United States v. Gordils

725 F. Supp. 181, 1989 U.S. Dist. LEXIS 13754, 1989 WL 141534
CourtDistrict Court, S.D. New York
DecidedNovember 20, 1989
DocketNo. S 89 Cr. 395 (DNE)
StatusPublished

This text of 725 F. Supp. 181 (United States v. Gordils) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gordils, 725 F. Supp. 181, 1989 U.S. Dist. LEXIS 13754, 1989 WL 141534 (S.D.N.Y. 1989).

Opinion

OPINION AND ORDER

EDELSTEIN, District Judge:

On November 1 and November 3, 1989 this court held an evidentiary hearing on defendant Gordils’ motion to suppress evidence seized from 636 East 224th Street, Apartment 1A, Bronx, New York on May 15, 1989. The court reserved opinion and directed the parties to file proposed findings of fact and conclusions of law on November 13, 1989. This opinion incorporates the court’s formal findings of fact and conclusions of law on the suppression issue.

At issue in the instant suppression motion are certain items seized from Apartment 1A during two separate searches conducted on May 15, 1989. There was no warrant to enter the apartment during the initial entry, but the Government contends that exigent circumstances justified the search. Upon this entry of the apartment, certain items in plain view which were obviously incriminating were seized at that time. After the agents were inside the apartment and seized the items in plain view, they then sought a telephonic search warrant. The warrant was not based on any evidence seized during the warrantless entry. After obtaining the warrant, the agents recovered additional items from the apartment.

Defendant Gordils argues that the agents who conducted the investigation, the initial search and the arrests had ample opportunity to seek a warrant prior to the entry of the apartment. Defendant further avers that the entry was not based upon exigent circumstances but rather that the exigent circumstances were created by the agents themselves in their failure to earlier seek a warrant. According to the defendant, the evidence seized pursuant to the warrantless search was illegally seized and should be suppressed.

For the reasons stated below, defendant’s motion to suppress the evidence seized is denied.

BACKGROUND

The defendant Gordils was arrested on May 15, 1989 at approximately 5:00 p.m. in the vicinity of 97th Street and Riverside Drive in Manhattan. The events leading up to the arrest are as follows. In early May 1989 defendant, Francisco Bastar, met with Luis Hernandez, the confidential informant for the DEA, and discussed providing narcotics to Hernandez through Bas-tar’s “connection”. A few days later, on May 10, Bastar brought Hernandez to Apartment 1A where Hernandez was introduced to defendant Gordils. Defendants Nicholas Mpounas and Gregory Melendez were also in the apartment at that time, as well as an individual known to Hernandez as “Piki” and two Dominican males Hernandez did not know.

Inside the bedroom of the apartment, Gordils and Bastar showed Hernandez approximately IV2 kilograms of cocaine. On that same date, Gordils and Bastar indicated that there were guns inside the apartment. Later, Hernandez notified Special Agent Johnson that the four defendants were inside the apartment with approximately IV2 kilograms of cocaine. Johnson instructed Hernandez that because it was late, the deal should be set up for the following day.

On May 11, 1989, in two recorded telephone conversations, Hernandez arranged to meet with Bastar later that day. Bastar brought Hernandez back to Apartment 1A where the four defendants were present, in addition to the individual known as “Piki.” Hernandez observed only approximately a half kilogram of cocaine in the apartment and was told by Gordils that two additional kilograms would be delivered by a driver. Hernandez contacted Special Agent Johnson and advised him that the two kilograms had not yet arrived. Agent Johnson instructed him that if the cocaine did not arrive by 6:00 p.m. the deal should be postponed to a later date. The two kilograms did not arrive before 6:00 p.m. and the deal [183]*183was postponed. Before leaving the apartment, the informant was provided with a sample of the narcotics by Gordils.

On May 15, 1989, Bastar arranged to meet Hernandez that afternoon. Prior to going to the apartment, Hernandez conferred with Agent Johnson, who instructed him to arrange for the deal to take place in the vicinity of 97th and Riverside Drive in Manhattan. Hernandez met Bastar at 161st Street in the Bronx and then accompanied Bastar to Apartment 1A at approximately 3:00 p.m. Hernandez saw Gordils, Mpounas and Melendez as well as another individual who had come to the apartment to purchase one kilogram of cocaine from Gordils. Hernandez observed approximately 2V2 kilograms of cocaine in the bedroom and what appeared to be several thousand dollars in cash.

When Hernandez briefly left the apartment, he telephoned Agent Johnson and told him that there were 2V2 kilograms of cocaine in the apartment. Johnson advised Hernandez that he needed more time and instructed Hernandez to delay his departure so that surveillance could be set up in the area of 97th and Riverside Drive.

Hernandez again spoke to Agent Johnson at approximately 4:00 p.m. and reported that he and Gordils would be leaving the apartment, that the defendants had the two kilograms plus another half kilogram and that Gordils would be bringing at least one of the two kilograms of cocaine. Hernandez told Johnson that he did not know if Gordils would be carrying any weapons but that there were weapons in the apartment.

Gordils left the apartment and instructed Bastar to remain and not open the door for anyone except Mpounas, Melendez or “Piki.” Gordils told Hernandez that after the deal he would return to the apartment with the money received from the sale of the cocaine. Hernandez was unable to communicate this information to Special Agent Johnson until after the arrest of Gordils. Hernandez and Gordils then proceeded to 97th and Riverside Drive in Hernandez’ car with the two kilograms of cocaine on the floor of the passenger side of the vehicle.

After arriving in the vicinity of 97th Street and Riverside Drive, at approximately 5:00 p.m., Hernandez left Gordils in the car and met with Special Agent Laboy in Laboy’s car. Hernandez advised Agent La-boy that Gordils had brought the two kilograms and that Gordils and the cocaine were in Hernandez’ car. Agent Laboy then signalled over the radio to arrest Gordils.

Agent Johnson arrested Gordils and seized the two kilograms of cocaine from the floor of the car. Following the arrest, the agents and Hernandez proceeded to the DEA office where Hernandez advised Agent Johnson that (1) he and Gordils had left apartment 1A where the additional lh kilogram remained; (2) Bastar remained in the apartment; (3) Hernandez had been advised that there were weapons in the apartment; (4) Gordils had ordered an additional kilogram of cocaine for another individual who had sought to purchase cocaine from Gordils while Hernandez was in the apartment; (5) the other defendants were remaining in the apartment awaiting Gor-dils’ return with the money; (6) Gordils had instructed Bastar not to open the door for anyone other than Mpounas, Melendez or “Piki” until Gordils returned.1

Based upon the information provided by Hernandez, the agents decided to secure apartment 1A and prevent any people in the apartment from fleeing or destroying evidence and to seek a search warrant once the premises were secured. Special Agent Johnson and five other agents proceeded to the apartment. The agents did not obtain a warrant because time was of the essence in preventing the flight of suspects or the destruction of evidence.

[184]*184The agents reached the apartment at approximately 6:30 p.m.

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Cite This Page — Counsel Stack

Bluebook (online)
725 F. Supp. 181, 1989 U.S. Dist. LEXIS 13754, 1989 WL 141534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gordils-nysd-1989.