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UNITED STATES v. STAINO

July 28, 1988

UNITED STATES OF AMERICA
v.
RALPH STAINO



The opinion of the court was delivered by: O'NEILL

 THOMAS N. O'NEILL, JR., UNITED STATES DISTRICT JUDGE.

 Defendant filed a motion to suppress physical evidence seized at the time of his arrest in the Dominican Republic. *fn1" After consideration of the motion and the government's memorandum of law, and following a hearing and oral argument, I denied defendant's motion. *fn2" At that time, I stated on the record that I would file a memorandum setting forth the basis for my decision. My findings of fact and conclusions of law are set forth below.

 A. Findings of Fact

 1. On January 11, 1988, Special Agent Charles Warner arrived in the Dominican Republic. Transcript of July 11, 1988 Hearing (hereinafter Tr.), at 16. He requested the assistance of law enforcement officials in the Dominican Republic to locate the defendant. Tr. 16. He possessed a warrant for defendant's arrest that was issued by the United States. Tr. 17.

 2. Agent Warner was instructed by the American Embassy and the FBI officials in Puerto Rico that he could not carry firearms in the Dominican Republic. Tr. 17. Only Dominican authorities are permitted to possess firearms. Tr. 17.

 3. After surveying a particular residential area, Agent Warner notified the Dominican police of the defendant's whereabouts. Tr. 17-18, 27. The Dominican officials then conducted surveillance of this residential area. Tr. 28. I credit Agent Warner's representation that he never instructed the Dominican police to go to the defendant's residence. Tr. 29. Agent Warner merely relayed information to the Dominican officials and showed them photographs of defendant. *fn3" Tr. 18. These officials decided, on their own, that they were going to a residence to determine if Mr. Staino lived there. Tr. 30. According to Agent Warner, the interest of the Dominicans in the defendant was that he was illegally in their country. Tr. 30. He had not committed a crime in the Dominican Republic. Tr. 30.

 4. On the morning of January 13, 1988, Agent Robert Williams, *fn4" Agent Warner and two police officers went to Mr. Staino's residence. Tr. 29. The two police officers knocked on his door and talked to him briefly. *fn5" Tr. 19. Mr. Staino testified at the hearing that one of the officials who knocked on the door was a United States Marshal who accompanied him on the plane from Puerto Rico to Philadelphia. *fn6" Tr. 48, 50. On cross-examination, however, Mr. Staino was unable to identify the Marshall by name. Tr. 59-60. I credit Agent Warner's testimony that both officers who knocked on the door were Dominican. Tr. 19.

 5. At the time that the Dominican officers first approached the residence, Agent Warner and Agent Williams were in a vehicle 100 yards from defendant's house. Tr. 19.

 6. The two Dominican officers then returned to the vehicle where Agents Warner and Williams were located. Tr. 20. To verify defendant's identity, the Dominican officers again examined the photographs of defendant, which Agent Warner possessed. Tr. 20.

 8. Mr. Staino testified that the two men who had just spoken with him again came to his door. Tr. 49. This time they arrived with drawn guns and told him that he was under arrest. Tr. 49. He also noticed four other officers with drawn guns surrounding the house. Tr. 50. Mr. Staino claimed that two of the officers present were United States Marshals, whom he recognized on the plane from Puerto Rico. Tr. 49. I am unable to credit defendant's testimony because he was unable to identify one of the Marshals on the plane, see supra para. 4, and because he was unsure whether one or two Marshals accompanied him on his flight to Philadelphia. Tr. 64. Moreover, on cross-examination Mr. Staino did not know whether the Marshal(s) had guns (Tr.64), even though he had testified on direct examination that the officers surrounding the house had their guns drawn. Tr. 50. I credit Agent Warner's testimony that he did not see any Marshals arrest defendant or search his residence. *fn7" Tr. 69.

 9. Defendant was placed in handcuffs and brought outside the house. Tr. 51. At this time, Agent Warner walked up the driveway with Agent Williams and approached defendant. Tr. 20. With Agent Williams interpreting for Agent Warner, Agent Warner identified defendant after asked to do so by the Dominican officials. Tr. 20-21. Agent Warner and Mr. Staino exchanged words in the driveway (Tr. 21, 54), but Agent Warner did not attempt to question him. Tr. 24, 54.

 10. Agent Warner took pictures of the defendant outside his home with a camera belonging to the Dominican officials. Tr. 55, 69, 78. They gave Agent Warner permission to use the camera. Tr. 78. They ...


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