United States v. Robert Vigo and Carmen Pagan

487 F.2d 295, 1973 U.S. App. LEXIS 7944
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 11, 1973
Docket918, Docket 73-1133
StatusPublished
Cited by48 cases

This text of 487 F.2d 295 (United States v. Robert Vigo and Carmen Pagan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robert Vigo and Carmen Pagan, 487 F.2d 295, 1973 U.S. App. LEXIS 7944 (2d Cir. 1973).

Opinions

LUMBARD, Circuit Judge:

The government appeals from an order of the Southern District, entered’ January 18, 1973, which suppressed certain evidence relating to the prosecution of Robert Yigo and Carmen Pagan, who were indicted on August 11, 1972, for possession of heroin with intent to distribute it, in’ violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A), and for conspiracy to violate these sections (18 U.S.C. § 2). Prior to trial defendants moved to suppress tangible evidence obtained during the search of the automobile in which they were riding at the time of their arrest, to suppress other tangible evidence obtained from defendant Pagan’s pocketbook, and also to suppress oral statements made by both defendants shortly after their arrest. The district court, after a hearing, denied the motion with respect to the evidence seized from the automobile, but granted it with respect to the evidence seized from Miss Pagan’s purse and with respect to the oral statements, see-357 F. Supp. 1360 (S.D.N.Y. 1972). The government does not challenge the suppression of Miss Pagan’s statement, but pursuant to 18 U.S.C. § 3731, it has appealed the order to the extent that it sup[297]*297pressed the evidence seized from Miss Pagan and Vigo’s oral statement.

We reverse, and hold that both defendant Vigo’s oral statement and the evidence seized from Miss Pagan are properly admissible.

From the evidence at the hearing, the district court found the following facts. On April 11, 1972, Thomas Smith, a special agent with the Federal Bureau of Narcotics and Dangerous Drugs (BNDD), received information from an unidentified informant1 that Vigo had offered to sell him up to one kilogram of cocaine. The informant reported that he was to meet with Vigo the following day at Amigo’s Bar, located at 8th Street and Avenue D in Manhattan. Smith instructed the informant to contact Vigo again and attempt to arrange for the delivery of the cocaine to take place at that meeting.

On April 12, 1972, the informant told Smith that he had contacted Vigo and that Vigo had agreed to deliver the cocaine to him later that day for an undetermined price. Smith and the informant decided that the latter would telephone Smith or other BNDD agents when he was with Vigo, that he would inform Vigo he was calling his customers for the cocaine, and that he would try to arrange a meeting place where completion of the transaction could take place. The informant advised Smith that Vigo would be driving to Amigo’s Bar in a 1965 Lincoln Continental with New York license plates. He also gave Smith a description of Vigo.

On the evening of April 12th, BNDD agents (not including Agent Smith) established surveillance of Amigo’s Bar. Members of the surveillance team observed Vigo drive up to the bar in the automobile described by the informant, and they watched Vigo enter the bar at about 9:00 p.m. At 9:45 p.m. Smith received a telephone call at his office from the informant, who advised him that he was calling from the bar and that he was with Vigo and an unidentified customer of Vigo’s. The informant reported that Vigo was having difficulty with the customer regarding some heroin with which the customer was dissatisfied, and that Vigo was unwilling to conduct further business until the other customer was satisfied. The informant asked Smith whether he would be interested in the heroin which the other customer was desirous of returning, or whether the purchase of the cocaine, as originally contemplated, should be pursued. Smith then heard a man in the background say, “I paid $8000. Tell him he can have it for that.” The informant stated that the voice was that of Vigo’s customer and that the customer had just said the package of heroin was “not good” but he would (in the informant’s words) “let you have it for the price he paid for it, just to get his money back.” Smith told the informant that the agents would not purchase the heroin package, that he should continue to negotiate for the cocaine, and that he should attempt to discover what Vigo intended to do with the heroin.

At 11:00 p.m. the informant again telephoned Agent Smith and told him that Vigo intended to take the package of heroin back to his supplier and that he would be leaving Amigo’s Bar shortly. He also said that he believed the heroin was located in the trunk of Vi-go’s car. Informed of this, Smith and another agent left his office and joined the surveillance team. Vigo was observed to leave the bar at 11:45 p.m., accompanied by two unidentified men. The members of the surveillance team followed Vigo and his companions to [298]*298East 5th Street and Avenue D in Manhattan, where Vigo entered a housing project and returned with Miss Pagan.

The agents subsequently followed the car to the Bronx, where Vigo and his companions stopped at several bars. It shortly became apparent that Vigo was not going to any particular destination, and consequently, at roughly 1:00 a.m. on the morning of the 13th, the agents stopped Vigo’s car in the vicinity of 163rd Street and Third Avenue. All four occupants were removed from the car, were told that they were being arrested, and were advised of the offense for which they were being arrested.

Six agents participated in the arrest,, and as a result the events described below happened nearly simultaneously.2 The agents frisked Vigo and found a loaded .32 caliber revolver tucked in his belt. They then took Miss Pagan’s purse (they did not search her person) and searched it, discovering, among other things, some notes thought by the agents to contain a formula for cutting narcotics, a scale, and some marihuana. They also searched Vigo’s car, and in the trunk Agent Smith discovered a briefcase containing several packages of heroin as well as narcotics paraphernalia, including spoons, rubber bands, a strainer, and a scale.

After the search of the car, Agent Smith advised Vigo that “. . . he had a right to have an attorney, had a right not to say anything at all, that he had a right to have an attorney present during anything we might discuss, if he wanted to discuss anything, and advised him he had the right to have a court-appointed attorney if he so desired and could not afford his own attorney.” Smith could not recall that he had in-fornied Vigo that anything he said could later be used against him. Vigo was asked whether he understood what he had been told, and in response Vigo expressed a willingness to talk. He admitted that one of the packages contained heroin and that it belonged to him. Furthermore, in what appears to have been an effort to protect his companions, he stated that although Miss Pagan knew there was heroin in the ear, she was not responsible for it, and that the other two occupants of the car did not even have knowledge of it.

We hold that the search of Miss Pagan’s purse was reasonable and proper as a normal protective measure on the part of law enforcement authorities. A loaded concealed gun had just been found on her companion Vigo. A lady’s handbag is the most likely place for a woman similarly to conceal a weapon. Cf. United States v.

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Bluebook (online)
487 F.2d 295, 1973 U.S. App. LEXIS 7944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-vigo-and-carmen-pagan-ca2-1973.