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UNITED STATES v. FILIBERTO

April 17, 1989

UNITED STATES OF AMERICA
v.
FILIPPO FILIBERTO, a/k/a Phillip, and FRANCESCO BADALAMENTI, a/k/a Frankie



The opinion of the court was delivered by: BECHTLE

 LOUIS C. BECHTLE, UNITED STATES DISTRICT JUDGE.

 Presently before the court are the motions of defendants Filippo Filiberto and Francesco Badalamenti to suppress physical evidence obtained pursuant to a search of the defendants' respective premises, and to suppress post-arrest statements. For the reasons set forth herein, defendants' motions to suppress physical evidence are denied, and defendants' motions to suppress post-arrest statements are granted in part and denied in part.

 I. BACKGROUND

 In the early morning hours of December 1, 1988, the Federal Bureau of Investigation ("FBI"), in cooperation with local law enforcement authorities, executed arrest and search warrants throughout the country and in Italy under "Operation Iron Tower," an investigation into the transnational importation and distribution of narcotics. The FBI's warrants *fn1" in this case were issued as a result of the filing of a criminal complaint in the Eastern District of Pennsylvania charging defendant Badalamenti with one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and one count of distribution of cocaine under 21 U.S.C. § 841(a)(1), and defendant Filiberto with the same charge of conspiracy and two counts of distribution under § 841(a)(1). *fn2"

 Defendants challenge the legality of these arrests and searches on several grounds. First, defendants refute the magistrates' findings of probable cause to support the issuance of arrest and search warrants. Second, defendants contend that the searches conducted were overbroad and amounted to a general exploratory search in violation of the Fourth Amendment. Third, defendants contend that the information supporting the warrants was stale. Fourth, defendants allege that law enforcement personnel failed to announce their purpose and authority before entering the respective premises and executing their warrants. Fifth, and finally, defendant Badalamenti seeks to suppress certain post-arrest statements allegedly obtained in violation of his Fifth and Sixth Amendment rights as outlined by the Supreme Court's opinion in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). *fn4"

 II. DISCUSSION

 A. Francesco Badalamenti

 The following is a summary of the testimony of FBI Agents Charles B. Warner and Frederick A. Walz, Sergeant Richard Thomlinson of the Cherry Hill Police Department, and defendant Francesco Badalamenti, given at a hearing on defendant's motion conducted by the court on March 29, 1989. At or about 2:00 A.M. on December 1, 1988, FBI agents and officers of the Cherry Hill Police Department arrived at defendant Badalamenti's residence located at 106 Barclay Walk, Cherry Hill, New Jersey. The agents testified that they knocked at the front door and announced that they were there to execute a warrant for the arrest of Francesco Badalamenti. The front door to the residence was opened by co-defendant Antonio Romano, and the authorities entered.

 A team of agents and officers led by Special Agent Walz immediately ascended the stairs. Testimony shows that the agents announced their purpose and authority and proceeded to a bedroom, where they located defendant Badalamenti and his girlfriend and placed him under arrest. Badalamenti remained unhandcuffed and was permitted to enter a bedroom closet to put on a pair of jogging pants.

 As Badalamenti was being secured, a second team of officers and agents, including Sergeant Thomlinson, entered the room to conduct a cursory search for weapons incident to defendant's arrest. Soon after entering, and while defendant remained unhandcuffed and undressed at the far corner of the room, Sergeant Thomlinson noticed a shaving kit on the shelf of an open closet. The shelf was above eye level, but the bag was unzipped forming an open "v" at the top. Sergeant Thomlinson reached up and took the kit from the shelf. Immediately upon bringing it down, he noticed a white powdery substance in a glassine bag, which he suspected was cocaine. *fn5" Sergeant Thomlinson placed the bag on defendant's bed and informed Agent Walz of his discovery. The entire episode lasted about 10 minutes.

 Agent Walz asked defendant about the substance which they had concluded was cocaine. Badalamenti acknowledged that the shaving kit was his, but denied any knowledge or ownership of the cocaine and alluded to the fact that law enforcement authorities may have placed it there. The defendant was then brought downstairs to a kitchen where he was read his rights in both English and Italian. Defendant was presented with a form requesting him to waive his right to remain silent, which he refused to sign. However, upon questioning from Agent Walz, defendant repeated that he owned the shaving kit and all of its contents except the cocaine and again accused the authorities of "planting" it there.

 As a threshold matter, the court finds that the information supporting the issuance of the arrest warrant was sufficient to establish probable cause in this case. The Hayes affidavit supporting the warrant summarizes the government's extensive investigation into alleged narcotics trafficking at Leo's Pizza Palace in Pitman, New Jersey, where defendant ...


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