Citations
- 764 F. Supp. 2d 480
Full opinion text
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
In a Notice of Omnibus Motion dated June 9, 2010, the defendant Robert L. Cummings, Jr., moved pursuant to the Federal Rules of Criminal Procedure, for the following relief relevant to the hearing held in this matter:
1. An order pursuant to Rule 12 suppressing evidence obtained by government agents after approaching the defendant Robert L. Cummings, Jr.’s vehicle on March 11, 2010;
2. An order pursuant to Rule 12 suppressing any statements obtained by government agents from the defendant Robert L. Cummings, Jr. on March 11, 2010;
3. An order pursuant to Rule 12 suppressing any evidence obtained by government agents from the search of the defendant’s residence at 270 North Country Road, Smithtown, N.Y. on March 11, 2010.
I. THE HEARING
A. The Government’s Case
Michael Antonueci is a Special Agent with the Drug Enforcement Administration (“DEA”). He is an experienced drug trafficking investigator. In late January 2010 the Smithtown Department of Public Safety received an anonymous letter that heroin trafficking was taking place in the maintenance yard of the Smithtown Highway Department. Following up that information, on February 5, 2010, DEA Agents arrested two employees of the Smithtown Highway Department for possession of heroin. One was Nick Dirienzo, who stated that the source of the heroin was another Smithtown Highway Department employee named Dennis Manning. At that time, seven glassine envelopes of heroin were recovered from Dirienzo. The glassine envelopes were stamped “Rockefella, two thumbs up.”
Special Agent Antonueci was told by other law enforcement officers that Dennis Manning’s source of heroin was located at 270 North Country Road in Smithtown. He was told this information by a Public Safety Officer and Park Ranger named Thomas Lohmann. Previously, experienced law enforcement officers had observed what they believed to be suspicious activity at 270 North Country Road in Smithtown. They saw individuals going into the residence for relatively short stays and vehicles pulling up to and in and out of the residence area.
Based on this information, Special Agent Antonueci conducted a surveillance at 270 North Country Road. At the residence, he observed a white Cadillac Escalade bearing New York plate number EVY8194 which was registered to Robert L. Cummings, 21 Carol Lane, Mastic Beach, New York. Antonucci then ran a criminal history check on Robert Cummings, which revealed that Cummings had two prior convictions. In 2002, Cummings was arrested for possession with intent to distribute narcotics and possession of a loaded firearm. He pled guilty to a felony possession of narcotics. Also, in 2008, he was arrested for possession of a controlled substance and a firearm. He pled guilty to a misdemeanor possession of a controlled substance.
Law enforcement conducted a surveillance at the property in question on approximately five or six occasions from February 11, 2010 through March 11, 2010. Dennis Manning was observed in or near the vicinity of 270 North Country Road and the white Cadillac Escalade was also present. On February 24, 2010 a surveillance was conducted and the agents saw Dennis Manning in a Smithtown Highway Department truck arrive at 270 North Country Road. Manning exited the truck and entered the building for approximately five minutes, then he exited the residence, entered the truck and left. The defendant’s Escalade remained.
On February 25, 2010, another surveillance was conducted by Antonucci. He saw Cummings enter his white Escalade, drive for a distance and meet a Smithtown Highway Department snow removal truck at the crest of a hill. The driver of the truck, Dennis Manning, exited the truck and entered the Cummings vehicle for approximately two to three minutes. Then Manning left the Cummings vehicle, reentered the truck and both vehicles departed. Cummings drove back to the residence at 270 North Country Road. Antonucci suspected that a drug transaction had taken place.
Another surveillance took place on March 3, 2010 at 270 North Country Road. Cummings entered the Escalade and drove to Queens County and picked up another individual at 110th Street in Richmond Hill. They drove around together for the better part of the afternoon.
March 11, 2010, was a key date in this hearing.
On March 11, 2010, Antonucci was part of a surveillance team at 270 North Country Road. At approximately 12:58 pm, he saw Cummings enter the white Cadillac, drive south and pull into a Dairy Barn. He drove through the purchasing window, headed south and entered an adjacent shopping center parking lot. He then drove through the parking lot, circling slowly, at which time a second vehicle, bearing New York State registration number EME2288 drove behind Cummings’ vehicle as it circled the lot. The two vehicles exited the lot and then both pulled over to a wooded area. The driver of the second vehicle was later identified as Jude Innocent. After the vehicles both pulled over to the side of the road in this wooded area, Innocent exited his vehicle and entered the defendant’s Escalade.
At that time, Special Agent Antonucci activated his police lights and pulled in front of the Escalade and exited his vehicle and came up to the driver of the Escalade. Antonucci described what occurred:
And with my police badge on, I exited my vehicle, came up the driver’s side of Mr. Cummings’ vehicle.
The window was opened. I told Mr. Cummings to put his hands on the steering wheel, and I told Mr. Innocent not to move.
At that point, for my safety, I opened the driver’s side door, at which time I saw a stack of money in Mr. Cummings’ lap.
I subsequently removed Mr. Cummings from the vehicle. At the same time, law enforcement officers removed Mr. Innocent from the passenger side and stated that they found at some point thereafter — that they found a large sum of heroin on Mr. Innocent. And both Mr. Cummings and Mr. Innocent were placed under arrest.
Tr. at 24.
Agent Egan, who was in charge, spoke to the defendant. The defendant wanted to know what was happening. He was told he was under arrest for possession of drugs with respect to the transaction that just occurred. Egan told the defendant that “we would go ahead to get a search warrant for his residence.” At that point, Cummings was calm and appeared to want to cooperate with law enforcement. Agent Egan asked the defendant if he was willing to cooperate and “if he gave us a consent to search for his apartment, that would be part of the process that would happen next.” Tr. at 26. Cummings was concerned that his wife should be part of the consent to search the apartment. Again, the defendant was apparently relaxed and he was allowed to smoke. According to Egan, “It was a calm atmosphere.”
Agent Egan asked the defendant if there was anything in the house to be concerned about. The defendant said there was a pit bull and a pistol inside, which the defendant said he had a permit for. He then said it was a rifle, not a pistol, and that it was a pistol-rifle. At that point, Cummings expressed a desire to cooperate. He was driven back to his residence at 270 North Country Road and the agents said that they would allow him to speak to his wife, Vanessa Torres.
At the Cummings home, agents went up to the stoop and knocked on the door. This was approximately 2 pm. At that point, Ms. Vanessa Torres came to the door in one-piece wool pajamas. She asked to go back in the apartment to change clothes. Concerned about the firearms in the apartment, the agents said “No.” She closed the front door behind her, walked to the police vehicle that Cummings was in and got in the back and spoke to Cummings. She spoke to Cummings for ten to fifteen minutes. They spoke about the consent to search then-residence. Special Agent Antonucci testified that:
Q. Did they agree to give verbal consent for the search at the time?
A. Yes.
MR. MANDERY: Again, my objection is he—
THE COURT: Yes. When you say “they,” who agreed?
THE WITNESS: Mr. Cummings and Ms. Torres, your Honor.
THE COURT: When you say that, what did they say.
THE WITNESS: Your Honor, again, the sum and substance, they were willing to allow us to search their residence.
And at that point I presented them with a Drug Enforcement Administration form 88, consent to search.
THE COURT: Who presented them?
THE WITNESS: I did, your Honor.
THE COURT: You presented them with what kind of form?
THE WITNESS: A DEA form 88, sir.
THE COURT: A DEA form 88?
THE WITNESS: Yes, sir. 88.
THE COURT: What is that?
THE WITNESS: A consent to search form, your Honor, written consent to search form.
BY MR. ROSE:
Q. Agent Antonueci, showing you what has been marked as 3500-MA-l, do you recognize that form?
A. Yes, sir.
Q. What is that form?
A. That’s the DEA form 88, a copy of his consent to search form. It was presented to Ms. Torres and Mr. Cummings.
Q. And were you present — did you review that form with them?
A. Yes, I did.
Q. And were you present when they signed the form?
A. Yes, I was.
Q. And whose signatures appear on that form?
A. Robert Cummings, Vanessa Torres, myself and Agent Francis Rau.
THE COURT: Agent who?
THE WITNESS: Agent Francis Rau, R-A-U.
BY MR. ROSE:
Q. Did you observe the signatures on that form?
A. Yes.
Q. You observed them sign the form?
A. Yes, sir. Yes, I did.
MR. ROSE: The government offers Government’s Exhibit 3500-MA-l into evidence.
Tr. at 31-33.
Special Agent Antonueci testified that the defendant’s demeanor was “calm and cooperative” when he signed the consent to search. Ms. Torres “appeared nervous but calm, not excitable.” The date on the consent was corrected and the defendant initialed the correction with a “RC” to acknowledge that a correction was in fact made on the document.
Cummings and Torres were then led out of the vehicle to the entrance of their apartment at 270 North Country Road. There was a pit bull in the apartment so that the agents escorted the defendant and Ms. Torres inside the apartment. Cummings was placed on a couch and Ms. Torres walked to the back of the apartment to secure the dog. The search commenced at about 2:30 pm and ended at approximately 3:30 pm.
On cross-examination of Agent Antonueci it was revealed that Special Agent Charles Bernard was the author of the investigative reports involving this incident. Also, Antonueci had conducted a number of surveillances at the 270 North Country Road residence in February and March 2010, but did not apply for a search warrant. However, there was a draft of a search warrant in the office of the Suffolk County District Attorney. Agent Bernard was in contact with the Office of the Eastern District United States Attorney’s Office while the defendant and Ms. Torres were sitting in the police vehicle.
On cross-examination, the defendant’s attorney elicited the following testimony about the relevant events. On March 11, 2010, Antonueci and other agents went to the residence to establish surveillance. It was a random surveillance; there was no advance tip that a drug deal was to happen that day. On February 5, 2010, two men, Nicholas Casizzi and Nicholas Dirienzo were arrested. Antonueci had read reports with regard to statements by these two men. Apparently, Dirienzo stated that Dennis Manning sold heroin to him. Dirienzo never mentioned the name of the defendant nor did he refer to the 270 North Country Road address nor did Casizzi in his statement. It was brought out that Dennis Manning works for the Town of Smithtown and is the cousin of the defendant.
In the report of Special Agent Bernard, it stated that Manning purchased heroin on a daily basis from 270 North Country Road, on his coffee break. Between February 11th and March 11th, Antonucei went to the area of 270 North Country Road six times looking for drug activity and excessive vehicular traffic. However, he conceded that with the vehicles that could have been lawfully at the premises, there was not “excessive vehicle traffic at the location.” Also, there was a certain doubt raised as to whether Manning was purchasing heroin on a daily basis at 270 North Country Road, while on his coffee breaks. Therefore, by March 11th, the agents could not verify that Manning was purchasing heroin at the 270 North Country Road residence.
As to his criminal history, on September 19, 2008, the defendant was arrested involving the drug methadone and a knife that was found in the console of his vehicle. However, the defendant plead guilty the next day to criminal possession of a controlled substance with a sentence of time served. The defendant also had been arrested on July 4, 2002. He was in a car with a firearm in the rear seat. The defendant did not plead to possession of the gun and received a sentence of five years probation. So that at the time of this occurrence, the defendant did not have any violent felony convictions.
Also, prior to March 11, 2010, Antonucei had never seen the defendant engaged in the sale of heroin. Antonucei did observe activity he “believed may have been drug transactions, but to actually say he observed a drug transaction,” he cannot say. Tr. at 98. Also, Antonucei never spoke to anyone who purchased heroin from the defendant or at the 270 North Country Road residence. So that other than the agents’ observations and the February 5th telephone call, there was no independent corroboration of drug activity at 270 North Country Road until March 11th. Antonucci had no information that the defendant was selling heroin from his white Cadillac Escalade, nor did he speak to anyone who gave him such information.
Prior to the March 11, 2010 incidents, the last surveillance at the house was on March 3, 2010. Also, Antonucei had no tips or firm confidential informants. That day, March 11, 2010, the agents established surveillance at 270 North Country Road early in the morning. At approximately 12:58 pm, he saw the defendant exit his apartment. There were eight officers doing the surveillance. Antonucei was alone in his own car. He saw the defendant exit the residence and enter his car. Antonucei decided to follow him. The defendant drove to a Dairy Barn and stopped at the window. He then drove to a Waldbaums at approximately 1:05 pm. The defendant then entered the shopping center lot; drove south on Route 111 and turned into Darling Avenue and pulled over near a wooded area. Antonucei had seen another car, driven by Mr. Innocent driving down Darling Avenue behind the defendant’s car. The two cars then parked in close proximity. He was the nearest agent car behind the defendant and Mr. Innocent. He saw Mr. Innocent exit his car and enter the defendant’s car. At that time, Antonucei was a half block and maybe 200 yards away.
Antonucei drove toward them and then made the decision to stop them. He activated his flashing lights, cut off and blocked the defendant’s vehicle. He exited his car and went to the driver’s side of the defendant’s vehicle. As he approached the defendant’s vehicle, he saw that the driver’s window was open. His weapon was not drawn. His shield was out. He identified himself as a police officer. Antonueci said, “Don’t move and put your hands on the steering wheel.” He then opened the driver’s side door. That was for his own safety. As he opened the car door he saw some money. He saw a bundle of money in the lap area of the defendant. He saw the money between the defendant’s groin and mid thigh, dead center from the steering wheel. The money was in plain view; a bundle of money laying on the defendant’s lap. The money was held together by a rubber band. At that point; he ordered the defendant out of the vehicle, by saying, “Step out of the vehicle.” Also, at that same time, Mr. Innocent was being removed from the other side of the vehicle by two other detectives. Antonucci physically pulled Cummings out of the vehicle. He held his left wrist. The defendant was compliant.
At that time, the defendant and Mr. Innocent were not free to leave. Questioned by defense counsel as to whether he had a “hunch” that Cummings was engaged in illegal conduct, Antonucci responded, “More than that, I had reasonable suspicion.” Tr. at 125. Both Mr. Innocent and the defendant were then searched. He searched the defendant and someone else searched Mr. Innocent.
After he removed the defendant from the vehicle, Antonucci recovered the money which was on the floor at the driver’s side of the defendant’s vehicle. A search of Mr. Innocent revealed that he possessed a “large sum of heroin.” At that point, he cuffed the defendant, Mr. Innocent was also cuffed and both were told that they were under arrest. Antonucci placed the money he recovered from the car in a sealed evidence bag. He did not count the money. The defendant wanted to speak to “whoever was in charge.” That was Agent Edward Egan. At first the defendant declined to sign the evidence bag, then he later agreed to sign. Antonucci denied that he applied pressure to the defendant to compel him to sign the evidence bag containing the money.
Then the agents took the defendant back to his home so that he could confer with his wife, Vanessa Torres, to obtain his consent to search his home. At that point, Antonucci did not have any information that the defendant had drugs in the house. There came a time when Cummings allowed him to search his apartment. The agents first raised the subject of that consent to search on the street when the defendant was stopped and eventually arrested. The defendant was cuffed in the front. According to Agent Antonucci, “... he asked to smoke, and he was relaxed and calm.” Tr. at 146. The defendant agreed to allow the agents to search his apartment, “after conferring with his wife.” Tr. at 148. The defendant was told if he did not agree to the search, that a search warrant would be obtained. Antonucci testified that during this time the defendant was cooperative. Agent Egan told the defendant that they were interested in who is supplying him with drugs, “we’re looking to go up the ladder.” Tr. at 152. Also, the defendant was advised that if he consented to the search, “he would show cooperation.” Tr. at 153.
The agents and the defendant in Antonucci’s car then drove from the initial scene and where the defendant was arrested to his residence. No promises concerning Vanessa were made to the defendant. When they arrived at defendant’s apartment at 270 North Country Road, Agent Antonucci was one of the parties that went to the front-door and knocked on the door. Vanessa came to the door wearing pajamas. Agent Egan spoke to her. He told her that her husband was arrested, was in the vehicle in the driveway and that he wanted to speak to her. Vanessa asked to put some clothes on and was told, “no, you have to come out how you are,” and they escorted her to the defendant in the car. Vanessa shut the door behind her and went to speak to Cummings in the agent’s car. Both were seated in the back seat. They were not happy and were in shock as to what was happening. They were whispering, but were talking about the agents’ request for permission to search the apartment, and “her recognition was more or less in agreement that they wished to do it.” Tr. at 162.
Agent Egan asked Cummings, “was there anything inside we should know about,” Tr. at 163, and Cummings told the agents that there was a weapon inside the apartment. At first he said it was a licensed pistol, then a rifle, and then a “pistol-rifle.”
Cummings and Vanessa Torres signed a written consent to search form. Antonucci had provided the form for them to sign. There were preprinted words on the consent to search form, including the words “I have not been threatened or forced in any way” and “I freely consent to this search.” Cummings signed the consent to search form on the back of agent’s vehicle where he was sitting with Vanessa. He was front cuffed at the time of signing, so that he could sign the form, and Ms. Torres signed on the arm rest. No one had made any promises or threats to the defendant and Vanessa, prior to their signing the consent, nor did Antonucci tell the defendant or Vanessa that they had to sign the consent form.
On redirect examination, Antonucci testified that he had information that Dennis Manning obtained heroin at 270 North Country Road on a daily basis, in the mornings. He also stated that Manning, in his Smithtown Highway Department truck was seen at 270 North Country Road on February 11, 2010, February 12, 2010, February 22, 2010, February 24, 2010, February 25, 2010, in the presence of the defendant, and on March 3, 2010. Further, in the defendant’s interview with the agents, he stated that on February 25th, he conducted a heroin for methadone transaction with Manning on that day. As to the March 3rd surveillance, the defendant stated that there was “a transaction occurring with Mr. [Logan] Sanchez.” Tr. at 182.
Charles K. Bernard is a Special Agent with the Drug Enforcement Administration, currently assigned to the Long Island District Office. On March 11, 2010, two persons were arrested by his group. One was the defendant Robert L. Cummings and the second was Jude Innocent. He and his fellow agents had followed a Cadillac Escalade driven by the defendant from his residence at 270 North Country Road. The Cadillac had been followed by a second vehicle, a Chevrolet driven by Mr. Innocent, from a parking lot at Waldbaums in Smithtown. Both cars pulled over to the side of the road on Darling Avenue. He approached the passenger side where Mr. Innocent was seated. He opened the passenger door and asked Mr. Innocent to step out. A pat down of Mr. Innocent revealed that he possessed four sleeves of heroin. Each sleeve consisted of 100 wax paper glassine paper bags. Cummings and Innocent were arrested. Agent Bernard filled out the top of the consent form, and had no further involvement in the signing of the form.
Thereafter, Agent Bernard followed the Antonucci car to 270 North Country Road. He approached the residence with other agents and knocked on the door. A woman who had been identified to the agents as the defendant’s wife, opened the front door. She was asked to come outside. She complied, closed the door behind her and went to the vehicle in which Cummings was seated about 50 feet from the front door of the house. At that time, Agent Bernard was making telephone calls to the Suffolk County District Attorney’s Office and to the office of the Eastern District United States Attorney. Based on the quantity of heroin found in the possession of Mr. Innocent, Bernard thought that this would meet the federal guidelines as to prosecution in the federal court. The federal authorities were interested.
The agents then proceeded to obtain the federal DEA form 88, consent to search. After Agent Bernard received the written consent of both Cummings and Torres, he secured the document and proceeded with the search. The search commenced at approximately 2:30 pm and ended about 3:30 pm, about an hour later.
Later in the day, Agent Bernard interviewed the defendant at the District Office. Prior to the interview, Bernard stated:
Q. Before you interviewed Mr. Cummings, what if anything did you advise him of?
A. I presented him with my advice of rights card, a DEA form 13-A, better known as the Miranda warnings. I verbally recounted each of the rights off the card to the subject.
Q. Showing you what has been marked as Government’s Exhibit 2, do you recognize that?
A. I do sir.
Q. What is that?
A. That is in fact a photocopy, front and back, in both English and Spanish, of my Drug Enforcement Administration 13-A.
Q. Is that the card that you read the rights of the defendant off of?
A. Yes.
Q. On that date, March 11th—
A. March 11th—
Tr. at 197.
Again on voir dire by attorney Tomao, the following testimony was given by Agent Bernard:
Q. Let me stop you there.
What specifically did you ask him about his understanding, if anything, about his rights that you read to him?
A. Oh, I’m sorry. I asked him, as it says on the card, if he understood the rights that have been presented to him, and he acknowledged that he did.
Q. What else did you ask him?
A. If he wanted any question posed on the card — if you would agree to answer questions without the presence of an attorney. And he agreed to answer questions and to assist in the investigation.
Q. How was the defendant’s demeanor at the time?
A. Calm and cooperative.
Q. Was the defendant handcuffed at that time?
A. No, sir.
Q. During the interview, did anyone take notes?
A. I did, sir.
Q. And at the end of the interview, what did you do with those notes?
A. At the end of the interview, I in fact read them back verbatim to the subject and asked Mr. Cummings if they in fact represented what we had just discussed. And he concurred with the notes being an accurate reflection, and I asked him to initial the lower right corner of each page.
Q. Showing you what has been marked as Government’s Exhibit 3500-CKB-2. Take a look at that for a second.
THE COURT: What is the number again?
MR. ROSE: 3500-CKB-2.
A. This is a photocopy of the notes that I took of that interview in question.
MR. ROSE: The government offers the exhibit into evidence, your Hon- or.
:ji í¡í íjí
THE COURT: 3500-CKB-2 in evidence, Government’s exhibit.
(Whereupon, Government Exhibit 3500-CKB-2 was received in evidence.)
BY MR. ROSE:
Q. Who signed this report?
A. The subject, Mr. Cummings, initialed each page, and then I countersigned the last page along with Investigator Thomas Lohmann.
Q. Was Mr. Lohmann present during the interview?
A. For the entire interview, yes, sir.
THE COURT: Who was present?
THE WITNESS: Thomas Lohmann, your Honor.
Tr. at 200, 201 and 202.
After this interview, at the District Office, which lasted one-half hour to forty-five minutes, the defendant had two requests. He wanted to eat and he wanted to smoke. He was furnished with a sandwich and a cigarette. Later that night, the defendant was transported to the Third Precinct of the Suffolk County Police Department in Bay Shore.
On March 22, 2010, Agent Bernard took photographs of the money taken from the defendant on March 11th. He testified that the money in the photographs “is exactly how it appeared when it was taken from the ... Cadillac Escalade on March 11th.” Tr. at 232. Apparently, the money was in the amount of $2,708, including eighteen $100 dollar bills. Also in evidence is Government’s Exhibit 13, which is a photograph taken by Agent Bernard of a glass-topped coffee table. Bernard testified that on the table were two pistols. One was a 9 mm Rieger pistol with the serial number defaced. (See also Government’s Exhibit 22 showing the two handguns.) In addition, on the table was a bin with wax glassine baggies containing a stamp bearing the logo Sopranos. Government Exhibit 14 is a photograph showing a wooden serving tray containing glassine bags also with the logo Sopranos.
On cross-examination, Agent Bernard testified that he saw the money in the defendant’s car. He also saw Agent Antonucci remove the money from the vehicle and place the money in an evidence bag. He again related the incidents of March 11th. There were a total of eight law enforcement officers involved. He arrived at the area of the Cummings residence at about 8:45 am. He prepared a written plan for the day’s activities. Three or four vehicles were involved. Agent Bernard stated that Dennis Manning was the linchpin of their investigation that day.
Q. Okay.
What about Dennis Manning?
A. Dennis Manning had been observed during several of our surveillances at your client’s residence and the plan that day was to arrest him after engaging in a drug deal and see if he was willing to cooperate against your client.
Tr. at 286.
Although, he was a basis for the surveillance, Manning was not present during the events that took place on March 11th. According to Bernard, on March 11th Manning was on duty in a Smithtown Department of Public Works Highway Department truck as a passenger. So that, although Manning was a precipitating cause for the investigation, even in his absence, the surveillance did produce the events described in detail above. In an exhaustive cross-examination, Agent Bernard reviewed the events of March 11, 2010.
Agent Bernard was outside the subject residence at about 1:00 pm and saw the defendant in his Escalade go to the Dairy Barn. He was one of the several cars following the defendant as he pulled alongside the road followed by Mr. Innocent in his car. He saw Antonueci’s lights flashing and saw him stop in front of Cummings’ Escalade. Mr. Innocent got out of his car and went into the defendant’s car. He and another officer approached the passenger side of the Cummings’ vehicle. Antonueci was already at the driver’s side. Bernard had his badge around his neck and it was visible. He did not have his gun out and no firearms were exhibited by the other officers. Shortly after Mr. Innocent stepped out of the car, he patted him down. He found four sleeves of heroin on Mr. Innocent’s person in the pockets in the front of his hooded sweatshirt. Bernard did not see the money on the defendant’s lap; his first view of the money was when the defendant exited from the car. These arrests took place at approximately 2:13 pm. No weapons were recovered at the scene of the arrest.
Although no weapons were found in the defendant’s car, Agent Egan told Bernard that the defendant told him that there was a firearm in the house. Bernard had checked the defendant’s criminal record and was aware of the defendant’s two prior convictions.
After the arrest at the scene at the side of the road, the agents and the defendant went to 270 North Country Road. Agent Bernard prepared the consent to search form and he wrote the language at the top portion of the form.
In a somewhat disturbing incident, defendant’s counsel brought out in cross-examination that a statement made by Agent Bernard in the complaint in this case may not be true. (Dft’s Ex. F). In paragraph 2 of the complaint prepared by Agent Bernard on March 12, 2010, he stated that, “Debriefing of individuals arrested in 2010, as well as other information developed during the course of the investigation, indicated that an individual residing at the target residence was distributing heroin.” Bernard conceded that this statement was not true. However, the Court notes that later in his redirect examination, Bernard testified that the statement was true.
Bernard was questioned at length about the information that DEA had concerning Dennis Manning and his alleged obtaining heroin on a daily basis from the Cummings residence during his coffee break in the morning. Bernard received this information from Investigator Thomas Lohmann. No other individual told him that someone at the target residence was distributing heroin. Bernard conducted surveillance at 270 North Country Road starting in December, 2009, based on the information by Inspector Lohmann; who advised him that this was a potential drug supply site. In February, 2010, he also obtained information that Dennis Manning was purchasing drugs at that location. This was followed by the arrest of the two men named Canizzi and Dirienzo. Bernard further testified that North County Road is a main wide road; and was heavily trafficked.
Bernard also took a photograph of the material taken from Mr. Innocent on March 11th (Dft’s Ex. I), showing the sleeves containing glassine envelopes. The powder in the glassine envelopes turned out to be heroin. He also took photographs of the house at 270 North Country Road, including the accessory building, which is the apartment occupied by Cummings and Ms. Torres. (Dft’s Exs. M, N, O and P). There were other people living at the target residence. In a search to determine who was living at 270 North Country Road, Cummings did not appear as one of the residents. Agent Bernard ascertained that Irene Castiglione was the owner of the residence.
The search at the residence was terminated about 3:30 pm and Cummings was then taken to the DEA office. Bernard knew that the defendant would be held in custody until the following day when he would be arraigned. The defendant was taken to the DEA office to be interrogated. He did not give the defendant a waiver of speedy arraignment form to sign, even though he knew that the defendant was not going to be arraigned until the following day. At that time, at the DEA office, Agent Bernard read the DEA form entitled “Oral warning to be given to a suspect prior to interrogation.” (Gov’t Ex. 2). Bernard does not recall if, in addition to reading the form to the defendant, he also handed him the card so that he could read it himself. The DEA form gave Cummings the usual and complete Miranda warnings as follows:
ORAL WARNINGS TO BE GIVEN TO A
SUBJECT PRIOR TO INTERROGATION
Before we ask you any questions, you must understand:
— You have the right to remain silent.
—Anything you say can be used against you in court.
—You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning.
— If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
Do you understand?
Are you willing to answer some questions?
Government Ex. 2.
The money that was seized as a result of the March 11th arrest of Cummings and Jude Innocent was deposited in a bank account, and therefore its individual identity was lost except for the bank deposit slips. Strangely, Bernard testified that their standing order is not to count the money that is seized. Bernard testified that, in this case, the currency seized from the defendant had an evidentiary value and the policy is “to bag it, make an appointment with Brinks, and get an official count.” Tr. at 441.
At DEA headquarters, Agent Bernard questioned the defendant in the presence of Investigator Thomas Lohmann. As stated above, Bernard took notes of the interview. No recording was made. His notes reveal that he started the interview at 6:50 pm in an interview room. Cummings did not appear to be ill at the time Bernard questioned him. The interview took between thirty-five and forty-five minutes. After the interview was concluded, the defendant initialed the pages of Bernard’s notes. Bernard had read back his notes to the defendant so he could make changes. None were made. The interview consisted of questions by Bernard and answers by Cummings; it was not a narrative answer.
On his redirect examination, Bernard testified, contrary to his responses on cross-examination, that the following statement contained in the complaint which summarized the DEA investigation prior to March 11th, signed and sworn to him, was true:
2. Since early February 2010, the DEA has been conducting an investigation of a residence in Smithtown (the “TARGET RESIDENCE”), in Suffolk County, New York. Debriefing of individuals arrested in 2010, as well as other information developed during the course of the investigation, indicated that an individual residing at the TARGET RESIDENCE was distributing heroin. The DEA later learned that the defendant ROBERT L. CUMMINGS, JR. resided at the TARGET RESIDENCE.
In making his notes, Bernard made use of a digital audio recorder and wrote his report based on the information documented by the recorder. Also, Bernard testified that he prepared a written plan for the March 11th activities. Portions of that plan were received in evidence as Government’s Exhibit Number 3500-CKB-38.
Finally, Bernard testified that the information he had from Mr. Innocent about the amount of money that he paid for the drugs was the sum of $2,000. Therefore, a count of the money would be relevant as to whether Mr. Innocent was telling the truth.
After Bernard’s testimony was concluded, the Government rested in this suppression motion hearing. At that point, the defense asked the Court to grant his motion to suppress the evidence that was obtained subsequent to the arrest of Robert Cummings. The Government opposed this motion. The Court reserved decision on the defendant’s motion at the conclusion of the Government’s case.
B. The Defendant’s Case
Vanessa N. Torres testified that Rayne Naldi is her stage name. She has a romantic relationship with the defendant, Robert Cummings. He is her fiancé. They have a license to be married but have not yet had a ceremony. Starting with the question to her in which she referred to herself as Cummings wife, Torres asserted her Fifth Amendment right against self-incrimination and refused to answer most of the questions addressed to her.
The witness was then asked to wait outside the courtroom while counsel for the defendant made two applications to the Court. First, he asked the Court to direct Torres to answer “as I believe she has not properly asserting a Fifth Amendment claim regarding these questions.” Tr. at 336. Alternatively, counsel for the defendant asked the Court to direct the Government to grant her immunity so that she can testify. The Court ruled that the questions posed to Torres may incriminate her as far as aiding and abetting, and therefore denied the defendant’s first application. Also, the Court denied the defendant’s second application, namely to direct the Government to grant her immunity. The Court ruled that under the facts in this case, that decision had to be made by the Government. The Court stated that “I am not going to grant her immunity in the face of the Government telling me that they may bring charges against her.” Tr. at 339.
Jerin Rosas is a paralegal in the office of Peter J. Tomao, Esq., the attorney for the defendant. She has been with him for four years. She has a paralegal studies associate degree. Ms. Rosas was called to testify about what Ms. Torres had told her and attorney Tomao about the relevant events. As part of her duties, she meets with potential witnesses in Mr. Tomao’s cases. She was present, along with Mr. Tomao in two interviews of witness Vanessa Torres. These interviews were on March 17, 2010 and July 29, 2010.
Counsel for the defendant asked Ms. Rosas, “What Ms. Torres told you when you when the DEA came to the residence on March 11, 2010?” Ms. Rosas then testified that Ms. Torres stated that she was in bed in pajamas when she heard a knock on the door. At the door, DEA agents asked her if she was Vanessa. She said yes. Then the agents told her they believed there were drugs in the house and asked her to step outside. Although she was nervous, she did what the agents told her to do. She went outside and the agents told her to go to the defendant who was in a DEA vehicle. Ms. Torres then asked the agents if she could go back into the house to put on some clothes; at which point, they told her if she did that she would be arrested. So she followed the agents to the vehicle. She was nervous, scared and crying. Ms. Torres saw the defendant in the vehicle. The defendant consoled her and told her everything would be okay. Ms. Torres entered the vehicle. The DEA agents told her that she had a couple of minutes to decide whether she would allow them in the house. She was scared and thought that if she did not let them in, they would arrest her. At that point, she said okay to them, “and they took her and Mr. Cummings into the house, at which point they had them sit on the sofa.” Tr. at 482. Ms. Torres was hysterical, scared, nervous and crying. After a couple of minutes, maybe ten minutes, while she was on the sofa, “one of the agents handed her a piece of paper, told her she has to sign.” Tr. at 483. Cummings then asked the agents what is was they wanted her to sign. The response was, “Just a search. Sign.” Tr. at 483. Ms. Torres signed the paper. She was not sure she signed it before or after the search had begun.
As part of her duties, Ms. Rosas sent an application to the Town of Smithtown for public access to certain records, under the Freedom of Information Law. The request was for a work assignment for the period of January 1, 2010 through March 15, 2010, for the Town employee Dennis Manning. Ms. Rosas also spoke to one Irene Castiglione regarding the lease for the apartment at 270 North Country Road. Ms. Castiglione faxed certain documents to Ms. Torres’ office. Among the documents faxed was a “Lease/Rental Agreement” dated August 17, 2009, between Ms. Castiglione as Lessor and Vanessa and Robert Cummings as Lessees, for the one bedroom apartment at 270 North Country Road for one year ending August 15, 2010. Dft’s Ex. T.
On cross-examination, Ms. Rosas testified that Ms. Torres is not married or engaged to Mr. Cummings, even though Ms. Torres signed the lease of the apartment as Vanessa Cummings. Ms. Torres told her that, initially, the DEA agents knocked on the door of their apartment, but did not enter. Instead, Ms. Torres went outside. In the car with the defendant, he consoled her and told her “everything would be okay.” Tr. at 493. Nowhere in the notes of Ms. Rosas does it say that Ms. Torres refused to consent to let the DEA agents search the house or that she and Cummings refused to sign the consent to search. When Mr. Tomao asked Ms. Torres if there were drugs in the house, she did not answer, and did not deny that fact. “She did not say ‘no’.” Tr. at 499.
Ms. Rosas also conceded that her notes do not say that Ms. Torres told her that she was scared or that she thought she was going to be arrested if she returned to the house or if she refused to consent to the search. Her notes in quotes are word for word what Ms. Torres stated, otherwise it is the impression of Ms. Rosas as to what Ms. Torres said. Ms. Rosas was not aware that Ms. Torres takes prescription drugs for depression. Ms. Torres did not review or sign her notes. The subject of drugs and guns in the apartment was apparently not raised in these interviews. Ms. Rosas did not recall if Ms. Torres said either that the defendant’s rights were violated or that he was interrogated and forced to sign documents. Also Ms. Torres did not say that the defendant had a heroin problem.
The final witness for the defense was the defendant Robert Cummings. On March 11, 2010, he was living at 270 North Country Road in Smithtown with Vanessa Torres. Their apartment was an accessory apartment and did not occupy the entire building. Although he received a marriage license in New York in April 2009, they were never married. However, they held themselves out as being married and both referred to Vanessa as his wife. Vanessa moved to New York from New Mexico to pursue her music and writing endeavors. Vanessa performed under her stage name Rayne Naldi. She recorded some music under that name, which was published on line and by compact discs. Cummings also performed under the name of “mysterious.” He published his music on compact discs, on line and through magazines and DVDs. Dft’s Ex. G. In the photograph in evidence showing stacks of money and a hand gun, there is a photograph of a compact disc showing the defendant under the heading of “mysterious.” Also Dft’s Ex. H is a photograph of the defendant holding stacks of money. He wanted to show that he was a tough person with lots of money; as part of his musical career.
Prior to the time he was arrested, the defendant was using heroin, “[e]very day, multiple times throughout the day.” Tr. at 217. He had taken heroin on the day he was arrested. Dennis Manning is his cousin and his Mend. He and Vanessa visited with Dennis and his girlfriend, Janelle, at each others’ homes. In fact, Vanessa worked at a nail salon owned by Janelle.
On March 11, 2010, the date of his arrest, he had used drugs two or maybe three times. When he left his house about 1 pm, he was under the influence of drugs. When he left that day, there were two guns in his house. The “smaller” gun was located under the mattress of the bed in the bedroom. The second gun was in a drawer in the bedroom. That was the gun shown in the photographs. Also, there was heroin in the kitchen. In addition, there was packing material consisting of little bags in the drawer in the bedroom. When he left the house, there were no drugs or guns on the coffee table in front of the couches, as shown in the photograph in evidence. Later, in his testimony, the defendant stated that he left the drugs in the kitchen under a sheet. He also kept drugs in a safe in his bedroom closet. He would not, ordinarily, keep drugs and guns where they could be seen.
When the defendant left his house a few minutes before 1 pm in the afternoon of March 11, 2010, he was still feeling the effects of the drugs. He was drowsy and not in the right frame of mind and his mind was not clear. His mind in Court is clear because he has not used drugs after his arrest on March 11th. Also, the drugs he had used on March 11th affected his ability to estimate the amount of time that had passed. The defendant left his house and entered his white Cadillac Escalade. He went to the Dairy Barn then to Waldbaums parking lot. The Dairy Barn is across the street from the Waldbaums parking lot on Route 25A on Main Street in Smithtown. So that, he explained that he drove through the Dairy Barn to the Waldbaums parking lot. Then, after a time, he drove out of the Waldbaums parking lot. He became aware of another car following him. This car was driven by Mr. Innocent, the co-defendant.
The defendant drove “a couple of blocks” to a residential neighborhood, and pulled over to the side of the road. Here there is a difference between the Court’s notes and the Court Reporter’s Record. The Court noted that after the defendant pulled over to the side of the road in the residential neighborhood, Mr. Innocent got into the car on the passenger’s side. The record indicates that Cummings pulled over to the side of the road and Mr. Innocent got into the passenger side of his “truck.” The defendant later clarified that when he said “truck” it was his Cadillac Escalade, an SUV. To the best of his recollection, the Court recalls that Mr. Innocent entered the passenger’s side of the Cummings vehicle.
Cummings then observed a car with lights on pull up in front of his vehicle. Then two agents came up to his vehicle; one, later identified as Agent Antonueci, came to his door and asked Cummings to keep his hands where he could see them. The defendant did not know that Antonucci was an agent; he was not wearing a law enforcement uniform and he does not recall if the agent was holding a weapon. A second person also approached his car on the passenger’s side. It was not Agent Bernard. The person on his side of the car — the driver’s side — opened the car door and physically grabbed him and pulled him out of the car. He then asked Cummings if there was any drugs or guns in his vehicle. Cummings said “No.” He was then walked to the front of his car by Agent Antonueci. According to the defendant, Agent Antonueci did not identify himself as a law enforcement agent. The Court doubts this testimony. The defendant was then placed on the hood of the car, searched, patted down and handcuffed. Eventually, he was told that the man who searched him was a law enforcement officer and he was shown a badge, “eventually.” During the search, the agent took his wedding ring, his wallet and his identification. These items were placed in an evidence bag. They asked him to sign the evidence bag with the money in it. At first he refused. The agent said he had to sign, and so, with no choice, he signed the evidence bag containing the money. He does not recall if he signed the evidence bag containing his property.
After he was cuffed, Cummings was questioned about the guy in his car. He told the agents that he knew the man and his wife from his music. At that point, no one gave him any Miranda warnings, or told him that he had a right to remain silent or had a right to an attorney. Also, he was being taunted in that he was told that they knew that there were drugs and guns in his home. He made no response to these statements. He asked to speak to someone in charge so he could know “what’s going on.” The agent then sat him down on the grass across the street and kept asking him questions, “Where do I get the drugs from” and they knew he was a drug dealer. As he was resting there Agent Bernard came over to him and showed him a picture and said to “give it up ...” Agent Bernard never gave him his Miranda rights, but kept asking him about drugs and money.
Cummings testified that he was the brought back to the hood of his vehicle and the agents brought money out wrapped in a rubber band saying they found the money in his vehicle. They asked him if the money was his and he said no. He was shown some photographs of his car and told that the agents had followed him; and “it’s time to give it up.” At that point, still no Miranda warnings. He declined to respond. Cummings described the scene as “pretty chaotic,” everybody was running around.
The agents then asked him for permission to search his house. Agents Antonueci and Egan said if he did not consent to the search of his home, they would get a search warrant. They asked him if anybody was in his home and he told them his wife Vanessa was in the house. Again they asked him if he would sign a consent to search his home. He said no and they said “we’ll get a warrant.” A few minutes later they came back to him and again asked him to consent to search his home. Cummings then responded that, first, he needed to speak to his wife. They then told him that “if there is anything at the home that she could be arrested.” Tr. at 245. Then the agents told him if they had to get a warrant and go into the home themselves that Vanessa would be arrested but if he signed a consent to search, they would not arrest her. Also, he was asked if there were dogs in the home. He responded that there were three dogs in the house. The agents then told him, that, depending upon how it goes, the dogs would be impounded, or, if the dogs were a threat, “[t]hey would do whatever they had to do to protect themselves.” Cummings understood that to mean, that they would shoot the dogs.
While on the street, the agents asked Cummings if there were any guns in the home and he said, yes. He also told them that he had drugs in his home. Again, no Miranda warnings were given to him. Asked to describe the agents’ demeanor when questioning him, Cummings responded that “the demeanor was taunting, pushy, kind of laughing, jumped around.” Tr. at 250. They were putting him under a lot of pressure by calling him a drug dealer.
Cummings testified that while cuffed he was placed in an agent’s car and driven back to his home. It was a five minute drive. At his home, the agents backed the car in so he could not see the entrance to his house. At that point, Vanessa came outside and they let her get into the car with him. She was scared and he was “pretty emotional” himself. He tried to comfort Vanessa, who was in her pajamas, explaining to her about his drug habit and that the agents wanted to come into their home. This is what he told Vanessa:
Q. Tell the judge in your own words what happened when you spoke to Vanessa after you were arrested.
A. She had came outside and they let her get into the car. I was pretty emotional myself.
She was scared, not knowing what was going on, and I was trying to comfort her and explain to her, you know, let her know about my drug habit, let her know what was going, that they wanted to come into the home.
And they wanted to know if I would give them consent. I told her that I wanted to speak to her first before any of this, just to let her know, you know, the truth about myself.
Tr. at 254.
In the car, both he and Vanessa were crying. He was still suffering from the affects of the heroin he used that day. Cummings was having hot flashes and his muscles were aching. One of the agents opened the car door and asked them if they were going to consent. He said no. According to Cummings the agents then told him “If I didn’t consent that they would lock her up.” Tr. at 256. Apparently before he could answer, one of the agents said, “Let’s take this inside the house.” So that Cummings testified that he never consented to the search nor did he sign any documents while he was sitting in the car.
The agents then took Cummings and Vanessa into their apartment and sat them down on the couch near the entrance way. There was a coffee table in front of the couch and, according to Cummings, there were no drugs or guns on the coffee table. Meanwhile, the agents were “walking all around, back and forth, tearing through stuff.” Tr. at 258. They were apparently looking throughout the apartment. Then an agent brought a paper and asked Cummings to sign it. He said it was a consent to search. Cummings said he did not want to sign it. Then he was told that if he did not sign it they would arrest Vanessa. So, he signed the paper and was later told that it was a “consent to search” form. Then the agents “forced” Vanessa to also sign the paper. Cummings testified that prior to signing the consent to search form, none of the agents gave him any of the Miranda warnings. He was then walked out of his house while still cuffed. His mother was parked outside in the driveway and she hugged him and kissed him on the cheek and he was placed in the agent’s car. The car then drove from the scene, and he had still not received Miranda warnings. He has been under arrest since March 11, 2010.
On cross-examination, it was brought out that Cummings had a prior felony conviction. He knows that as a prior felon, he is not allowed to have a gun or have heroin in his house. Vanessa did not know anything about the drugs. He was not “in the right frame of mind,” being under the influence of heroin. Surprisingly, Cummings testified that he had consumed 20 to 30 bags of heroin that morning, March 11th, before he left the house. He sniffed the heroin in his bathroom. The drugs had been kept in his safe in his apartment. They were his drugs. Also, there was a mound of loose heroin in the kitchen under a sheet. According to Cummings, he is a recovering heroin addict. Notwithstanding the heroin on the kitchen table, Ms. Torres did not know that he had a heroin problem. In fact, he testified that Vanessa first became aware that he had a heroin problem when he was sitting in the back of the agent’s vehicle, after the search of the house. This testimony by Cummings is difficult to accept, and in the Court’s view not credible. Significantly, Cummings testified that no agents entered his house before he did.
Cummings was shown the consent to search form. Gov’t Ex. 27. He acknowledged that both he and Vanessa signed the consent form. However, he testified that the agents entered his house before he signed the form. Also, Cummings testified that he signed the evidence bag that contained the money that was seized. He stated that he was not in any way forced to sign the evidence bag; even though the bag itself provides for a person to write “refused” to sign. There was no coercion in his signing the evidence bag containing the heroin found in his apartment.
Cummings testified that he had two pri- or convictions. The first was a 2002 drug felony in which he was arrested in his car for cocaine and a loaded firearm. The second was a 2008 misdemeanor criminal possession of a controlled substance. He met Vanessa Torres though the internet two or three years ago, prior to his 2008 drug conviction. He did not tell Vanessa about his 2008 conviction. While living with Ms. Torres he was doing heroin every day. He was doing “anywhere from one to five bundles of heroin every day.” According to Cummings, Ms. Torres did not know of his heavy drug habit, “She was never around.” Tr. at 289. He never snorted heroin in her presence. However, he left the drugs in the kitchen under a sheet when he left the apartment.
Cummings denied that he was in the business of selling heroin and that the drugs recovered in his house were all for his personal use. This statement was obviously not true, as his later testimony revealed. The heroin in his house was in individual glassine baggies. Also found was a stamping device in his house. He stamped the glassine bags. He put the heroin in the glassine bags and stamped the bags with the Sopranos logo. Significantly, Cummings then admitted to selling heroin to support his habit.
Q. So you are saying that you took heroin out of glassine bags, dumped it on a tray, and you were going to take the heroin and put it back in glassine bags that were stamped by you. Correct?
MR. TOMAO: Objection, your Honor.
THE COURT: Overruled.
A. Correct.
Q. Why?
A. Why would I put it back?
Q. Yes.
A. To get my money back.
Q. To get your money back from the person who sold you the drugs?
A. No.
MR. TOMAO: Objection to the form of the question, your Honor.
THE COURT: Overruled.
BY MR. ROSE:
Q. What do you mean by to get your money back?
A. To sell what I purchased to make my money back to support my habit. Q. So it wasn’t for personal use.
You were now selling, you are admitting to selling the heroin that was in the house?
MR. TOMAO: Objection, your Honor.
THE COURT: Overruled.
A. To support my habit, yes.
Q. So the purpose of putting it back in the bags marked Soprano’s was so that you could then take those Soprano’s glassine filled with heroin, right, and take them and sell them?
A. To support my habit, yes.
Q. How long were you selling heroin to support your habit?
MR. TOMAO: Objection, your Honor.
THE COURT: Overruled.
A. Maybe a few months.
Q. A few months.
You were arrested March 11, 2010. Were you selling heroin to support your habit in February?
MR. TOMAO: Objection.
THE COURT: Overruled.
A. Yes.
Q. Were you selling in January of that year?
MR. TOMAO: Objection.
THE COURT: Overruled.
A. Yes.
Q. Were you selling December of 2009?
MR. TOMAO: Objection.
THE COURT: Overruled.
A. I don’t believe so.
Tr. at 303-305.
That day, in the morning, Cummings took 20 to 30 bags of heroin of poor quality. It made him sick and he threw up in DEA headquarters. In addition to the drugs, Cummings kept guns in his house. He kept the guns in a safe. However, the guns were found by the agents on the table in the living room. As for his employment, Cummings stated that he is an artist and sold his music.
On further cross-examination, the Assistant United States Attorney had Cummings retrace his steps on March 11th. The defendant left his house at about 1 pm and went to a Dairy Barn and then to a Waldbaums parking lot. He pulled in and pulled right out of the parking lot. He became aware that a black car was following him. Cummings knew why the car was following him, “Cause it was my co-defendant.” Tr. at 319. His co-defendant was Jude Innocent. He then went a coupie of blocks from the parking lot and he pulled over to the side of the road so that Innocent could get into his car.
Q. At some point you pulled over on the side of the road.
Correct?
A. Yes.
Q. And you said that you codefendant got out of his car and entered your car?
A. Yes.
Q. Why?
MR. TOMAO: Objection, your Honor.
THE COURT: Overruled.
A. So he could get into my vehicle.
Q. Why did he get out of his car to get into your vehicle?
A. So we could talk.
Q. What were you going to talk about?
A. Me giving him the drugs.
Q. And you are talking about the drugs that were recovered from the codefendant on March 11, 2010?
A. Yes.
Tr. at 320.
Further, Cummings testified that he had spoken to Mr. Innocent earlier that day; they agreed to meet at the Waldbaums parking lot and he would follow Cummings’ car. The purpose of the meeting with Jude Innocent was to sell him heroin. He sold Mr. Innocent four sleeves of heroin at $500 per sleeve.
Q. The purpose of you meeting with Jude Innocent was to sell him heroin, is that correct?
A. Yes.
Q. Did he pay you for the heroin?
A. Yes.
Q. How much heroin were you planning on selling him that day?
A. Four sl