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UNITED STATES v. WEXLER

March 7, 1986

UNITED STATES OF AMERICA
v.
ROBERT C. WEXLER



The opinion of the court was delivered by: DITTER

 DITTER, J.

 Defendant, Robert C. Wexler, has moved to suppress physical evidence seized from his person and an automobile. He has also moved to suppress the identification testimony of three government agents. At the conclusion of the evidentiary hearing on February 3 and 4, 1986, I reserved decision on the physical evidence and denied suppression of the identification evidence. Additionally, I considered defendant's various motions in limine. This memorandum and order will supplement the rulings made in the courtroom.

 Defendant is charged with conspiracy and possessing with intent to distribute approximately 750 pounds of hashish. The hashish, concealed inside of 640 motor mounts, was shipped in thirty-two crates from Bombay, India to Media, Pennsylvania. Customs agents in San Francisco, California, discovered the contraband when the shipment entered the country and transferred the crates to Customs in Philadelphia. Undercover agents delivered the crates to the addressee, Quality Traders, and DEA and Customs agents maintained continuous surveillance over the building where Quality Traders was located.

 After two days, the crates were loaded into a Ryder truck which the agents followed in several unmarked cars to a Dunkin' Donuts parking lot and then to a K Mart parking lot. Agents maintained surveillance of the K Mart area until Agent Ellis M. Hershowitz, one of the officers coordinating the operation, arrested Wexler who, for thirty minutes, had been continuously driving a white Ford Tempo in the immediate area surrounding the K Mart. The occupant of the passenger's seat, co-defendant Louis B. Samuels, was also arrested.

 At the time of the arrest, Agent Hershowitz observed a CB radio, its box, a receipt for its purchase, a Dunkin' Donuts bag and coffee cup, a small leather coin purse, and a plastic bag in the passenger compartment of the automobile. These items and rental documents bearing Wexler's name, located in the glove compartment, were seized several hours later during an inventory search at the DEA office. Wexler's wallet, containing personal identification, was also seized at the DEA office during the processing incident to a custodial arrest. It was later determined that the substance inside of the plastic bag was marijuana and, one year later, trace amounts of hashish were discovered on two coins inside of the leather coin purse.

 Defendant has moved to suppress all of this evidence on the basis that his arrest was invalid for lack of probable cause. Consequently, he argues, the warrantless searches of the automobile, the containers therein, and the defendant's person were invalid.

 I have concluded that Agent Hershowitz had probable cause to arrest defendant. In making this determination, I have considered only the following facts which Agent Hershowitz, the arresting officer, identified as being within his knowledge at the time of the arrest. *fn1" Thirty-two crates of hashish were sent from India, delivered to Quality Traders and loaded into a Ryder truck. The truck was eventually driven to a K Mart parking lot where the driver parked away from other vehicles, walked to the front entrance of the store and began "pacing around and looking around." Minutes after the Ryder truck was parked, a white Ford Tempo slowly passed in close proximity to the truck. The white Tempo continuously circled the K Mart area for approximately thirty minutes and passed the truck a second time. Agents had earlier observed the same white Tempo, identified by its license plate, drive by Quality Traders while the crates were being loaded onto the truck. The agents concluded that the driver of the white Tempo was conducting counter-surveillance of the Ryder truck. *fn2"

 These facts are sufficient to establish probable cause to arrest Wexler. The arresting officer knew that a narcotics offense was in the process of being committed. The driver of the truck appeared to be waiting to meet another party outside of the K Mart. A white Tempo arrived at this critical time; its driver demonstrated more than casual interest in the truck as he slowly cruised past it twice and circled the immediate area for thirty minutes. The agents noted that the same automobile had passed the truck at a critical time several hours earlier when the contraband was being loaded into the truck at Quality Traders. This coincidence of timing and location, together with the peculiar manner in which the automobile was being operated at the K Mart, justified the agent's reasonable conclusion that the driver of the automobile was not a curious shopper, but rather was conducting counter-surveillance of the truck. When this conclusion was added to the knowledge that the truck was presently transporting contraband, the agents had sufficient probable cause to arrest the defendant. At that point, the defendant was linked with the truck and the contraband, and the agents were warranted in the belief that defendant's counter-surveillance activity was for the purpose of furthering the ongoing narcotics offense. See Brinegar v. United States, 338 U.S. 160, 175-178, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). Consequently, Wexler's arrest was valid and the seizures of physical evidence were justified as inventory or administrative searches conducted pursuant to a lawful custodial arrest, see Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983), and the impoundment of a vehicle. *fn3" See South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976); Cady v. Dombrowski, 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973).

 I do not reach the question as to whether the subsequent searches of the contents of the plastic bag and leather coin purse were valid, because this evidence will be excluded on other grounds. See infra slip op. at 11. Accordingly, all of the physical evidence, except for these two containers, will be admitted.

 Defendant has also moved to suppress the identification testimony of Agents Sammoccicia, McCloskey, and Cessaro on the basis that each agent's identification of the defendant after his arrest was the product of impermissibly suggestive procedures and is without adequate, independent basis. I have denied defendant's motion.

 At the evidentiary hearing, Agent Michael A. Sammoccicia testified that, while conducting surveillance in the Dunkin' Donuts parking lot, he saw two men talking outside of a white automobile which was parked in the area of the Ryder truck. It was about four o'clock in the afternoon. He observed the men for five to ten seconds from a distance of approximately twenty yards and noticed that one had dark, straight hair with a red shirt and the other man was thin, had dark, bushy hair with a mustache and was wearing a light-colored shirt and no glasses. He noted that the men "looked suspicious" and conveyed the information to his partner. He did not see the men again until approximately four hours later when he heard that two men had been arrested near the K Mart, and he went to the DEA office to see if he could make an identification. When Agent Sammoccicia saw the two arrested men, who were in separate rooms, he stated that he was "ninety percent certain" that they were the same two men he had seen at the Dunkin' Donuts.

 Two other members of the surveillance team, Agents Richard McCloskey and Frank Cessaro, testified that they saw Wexler and Samuels in the K Mart area. Agent McCloskey stated that as he entered the store, he saw a man with full, curly hair and a mustache talking on the telephone in the front entrance. The agent made eye contact as the man gave a "darting glance." When the agent left the store about ten minutes later, he noticed the same person talking outside the front of the store to a man with medium length brown hair, wearing glasses, a red shirt and jeans. The agent again spotted these two men and observed their faces when they drove by him in a white Ford Tempo as the agent walked to his car parked on an adjacent street. Shortly thereafter, Agent McCloskey learned over the radio that a white car and two men were in custody at K Mart. He went to K Mart and identified the defendants as the same two men he had observed fifteen minutes earlier. These events occurred between four and five in the afternoon.

 Agent Cessaro's testimony corroborated that of Agent McCloskey. In the mid-afternoon, Agent Cessaro observed two white males conversing in front of the K Mart entrance while they looked throughout the parking lot. Both men appeared to be in their early thirties. One had dark hair, a red shirt, dark pants and was clean shaven; the other had dark, longer, bushier hair, and a bushy mustache. One man went into the store while the other paced in front of the store. The agent observed the men from approximately thirty yards for five to ten minutes. At times his view was clear and at times it was partially obstructed by other vehicles in the parking lot. Agent Cessaro left the K Mart, ...


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