Opinion
No. 01 Cr. 35 (LTS)
October 24, 2001
Mary Jo White, United States Attorney For The Southern District of New York, New York, NY, Boyd M. Johnson, Esq., New York, NY, Attorneys for Plaintiff
Daniel M. Felber, Esq., Balsam, Felber Goldfield, New York, NY Attorneys for Defendant
Michael Hurwitz, Esq., Hurwitz, Stampur Roth New York, NY, Attorneys for Defendant
OPINION
Eddy and Juan Garcia ("Defendants"), indicted on charges of conspiracy to possess and distribute cocaine, move to suppress certain physical evidence seized from an automobile and an apartment and to suppress a statement made by defendant Eddy Garcia. Defendants argue that they were placed under arrest without probable cause therefor, that cocaine found in the automobile at the time Defendants were seized and other evidence obtained in connection with the encounter should therefore be excluded from evidence; that a warrantless search of an apartment that resulted in seizure of a large quantity of cocaine was in violation of Defendants' rights under the Fourth Amendment to the United States Constitution; and that an inculpatory post-arrest statement by defendant Eddy Garcia was made prior to the administration of "Miranda" warnings and therefore obtained in violation of defendant Eddy Garcia's Fifth Amendment rights. (Post-Hearing Mem. of Law in Supp. of Def. Eddy Garcia's Motions to Suppress at 1; Post-Hearing Mem. of Law in Supp. of DeL Juan Garcia's Motions to Suppress at 1.)
In support of their respective motions, Defendants proffered affidavits in which they asserted that law enforcement officers had removed them forcibly from their automobile at the time of their initial encounter, that the officer had removed a package containing cocaine from the closed trunk of the automobile (Aff. of Eddy Garcia ¶¶ 8, 11-12; Aff. of Juan Garcia ¶¶ 8-11), and that defendant Juan Garcia's wife, Sandra Garcia, who was present in the apartment at the time of the challenged search, had refused consent to the search. (Aff. of Sandra Garcia ¶¶ 4-9.) Defendant Eddy Garcia's affidavit further asserted that he had made an inculpatory statement in response to police questioning after he was arrested, and before any Miranda warnings were administered, and that he had later repeated the statement at the offices of the Drug Enforcement Administration ("DEA") after such warnings were administered. (Aff. of Eddy Garcia ¶¶ 15-16.) On August 17 and 20, 2001, the Court heard testimony from Special Agent Steven M. Romain, Detective Fernando Lovera, and Special Agent Walter R. Serniak, and from defendant Juan Garcia and his wife Sandra Garcia. Defendant Eddy Garcia did not testify. The Court, having had the opportunity to hear and to observe the demeanor of the witnesses, finds that the following relevant facts were established by a preponderance of the evidence.
On December 14, 2000, Special Agent Romain was told by an informant, whose information has proven reliable and been corroborated, that an individual planned to distribute an unspecified quantity of cocaine that day. (Transcript of hearing ("Tr.") at 7-8.) Based in part on that information, law enforcement officials established surveillance in the area of 724 160th Street in the Bronx shortly before 9:00 p.m. that evening. (Tr. at 8.) Between ten and thirteen law enforcement officers and vehicles were involved in the surveillance (Tr. at 127); Special Agent Romain was stationed approximately 30 yards from the address that was the focus of the surveillance. (Tr. at 10.) He had an unobstructed view of the building. (Id.) Detective Lovera was stationed at the southeast corner of Jackson Avenue and 160th Street. (Tr. at 139.) Bronx police officers participating in the surveillance group had previously made cocaine-related arrests in the area, and had informed Special Agent Romain that the area was a high drug-trafficking area (one in which stash houses might be located rather than one with heavy street drug traffic). (Tr. at 9, 120.)
At about 9:00 p.m. two men, later identified as Defendants Juan and Eddy Garcia, arrived in an automobile and parked opposite number 724 160th Street. (Tr. at 10.) They emerged from the car, looking up and down the block although there was no street traffic. (Id.) Special Agent Romain interpreted this conduct as "counter-surveillance," typical of people engaged in drug transactions, aimed at detecting whether potential robbers or police were present in the area. (Tr. at 10-11.) The two crossed the street and stopped on the porch of number 724, again looking up and down the block although there was no traffic. (Tr. at 11.) (Although defendant Juan Garcia asserted at the hearing that the principal purpose of the conduct was to check for traffic, he admitted that it was also a check for police activity. (See Tr. at 320.)) The two then entered the building. (Id.) They emerged approximately 10 minutes later, Eddy Garcia carrying a small plastic shopping bag with a rectangular object inside it; the object appeared to be heavy. (Tr. at 12.) Agent Roman suspected that the bag contained cocaine. (Tr. at 13.) Agent Romain reported the observation to Detective Lovera, who gave a signal to the participating officers to converge. (Tr. at 141, 156.)
As Defendants approached the automobile, Agent Romain drove his car up behind Defendants' car; approximately nine to ten other law enforcement vehicles drove up in front of Defendants' automobile, blocking any opportunity for it to be driven away. (Tr. at 13, 167.) The officers' guns were drawn as they approached Defendants; based on the officers' prior experience with narcotics suspects they feared that Defendants might be armed. (Tr. at 14.) The credible evidence established that Defendants were approached by the officers at the rear of the car, after defendant Eddy Garcia had placed the shopping bag in the open trunk of the car and before either Defendant had entered the car or closed the car trunk. (Tr. at 13.) Defendant Juan Garcia was taken to the driver's side of the car and defendant Eddy Garcia was taken to the passenger side of the car. (Tr. at 14.) Detective Lovera patted defendant Eddy Garcia down and asked in Spanish what he was doing at the location. (Tr. at 142.) Eddy was neither handcuffed nor told that he was not free to leave. (Id.) Eddy replied that he was visiting his girlfriend at number 724. (Id.) He did not respond to a question as to which apartment he had been in (Id.), but did produce identification when queried as to his residence. (Tr. 175.)
The Court does not find credible defendant Juan Garcia's testimony, and the assertions in Defendants' affidavits, that the Defendants had locked the trunk, entered the car and closed and locked the car doors before the officers arrived. The credible testimony of the law enforcement officers established that the officers were within sufficient proximity to reach the car quickly and in fact reached the car while the Defendants were still outside it.
Special Agent Romain looked into the open car trunk and observed that the heavy object in the plastic shopping bag was a cardboard cereal box that was held closed with a piece of duct tape. (Tr. at 14-15.) As he looked into the trunk, he also perceived a strong smell of cocaine. (Tr. at 15.) Special Agent Romain recognized the smell from extensive prior experience with seizures of the drug. (Id.) The box, when opened, revealed two "bricks" wrapped in plastic, weighing approximately one kilogram each, with a small "window" cut in each exposing the contents. (Tr. at 20-21.) The officers later confirmed that the "bricks" contained cocaine. (Tr. at 21-22.)
Defendants were thereupon arrested and an inventory search performed. (Tr. at 22) Keys to the premises at 724 160th Street were found in defendant Juan Garcia's possession. (Id.) Officers entered the building through the front door and tried the keys in various mail boxes, eventually ascertaining that the keys fit the mail box for apartment 3A. (Tr. at 91.) Other officers knocked on other doors in the apartment building; they eventually converged at the door of 3A, where Detective Lovera inserted the key into the lock and ascertained that it would operate the lock, but did not open the door. (Tr. at 159-61, 234.)
The officers knocked loudly on the door, identified themselves as police officers, and requested admission to the premises. (Tr. at 143.) The officers were prepared to seek a search warrant if no one responded and/or they were not admitted to the apartment by the occupant(s). (Tr. at 136.) A woman, later identified as Sandra Garcia, asked through the door, in English, for a phone number she could call to verify that they were from the police. (Tr. at 144.) One of the officers held his identification up to the peephole. (Id.) Mrs. Garcia thereupon opened the apartment door and admitted the officers, who conducted a security "sweep" of the two-bedroom apartment, looking into all of the rooms to confirm that no other adults were present in the apartment. (Tr. at 144-145.) Two children who were sleeping in one of the bedrooms were not awakened. (Tr. at 146.)
The Court does not find credible Mrs. Garcia's affidavit and testimony to the effect that the officers let themselves into the apartment with the key.
Mrs. Garcia, who was a poised and well-spoken witness, speaks both English and Spanish and is employed outside the home by a social services organization. (Tr. at 145-146; Aff. of Sandra Garcia ¶ 1.) Detective Lovera, in a conversation conducted in both Spanish and English, asked Mrs. Garcia who else lived in the apartment, and informed her that her husband was under arrest. (Tr. at 145.) Mrs. Garcia informed him that she and her husband lived in the apartment. (Id.) Detective Lovera asked her for permission to search the apartment and told her that she had the right to refuse consent; Mrs. Garcia said that the officers could search the apartment. (Id.) She seemed to Detective Lovera "concerned," but was not crying. (Tr. at 146.) She responded in English to questions in English. (Id.) Mrs. Garcia was not handcuffed; no voices were raised. (Id.)
The search yielded 21 kilograms of powder cocaine and a small amount of crack. (Tr. at 23-24, 147.) Ten kilograms of cocaine were found in a front hallway closet, in a gym bag along with a scale, and 11 more kilograms were found in a clothes dryer in the kitchen of the apartment, along with 15 grams or so of crack cocaine. (Tr. at 23-24.) Following the search, an officer retrieved a written consent-to-search form from one of the law enforcement vehicles at Special Agent Serniak's direction, and both Special Agent Serniak and Detective Lovera requested that Mrs. Garcia sign the form to document her prior consent to the search. (Tr. at 147.) She replied that she was not comfortable signing the form, but did not withdraw or deny her consent to the search. (Tr. at 147-48.)
After Detective Lovera left the apartment, he got into the back seat of an unmarked police vehicle with defendant Eddy Garcia and began questioning defendant Eddy Garcia, who was handcuffed, in Spanish. (Tr. at 223-24.) No Miranda warnings were given. (Tr. at 223.) Defendant Eddy Garcia did not respond to Lovera's questions although Lovera encouraged him to "help himself out" by cooperating. (Tr. at 224.) Detective Lovera again tried to question defendant Eddy Garcia when they arrived at the DEA lockup facility, and again received no response. (Tr. at 224-25.) Later that evening, defendant Eddy Garcia initiated a conversation with Detective Lovera, asking what he would "have to do" to help himself out. (Tr. at 226.) The Court credits Lovera's testimony that he thereupon administered the Miranda warnings in Spanish and that it was only after the warnings were given that defendant Eddy Garcia made the inculpatory statement he now seeks to suppress. (Tr. at 226-27.) The only evidence to the contrary is defendant Eddy Garcia's self-serving affidavit asserting that he first made the statement during his initial encounter with Detective Lovera and only repeated it in the later conversation, afterMiranda warnings had been given. (Aff of Eddy Garcia ¶ 15.) While the ask-and-only-warn-if-it-looks-like-the-suspect-might-say-something methodology to which Detective Lovera testified is not to be commended, his testimony provided a logical sequence of events and an objective indicator of a reason why defendant Eddy Garcia would have made substantive comments only in the conversation following the warnings.
DISCUSSION I. The Initial Encounter
Defendants argue that the cocaine seized from the car must be suppressed, and the remainder of the physical evidence, as well as Eddy Garcia's statement, must also be suppressed as flowing from the initial encounter, because the police lacked reasonable suspicion justifying their initial encounter with Defendants. (Post-Hearing Mem. of Law in Supp. of Def. Eddy Garcia's Motions to Suppress at 1; Post-Hearing Mem. of Law in Supp. of Def. Juan Garcia's Motions to Suppress at 1.) They also argue that that encounter exceeded the level of intrusiveness permitted in a "Terry" stop (see Terry v. Ohio, 392 U.S. 1 (1968)), thus constituting an arrest in the absence of probable cause. (Post-Hearing Mem. of Law in Supp. of Def. Eddy Garcia's Motions to Suppress at 8.) On this theory, too, they seek suppression of all of the subject evidence.
Under the principles enunciated in Terry,
the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if the officer lacks probable cause.United States v. Sokolow, 490 U.S. 1, 7 (1989). The officer must be able to articulate something more than an "inchoate and unparticularized suspicion or `hunch.'" Terry, 392 U.S. at 27 (1968). In evaluating the permissibility of a stop defended as one contemplated by Terry, the Court is to consider "the totality of the circumstances — the whole picture." United States v. Cortez, 449 U.S. 411, 417 (1991). Indeed, "reasonable suspicion" is measured objectively, United States v. Glover, 957 F.2d 1004, 1009 (1992), using the perspective of a trained and experienced law enforcement officer, Cortez, 449 U.S. at 418, and reviewing the circumstances as a whole, not as discrete and separate facts, United States v. Barlin, 686 F.2d 81, 86 (2d Cir. 1982). In evaluating whether an investigative stop is reasonable under the Fourth Amendment, the Court must determine: (1) whether the officer's action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. United States v. Sharpe, 470 U.S. 675, 682 (1985); Terry, 392 U.S. at 20.
Reasonable Suspicion
The testimony of Special Agent Romain, corroborated by the testimony of Detective Lovera, and of defendant Juan Garcia himself, makes it clear that the police had an articulable and reasonable suspicion, at the time of their initial encounter with Defendants, that Defendants Eddy and Juan Garcia were involved in transporting cocaine. Among the objective factors underlying this conclusion are the facts that: 1) a reliable and corroborated informant had informed Special Agent Romain that an individual was planning to distribute an unspecified amount of cocaine on the evening of December 14, 2000, in the vicinity of 724 160th Street and the police had established surveillance at that area in anticipation of observing such activity (Tr. at 8, 139, 255); 2) the law enforcement officers had information indicating that the setting was a narcotics-trafficking area, in which the storage of nafeotics was likely (Tr. at 9); 3) Special Agent Romain observed Defendants engage in repeated efforts at counter-surveillance before entering the building (Tr. at 10, 11, 320); and 4) Special Agent Romain and Detective Lovera observed Defendants leave the building with a weighted plastic bag that contained a rectangular package (Tr. at 12, 318). See Alabama v. White, 496 U.S. 325, 326-27 (1990) (reasonable suspicion to stop person because anonymous informant correctly described detainee's vehicle, time of departure and destination); United States v. Peterson, 100 F.3d 7, 11 (2d Cir. 1996) (police could rely on fact that Defendant acted suspiciously in "high crime area"); United States v. Alexander, 907 F.2d 269, 271 (2d Cir. 1990) (reasonable suspicion existed where agents watched as car parked in neighborhood with high incidence of drug trafficking, passengers exited car and returned with brown paper bag, and car left scene in evasive manner); United States v. Zabala, 52 F. Supp.2d 377, 383 (S.D.N Y 1999) (denying motion to suppress evidence because of prior tip from informant, officers' extensive experience with narcotics investigation, officers' reasonable understanding that narcotics activity occurred in the area in question, and highly suspicious behavior of the individuals in question). While any one of these factors, standing alone, might not be sufficient to establish a basis for reasonable suspicion, the totality of the circumstances testified to at the hearing clearly establishes that the officers had "more than an `inchoate or unparticularized suspicion or "hunch'"" at the time they approached and stopped Defendants. Sokolow, 490. U.S. at 7.
"For an investigative stop based on reasonable suspicion to pass constitutional muster, the ensuing investigation must be reasonably related in scope and duration to the circumstances that justified the stop in the first instance, so as to be minimally intrusive of the individual's Fourth Amendment interests." Glover, 957 F.2d at 1011. Here, the officers stopped Defendants outside their car and took them to the sides of the car, away from the trunk, while defendant Eddy Garcia was questioned briefly regarding his activity in the area and the officers were able to look into the open trunk. Their conduct was reasonably related in scope and duration to their reasonable suspicion that Defendants had placed cocaine in the trunk of the car. The Court therefore concludes that the investigative stop was justified at its inception and reasonable under the circumstances.
Because, as explained below, the Court concludes that the conduct of the stop was not so intrusive as to warrant treatment of the initial encounter as an arrest, it is not necessary for the Court to reach the Government's alternative argument that the police had probable cause to arrest Defendants at the time of the initial encounter.
Accordingly, the Court turns to the question of whether the encounter was conducted in a manner so exceeding the scope of a Terry investigative stop that the encounter should be treated as an arrest ab initio.
A Terry Stop or an Arrest?
Defendants argue that, even on the Government's version of the circumstances of the encounter, the Court should find that it constituted an arrest from its inception, principally because the police prevented Defendants' automobile from moving, the officers had their guns drawn and aimed at Defendants, and defendant Eddy Garcia was frisked and was "grabbed" in connection with Detective Lovera's request for identification.
Defendant Eddy Garcia's post-hearing memorandum overstates the evidence with respect to the "grab." Detective Lovera testified that he could have grabbed Eddy but that he did not recall whether he did. (Tr. at 174.) The only direct evidence that Eddy was grabbed is an assertion in defendant Eddy Garcia's pre-hearing affidavit. (Aff. of Eddy Garcia ¶¶ 9-10.) Eddy Garcia did not testify at the hearing. The Court, as noted above, does not credit Defendants' version of the encounter with the police.
The Court notes in this connection that, in their post-hearing memoranda, both Defendants argue that the Government's factual scenario supports the finding of an arrest, without regard to Defendants' affidavits and defendant Juan Garcia's testimony. See Post-Hearing Mem. of Law in Supp. of Def. Eddy Garcia's Motions to Suppress at 3 n. 1 ("even accepting the agents' scenario, their conduct during the stop of the defendants was sufficiently forceful and intrusive to be considered an arrest"); Post-Hearing Mem. of Law in Supp. of Def. Juan Garcia's Motions to Suppress at 1 n. 1 ("Notwithstanding certain differences between the testimony of the government and defense witnesses, for the purposes of this argument point defendant accepts the government's hearing evidence").
The degree of restraint used by law enforcement officers in an encounter with a suspect is determinative, at least in large part, of whether an encounter constitutes a Terry stop, which can be justified on the basis of reasonable suspicion, or an arrest, for which probable cause is a constitutional prerequisite. United States v. Mann, 669 F.2d 73, 81 (1982). In United States v. Perca, 986 F.2d 633 (2d Cir. 1993), the Second Circuit identified three principal factors to be considered in making the distinction between the two types of encounters. In that case, the panel considered: 1) the amount of force used by the police; 2) the need for such force; and 3) the extent to which the individual's freedom of movement was restrained. In assessing whether the encounter at issue constituted an arrest, the Perea court analyzed the number of agents involved, whether the target of the stop was suspected of being armed, and the physical treatment of the suspect. Perea, 986 F.2d at 645. The Perea court concluded that the initial stop in that case did constitute a Terry stop because the officers, given their surveillance observations, had a reasonable suspicion of criminal activity. Id. at 644.
Defendants rely on United States v. Marin in arguing that the restraint exceeded Terry boundaries. (See Post-Hearing Mem. of Law in Supp. of Def. Eddy Garcia's Motions to Suppress at 10-11.) The Marin court concluded that a restraint was sufficiently forceful and intrusive to amount to an arrest when there was evidence that DEA agents, after pursuit of defendants' car with approximately four DEA cars, surrounded defendants' car with their gun drawn, preventing it from moving, and that the officers physically removed the defendants from the car. Marin, 669 F.2d at 81-82.
The instant case is distinguishable from Marin on several grounds. Here, Defendants were not operating, nor even in, their vehicle when they were approached by the officers. Defendants' car was approached based on the officers' belief that Defendants were carrying cocaine as they crossed the street with the weighted plastic bag. (Tr. at 12-13, 79.) The police had their guns drawn in an effort to assure their own safety and the safety of other members of the group, based on prior experience with narcotics investigations. (Tr. at 14.) Special Agent Romain and the other agents identified themselves as police officers. (Tr. at 14, 324.) While any potential movement of Defendants' car was prevented by the law enforcement vehicles drawn up in front of it, that level of restraint was not inappropriate due to the car's potential as an escape vehicle or as something that could be used to harm officers if Defendants decided to resist the investigative stop. Defendants were not handcuffed, and there is no credible evidence that they were physically restrained prior to the discovery of the cocaine in the trunk of the car.
In light of these facts, the Court concludes that the scope of the restraint did not exceed Terry boundaries and thus the initial encounter between the Defendants and the law enforcement officers did not constitute an arrest.
II. The Search of the Apartment
After recovering a set of keys from defendant Juan Garcia, the law enforcement officers went to the door of apartment 3A at 724 East 160th Street. They knocked on the door and identified themselves as police. Mrs. Sandra Garcia eventually opened the door and allowed them inside. Once inside, they did a sweep of the residence and found no other adults inside. After receiving verbal consent from Mrs. Garcia, the agents commenced a search of the apartment, which yielded, among other things, approximately 21 kilograms of cocaine hidden in a closet and a dryer.
The Fourth Amendment provides protection from unreasonable searches and seizures. "(A) search conducted without a warrant is `per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.'" United States v. Sanchez, 635 F.2d 47, 58 (2d Cir. 1980), quoting from Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). It is a well-established rule that a warrantless search does not violate Fourth Amendment rights if "the authorities have obtained the voluntary consent of a person authorized to grant such consent." United States v. Elliot, 50 F.3d 180, 185 (2d Cir 1995), cert denied, 516 U.S. 1050 (1996). The questions now before the Court thus are whether consent was given and, if so, whether the consent was freely and voluntarily given. Sanchez, 635 F.2d at 58-59.
Was there Consent?
Consent is viewed objectively. The officer must have a reasonable basis for believing that there has been consent for the search. Florida v. Jimeno, 500 U.S. 248 (1991). As noted above, the Court credits the officers' testimony that Mrs. Garcia opened the door to them and that they did not use the key to enter the apartment. The officers then proceeded to "sweep" the apartment to look for other occupants. During the sweep, Detective Lovera stayed with Mrs. Garcia. When Detective Lovera asked for permission to search the apartment, Mrs. Garcia responded, "yes, you can search the apartment." (Tr. at 145.) Sandra Garcia never withdrew her verbal consent. Only after the cocaine had been found in the apartment did Mrs. Garcia show any resistance to the search, by refusing to sign the "consent to search' form. The court must ask, "[w]hat would the typical reasonable person have understood by the exchange between the officer and suspect?" Jimeno, 500 U.S. at 251. Finding no reason to believe that the exchange between Detective Lovera and Mrs. Garcia should be interpreted any other way, the Court finds that consent was given prior to the search.
Was Consent Given Voluntarily?
Even if consent was given, it is not valid unless it was voluntary. This court finds that Mrs. Garcia voluntarily consented to the search of the apartment. The Second Circuit has ruled: "[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting `consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed." Sanchez, 635 F.2d at 58, quoting from Schneckloth v. Bustamonte, 412 U.S. at 228. However, "[s]o long as the police do not coerce consent, a search conducted on the basis of consent is not an unreasonable search." United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995). The test for consent is a fact-based one. United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993). To determine whether consent was given voluntarily, the court is to look at "the totality of all the circumstances." Schneckloth, 412 U.S. at 226. The Court should pay particular attention to coercive police questions and the subjective state of the person who consents." Schneckloth, 412 U.S. at 229. Factors to be considered in connection with the determination include the age of the subject, level of education and intelligence, physical and mental condition. Sanchez, 635 F.2d at 58.
Mrs. Garcia is an articulate, bilingual employed adult and the mother of two. No argument is made that Mrs. Garcia did not understand the agents' statements. Nor were the physical circumstances so coercive as to support a finding that any consent must have been coerced. Mrs. Garcia was neither placed under arrest nor handcuffed. Mrs. Garcia does not claim that anyone put his hands on her or threatened her in any way. Mrs. Garcia was informed of her right to refuse consent to the search. Accordingly, this court finds that Mrs. Garcia's consent was given freely and voluntarily.
III. Post-Arrest Statement
As explained above, the Court-finds Detective Lovera's testimony that defendant Eddy Garcia's statement was made after Miranda warnings were given more credible that defendant Eddy Garcia's un-cross-examined assertion in his affidavit that he made his statement at the time of the initial encounter and only repeated it later when the warnings were given. Accordingly, Defendant's motion to suppress the statement on Fifth Amendment grounds is denied.
Conclusion
For the foregoing reasons, Defendants' motions to suppress evidence are denied in their entirety. The Government shall submit an order consistent with this opinion, on five (5) days' notice to Defendants' counsel.