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Defendant Contends Wiretap Evidence was Not Probable Cause

The Facts:

The seizure of evidence from the defendant was an offshoot of a joint investigation undertaken by the DEA and New York State law enforcement authorities. The purpose of the investigation was to identify the members of a drug dealing organization, its suppliers and customers, and to locate stash and distribution locations. he investigation began at least as early as 27 September 1990, when several eavesdropping warrants were issued permitting the authorities to gather information concerning narcotics trafficking being done by a large number of people including man-one and his brother, man-two.

A New York Drug Crime Lawyer said through the wiretaps, surveillance and a confidential informant, the agent in charge of the operation had established, by 17 January 1991, that the organization used an apartment at the Bronx to store and package heroin for sale; that another place at Walton Avenue was being used to store narcotics and narcotics packaging paraphernalia; and that another place in Wyatt Avenue was being used to discuss their narcotics business. Moreover, the agent was aware that the DEA’s wiretaps showed a pattern of conversations that are coded, cryptic and carefully worded. According to the agent, the intercepted conversations contain repeated references to iron and board and for clothes, which he believed to be references to narcotics packaging paraphernalia. Narcotics, as the agent averred, were discussed in terms of food, bottles, cases of beer, and clothes.

Wiretapped telephone calls on 26 December 1990 indicated that man-one and man-two were each told by other members of the drug ring that a new source of supply was available. The next day, 27 December 1990, man-one called the defendant at the defendant’s liquor store in Putnam County to arrange a meeting. Subsequent taped conversations and surveillance showed the defendant met with man-one and man-two and discussed with them packages, meetings, and deliveries. A New York Drug Possession Lawyer said the defendant also said he needed to get something from man-one, which the agents interpreted to mean he needed payment for a delivery. Defendant was also seen arriving at a meeting in a grey and black Chevrolet truck.

On 29 January 1991, man-one called the defendant at the home of his girlfriend. The defendant told man-one that he had a bunch and they’re fifteen. Then they agreed to speak on 31 January 1991 to set up a time to meet the next day, 1 February 1991. The agent believed that the defendant told man-one he had narcotics (a bunch) for him and man-one could get them at 15 if he did the whole bunch; that the defendant reminded man-one of the last deal, on 16 January 1991, and that the price of that deal was 16.

On 31 January 1991, at 11:25 p.m., man-one called the defendant at the girlfriend’s home. The defendant told man-one he had ten (10) things packed up and man-one could just take the ten (10). A Nassau County Drug Possession Lawyer said they agreed to meet at 11 o’clock the next morning at a site they had already discussed. The site was not specified in the conversation. Also, the defendant told man-one that he needs him to bring something.

On 1 February 1991, the DEA agents put the defendant under surveillance. They followed the defendant from his girlfriend’s home to a bank and then to his liquor store. At the store, they observed him putting a large brown cardboard box into his Blazer. Then they followed him as he drove from Putnam County into the Bronx. The agents stopped him on the Henry Hudson Parkway. There is nothing to show that the agents were in uniform or carried identification or that they showed any identification to the defendant. With machine guns and handguns drawn, the agents forcibly removed the defendant from his vehicle. He was handcuffed and told to lie face down on the ground. Meanwhile, DEA agents searched his truck. They found $70,000 in small denominations of cash and a small amount of marijuana in a brown leather shoulder bag. The shoulder bag also contained personal papers belonging to the defendant and his girlfriend. The papers, the cash, and the marijuana were seized. In the rear of the blazer, the agents found a cardboard box. They opened it and found approximately ten pounds of marijuana packaged in ten separate plastic bags. This was also seized. Finally, one of the agents removed the defendant’s wallet from the truck and discovered that it contained a piece of paper with man-two’s telephone number and man-one’s beeper number. The agent made a note of this and then replaced the paper.

The defendant was put into a BMW while still in handcuffs. He was advised of his Miranda rights and told that he was stopped because he matched the description of a person who had just robbed a bank in Westchester County. The People have conceded that this story was a lie; the DEA stopped him because they believed he was carrying drugs in his vehicle.

After the defendant was interrogated, he was told he was not the bank robber, and he was released. He was allowed to get into his truck and leave.

The defendant is charged with criminal possession of more than sixteen ounces of marijuana or marijuana possession, a drug crime.

The defendant moved to suppress the evidence seized and asserts that there was no probable cause to stop the truck and search it and several other theories.

The Ruling:

First, the issue of probable cause to stop and search the truck and to seize the marijuana, currency and papers:

A Queens Drug Possession Lawyer said before then man-one met with another member of his drug operation and picked up a plastic bag. When man-one drove to the location where he was to meet the defendant, he did not simply give him the plastic bag, instead, he directed the defendant to a remote location near the Henry Hudson Parkway.

It seems probable that if the defendant were only arranging to sell wine, such elaborate measures would not be necessary. The agent’s interpretation of the January 29 and 31 conversations between the defendant and man-one was entirely reasonable. These conversations, and the DEA’s surveillance on 1 February 1991, when the defendant was seen loading a cardboard box into his truck, gave the agents probable cause to believe that the defendant intended to sell drugs to mna-one and that the drugs would be found in the Blazer. Because no warrant was needed, the presence of probable cause justified the stop of the truck and the search for narcotics. Because the agents did not know what drug was involved, what amount was being delivered or how it was packaged, they could not anticipate where in the truck the drugs were placed. Accordingly, their search of the entire truck and the containers in it was appropriate. Once the agents found narcotics of any kind, it was lawful for them to seize it.

However, with respect to the $70,000 found in the leather bag, the justification to search the truck for narcotics did not give the agents justification to seize everything found in the truck. If a proper warrantless search for specific items discloses other items that immediately appear to be incriminating, judged by the probable cause standard, those items may also be seized.

In the case at bar, there was no probable cause to connect the currency to the drug deal the agents suspected was about to take place or to any other criminal conduct. By their own interpretation of the information upon which they relied, the agents believed the defendant was going to deliver the drugs, not money. Defendant spoke of ten things and said to bring something, whatever he can bring. The explanation of these comments given by the agents was that the buyer needed to pay the defendant. Consequently, the defendant could have been expected to receive money at the delivery, but not to bring large amounts of currency with him. Furthermore, the information upon which the agents relied gave no indication of any other transaction involving the defendant so as to have explained the presence of the money in such a way as to give probable cause to believe the money was evidence of a drug crime. Currency is not contraband or a weapon and possession of money, even large amounts, is not evidence of crime without some connection of the money to criminal activity.

Second, the legality of defendant’s arrest:

Here, defendant claims that his arrest was unlawful, and that the search of the truck was, as a consequence, unlawful. This claim is based on the conduct of the agents as they arrested the defendant, including the fabrication of the reason for the arrest.

As a rule, when a warrantless arrest is made, the defendant must be advised of the authority of the arresting officer and the reason for the arrest except when the defendant was arrested in the actual commission of the crime or pursued after an escape.

In the case at bar, the agents deliberately fabricated the notice of their purpose and reason for the defendant’s arrest. Any implied notice that might be derived from the circumstances was thereby negated. Whatever the defendant knew about his own activity, that knowledge could not provide an explanation to the defendant of the basis for the detention after the agents told him he was a robbery suspect. Further, there was no effort by the People to bring the agents’ conduct within the current exceptions to the notice requirement and they are not considered.

Thus, the defendant’s arrest was unlawful under New York Law. The fruits of the unlawful arrest must be suppressed. The Court finds that conversations between defendant and others about the events of 1 February 1991 are the fruits of the unlawful arrest and the tapes and contents of those conversations cannot be used.

Third, the impact of the arrest on the stop, search and seizure of the truck:

Here, defendant claims that the illegality of the arrest makes the stop and search of the truck and the wallet, and the seizure of the drugs unlawful.

As a rule, a valid arrest for a drug crime or any other crime authorizes a warrantless search of a vehicle and of a closed container visible in the passenger compartment of the vehicle which the arrested person is driving when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made or there is reason to believe that a weapon may be discovered or access to means of escape thwarted.

Further, probable cause to arrest a person and probable cause to search a vehicle may be separately justified by the same information obtained before either the arrest or the search. In such circumstances, the search of the vehicle would not be dependent on the legality of the arrest. The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.

In the case at bar, the independent basis for the search of the truck came from the wiretaps of phones other than the defendant’s, and the police surveillance of the defendant and his truck. When the police stopped the truck on the Henry Hudson Parkway, and searched it, as already held, they had probable cause to believe that narcotic drugs were in the truck. The illegality of defendant’s detention had no effect on the legality of the stop and search of the truck.

Lastly, on the absence of a warrant:

Here, defendant claims that the stop and search of the truck and the seizure of the marijuana were unlawful because they were not conducted with a warrant.

The law is clear that a moving vehicle can be stopped and searched without a warrant as long as there is at least a reasonable suspicion to stop it and a probable cause to search it based on the belief that the vehicle contains contraband, a weapon, or evidence of a crime. No warrant is needed because vehicles are mobile and their users have a reduced expectation of privacy in them.

However, the wiretap evidence alone did not provide sufficient probable cause to obtain a warrant. Because the agents did not have control over the events, they did not know before their observations on the morning of February 1 where the drugs were located, how the drugs would be packaged, how the defendant would get to the location of the sale or where the sale would take place. Although the prior surveillance could provide some suspicion about these things, there was insufficient information for an anticipatory warrant, and it was only the surveillance on February 1 that supplied probable cause to believe that the narcotics were in a specific place, the truck.

Thus, no warrant could be obtained just before the truck began to move, a point in time too late to apply for a warrant.

Here, defendant also claims that a warrant should have been obtained for a search of the container.

Under the rules, the right to search the truck without a warrant includes any closed container found inside the truck that might contain the subject of the search.

In the case at bar, probable cause did not focus on any particular container in the car because the agents did not know what kind of drug was involved until the search was conducted. Although they observed the defendant carrying a large brown box to the car, there was no probable cause to believe that whatever defendant was carrying would be placed only in the box or in the box at all because they did not know what substance was involved.

Thus, a search of the entire car and all containers without a warrant must be made.

In sum, the currency, the information from the papers, and the discussions of the 1 February 1991 events are suppressed; only the marijuana is admissible.

If you are involved in a similar case, contact an NY Criminal Attorney immediately. Get in touch with Stephen Bilkis & Associates and seek legal advice from a New York Drug Lawyer, among others. We offer our assistance by providing free legal consultations. Drop us a line and know what legal remedies are available in your situation.

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