Summary
finding probable cause to arrest livery cab driver where narcotics suspect placed two suitcases in the trunk of the driver's cab, where narcotics suspect and cab driver did not exchange money, and where narcotics suspect did not enter the cab but instead walked away in the opposite direction as the cab drove off
Summary of this case from United States v. ReyesOpinion
10 CR 627 (RPP).
January 19, 2011
Defendant's Counsel , Mark J. Stein, Simpson Thacher Bartlett LLP (NY), New York, NY.
Counsel for the Government , Rachel Peter Kovner, United States Attorney Office, SDNY, New York, NY.
OPINION AND ORDER
I. Introduction
On September 3, 2010, Defendant, Marino Polanco moved this Court to suppress evidence which he contends was obtained pursuant to an unlawful seizure. A hearing was held on November 3, 2010 at which Special Agent Joseph Dill and Police Officer Kreshnik Bakraqi were called by the Government to testify. The parties submitted post-hearing briefs on November 10, 2010 and oral arguments were held on December 3, 2010.
For the following reasons, this Court finds that Polanco was placed under arrest on May 22, 2010, but that this arrest was supported by probable cause. Consequently, the Defendant's motion to suppress is denied.
II. Background
In 2005, law enforcement agents began investigating suspected narcotics trafficking by a cocaine and heroin dealer named Jose Navarro. Transcript of Nov. 3, 2010 Hearing ("Tr. 11/3/2010") at 3. At that time, a confidential source ("CS-1"), a livery cab driver who had previously provided law enforcement with reliable information, told Drug Enforcement Administration ("DEA") agents that Navarro was selling drugs in the Bronx. CS-1 also told DEA agents that he had delivered heroin for Navarro using his Lincoln Town Car. Id. at 4-5. A second source, ("CS-2") had participated with CS-1 in this livery cab delivery and corroborated CS-1's account of delivering drugs for Navarro. Id. at 6-7. A third livery cab driver, ("CS-3"), gave information to law enforcement about Navarro trafficking in heroin and cocaine at the beginning of 2006 or the end of 2005.Id. at 9.
Beginning in late 2009 or early 2010, a different cooperating source, who had also previously provided reliable information to the DEA, told agents that the particular apartment at 1135 Pelham Parkway North in the Bronx, was being rented under a false name, and that he believed the apartment was going to be used as a drug den or stash house. Id. at 10. The agents followed up on that information and established, through the cooperating source, residents, and the superintendent of the building, that it was Navarro who was using the apartment at 1135 Pelham Parkway North. Id. at 10-14. The agents also received information indicating that the apartment was being used for drug activities, and that Navarro was still using a livery cab driver or drivers to make deliveries. Id. Agents determined that while the apartment was actually being used by Navarro, his name was not on the lease.Id. at 11. At the November 3, 2010 hearing, Special Agent Joseph Dill testified that spaces rented for illicit purposes are generally rented in the name of some other person, and not the actual user, in order to throw off law enforcement. Id. at 12. Special Agent Dill also testified that he soon learned that the apartment's occupant had not subscribed to electrical service.Id. at 15. Special Agent Dill testified that this was yet another method of avoiding associating a name with the location in order to avoid law enforcement. Id. The superintendent of the Pelham Parkway North apartment building also informed DEA agents that he believed the apartment was being used for illegal activities. Id. at 12. The superintendent told agents that many people frequented that apartment at strange hours and that there had been construction in the apartment that he believed was for the purpose of putting up a false wall or false compartment. Id. In addition, the superintendent told DEA agents that dark tint had been placed on the windows of the apartment. Special Agent Dill testified that dark tint is typical in heroin mills seeking to avoid observation of their activities.Id. at 12.
In late April or early May of 2010, a member of Special Agent Dill's group interviewed another resident of the Pelham Parkway North apartment building who also reported activities consistent with drug dealing. Id. at 13. The resident told officers that individuals from the apartment were using livery cabs in order to make deliveries. Id. The resident also reported seeing people "hanging out by the door of the apartment and outside on the street using handheld radios." Id. Based on what that resident saw. he believed that the people inside and outside the apartment were communicating as to whether law enforcement was in the area.Id. Additionally, the resident reported that the people using the apartment typically came in through the building's back door, which was unusual. Id. The resident viewed these entries via the back door as attempts to enter the building without being seen.Id. The resident also described the role of livery cabs in these transactions. Id. The livery cabs, he told agents, "would frequently come" and park on the corner. Id. Then "somebody would leave this apartment and hand items to the person in the livery car." Id. This "same transaction happened[ed] multiple times."Id.
In approximately April 2010, agents received information from CS-2 about Navarro's current involvement in narcotics trafficking. Id. at 15. CS-2 indicated that Navarro was still using livery cabs to make deliveries. Id. CS-2 also informed agents about locations in the Bronx and in Washington Heights where Navarro was engaged in drug-related activities. Id. at 16. Agents performed surveillance on Navarro on three to five occasions and, over the course of their surveillance, observed Navarro at the locations CS-2 had identified. Id. at 17, 29. CS-2 reported that Navarro was using at least two individuals to deliver drugs for him. Id. at 17. One of the individuals, Navarro's brother, drove a black Honda Accord. Id. at 17; 28. The other drove a livery cab. Id. at 17.
Approximately a week before the Defendant's arrest, law enforcement officers installed a video camera in the hallway of the first floor of the Pelham Parkway North apartment building.Id. at 18, 29. This enabled agents to see, while in their office, the common hallway leading up to Navarro's apartment but not to see inside the apartment itself. Id.
On the day before the arrest, agents monitoring the surveillance camera observed several individuals go to the location and unsuccessfully attempt to enter. Id. at 18. Agents believed it was possible that the individuals worked with Navarro and had gone to pick something up. Id. The same people returned the following day, May 22, 2010, and used increasing force in an attempt to enter. Id. Special Agent Dill concluded from the surveillance footage that he had witnessed an attempted robbery of either narcotics or narcotics proceeds. Id. at 19. Later that same day, Navarro was observed entering his apartment with a female. A DEA agent, watching Navarro on video surveillance, contacted a New York City Police Department Unit — the closest unit to the Pelham Parkway North apartment building — and asked the officers to initiate an investigative stop, so that DEA agents could travel to the scene for further investigation. Id. at 20, 34. Police Officer Kreshnik Bakraqi and his lieutenant, each in plain clothes, responded to the scene in a single car.Id. at 33-34. They arrived at the apartment building at approximately 8:20 pm. Id. at 34. The lieutenant had received information about narcotics being transported from that location and was instructed to detain the suspects until DEA agents, who were en route, could arrive on the scene. Id. at 34-35.
When Officer Bakraqi and his lieutenant arrived at the Pelham Parkway North apartment building, Officer Bakraqi observed a black livery cab double-parked in front of the apartment building. Id. at 35. He saw the Defendant standing outside the taxi. Id. He then observed Navarro and a female exit the apartment building. Id. Officer Bakraqi was able to identify Navarro based on a description that DEA agents had provided of the person believed to be bringing drugs from the building: a "male Hispanic with a red shirt and white stripes across the shirt." Id. at 36. Navarro was carrying two black suitcases that appeared to Officer Bakraqi, to be heavy. Id.
Officer Bakraqi observed Navarro and Polanco engage in conversation and then saw Navarro place the two suitcases into the trunk of Polanco's livery cab. Id. at 37. Navarro did not get into the livery cab himself, but rather walked away in the opposite direction. Id. at 37-38. The Defendant went to the driver's side of the livery cab, got inside, and drove off, with Navarro's suitcases in the trunk. Id. at 38.
At this point, Officer Bakraqi's lieutenant decided that the two should split up. The lieutenant got out of the car to pursue Navarro by foot and instructed Officer Bakraqi to follow Polanco's car and stop him. Id. at 38-39. Officer Bakraqi followed Polanco's car, turned on his red light, and then pulled his car in front of the Defendant's vehicle in order to impede it's progress. Id. at 39. Officer Bakraqi testified that as he approached Polanco's car, he could not see inside. Id. at 40. Officer Bakraqi, who was wearing his police shield over his clothing, said "police" as he approached the car with his gun drawn. Id. at 40, 53-54. Officer Bakraqi testified that he draws his weapon on some, but not all traffic stops, and that he did so in this instance because he was alone, it was very dark, and because the stop was of a narcotics suspect and narcotics suspects are apt to have guns. Id. at 40. Officer Bakraqi instructed Polanco to turn off his engine, hand him his keys, and exit the vehicle. Id. Polanco complied with these instructions.Id.
Once Polanco exited the car, Officer Bakraqi reholstered his gun, handcuffed Polanco, and told him that he was detained and not under arrest. Id. at 41. After handcuffing Polanco, Officer Bakraqi testified that he checked Polanco's waistband for weapons. Id. at 41. He found none. Id. The Officer testified that he handcuffs individuals in some, but not all, investigative stops and that he did so in this instance because it was a "safety issue" and he "was by [him]self." Id. at 40. Once Polanco was in handcuffs, Officer Bakraqi testified that Polanco began to speak to him, without being questioned, and referred to the trunk of the car. Id. at 42. Polanco was speaking both in English and Spanish, and Officer Bakraqi testified that he found the Defendant difficult to understand. Id. Officer Bakraqi also testified that the Defendant's demeanor was "[v]ery nervous." Id. at 42.
Officer Bakraqi, "moved to the back of the trunk of the car" so he could "get a better visual of [his] lieutenant." Id. at 42. Officer Bakraqi instructed Polanco to follow him from the driver's side of the livery cab to the back of the car. Id. At the back of the car, Officer Bakraqi turned away from the Defendant to look for the lieutenant, who was still not within sight. Id. According to Officer Bakraqi, when he was turned away, the Defendant began to move away from the trunk area. Id. at 43. Officer Bakraqi told the Defendant to stop moving. Id. Polanco did not obey the Officer's orders. Id.
At this point, Officer Bakraqi saw his lieutenant heading up the street, with Navarro. Id. Officer Bakraqi testified that by this time, the Defendant's demeanor appeared "even more nervous."Id. In addition, the Defendant had moved about eight feet toward the rear passenger side door of the taxi. Officer Bakraqi testified that at this time, Polanco moved his arms in a manner as if he was "trying to get an itch on [his] lower back." Id. From the Defendant's movements, Officer Bakraqi believed Polanco "might be reaching for a weapon," even though he had previously checked the Defendant for weapons and found none.Id. at 43. At that point, Officer Bakraqi instructed the Defendant to stop moving, and instructed him to "just get down on the ground." Id. at 44. Officer Bakraqi testified that Polanco did not comply with that order. Id. At that point, according to Officer Bakraqi's testimony, he placed his hands on the Defendant's shoulders, and used "minimum force to place [Polanco] on the ground." Id. at 44, 51. As he did so, an object fell from the Defendant. Id. at 44. Officer Bakraqi's lieutenant picked it up and, upon inspection, Officer Bakraqi recognized the object to be heroin. Id. at 44. The entire length of this interaction — from the time that Officer Bakraqi stopped the vehicle to when the heroin was recovered, lasted between three to five minutes.Id. at 45.
Officers subsequently searched the suitcases in the back of Polanco's cab and found, inside one of the suitcases, a hydraulic press, several grinders, razor blades, plastic bags, and five bags containing approximately 470 grams of heroin. (Compl. ¶¶ 13-14). The second suitcase contained women's clothing. Id. ¶ 13. The Defendant was advised of his Miranda rights and was subsequently asked who gave him the object that fell from his pants. Id. at ¶ 16. The Defendant replied that the object had been given to him "by the guy that was with the girl." Id.
Polanco was charged in a complaint on May 24, 2010, with distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B), and with conspiracy to distribute and possess with the intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). A grand jury in this District returned an indictment against the Defendant containing the same charges on July 19, 2010.
III. Discussion
Polanco asserts that the object which fell from his pants should be suppressed as a fruit of an unlawful seizure. He contends that his stop was converted into an arrest once Officer Bakraqi placed him in handcuffs and that Officer Bakraqi lacked probable cause to effectuate a lawful arrest. Consequently, he argues, because the object was seized as the fruit of the unlawful arrest, it must be suppressed and held inadmissible against him.
The Fourth Amendment
The Fourth Amendment protects individuals against "unreasonable searches and seizures." U.S. Const. amend. IV. An individual is "seized" within the meaning of the Fourth Amendment when a "police officer accosts an individual and restrains his freedom to walk away." Terry v. Ohio, 392 U.S. 1, 16 (1968). An individual may be lawfully temporarily detained, however, based on reasonable suspicion of criminal activity. Id. at 1. Reasonable suspicion requires "some minimal level of objective justification" for making a stop, but "considerably less proof" than a preponderance of the evidence. United States v. Sokolow, 490 U.S. 1, 7 (1989). If there is sufficient reasonable suspicion to "justify an investigatory stop, reasonable force may be used to effect that stop." United States v. Harley, 682 F.2d 398, 402 (2d Cir. 1982). Furthermore, when law enforcement officers make a stop justified by reasonable suspicion, the scope of that stop must be "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20. Thus, whether a seizure is an arrest, or "merely an investigatory detention, depends on the reasonableness of the level of intrusion under the totality of the circumstances." Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991). This reasonableness must be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."Graham v. Connor, 490 U.S. 386, 396 (1989).
Converting a Stop into an Arrest
A high level of detention constituting an arrest occurs "if the totality of circumstances indicates that an encounter has become too intrusive to be classified as an investigative detention."Posr, 944 F.2d at 98. Whether an investigatory stop is transformed into an arrest by an officers' conduct depends on a number of factors. These factors include: the amount of force used by police; the need for such force; the extent to which the individual's freedom of movement was restrained; the number of agents involved; whether the target of the stop was suspected of being armed; the duration of the stop; and the physical treatment of the subject, including whether or not handcuffs were used.United States v. Perea, 986 F.2d 633, 644-45 (2d. Cir. 1993). "[N]o single factor," however, will convert a Terry stop into a de facto arrest. Oliveira v. Mayer, 23 F.3d 642, 646 (2d Cir. 1994).
Probable Cause
The Fourth Amendment requires that an arrest be supported by probable cause. See e.g. United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008). Probable cause exists when a "law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." Id. Under the imputed knowledge doctrine, an arrest is permissible where the actual arresting officer lacks the specific information to form the basis for probable cause but when "sufficient information to justify the arrest or search was known by other law enforcement officials initiating or involved with the investigation." United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001) (citing United States v. Hensley, 469 U.S. 221, 230-33 (1985)); United States v. Canieso, 470 F.2d 1224, 1230 n. 7 (2d Cir. 1972). This rule exists because, "in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation" and sometimes "his authority to arrest a suspect is based on facts known only to his superiors or associates." Colon, 250 F.3d at 135 (citing United States v. Valez, 796 F.2d 24, 28 (2d Cir. 1986)).
Probable cause requires "only a probability or substantial chance of criminal activity" not "an actual showing of that activity." Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983). While the "quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction . . . it must constitute more than rumor, suspicion, or even a strong reason to suspect." United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983). The generalization that suspected narcotics traffickers are often armed and violent cannot, without more, justify heightened intrusion. United States v. Ceballos, 654 F.2d. 177, 184 (2d Cir. 1981). If it were, "any narcotics suspect, even if unknown to the agents and giving no indication that force is necessary, could be faced with a `maximal intrusion' based on mere reasonable suspicion. The Fourth Amendment requires more to justify a `maximal intrusion.'"Id.
A. The Defendant was placed under de facto arrest on May 22, 2010
The first part of the Defendant's argument is that the investigatory stop conducted by Officer Bakraqi was elevated to an arrest when the Officer placed him in handcuffs. While no single factor, including the use of handcuffs, will necessary convert a Terry stop into an arrest, a consideration of the circumstances in this case indicates that, under a totality of the circumstances analysis, this Terry stop was elevated to an arrest once Officer Bakraqi did not promptly remove Polanco from handcuffs after finding no weapons on his person.
The facts in Ceballos, 654 F.2d. 177 (2d Cir. 1981), a case with comparable facts, is instructive in this instance. InCeballos, law enforcement, while conducting surveillance on an apartment believed to be used in connection with narcotics sales, observed the defendant drive up to the apartment, look in both directions, and exit the apartment shortly thereafter carrying a small paper bag. Id. at 179. Law enforcement officers stopped the defendant's car and, with guns drawn, ordered him out of his vehicle. Id. at 180. The paper bag dropped to the ground and was later found to contain cocaine. Id. Here, the Second Circuit held that the measures used by law enforcement — blocking the defendant's car and approaching with weapons drawn — were unnecessarily intrusive, thereby converting the stop into an arrest at the moment the progress of his car was blocked and he was faced by the officers with their guns drawn and ordered out of his car. Id. at 181, 184. The Court emphasized that the defendant in Ceballos was "completely unknown" to the officer at the time, "was not reputed to be a major narcotics violator; was not known to be armed or reasonably suspected to be armed; did not engage in erratic driving designed to avoid surveillance, and did not otherwise act in a way that would lead the officers reasonably to conclude that the degree of force used here was required to effect a Terry stop." Id. at 184. Moreover, it noted, "the drawing of guns has been explicitly described as one of the `trappings' of a technical formal arrest." Id. (citing Dunaway v. New York, 442 U.S. 200, 215 n. 17 (1979)). Here too. Polanco was completely unknown to law enforcement prior to May 22, 2010. Tr. 11/3/2010 at 22-30. He was never identified by the confidential sources providing information to the DEA, and Officer Bakraqi had no specific information that Polanco might be armed or dangerous. Id. Officer Bakraqi was aware, however, that Polanco had just received two heavy suitcases from a known narcotics suspect under surveillance by the DEA.
The Government distinguishes Ceballos from this case by relying on a parenthetical in a second Second Circuit case, United States v. Perea, 986 F.2d 633 (2d Cir. 1993). Transcript of December 3, 2010 Hearing ("Tr. 12/3/10") at 16-17. In Perea, the Second Circuit agrees with the district court's finding that the use of cars to block a suspect's vehicle does not inherently turn aTerry stop into an arrest. Perea, 986 F.2d. at 644. The circuit court then distinguishes Ceballos because in Ceballos there were three police cars which participated in the stop. The Government reads this to mean that the crucial factor in Ceballos, that which converted the Terry stop into an arrest, was the number of police cars, officers, and drawn weapons that participated in the stop. Thus, in this case, the Government argues, because the interaction between Officer Bakraqi and Polanco was a one-on-one encounter, the intrusion of Officer Bakraqi's stopping Polanco's car does not convert that stop into an arrest.
The Government is partially right — no single factor will turn a stop into an arrest and Officer Bakraqi stopping Polanco's car does not in itself convert that interaction into a de facto arrest. In this case however, the facts go beyond those inCeballos. In addition to Polanco's car being stopped and Officer Bakraqi drawing his weapon as he approached the Defendant's car, Polanco was asked to turn off his engine, get out of his car and surrender his keys and when he did, he was immediately handcuffed by the Officer. Tr. 11/3/2010 at 11. Although Officer Bakraqi told the Defendant he was being detained and that he was not under arrest, handcuffing has been "generally recognized as a hallmark of formal arrest." United States v. Newton, 369 F.3d. 659, 676 (2d Cir. 2004). Officer Bakraqi then checked Polanco for weapons. Tr. 11/3/2010 at 11.
Handcuffing is permissible during an investigative stop when it is "a reasonable response to legitimate safety concerns" on the part of the investigating officer. United States v. Vargas, 369 F.3d 98 (2d Cir. 2004). Generalizations regarding the likelihood of danger when interacting with narcotics suspects, without more, however, are insufficient to justify such a maximal intrusion under the Fourth Amendment. Ceballos, 654 F.2d. at 180-181, 184. In this case, Officer Bakraqi testified to at least three reasons as to why he handcuffed Polanco, even though he doesn't always handcuff suspects during a stop: 1) he was alone; 2) it was dark; and 3) the stop was of a narcotics suspect. Tr. 11/3/2010 at 40. While, underCeballos, this third reason alone would be insufficient to justify handcuffing, Officer Bakraqi's first two concerns, when coupled with the fact that he had received orders to detain a suspect who was both unknown to him and suspected of dealing in narcotics, indicate that the Officer had legitimate safety concerns such that handcuffing was appropriate in this stop. Furthermore, Officer Bakraqi simultaneously telling Polanco that he was detained and not under arrest, while not dispositive on the issue of whether or not Polanco was under de facto arrest, does help in the analysis of determining to what extent "a reasonable person would understand any restraints on his freedom to be comparable to those generally associated with a formal arrest." Newton, 369 F.3d. at 676.
Once Officer Bakraqi checked Polanco for weapons, and found none, however, his stated safety concerns no longer justified the maximal intrusion of handcuffing. Polanco had complied with all of Officer Bakraqi's instructions by turning off his engine, surrendering his keys, and exiting his vehicle without objection, and when the Officer's search of Polanco yielded no weapon, the safety concerns which once justified Polanco's handcuffing, had, by this point, been allayed. At that moment, the moment in which Officer Bakraqi did not remove Polanco from handcuffs after finding no weapons on his body, the stop was converted into a de facto arrest because the maximal intrusion of handcuffing, a hallmark of formal arrest, was no long justified by "legitimate safety concerns."
It should be noted that two Perea factors, the short duration of time between when Officer Bakraqi stopped Polanco's car and when the heroin was seized (three to five minutes) and the fact that there was only one officer involved, lend to the conclusion that the intrusion did not rise to the level of a de facto arrest. See United States v. Hooper, 935 F.2d 484, 495-496 (2d Cir. 1991) (stop which was no longer than five minute before officers found contraband was brief for an investigative detention); Perea, 986 F.2d at 653 (noting that "the number of agents involved" is one of the factors to be considered in assessing whether a stop was a de facto arrest). When considering these two factors with the remaining Perea factors, however, a totality of the circumstances analysis indicates that the level of intrusion was otherwise sufficient to elevate this stop into a de facto arrest.
When considering the Perea factors under a totality of the circumstances analysis, and considering the Second Circuit's precedent in Ceballos, the fact that Polanco's car was blocked by the Officer, that Polanco was completely unknown to the Officer at the time of the stop or to the other officers engaged in the investigation, that the Officer approached Polanco with a drawn weapon, that Polanco did not attempt in any way to resist him, and that Polanco obeyed the Officer's instructions, indicates that, considering all the factors, by placing Polanco in handcuffs and not removing the handcuffs promptly when he found no weapons on his body, Officer Bakraqi caused this detention of Polanco to amount to such a high level of intrusion that it was sufficient to elevate it to a de facto arrest.
Officer Bakraqi did use force, a factor in the Perea analysis, to place Polanco on the ground. It was at this time that the object, later identified as heroin, fell from the Defendant's pants. This use of force, described by Officer Bakraqi as "minimal" and justified by the Officer because of Polanco's alleged disobedience to orders, occurred after the Defendant was handcuffed and not promptly released upon no finding of weapons, and thus, after the totality of the circumstances elevated the level of intrusion in this stop to that of a de facto arrest. Tr. 11/3/2010 at 44, 51.
B. Officer Bakraqi had probable cause to arrest the Defendant
The second part of the Defendant's argument is that his arrest on May 22, 2010 was not supported by probable cause. Therefore, the Defendant argues, the object which fell from his pants, and which was later identified by Officer Bakraqi as heroin, must be suppressed as the fruit of an unlawful arrest.
In general, probable cause to arrest exists when "the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989). In the narcotics context, the Second Circuit has held that an individual's mere presence with a narcotics suspect does not, in itself, establish the probable cause needed to arrest. Circumstantial evidence of the nature of a relationship between a narcotics suspect and another individual, however, may create probable cause sufficient to arrest the individual as a potential co-conspirator to the narcotics suspect.
In United States v. Patrick, 899 F.2d 169 (2d Cir. 1990), for example, a man and a woman, both carrying knapsacks, entered a customs office at the same time, and each told an inspector the same story about how they crossed into the United States from Canada. Id. Officers discovered cocaine in the purse of the woman. Here, the Second Circuit concluded that the officers had probable cause to arrest the man as well, based on the information that the man entered the customs office at the same time as the woman and provided the same story regarding an accidental crossing of the Canada-United States border. This, the Court said, provided an "adequate basis for the officials to reasonably believe that [the man] was not just a mere innocent traveling companion but was traveling and acting in concert with [the woman] in transporting the cocaine." Id. at 172.
The Defendant attempts to distinguish Patrick and other cases cited by the Government, by stating that those cases involve defendants "who were social acquaintances of the suspected narcotics trafficker and [who] were observed acting suspiciously." (Def. Post Hearing Memo 11). In contrast, the Defendant argues, Officer Bakraqi observed "nothing to indicate that Mr. Polanco had a pre-existing social relationship with Mr. Navarro." Id. Indeed, the Defendant contends, the only interaction Officer Bakraqi witnessed between the two men "was a short, unsuspicious conversation after which Mr. Navarro placed the two suitcases in Mr. Polanco's trunk." Id.; see also Tr. 11/3/10 at 46-47. This, he concludes, does not indicate that Polanco was acting as anything other than a livery cab driver responding to a routine call. (Def. Post Hearing Memo 11).
Contrary to the Defendant's arguments, the circumstances which Officer Bakraqi observed did indicate a suspicious relationship between Navarro and Polanco. Specifically, Officer Bakraqi's observation of Navarro, a narcotics suspect, placing his two suitcases into the trunk of Polanco's livery cab, not entering the car but rather walking away in the opposite direction, and then the cab driving off, could reasonably indicate to the Officer that there was a pre-existing relationship between the two individuals. Moreover, there is no indication or observation that Navarro paid Polanco upon placing his suitcases in the livery cab — further indicating that this was a pre-existing relationship and not a first time encounter between livery cab driver and passenger. These observations, when coupled with the information known by DEA agents and others involved in the surveillance of the Pelham Parkway North apartment, as permitted by the imputed knowledge doctrine, gave Officer Bakraqi sufficient probable cause to effectuate the arrest on Polanco.See United State v. Colon, 250 F.3d 130, 135 (2d Cir. 2001) (articulating the imputed knowledge doctrine); see also, Part III. Specifically, information from sources who had previously provided reliable information to the DEA as well as information from residents of the building, indicated to agents that Navarro, a narcotics suspect, was again using livery cabs to make deliveries of narcotics; residents of the Pelham Parkway North apartment building and the building's superintendent indicated to agents their belief that the apartment was being used for narcotics sales; agents had observed what they believed to be an attempted theft of narcotics or narcotics money on the same day as they observed Polanco and Navarro's interaction; and Officer Bakraqi observed Navarro place two, apparently heavy looking, suitcases into the trunk of Polanco's livery cab before walking away. Navarro's modus operandi clearly involved the use of livery cabs for the delivery of narcotics and Officer Bakraqi could have reasonably concluded, from his first-hand observations, that the relationship between Polanco and Navarro was not an ordinary arms-length relationship between a livery cab driver and a customer. This, coupled with the information known to others involved in the investigation, created sufficient probable cause for an arrest of the Defendant.
At the November 3, 2010 hearing, Special Agent Dill testified that he has debriefed drug couriers and/or delivery men about their role in drug conspiracies. In some of those debriefings, he testified, these couriers have told him that they knew they were carrying drugs. "It [is] common," he testified, "that they would tell me that they knew about [the drugs] because they wanted to know how to avoid law enforcement . . . [F]or example, a person in a car is not going to run red lights or stop lights. They are going to drive carefully so they [don't] get stopped by law enforcement." Tr. 11/3/10 at 22-23. This is relevant to the probable cause analysis in as much as it was reasonable for Officer Bakraqi to believe that Polanco knew that drugs were being delivered to him in those suitcases.
IV. Conclusion
In conclusion, while the intrusion upon the Defendant was sufficiently high to elevate the Terry stop into a de facto arrest, Officer Bakraqi, together with the other officers engaged in the investigation of Navarro, had sufficient probable cause to arrest the Defendant lawfully as an accomplice or an aider or abetter of Navarro. Consequently, the evidence which was seized was subject to a lawful arrest and will not be suppressed.
SO ORDERED.