Cause............... 4

POINT II—

The Evidence Seized from the Appellant And

His Apartment Was the Fruit of an Illegal Arrest 7

EO PO er rr ered aire EMP ea 10

APPENDIX:

a dah cou yauiie ds a Tete ood ee eae Oke la

Order Denying Petition for Rehearing............. 15a

ili

TABLE OF CASES

Brown vy. Illinois, 422 U.S. 1053 (1975). ......... oe

Dunaway v. New York, 99S. Ct. 2248 (1979). ... 7, 9. 16

People v. Bryant, 37 N.Y. 2d 208 (1975). ......... 5

People v. Davis, 36 N.Y. 2d 280 (1975). .......... 5

People v. Nadel, 390 N.Y.S. 2d 131 (2d Dept.

Dane oe hae Nadas eet ae ree es 5

People v. Oden, 36 N.Y. 2d 382 (1975). .......... 5

Silverthorne Lumber Co. v. United States, 251

a ar orden dg te Jey ele ®

United States v. Commissiong, 429 F. 2d 834

UE eT (Sie) tate kes eh boat ret 5

United States v. Devenere, 332 F. 2d 160 (2d Cir.

United States v. Moon, 351 F. 2d 464 (2d Cir.

1965) Cert. denied 383 U.S. 929 (19066)........ 5

United States v. Tucker, Docket No. 79-1068

ship op. 5211 (24 Cir. Oct. 23, 1979)... .. 2... 9, 10

Wong Sun v. United States, 371 U.S. 471 (1963)... ~

iv

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

VICTOR ROSARIO,

| Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Petitioner, Victor Rosario, by his counsel Mel A.

Sachs, respectfully prays that a writ of certiorari issue to

review the judgment and order of the United States Court

of Appeals for the Second Circuit affirming the judgment

of the United States District Court for the Eastern District

of New York (Bramwell, J.) convicting petitioner after a

plea of guilty of knowingly and intentionally possessing,

with intent to distribute, a quantity of cocaine.

1

OPINION BELOW

The opinion of the Court of Appeals (Van

Graafeiland and Newman, J.J.) (Goettel, dissenting)*

(App., Jnfra) is not yet reported. The decision of the

Court of Appeals denying rehearing or rehearing en banc

was filed Dec. 23, 1980 (App., infra).

JURISDICTION

The order of the United States Court of Appeals for

the Second Circuit was entered on Novembe 3, 1980. A

timely petition for rehearing with a suggestion of rehear-

ing en banc was denied on December 23, 1980. A copy of

the order denying the petition for rehearing appears in the

appendix hereto. This court’s jurisdiction is invoked under

Title 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS

INVOLVED IN THE CASE

United States Constitution—Amendment IV.

* Hon. Gerald L. Goettel, District Judge of the Southern

District of New York, sitting by designation.

2

STATEMENT OF THE CASE

The Appellant, Victor Rosario, was charged in a two

count indictment with conspiracy to possess cocaine with

intent to distribute, and possession of cocaine with intent

to distribute. Prior to trial Victor Rosario moved to sup-

press evidence seized from him at his arrest and to sup-

press evidence seized during a later search of Rosario’s

apartment. On July 16, 1979, a hearing was held on the

motion.

THE SUPPRESSION HEARING

Special Agent Stuart Stromfeld of the Drug Enforce-

ment Agency testified that he observed Victor Rosario at

11:00 o’clock on the night of May 3, 1979 (42-43).* The

night was dark (66); and it may have been raining (44).

Stromfeld saw Rosario leave 83-16 Vector Avenue, cross

the.street, open the door of a car, and sit down in the front

passenger seat (7, 65). Rosario was cupping something in

his hand, but Stromfeld did not know what it was (45).

Stromfeld gave inconsistent testimony concerning his

location in relation to the car. He testified, variously, that

he was in a doorway next to the car (7, 43, 47) and that he

was diagonally across the street from the automobile (43).

* Numbers in parentiiesis refer to page numbers in the

minutes of the proceeding. — Juiv 16, 1979, which involved the

Suppression hearing.

3

When Rosario started to enter the car Stromfeld

walked with gun drawn and badge out (51, 66-68) to the

left rear window of the vehicle and peered in (7-8).

Stromfeld initially testified that he saw Rosario holding a

plastic bag, resembling a sandwich baggie, which contain-

ed white powder (8, 11). Stromfeld testified that cocaine

takes the form of a white powder, and that it is often

packaged in clear plastic bags or similar containers (9).

Stromfeld then retracted his original testimony that the

bag’s contents were powder. Now he testified that the bag

contained mostly round lumps—four or five—like cam-

phor balls (11, 12). He later testified he could not tell ex-

actly whether the contents of the bag were a powder (73).

Stromfeld explained, ‘‘in my experience I thought it was

white. But it could have been a light tan or a light yellow

or it could have been many different colors’’ (73).

Stromfeld testified that he saw Rosario show the bag

to the driver of the car (68). At that point Stromfeld was

ready to make the arrest (68). He signaled to another agent

and raised his gun and badge (67). Rosario then turned

around to show the bag to the man in the back seat (8).

When he turned around, Rosario saw Stromfeld standing

at the window. Stromfeld testified that Rosario’s observa-

tion of him with gun drawn and badge out, signaled the ar-

rest (51). The arrest was based on the single observation by

Stromfeld of Rosario (73).

Stromfeld ordered Rosario to stop (8). Stromfeld was

then joined by three other agents, and they opened the car

door (8). When the door opened, Rosario put the bag be-

tween his legs (9). The agents removed the three occupants

from the automobile (8, 49), ordering Rosario to raise his

hands and spread his legs. As Rosario spread his legs, the

bag fell out (9). Rosario was then handcuffed (59).

4

Stromfeld gave Rosario the Miranda warnings and

asked where he got the cocaine (54). Rosario said he

wanted to cooperate with the government (14). In response

to Stromfeld’s questions Rosario said that the substance in

the bag was cocaine which he had obtained at an apart-

ment at 83-16 Vector Avenue from a person named Bon-

nett (14-15).

Rosario, under further questioning, said he had an

apartment with two roommates and occasionally stayed

with his mother (15). Stromfeld told Rosario that he

wanted to look in Rosario’s apartment, and might want to

see Rosario’s mother’s apartment (15).

Stromfeld, with two other agents, took Rosario to the

apartment on Vector Avenue, where they remained fifteen

or twenty minutes (54-55). The three agents then took

Rosario to his own apartment building (16, 56). Other

agents were already present at the building (57). Rosario,

in handcuffs. had difficulty getting his keys. The agents

called out for help, and a woman opened the front door

for them. Rosario opened a locked foyer door with his

own keys. The agents saw another door, which was open,

at the top of a stairway (16-17). All the agents went up the

stairs and entered Rosario’s apartment with guns drawn

(17, 59). The agents went through the apartment and

found a controlled substance which became the subject

matter of this indictment.

After Judge Bramwell’s denial of the motion, the Ap-

pellant pleaded guilty to count two of the indictment, the

substantive count. Count two charged possession of co-

caine with intent to distribute (134). The prosecutor and

defense counsel stated on the record that the defendant, in

pleading guilty, reserved his right to appeal the decision on

the suppression hearing (132).

5

REASONS FOR GRANTING THE WRIT

POINT I

APPELLANT’S ARREST WAS ILLEGAL

BECAUSE IT WAS MADE WITHOUT

PROBABLE CAUSE

Agent Stromfeld testified that his arrest of Rosario

was based on his own single observation of Rosario (73).

The observation was made at 11:00 o’clock (42-43) on a

dark night (66) when it may have been raining (44). The

observation was made through the rear window of a car

(7-8) and was of a passenger in the front seat (7, 65).

Stromfeld first testified that he saw Rosario holding a

plastic bag containing white powder (8-11). Then retract-

ing his original testimony, Stromfeld testified that the bag

contained mostly round lumps resembling camphor balls

(11-12). Finally, Stromfeld testified that although he

thought he saw white powder ‘‘it could have been a light

tan or a light yellow or it could have been many different

colors’’ (73).

Rosario was under arrest as soon as he saw Stromfeld

at the car window with gun drawn and badge displayed

(51). Stromfeld’s observations up to that point fail to pro-

vide probable cause; his post-arrest observations are irrele-

vant.

Stromfeld himself testified that he based the arrest on

his observation of the bag in Rosario’s hand (73). The

evidence at the hearing discloses no other basis for an ar-

rest, notwithstanding the fact that, according to the

court’s findings, the agents had Rosario under surveillance

during the day (112).

6

Of itself, the observation that an individual possesses

white powder in a plastic bag fails to provide probable

cause to arrest. See, United States v. Commissiong, 429 F.

2d 834 (2d Cir. 1970); United States v. Moon, 351 F. 2d

464 (2d Cir. 1965), cert. denied 383 U.S. 929 (1966);

United States v. Devenere, 332 F. 2d 160 (2d Cir. 1964);

People v. Oden, 36 N.Y. 2d 382 (1975).

In the present case the record is barren of any fact to

support an arrest other than Stromfeld’s naked observa-

tion of the plastic bag. There is no evidence that the agents

had any advance information or tip that a drug transac-

tion was impending. No money was transferred or

displayed in the car. There is no evidence that the arrest

took place in a high crime area, or that the police knew

that the address on Vector Avenue which Rosario visited

was a drug location. No information was presented con-

cerning the two men other than the defendant who were in

the car. The bag in question was plastic, not glassine.

Plastic bags have numerous legitimate uses. Glassine bags,

on the other hand have been described by courts, as telltale

of drugs. Nevertheless, the transfer of glassine envelopes,

even in a high crime area, without additional behavior is

insufficient to establish probable cause for arrest. See,

People v. Davis, 36 N.Y. 2d 280 (1975); People v. Bryant,

37 N.Y. 2d 208 (1975). Possession of a plastic bag is insuf-

ficient to demonstrate criminal conduct, and there is no

probability that white powder will be cocaine. See, People

v. Nadel, 390 N.Y.S. 2d 131, 131-132, (2d Dept. 1976).

In any case, Stromfeld retracted his testimony that he

saw white powder in the plastic bag (11-12). Stromfeld’s

corrected testimony was that the bag contained white

round lumps (11-12). They could have been camphor

balls. On the basis of Stromfeld’s testimony they could

have appeared equally to be white mint balls. Stromfeld

later testified that he couldn’t tell what was the color of

the substance in the plastic bag. Hc testified, ‘‘it could

have been many different colors’’ (73).

After Stromfeld corrected his testimony, there was a

lack of evidence that he saw white powder in the bag.

Therefore Stromfeld’s testimony, that cocaine takes the

form of a white powdery substance (9), loses its relevance.

Consequently, there is no evidence in the record that

Stromfeld had any factual basis at all for his belief that th«

plastic bag contained cocaine. Thus, the Court’s findin:

that Stromfeld had probasle cause to arrest is unsup

ported by evidence in the record.

What is involved here is not only a question of pro-

bable cause, but of how little evidence the government can

introduce to justify a warrantless arrest and still survive a

suppression hearing. Stromfeld’s testimony contained

many inconsistencies, not only about the appearance of

the substance in the bag (8-12, 73) but also about

Stromfeld’s location with respect to the car (7, 43, 47).

Furthermore, Stromfeld’s testimony, that at 11:00 P.M.

(42-43) on a dark night (66) looking through the rear win-

dow of a car, he could identify the contents of plastic bag

held by a front seat passenger (7-12) lacks plausibility. The

Federal Appellate Courts have a duty to protect the

legitimacy of the Federal criminal justice system by ensur-

ing that convictions not be based on evidence of federal

agents which is of a dubious nature.

The ruling of the District Judge should be reversed

because as a matter of law the agent’s observations of a

plastic bag did not furnish probable cause. Further

grounds for reversal are that the District Court’s findings

are unsupported by evidence in the record and that the

testimony of the agent was incredible as a matter of law.

8

POINT Il

THE EVIDENCE SEIZED FROM THE

APPELLANT AND HIS APARTMENT WAS THE

FRUIT OF AN ILLEGAL ARREST

Evidence seized by exploitation of an illegal arrest

must be excluded. Wong Sun v. United States, 371 U.S.

471 (1963); Brown vy. Illinois, 422 U.S. 1053 (1975);

Dunaway v. New York, 99 S. Ct. 2248 (1979); United

States v. Tucker, Docket No. 79-1068 slip. op. 5211 (2d

Cir. October 23, 1979).

The rule applies both to tangible evidence and to

statements. Whether exclusion is required depends on

whether,

**granting the establishment of the primary illegality, the

evidence to which instant objection is made has been come

at by exploitation of that illegality or instead by means suf-

ficiently distinguishable to be purged of the primary tain.”’

Wong Sun v. United States, supra 371 U.S. at 448, quoting

Maguire, Evidence of Guilt, 221 (1959).

In the present case the plastic bag fell on the ground

at the arrest, when the agents ordered Rosario to spread

his legs (9). The plastic bag was obtained directly from the

illegal arrest. It is not arguable that there was attenuation.

Stromfeld gave Rosario the Miranda warnings at ar-

rest and immediately began to question Rosario (54).

Rosario made inculpatory statements (14-15). Brown v. /I-

linois, supra, held that Miranda warnings themselves do

not purge the taint of an illegal arrest.

**Miranda warnings . . . do not alone sufficiently deter

a Fourth Amendment violation.

Thus even if the statements in this case were found to be

voluntary under the Fifth Amendment, the Fourth

Amendment issue remains’’ Brown vy. Illinois, supra at p.

680-681.

9

Brown y. Illinois, supra, established a three fold test

for determining whether a confession was obtained by ex-

ploitation of an illegal arrest.

‘*The temporal proximity of the arrest and the confes-

sion; the presence of intervening circumstances .. . and,

particularly, the purpose and flagrancy of the official

misconduct are all relevant.’’ Ibid at 603-604 (footnotes

omitted).

In the instant case the government obtained tangible

evidence as well as statements. The principle of the exclu-

sionary rule applies to both classes of evidence. See Wong

Sun v. United States, supra; Silverthorne Lumber Co. v.

United States, 251 U.S. 385 (1920). Consequently, the

criteria established by Brown v. Illinois, supra, for the at-

tenuation of taint are applicable to the present case.

In the present case the temporal proximity was much

closer than it was in Brown v. Illinois, where approximate-

ly an hour intervened between the arrest and the defen-

dant’s first statements. In the present case Rosario began

to talk almost at once. Furthermore, there were no in-

tervening circumstances at all between the illegal arrest

and Rosario’s inculpatory statements. The government

immediately and energetically exploited the illegal arrest

by taking Rosario forthwith to the apartment at 83-16

Vector Avenue, where, he admitted, he had obtained co-

caine (54-55). Fifteen or twenty minutes late: .he group of

agents left Vector Avenue and took Rosario to his own

apartment.

The agents gave Rosario no respite. Rosario’s

landlady testified she saw the agents with Rosario at her

building at 11:00 p.m. (80-81). According to Agent

Stromfeld, the arrest itself took place at approximately

11:00 p.m. (42-43). The time intervals were short. The ex-

ploitation of the illegal arrest was continuous and

energetic. The agents gave Rosario no time to think, and

continued questioning him at his own apartment (26-30).

10

The agents used the illegal arrest as a lever to achieve

increasingly invasive intrusions on Rosario’s privacy. First

the agents used the evidence secured at the arrest itself as a

means to force Rosario to ‘‘cooperate’’ (14). Later, in

Rosario’s apartment, the agents asserted they had a basis

to seek search warrants if Rosario failed to consent to a

further search of the apartment (21).

In the present case the purpose and flagrancy of the

police misconduct was less egregious than in Brown vy. II-

linois. Here, the words of the court in Dunaway v. New

York, are relevant:

‘(The state court deciding Dunaway) purported to

distinguish Brown on the ground that the police did not

threaten or abuse petitioner (presumably putting aside his

illegal seizure and detention) and that the police conduct

was ‘‘highly protective of defendant’s Fifth and Sixth

Amendment rights’’ (citation omitted). This betrays a

lingering confusion between ‘‘voluntariness’’ for purposes

on the Fifth Amendment and the ‘‘causal connection’’ test

established in Brown. No intervening events broke the con-

nection and his confession. To admit petitioner’s confes-

sion in such a case would allow ‘‘law enforcement officers

to violate the Fourth Amendment with impunity, safe in

the knowledge that they could wash their hands in the ‘pro-

cedural safeguards’ of the Fifth.’’ Dunaway v. New York,

99 S. Ct. at 2259-2260.

In United States v. Tucker, supra, the Second Circuit

Stated:

‘*Here, as in Dunaway, although the official misconduct

was not egregious, the arrest and confession were very

close in time, and the defendant was in continuous police

custody. The issue thus turns on whether ‘‘any intervening

event of significance, ‘““‘Dunaway, supra, 47 U.S.L.W. at

4640, occurred.’’ United States v. Tucker, supra, slip. op.

at 5220-1.

11

In the present case, as in Dunaway and Tucker,

‘there was no intervening event of significance what-

soever.’’ Dunaway v. New York, supra, 99S. Ct. at 2259.

The evidence taken from Rosario at arrest and the

evidence subsequently seized in Rosario’s apartmeni

should be suppressed as the fruit of an illegal arrest.

CONCL? SION

FOR THESE REASONS A WRIT OF

CERTIORARI SHOULD BE GRANTED.

Respectfully submitted,

MEL A. SACHS

Attorney for Petitioner

233 Broadway

New York, New York 10279

(212) 962-4545

la

APPENDIX

3a

APPENDIX A—Opinion

UNITED STATES COURT OF APPEALS

For the Second Circuit

No. 959—September Term, 1979

(Argued April 1, 1980 Decided November 3, 1980)

Docket No. 79-1356

—>

UNITED STATES OF AMERICA,

Appellee,

—_—V—

VICTOR ROSARIO,

Defendant-Appellant.

Before:

VAN GRAAFEILAND and NEWMAN, Circuit Judges,

and GOETTEL, District Judge. *

+

Appeal from a judgment of the United States District

Court for the Eastern District of New York, Bramwell,

J., convicting appellant after a plea of guilty of know-

Hon. Gerard L. Goettel, District Judge of the Southern District of

New York, sitting by designation.

PREVIOUS PAGE WAS BLANK

4a

ingly and intentionally possessing with the intent to

distribute a quantity of cocaine.

Affirmed.

—

MEL A. SACHS, New York, N.Y. for Defen-

dant-Appellant.

DIANE F. GIACALONE, Assistant United States

Attorney (Edward R. Korman, United

States Attorney for the Eastern District

of New York, Miles M. Tepper, Assis-

tant United States Attorney, on the

brief), for Appellee.

——

VAN GRAAFEILAND, Circuit Judge:

Appellant was convicted, after a plea of guilty in the

United States District Court for the Eastern District of

New York, of knowingly and intentionally possessing

with the intent to distribute approximately one-eighth

of a kilogram of cocaine. The cocaine was found in

appellant’s apartment when Drug Enforcement Ad-

ministration agents searched it with his consent. At the

time of the plea, it was agreed that appellant preserved

his right to appeal Judge Bramwell’s denial of his

motion to suppress the drugs seized by the government

and admissions made concurrently therewith. Basic to

Judge Bramwell’s denial was his finding that appellant’s

arrest which preceded the seizure and admissions was

not unconstitutionally defective. This finding was based

on a simple set of facts. a

5a

On May 3, 1979, Special Agent Stuart Stromfeld and

several other DEA agents had appellant under surveil-

lance. At approximately 11:00 p.m. Stromfeld was

standing in a doorway on Vector Avenue in Queens near

a parked automobile in which two men were seated.

Other DEA agents were stationed nearby. While Strom-

feld was so concealed, he saw appellant leave a building

carrying something cupped in his hands, cross the

street, and enter the parked car. Stromfeld then left the

doorway and approached the car at the rear side window

on the driver’s side. From this position he watched while

appellant showed the two men in the car what he had

been surreptitiously carrying, a clear plastic bag con-

taining a white or light-colored powder.

As appellant was displaying the bag to the man in the

rear seat, he saw Stromfeld, who displayed his gun and

badge at the car window. Appellant immediately con-

cealed the bag between his legs. When he got out of the

car and spread his legs in response to Stromfeld’s com-

mand, the bag fell to the ground. It contained cocaine.

After being advised of his rights, appellant consented

to the search of his apartment, also located in Queens.

There the DEA agents saw a large sum of money and

additional drugs in a bedroom and apprehended

appellant’s roommate who was in the apartment. Appel-

lant and his roommate then gave written consent to a

search of the apartment, in the course of which addi-

tional drugs were found. Both appellant and his room-

mate admitted their implication in the purchase and sale

of drugs.

Challenging the legality of his arrest, appellant quar-

rels with the district court’s finding that Stromfeld saw

white powder in the plastic bag. Appellant points to

testimony by Stromfeld that there were some lumps in

6a

the bag and suggests that Stromfeld might reasonably

have concluded that the bag, which was so furtively

transported to the car and concealed between appellant’s

legs, contained camphor balls or white mints. However,

Stromfeld, an agent with 12 years experience, was

familiar with the white powdery appearance of cocaine,

and the sum and substance of his testimony was that the

contents of the bag had that appearance. Indeed, be-

cause the material in the bag was in fact cocaine, it is

unlikely that it would have any other appearance. Cer-

tainly we are not prepared to hold that the district

court’s finding of fact was clearly erroneous.

Given this factual finding, the legality of the arrest is

fully supported by the surrounding facts. A plastic bag

which contains a substance that looks like cocaine,

which is carried furtively to a car containing two men at

11:00 p.m., and which is displayed for inspection by the

two men, is not likely to contain camphor balls or white

mints. The district court did not err therefore in con-

cluding that there was probable cause for appellant’s

arrest. See United States v. Canieso, 470 F.2d 1224,

1228 (2d Cir. 1972). |

Following his arrest, appellant indicated a desire to

cooperate with the police and did in fact cooperate for a

period of several weeks. The district court found that

appellant voluntarily consented to the search of his

apartment, and that finding has ample support in the

record. There was no basis therefore for suppressing the

incriminating evidence uncovered during the search. See

United States v. Watson, 423 U.S. 411, 424-25 (1976).

There is no merit in appellant’s contention that there

was no factual basis for his plea and that it was not

voluntarily and intelligently made. Appellant admitted

Ta

that his roommate and codefendant intended to sell the

drugs found in the apartment and that appellant was

holding the drugs for him in the apartment. Colloquy

between the district judge and appellant showed that

appellant was informed concerning aiding and abetting

in the commission of an offense. Appellant’s plea was

knowingly made and factually supported.

We likewise find no merit in appellant’s contention

that the district court did not comply with Rule 11

requirements, in that he failed to advise appellant that

he faced a mandatory minimum jail sentence and a

possible lengthy special parole term. Appellant did not

face a mandatory minimum jail sentence, see 21 U.S.C.

§ 841, and he was advised that a special parole term

might be for his lifetime.

The judgment appealed from is affirmed.

wy -

GOETTEL, District Judge (dissenting):

On the evening of May 3, 1979, appellant Victor

Rosario, while sitting with two other persons in a

parked car on Vector Avenue in Queens, New York, was

arrested by agents of the Drug Enforcement Agency

(“DEA”). During the ensuing “pat down,” the agents

discovered cocaine in his possession. After being advised

of his constitutional rights, Rosario indicated a willing-

ness to cooperate with the agents, informed them of the

source of the narcotics, and consented to a search of his

apartment. During this search the agents arrested an

accomplice and discovered a large amount of cash, one-

eighth of a kilogram of cocaine, and certain narcotics

paraphernalia. Subsequently, both Rosario and his ac-

8a

complice were indicted for possession with intent to

distribute 150 grams of cocaine and for conspiring to do

so.’

The Government presented only one witness, Special

Agent Stuart Stromfeld of the DEA, at the customary

suppression hearing. Agent Stromfeld testified that

while on duty the night of May 3, at approximately

11:00 p.m., he had observed Rosario enter a building

located on Vector Avenue. He stated that soon thereaf-

ter Rosario, apparently holding something cupped in his

hands, left the building and entered a nearby car. Agent

Stromfeld testified that he then walked up to the car on

the side opposite to the side Rosario had entered and,

attempting to position himself in a “blind spot” where

he would not be seen, looked through the rear window of

the car. He testified that while so positioned he saw

Rosario holding, and then showing a plastic bag—a

“baggie’—to the other two persons in the automobile.

The agent initially testified that the baggie appeared to

contain a white-colored powder. Upon further examina-

tion, however, the agent modified his testimony and

stated that the baggie actually contained a number of

round lumps surrounded by some powder, the color of

which could have been a “light tan or a light yellow or it

could have been many different colors.” At the time he

observed the contents of the baggie, it was late in the

evening and, evidently, very dark. Apparently there was

no light on in the car.

As he showed the baggie to the other occupants of the

car, Rosario noticed that they were being watched.

Realizing that he had been observed, Agent Stromfeld,

1 The codefendant, Harold Zafra, pled guilty and did not file an

appeal.

9a

who had earlier taken out his badge and gun, opened the

door of the car.and, with the help of other agents on the

scene, arrested all three occupants. During the “pat

down” of Rosario, as mentioned earlier, the agents

found the plastic bag, which Rosario apparently had

hastily tried to conceal.? This bag was eventually deter-

mined to contain cocaine.°

On cross-examination, defense counsel attempted to

learn why the agents had been observing Rosario. While

the witness acknowledged that the agents had followed

Rosario from his home to the Vector Avenue address,

the Government objected to defense counsel’s attempt to

ascertain the reasons why Rosario was being watched.

Nor was the duration or extent of the apparent surveil-

lance made known. The agent further testified that his

arrest of Rosario was based on his one observation of

what was taking place in the darkened car.

Since Rosario’s consent to the search and the search

itself closely followed his arrest without any significant

intervening event, the crucial question in determining

the propriety of all of these events is whether the arrest

was made with probable cause.‘ If the arrest itself was

2 ‘The agent testified that he saw Rosario, as he started to get out of

the car, put the hand in which he had been holding the baggie

between his legs and that, when Rosario spread his legs for the “pat

down,” the bag fell from between his legs. Both of these observations,

however, occurred after Rosario was already under arrest.

3 Rosario was indicted only for possession of the cocaine that was

found in his apartment after the search, and not for the cocaine

discovered during the “pat down” immediately after his arrest.

4 Probable cause to make an arrest, it has been held, “exists if the

facts and circumstances known to the officer warrant a prudent man

in believing that the offense has been committed.” Henry v. United

States, 361 U.S. 98, 102 (1959); Brinegar v. United States, 338 U.S.

160 (1949).

10a

not proper, the evidence gathered as a result of the

arrest would have to be excluded as being the fruits of

an illegal arrest. Dunway v. New York, 442 U.S. 200

(1979); Brown uv. Illinois, 422 U.S. 590 (1975); United

States v. Tucker, 610 F.2d 1007.(2d Cir. 1979).

The district court, finding that the DEA agents had

had Rosario “under surveillance that day concerning

drug transactions” and had seen Rosario hold up a

plastic bag containing a white powder, and that the

secreted bag dropped from between Rosario’s legs when

he stood up, held that there was probable cause for the

arrest. Such findings of fact, however, as limited as they

are, are not borne out by the record.

A careful examination of the record reveals nothing

that would explain why or for how long the DEA agents

were watching Rosario. In fact, the record indicates no

more than that Rosario had been followed for a short

period immediately preceding his arrest. Even if that

can be considered “surveillance” there was no evidence

whatever as to why it,was thought that he might be

involved in “drug transactions.” The sole testimony

offered to prove that the substance in the plastic bag

was a white powder was modified on cross-examination.

Thus, it became apparent that the agent, to the extent

that he was able to see at all into the darkened car, saw

no more than Rosario holding a plastic bag, which the

agent thought was filled with some light-colored round

lumps. Finally, while the secreting of the bag between

Rosario’s legs when he saw the agents might have

probable cause significance, it occurred after an armed

arrest was in progress. See United States v. Strickler,

490 F.2d 378 (9th Cir. 1974); United States v. Lampkin,

464 F.2d 1093 (3d Cir. 1972); United States v. Trout-

man, 458 F.2d 217 (10th Cir. 1972). (This Court has

indicated that the presence or absence of a drawn gun is

lla

significant in determining whether an arrest has taken

place. United States v. Oates, 560 F.2d 45 (.d Cir.

1977).) | .

Of course, a determination as to probable cause by the

trial court is entitled to some weight. However, the

instant situation involved a motion to suppress evidence

obtained after an arrest had been made without a

warrant, and not the granting of a warrant prior to

arrest. Moreover, this Court need not defer to the

findings of the trial court if the facts in the record

reveal, as they do in this case, that the findings are

inaccurate or unsupported. See Jackson v. Statler Foun-

dation, 496 F.2d 623 (2d Cir. 1973), cert. denied, 420

U.S. 927 (1975), cert. denied, 424 U.S. 956 (1976).

The question of whether probable cause exists to make

an arrest in a situation such as the instant one has been

addressed by this Court and by others on a number of

occasions. In United States v. Moon, 351 F.2d 464 (2d

Cir. 1965) (per curiam), it was held that an informer’s

tip that the defendant was selling narcotics, plus the

observation by narcotics agents of the defendant trans-

ferring a glassine envelope to an individual, who there-

after fled, provided probable cause to make an arrest.

Similarly, in United States v. Comissiong, 429 F.2d 834

(2d Cir. 1970), it was held that the combination of an

informer’s tip and the observation by agents of a suspi-

cious “cellophane-type” package on the person of the

defendant provided a sufficient basis to make an arrest.

In reaching this conclusion, the court noted that “the

informer’s story sufficed to fill whatever lacuna the

agents’ observation had left.” Jd. at 836. In United

States v. Devenere, 332 F.2d 160 (2d Cir. 1964). the

combination of agents overhearing the defendant

engage in a highly suspicious (drug related) conversation

12a

and the observation of a glassine bag, provided probable

cause for an arrest. See United States v. Lee, 501 F.2d

890 (D.C. Cir. 1974); United States v. Canieso, 470 F.2d

1224 (2d Cir. 1972); Redmon v. United States, 355 F.2d

407 (9th Cir. 1966). See also United States v. Santana,

485 F.2d 365 (2d Cir. 1973), cert. denied, 415 U.S. 931

(1974);* United States v. Baltazar, 477 F. Supp. 236

(E.D.N.Y. 1979).°

This question has also been addressed by the courts of

New York State, where a consistent line of cases hold

that the mere observation of the passing of glassine

envelopes (even though they are a “telltale” sign of a

narcotics transfer) is insufficient to establish probable

cause. See People v. Corrado, 22 N.Y.2d 308, 292

N.Y.S.2d 648, 239 N.E.2d 526 (1968); People v. Oden,

36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188

(1975). People v. Oden, supra, held that such an observa-

tion by a police officer, even though taking place in a

high crime area in which narcotics were known to be

present, was inadequate. See also People v. Bryant, 37

N.Y.2d 208, 371 N.Y.S.2d 881, 333 N.E.2d 161 (1975);

People v. Davis, 36 N.Y.2d 280, 367 N.Y.S.2d 256, 326

N.E.2d 818, cert. denied, 423 U.S. 876 (1975). Only

when such an observation is accompanied by other solid

5 In United States v. Santana, it was found that agents who had

under surveillance a restaurant known as a meeting place where

narcotics transactions took place, and who observed the defendant.

whom they knew to be a major narcotics violator, twice enter the

restaurant and emerge on each occasion carrying a brown paper bag

(which the agents knew as a “hallmark” of the narcotics trade), had a

sufficient basis under Terry v. Ohio, 329 U.S. 1 (1968), to stop the

defendant and require identification.

6 In United States v. Baltazar, unlike the instant case, the arresting

agent, before making the arrest, observed the defendant attempt to

hide a clear plastic bag containing a white powcer, as well as engage

in other suspicious conduct.

13a

evidentiary fact, such as evidence that “the defendant

dropped or threw the envelopes, thereby evincing a

consciousness of guilt upon seeing the approaching uni-

formed officer,” have the New York courts found that a

finding of probable cause may be made. People v. Alex-

ander, 37 N.Y.2d 202, 204, 371 N.Y.S.2d 876, 877, 333

N.E.2d 157, 158 (1975).

In the instant action, not even the common allegation

that the arrest took place in a high crime area known for

narcotics transactions is present. See United States v.

Magda, 547 F.2d 756, 759 (2d Cir. 1976) (Motley, J.

dissenting), cert. denied, 434 U.S. 878 (1977).’” What the

record reveals, in essence, is that Rosario was arrested

because an agent saw, as best he could in a dimly lit

area, Rosario in possession of a light-colored, lumpy

material contained in a plastic sandwich bag—not even

the “telltale” glassine envelope. Such facts, standing

alone, are simply insufficient to constitute probable

cause for arrest.

It may be reasonable to assume that the agents had

some grounds for following Rosario and conducting

surveillance, if indeed they were carrying out those

activities; it is also likely that the grounds related to a

suspected drug transaction; and such grounds may have

provided the “lacuna the agents’ observations had left.”

United States v. Commissiong, supra, 429 F.2d at 836.

However, no such evidence was ever introduced. The

Governmerit opposed allowing any testimony on this

7 It should be remembered that this is not a stop and question case

such as that presented in United States v. Magda, supra. See United

States v. Santana, supra. Inquiring of Rosario as to what he had in

the plastic bag would have been a lesser intrusion on his civil rights

than drawing of a gun and shield and arresting him. See Terry v.

Ohio, 392 U.S. 1 (1968).

va 14a

point and the record is silent as to any reason why

Rosario was being watched. Indeed, what is truly in-

volved in this appeal is not whether an arrest was made

without probable cause, but, rather, how little evidence

the Government can introduce to justify a warrantless

arrest and still survive a motion to suppress. :

~ It is clear that the majority opinion, like the district

court below, strains the factual findings to avoid the

imposition of the exclusionary rule. This is understand-

able. After years of application, even the most vigorous

proponents of the exclusionary rule can show no im-

provement in law enforcement practices. From personal

observation, it appears that its major effect has been to

either free guilty suspects or to elicit perjured testimony

from law enforcement officials. Neither of these results

is in the public interest. Strangely, however, the ardent

civil libertarians show little interest in the realities of

the application of the exclusionary rule, while pressing

for its greater application. Caplan, A Fifteen Year Jour-

ney Through a Tangled Thicket of the Law, National

Law Journal, September 22, 1980, at 33 (reviewing Y.

Kasimar, POLICE INTERROGATION AND CONFES-

SIONS (1980)).

If the judicially created exclusionary rule is to be

altered or revoked, it should be done directly and not by

a case by case fanciful fact finding.

Since proof of probable cause for the arrest of the

appellant was lacking, the motion to suppress should

have been granted. Accordingly, the judgment of the

district court should be reversed, and I must dissent

from the opinion of this Court.

15a

APPENDIX B—Order Denying Petition for Rehearing |

UNITED STATES COURT OF APPEALS

SECOND 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 23rd

day of December, one thousand nine hundred and eighty.

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vi

VICTOR ROSARIO,

Defendant-A ppellant.

A petition for rehearing containing a suggestion that

the action be reheard in banc having been filed herein by

counsel for the appellant, Victor Rosario,

Upon consideration by the panel that heard the ap-

peal, it is

Ordered that said petition for rehearing is DENIED,

Judge Gerard L. Goettel, dissenting.

A poll of the active judges having been taken on the

suggestion for rehearing in banc, and there being no ma-

jority in favor thereof, rehearing in banc is DENIED.

s/ A. Daniel Fusaro

A. Daniel Fusaro

Clerk