United States v. Ospina (618 F. Supp. 1486, 1985)

MEMORANDUM OF DECISION AND ORDER

COSTANTINO, District Judge.

Defendants Juan Carlos Ospina (“Ospina”) and Diego Zuluaga (“Zuluaga”) move pursuant to the Fourth Amendment to the United States Constitution contending that they have been subject to illegal searches and arrests. An evidentiary hearing was held in this court from March 8 to March 19, 1985. Memoranda of law were submitted by counsel for defendants Ospina and Zuluaga on March 28 and April 1,1985, respectively. The United States Attorney filed his memorandum of law on April 26, 1985. A reply memorandum by counsel for defendant Ospina was filed on May 7, 1985.

The defendants contend that agents assigned to New York Task Force Group 3 of the Drug Enforcement Agency (“DEA”) utilized an arrest warrant to illegally enter a condominium apartment of which they were subtenants; that the information derived by the agents in the apartment was illegally obtained; that the defendants were illegally arrested; and, that the search warrant signed by Magistrate Chrein was based upon deliberate misrepresentations as well as illegally obtained evidence.

The government contends that the condominium was entered pursuant to a valid arrest warrant; that the observations made therein formed the basis for probable cause to search; that, in any event, there was consent to search; and, that the agents were acting in objective good faith reliance on a validly issued warrant based on probable cause.

I. THE TESTIMONY

A. The Identification of Jorge Rodriguez-Orjuelo

Special Agent Christopher Giovino (“Giovino”) of the DEA was the first witness called by the government. He testified that since September 1984 his group has been holding an arrest warrant for Jorge Rodriguez-Orjuelo (“Rodriguez”) on charges of conspiracy to distribute cocaine. (Tr. 7). Giovino further testified that he was present at a raid upon Rodriguez’ residence located at 37th Avenue in Queens, New York at which time $350,000 in cash, a pistol, drug ledgers and other indicia of the drug trade were found. The money, Giovino noted, was found in a black steamer trunk in the master bedroom. (Tr. 8-9).

Thereafter, the agents spent “about two or three days a week of almost every week going from neighborhood to neighborhood in Queens looking for [Rodriguez].” (Tr. 9).

On January 9, 1985, Giovino was called to the Bay Club Condominium. (Tr. 10). He described the Bay Club as “two towers joined in the middle by a physical education complex,” (Tr. 10), occupied by “thousands of people.” (Tr. 61).

Giovino’s group was advised that detectives visited the security office of the Bay Club and had made a positive identification of Rodriguez. In making the identification, the detectives used photographs seized from the 37th Avenue apartment. (Tr. 11).

Giovino, on direct examination, testified that, he too, showed photographs of Rodriguez to members of the security force. (Tr. 11). The only member of the security force to whom photographs were shown whose name Giovino remembered was Mr. Bosio. (Tr. 12, 58). Giovino could not recall the names of the security staff he spoke to, nor of the maintenance staff. (Tr. 12). Giovino does remember speaking to a lieutenant who was a black man (later identified as Fulton). (Tr. 58). Giovino attributes his faulty memory to being “incredibly busy that day.” (Tr. 64).

Giovino also testified on direct examination that these security personnel identified the person appearing in the photographs as having been “seen” in apartment penthouse-L (“PH-L”). (Tr. 12). He further testified “that they had a name for that gentlemen of Oscar Seraline ... that he was the person renting that apartment on paper, that is the name that they had.” (Tr. 12-13).

Giovino “guess[ed]” that Bosio told him that “Seraline resided there with other persons, whose names the security office and the maintenance office and the rental office did not have.” (Tr. 13).

On cross-examination, Giovino testified that he showed a photograph of Rodriguez to Bosio and to Fulton, (Tr. 59), and that they gave a “positive response ... to the identification of that being their Mr. Seraline.” (Tr. 59). Giovino further testified to asking Bosio and Fulton, “Is that the person who lives here? If he does live here, what apartment?” The response of either Bosio or Fulton, he wasn’t sure who, was “ ‘EPHL’ or East Penthouse L.” (Tr. 60).

Giovino testified that the maintenance staff, referred to as “they” in the testimony, identified the photographs as the person in PH-L. (Tr. 65). Giovino was also advised by these people that there was “a constant flow of visitors to [PH-L]; ” (Tr. 14) “that the master bedroom closet door had been removed and replaced with the Medeco lock.” (Tr. 14). Giovino also testified to being told that on January 10, 1985 (the next day) the maintenance staff was “to go up there and start to repair the seams in the walls.” (Tr. 15).

On cross-examination, Giovino was pressed to answer the following question:

Q — You wanted to be certain, did you not, before you went into someone’s apartment that you were going to be going into an apartment where Rodriguez, in fact, was? (Tr. 57)

After substantial colloquy between counsel and the court, Giovino responded:

A — In real terms I guess would be to ascertain whether or not we were going to try and enter a third party location. In fact, we were trying to find out whether or not that was the residence of our alleged Mr. Rodriguez or their Mr. Seraline. (Tr. 57).

Special Agent Michael Connors (“Connors”) of the DEA was also asked about the basis of the agents knowledge that Rodriguez resided in PH-L. He testified that, “We are informed by numerous persons at that building that that was in fact the person renting the apartment.” (Tr. 166). Connors was unable, however, to identify those people who made the identification other than to describe them as “persons” on the maintenance and security staffs. (Tr. 166).

Q — Officer, is it a fair statement then rather than them saying to you that this man who lives in this apartment, you came to them as a group and said to them, we believe that the person living in this apartment is this man?

A — We never approached them as a group. Initially, there were two of us who got the identification from that photograph and then we proceeded to fill out the strategy and our plans. (Tr. 166).

Connors further testified that the sole basis for his belief that Rodriguez was in PH-L was the alleged identification made by the security and maintenance staff of the Bay Club. (Tr. 169).

Under cross-examination by Zuluaga’s attorney, Connors testified that the reason he arrived at the Bay Club was because two detectives with the New York City Police Department, Queens Task Force, “had information that a fugitive we were looking for named Orjuelo-Rodriguez was at the Bay Club located in Bayside, Queens and they proceeded to tell us the apartment they thought that he was in.” (Tr. 173, 189).

On redirect, Connors testified that “security people” were shown a photograph of Rodriguez by detective Roy Pena and that these security people made a positive identification of the photograph. (Tr. 198).

When asked who, in fact, had seen the fugitive at the premises, Connors responded that the Chief of Security at the Bay Club had been advised by a member of his staff that Rodriguez “had been seen there a frequent number of times,” and that, “according to our information,” Rodriguez resides at the Bay Club. (Tr. 176; see also Tr. 196-197).

Connors, at first, testified that he and Giovino confirmed the detectives identification. (Tr. 166). Later, Connors testified that detective Roy Pena was present when he spoke to the security people. (Tr. 193).

Agent William Dolinsky (“Dolinsky”) of the DEA also “received information that other members of my group found out that Mr. Rodriguez was residing in a penthouse apartment at [the Bay Club].” (Tr. 236). Dolinsky testified that he had never personally seen Rodriguez, but that “Giovino indicated that [Rodriguez] may be in the apartment.” (Tr. 261). Dolinsky also testified that there was a resemblance between Rodriguez and Ospina, (Tr. 262-63), but that he knew Ospina was not Rodriguez. (Tr. 266).

At the hearing, the court permitted witnesses to be heard “out of turn.” Accordingly, the next two witnesses were called by the defense.

Joseph Bosio (“Bosio”), security director at the Bay Club Condominium Complex, who is a retired detective after 21 years in the police department, (Tr. 289), testified that on January 10,1985 he had occasion to meet Giovino. Bosio further testified that Giovino, who was present in the courtroom, had not shown him any photographs but that Healy and Pena had shown him photographs. (Tr. 287). Bosio testified that he did not identify the photographs at any time. (Tr. 287-88).

Bosio implied that he had been shown photographs on two occasions. On one of those occasions Fulton was present.

Q — When [Fulton] was with you were the pictures on a table and both of you were looking at them?

A — The detective was holding the picture.

Q — But the focus of everyone’s attention was to look at the pictures to see if there could be an identification made?

A — Correct.

Q — Did Lieutenant Fulton make an identification of the pictures?

A — Not in my presence while I was there to my knowledge.

Q — What did he say while you were there?

A — He had recognized one individual as being on the complex but he didn’t know who he was or what his name was. (Tr. 288).

Bosio also testified that Fulton said that he (Fulton) had seen “the one individual in one of the pictures on — I don’t remember the date — but it was apartment 9-L,” (Tr. 279-80), which is “10 or 11 stories” from PH-L. (Tr. 280).

It was Bosio’s testimony that Fulton was the only member of the security staff to speak to him about identifying photographs. Bosio did speak to maintenance workers about the photographs as well. (Tr. 290).

Bosio testified on cross-examination that based upon conversations he had with Giovino, among others, on January 10, 1985, he knew that the agents were looking for an individual of whom the agents had photographs. Moreover, Bosio testified that he “had been told” by the agents that they were trying to find Rodriguez because they had information that Rodriguez lived at the Bay Club. (Tr. 292).

On redirect examination, Bosio testified as follows:

Q — Did they tell you where they had gotten this prior information?

A — You mean the pictures?

Q — The prior information that the person they were looking for was in the Bay Club Condominium?

A — No.

Q — They indicated to you prior to January 9th they had some information the fellow lived there?

A — That’s the impression they gave me but didn’t tell me how they knew that. (Tr. 291).

Paul Fulton (“Fulton”), a lieutenant on the security staff of the Bay Club Condominium was called as á defense witness on March 13, 1985. Fulton was called as a government witness on March 18, 1985.

Fulton’s March 13, 1985 testimony was that certain police officers came to the Bay Club on a Thursday [January 10, 1985]. “Several weeks” earlier the police officers had shown him photographs, and that the officers “mentioned they were inquiring about a certain apartment in our complex which was 9-L more specifically.” (Tr. 293) .

Fulton further testified that when he met the police officers several weeks earlier, he told them that he had been to apartment 9-L and when there he saw “a female occupant and a male in that unit.” (Tr. 294) . Fulton also testified that he had not been asked to look through the complex’ visitors log regarding apartment 9-L. (Tr. 295) .

Fulton testified that on January 10 he was shown a “number of photographs” by officers Pena and Healy, but none by Giovino. (Tr. 296-97). Fulton recognized one of the photographs as being someone he had seen in apartment 9-L (Tr. 297).

On cross-examination of his March 13 testimony regarding his identification of the man in 9-L, Fulton testified that he did not “right away” ascertain who lived in apartment 9-L, but he did recall that the male and female each spoke very little English. (Tr. 299).

Fulton confirmed that he identified photographs of the man in 9-L to the officers and that he had seen the man in the building some weeks earlier. (Tr. 299).

Q — Did you find out if this man was a resident in the building at this time?

A — I had no idea. I did not. (Tr. 300).

Fulton had no knowledge whether or not fellow security officers knew where the man or woman lived. (Tr. 300).

On redirect examination, Fulton stated:

Q — When you identified the photographs it wasn’t this is a guy I see in the complex somewhere but apartment 9-L?

A — That’s exactly what I stated.

Q — Not in the penthouse?

A — No.

On March 18, 1985 Fulton was again called to testify, this time as a government witness.

As a prosecution witness, Fulton testified that sometime prior to Christmas detectives Healy and Pena made an inquiry about apartment 9-L. (Tr. 324-25). The detectives had information that someone was residing in 9-L but “we told them that nobody was living in that apartment.”

Q — Now, they didn’t ask you about the east penthouse L apartment initially?

A — No.

Q — Or at any time?

A — No, they did not. (Tr. 326).

Fulton then testified that on the December date he went up to apartment 9-L with Healy and Pena. Also present were Bosio and Assistant Superintendent John Wambser (“Wambser”). (Tr. 327).

Fulton testified that Bosio, Healy, Pena and Wambser knocked on the door and that a woman answered. Fulton was unable to hear their conversation because he was in the hallway standing by the elevator banks. (Tr. 328).

After the officers spoke with the woman in 9-L, Fulton told the officers that he had occasion to go to 9-L about a week prior to their investigation. At that time Fulton observed a male and a female being present. “The male person told me that the female was the owner or the resident of ... 9-L.” (Tr. 329). The man advised him that “he was a resident, okay, and he mentioned the — from the penthouse floor, okay. He didn’t mention any letter or number or anything like that.” (Tr. 329).

Fulton proceeded to describe to the detectives the physical characteristics of the man: “I just told them that he was so tall, you know what I mean. He was a Latin because he spoke broken Spanish or whatever....” (Tr. 331).

Subsequent to this conversation, the detectives showed Fulton some photographs of Rodriguez, and Fulton recognized them as being the person who was in 9-L (Tr. 331-332).

At the time Fulton was being shown photographs, Wambser was also present. “[Wambser] agreed that he recognized that person as being a resident in penthouse L.” (Tr. 333).

On cross-examination, the defense questioned Fulton at length regarding his prior statement that he was unable to associate the individual in the photographs and penthouse L. Fulton denied having lied during his prior testimony insisting that he “just didn’t remember.” (Tr. 338).

Q — Something happened between when I asked you the last time and today that prompted your memory; is that correct?

A — That’s correct, sir. (Tr. 339).

Fulton, moreover, was unclear whether he was shown any photographs subsequent to the pre-Christmas December date. (Tr. 340). He was clear, however, that Giovino, who was present in the courtroom, never showed him photographs and that the “only persons [who] showed me photos were Pena and Healy.” (Tr. 342).

John Wambser, the assistant superintendent at the Bay Club Condominiums, was called as a government witness. He testified that Healy and Pena were, sometime in December 1984, at the Bay Club investigating apartment 9-L.

Wambser testified that the Bay Club management had 9-L listed as a vacant apartment.

The officers seemed to believe that someone was living there. So I escorted the officers [Healy and Pena] with the security officer [Fulton] up to the apartment. We rang the doorbell a few times. Nobody answered. I went to use my pass key and a lady opened the door. (Tr. 345).

Wambser testified to having a conversation with the officers as they were leaving apartment 9-L:

A — Well, they were — we were discussing — Officer Fulton was asking the people in the apartment, the woman in the apartment, that he recalled the woman having problems with her security system. And that there was a gentleman there giving her a hand with the apartment. (Cf. Tr. 328 where Fulton testified that he was not in the apartment at this time.)

I started to talk to them about an apartment — we were kiding about an upstairs, where I — we went into the apartment and there were Spanish speaking people and they had a lock on the bedroom — closet door or something. We were kidding around. The officer asked me — (Tr. 346-47).

Wambser testified that he was referring to PH-L. Moreover, Wambser told the detectives that “we had an emergency there. We had a pipe break and we had to get into the closet and there was a lock on the closet.” (Tr. 347).

Wambser then testified that he was shown photographs by the detectives and that he recognized the male depicted in two of the photographs as being “the gentleman that was in penthouse L in the bedroom at that time when we went up for the emergency.” (Tr. 348).

Wambser also testified that Fulton recognized the “gentleman as being the gentleman that helped the lady in 9-L with her security alarm.” (Tr. 349).

On cross-examination, Wambser testified that the person in the photographs he identified looked like a person he had seen using the public telephone. (Tr. 359). Moreover, Wambser repeated that he had told the detectives that he had seen the man in the photographs in bed in the penthouse. (Tr. 361).

Wambser also testified that he had never seen Ospina and Zuluaga before. (Tr. 366).

Following Wambser’s testimony, the government called Thomas Healy (“Healy”), a detective with the New York City Police Department. It was established at the hearing that Healy was not with DEA, but that he had a “loose association” with the Group 3 agents.

Healy testified that on December 20, 1984 he was conducting a homicide investigation at the Bay Club. Healy testified that the Bay Club maintains records of the name and license plate number of those who enter the complex and that on December 10, 1984, Luis Escobar, the subject of their investigation, visited the 9-L East apartment. (Tr. 370).

Healy reviewed this information with Fulton and Bosio. They advised him that the 9-L East apartment was usually sublet by its owner, but that present records indicated it was vacant. Fulton, Healy testified, advised the detectives that “about” ten days prior to December 20, there were two hispanics in the apartment, a male and female, and the male identified himself as being from the penthouse apartment. (Tr. 372).

The detectives, Healy testified, then proceeded with Bosio, Fulton and Wambser to the 9-L apartment. Fulton remained at the elevator banks, Wambser was “down the hall,” and Healy, Pena and Bosio went to the apartment door.

Healy testified that Bosio engaged the woman who answered the door to 9-L in conversation. The officers requested that she produce identification. The woman stated she was from Venezuela but produced Columbian identification. The woman also produced a document evidencing her status as a tenant of the unit owner and Bosio asked her to advise the management office of her status as such. (Tr. 374). Fulton later confirmed to Healy that the woman “looked like” the woman who was in the apartment on December 10. (Tr. 393).

After the detectives left 9-L, Healy testified to having a conversation with Fulton and Wambser. Wambser, Healy testified, overheard the detectives “talking about the penthouse L apartment.” (Tr. 375).

Wambser told Healy that he had been to PH-L only a few days prior in that there was a leak and he had to go in and fix it. Healy asked Wambser what the man looked like and the description Wambser gave called to Healy’s mind a federal fugitive known as Jorge Rodriguez. (Tr. 375-76).

Healy testified that he had shown photographs of Rodriguez to Fulton and Wambser. Wambser identified the photographs as being the man in PH-L. Fulton identified the photographs as being the man who was present in 9-L. (Tr. 379).

About two weeks later, in early January, Healy notified the DEA task force concerning the identification. (Tr. 379).

On cross-examination, Healy testified that he did not follow proper police procedure regarding the verification of Luis Escobar’s presence at 9-L on December 10. Healy further testified on cross-examination that Fulton advised him, upon viewing the photographs, that “this was the male ... who had stated to him he lived in the penthouse apartment.” (Tr. 385, cf. Tr. 379).

Q — And that this male told Fulton he was from penthouse L?

A — Pent—I don’t know if it was pent— he said penthouse apartment ...

Q — How many penthouse apartments are there? ...

A — ... A lot of apartments—

Q — ... he didn’t specifically designate any specific penthouse apartment but said penthouse?

A — I took it that he said penthouse L apartment. (Tr. 386) {cf. Bosio Tr. at 288, Fulton at Tr. 329).

Earlier, on cross-examination, Healy testified that he went to his car to get photographs of Rodriguez, and that while in the building superintendent’s office, he showed the photographs to Fulton and Wambser.

Q — What did [Wambser] and [Fulton] say about those two photographs?

A — They both ID’d him as the — [Wambser] ID’d him as the man that was in the apartment penthouse L East apartment the day he went in to fix the water leak.

And [Fulton] ID’d him as the male that was present at the 9-L East apartment the day the alarm went off with the female. (Tr. 379, cf Tr. 385).

Healy also testified that he introduced DEA agents to the security people at the Bay Club, on January 9, 1985, but that he did not show photographs at that time. Healy then stated he couldn’t recall whether he had shown Bosio photographs on January 9. (Tr. 390). Moreover, Healy had no knowledge of having shown Fulton or Bosio photographs on January 10. (Tr. 393).

Following the testimony of Healy, the government again called Giovino. Giovino testified that Healy advised him of the identification of Rodriguez on “Monday or Tuesday” of the week of January 10 (January 7 or 8). (Tr. 403).

Giovino was also asked the following:

Q — Were those photographs shown to the security as well as the maintenance personnel at the Bay Club Apartments by you and fellow officers?

A — At one time or another, yes, sir.

Giovino had previously testified that he personally had shown the photographs to Bosio and Fulton. (Tr. 11, 12, 58). Bosio denied being shown photographs by Giovino. (Tr. 287). Fulton denied being shown photographs by Giovino. (Tr. 296-97; 342). In fact, both Fulton and Bosio testified that only Healy and Pena had shown them photographs. (Tr. 287, 296-97). Healy, moreover, testified that the photographs were shown by him to Fulton and Bosio in December and not in January. (Tr. 390, 393). Wambser testified that he spoke with Healy and Pena regarding the photographs, (Tr. 348), but he described his meeting with Giovino (on January 10, 1985) as follows:

The officer came to me and asked me if I had — if I was going to the apartment. I said yes. He said, would you mind if I accompanied you to the apartment. I said I have no objection. We both went up. (Tr. 352).

Wambser was not directly asked if Giovino had ever shown him photographs.

The defense then called Richard Mercy (“Mercy”), a private investigator, who is a former lieutenant in the New York City Police Department. Mercy testified that he met Bosio on January 16, 1985 and at that time Bosio stated that he was unable to identify the photographs previously shown to him by the detectives. Fulton also told Mercy that he was unable to make an identification of any photographs that were shown to him. (Tr. 407-08).

Fulton confirmed, on direct examination by the Assistant United States Attorney, that he told Mercy that he was unable to make an identification of the photographs. (Tr. 335).

Q — And what was the purpose for your denying that?

A — Well, the purpose for me denying it because I didn’t know who he was and I wasn’t going to divulge any information to him.

Q — Did he ever tell you who he worked for?

A — Later on, yes.

Q — At the time that he asked you the questions?

A — Yes. He was — actually I learned that while he was speaking to my boss, Mr. Bosio. (Tr. 335).

Mercy further testified that on March 18, 1985 Bosio called Wambser and told him that a private investigator was on the premises and that the investigator would speak to him.

[Wambser] told me that he was, in fact, shown a photograph of a person by police officers.

And I asked him was he able to identify the person in the photographs.

And he told me, yes, he was.

And I said, ‘What identification did you make precisely?’

And he said, I told them that this was the guy I had seen using the telephone constantly. (Tr. 410).

Wambser testified that he confirmed to Mercy making an identification of some photographs that were shown to him by the detectives. (Tr. 355-56). Moreover, Wambser testified that he told Mercy that the person in the photographs was seen using the public telephones, (Tr. 359), and that Wambser, at the time of Mercy’s interview of him on or about March 18,1985, did not say anything to Mercy about the penthouse apartment. (Tr. 359). During the week of the hearing, however, Wambser advised Mercy, immediately prior to Wambser’s being called as a witness, that he identified the man in the photographs as being in PH-L. (Tr. 357).

Wambser then testified:

Q — You simply told the police he was a guy who looked like a guy who was in the bed in the penthouse, isn’t that correct?

A — Did I tell who?

Q — The police — this looked like a fellow I seen lying in a bed in the penthouse apartment?

A — That’s correct. (Tr. 361-62).

Q — And your explanation for not telling Mercy anything about penthouse L was that you didn’t know who he was?

A — That’s correct — I knew who he was but I didn’t feel it was any of his business. (Tr. 363).

Wambser insisted that his testimony regarding the December identification of the person in the photographs as being “seen” by him in PH-L is “the truth.” (Tr. 357).

B. The Surveillance of PH-L

On January 9, 1985, according to Giovino’s testimony, the agents surveilled PH-L “to make sure that someone was actually still living the apartment.” (Tr. 61). The agents, Giovino testified, spent “many hours” trying to see lights going on and off and, in fact, that the agents did see lights going on and off. (Tr. 62). Connors testified that he went across the street to see if there was a light on in the apartment. (Tr. 176).

Healy also testified to being at the Bay Club on January 9. He told the court that he introduced the DEA agents “to the people I had spoken to [at the Bay Club]. The security people. And apparently they were trying to find out, ascertain if the subject had been — their subject had been seen.” (Tr. 380).

Q — What was your function in being there on January 9, in connection with the two photographs?

A — Well, the main thing was to — we had notified them about, that we, you know, we thought we had located Jorge Rodriguez. That we had ID’s from the people over there.

And I brought them over to introduce them to the security people and to show them this complex and to show them, you know, where the — their parking spots were and stuff like that. (Tr. 380).

On January 10, 1985, the agents again returned to the Bay Club. Giovino testified that the agents were present in the middle to late morning hours. “We were,” he testified, “trying to establish whether or not Mr. Rodriguez was in fact in [PH-L].” (Tr. 15).

... I had already shown pictures that day of Mr. Rodriguez to make sure in my mind that we had a positive identification.

When I found out that there was maintenance work to be done in that apartment, I received permission from the security office and the maintenance office to pose as a maintenance worker, accompany one of their maintenance people and go into the apartment, help him with his work and just see if Mr. Rodriguez was indeed in that apartment. (Testimony of Giovino at Tr. 15-16).

Dolinsky testified that upon his arrival at the Bay Club he set up surveillance with Platzer on the particular parking space in the complex’ garage assigned to PH-L. (Tr. 236).

Platzer also testified that he and Dolinsky set up surveillance in the parking garage on January 10. Platzer said they were observing two spots and that there was a white Toyota and a red Chevrolet located there. He further testified that on January 10, beginning around 11:00 a.m., the agents spent a number of hours observing the parking spots. (Tr. 215-216).

Dolinsky testified that he does not remember whether he made a license check from the license plates to see who owned the automobiles parked in the spots assigned to PH-L. (Tr. 248). However, he definitely did not communicate with fellow DEA agents located in the security office of the Bay Club to check the license numbers for the names of the record owners. (Tr. 249).

Platzer testified that he never checked the ownership of the automobiles with the Motor Vehicle Bureau and that he does not know if any other DEA agents did so. (Tr. 232).

C. The First Entry Into PH-L

Giovino was advised that PH-L had been subject to extensive water damage on the wall between the master bedroom and the master bedroom closet, and that the complex’ maintenance staff was going into PH-L to repair the seams in the walls. (Tr. 15). Giovino, on direct examination, testified that he received permission from the “security office and the maintenance office to pose as a maintenance worker, accompany one of their maintenance people and go into the apartment, help him with his work and just see if Mr. Rodriguez was indeed in that apartment.” (Tr. 16). (emphasis supplied).

Giovino testified that he went to PH-L with a maintenance worker at about 11:00 a.m. He was admitted to the unit by defendant Ospina. Mr. Ospina, Giovino testified, accompanied Giovino and the maintenance worker into the master bedroom:

... where he showed us the bathroom and the closet.

The closet door was open at this time and the maintenance man commented to me that was the original closet door and the other closet door that was on there had disappeared with the Medeco lock. (Tr. 17).

Giovino further testified that he observed another bathroom on his left, the door was closed and the shower was on; consequently, Giovino was unable to see who was in the bathroom. Moreover, in the master bedroom, Giovino observed two men, later identified as defendant Zuluaga and Mario Gutierrez. (Tr. 17-18).

Giovino testified that he then entered the closet:

The maintenance gentleman and I went back and forth from the closet into the bathroom as he was showing me the damage done, trying to facilitate my ruse as a maintenance worker.

As you immediately walk inside the closet door there are shelves.

On one of those shelves was a tannish spiral notebook that was flipped over and on the back side and on the back side were inked-in notations with large denominations of money and some initials next to them and they were added up. On the floor of the closet, on the left hand side, there was a dark black or grey metal-like portable safe with a combination lock I think. I am not sure about that.

On the right-hand side of the closet a — standing up next to each other were three large dark-colored footloekers or steamer trunks. (Tr. 18-19).

After a recess, the court inquired of Giovino if either Ospina or Zuluaga was the person named in the arrest warrant, that is, Rodriguez. The transcript is unclear, but the court’s recollection is that Giovino testified that Rodriguez was not one of the two defendants presently before the court. Moreover, Giovino testified that he did not see Rodriguez in the apartment, nor did he request permission to enter the apartment. Ospina, Giovino told the court, permitted Giovino to enter the apartment as a maintenance man. (Tr. 24).

Giovino, on direct examination, testified that he was in the apartment for five to ten minutes during his first entry. (Tr. 26).

Q — Did you pick up any of the objects that you referred to earlier such as the notebook?

A — No sir, the only think I touched in the apartment on my initial visit were some articles of clothing so that I could climb up and hand some tools to the other workmen and the tools themselves and some pieces of sheetrock____

Q — After being in the apartment for a few minutes what did you do?

A — I excused myself. The gentleman that I was working with was going to keep working. I pretended to be going to get some other tools. I went back downstairs to the security office which is in a separate building and related what I had seen to my supervisor and the other agents. (Tr. 26).

On cross-examination, Giovino testified that he went into the apartment disguised as a maintenance worker, and that he did not identify himself as a law enforcement officer. (Tr. 73).

Moreover, Giovino testified that he never told those persons who were present in the apartment that he had an arrest warrant for Rodriguez, nor did Giovino have a search warrant to enter the apartment; and

Q — ... were you in pursuit of someone who had just fled into the apartment?

A — I had no way of knowing if the gentleman just fled.

Q — Okay. You have no way of knowing if anyone fled in there?

A — That is correct.

Q — So you were not in hot pursuit of someone who may have gone in there; is that correct?

A — That is accurate. (Tr. 74-75).

On further cross-examination, Giovino testified that he entered PH-L at about 11:00 a.m., and he “saw” three individuals in the apartment and “heard” one. (Tr. 75).

Giovino determined that the three people he saw were not Rodriguez, but he thought that the man in the shower might be Rodriguez. (Tr. 76).

Q — Tell the court the reason you didn’t go into the bathroom and look into the shower at the individual taking a shower?

A — I am not sure if I can tell you that. I just wouldn’t do that.

Q — I am asking you to tell the court now if there was a reason you did not do it?

A — It seems to be an invasion of the person’s privacy.

Q — You are telling the court that when you have an arrest warrant for a felon you felt that it was not sensitive — there was some sensitivity involved to open up the shower door and look at this person and if he was the person you were looking for you would be embarrassing him in some way? Is that what you are telling us?

A — I thought it was an unnecessary chance to embarrass someone who may or may not be the person I am looking for. (emphasis supplied) (Tr. 115).

Wambser testified that he was the maintenance man who accompanied Giovino to PH-L.

The officer came to me and asked me if I had — if I was going to the apartment. I said yes. He said, would you mind if I accompanied you to the apartment. I said I have no objection. We both went up. (Tr. 352).

Wambser also testified that he did not remember who answered the door to PH-L to admit him and Giovino. Wambser said that he and Giovino proceeded to the back bedroom closet and bathroom. Wambser made a list of the necessary repair items and he recalled seeing a small safe and some trunks. (Tr. 353).

Wambser testified that he and Giovino were in the apartment for “five to ten minutes.” (Tr. 354). He recalled that there were “three or four” men in the apartment, that he believed one person was in the shower, and that he did not see the person who was in the shower. (Tr. 354).

Q — When you left the apartment did you do so with agent Giovino?

A — Yes I did.

Q — Where did you go to?

A — We went to the elevator.

Q — And who did you meet at the elevator?

A — Well, my carpenter was coming up at that time.

At that time I was giving him a list of what he needed for the job itself, for the repair.

Q — And did there come a time to your knowledge when agent Giovino and the carpenter returned to [PH-L]?

A — Well, the agent asked me if I would mind if he went back into the apartment with the carpenter.

I then asked the carpenter if he would mind and the carpenter said no, and they both went back into the apartment.

Q — Did you return to [PH-L] that day?

A — No. (Tr. 354-55).

Ospina testified that he admitted workmen into the apartment to repair the bathroom and closet walls. (Tr. 471, 474). Ospina recognized Giovino as having been one of the workmen he admitted to do the repairs. (Tr. 474).

Moreover, Ospina testified that he allowed the workmen to do the repairs without watching them work. He also testified that Zuluaga and Gutierrez were in the master bedroom and that Hernando Godoy (“Godoy”) was in the shower. (Tr. 475-76).

D. The Second Entry

Giovino testified that after he exited PH-L the first time he reported his findings to his supervisor and other group members. (Tr. 115).

Connors testified that he was with Giovino in the security office and that he discussed with Giovino what had happened in the apartment. (Tr. 127, 146). Connors, on cross-examination, testified that he had no idea, based on his conversation with Giovino, whether Rodriguez was in the apartment. Moreover, Connors believed that Giovino did not know whether Rodriguez was there either. (Tr. 146). Connors did know that neither of the three individuals seen by Giovino was Rodriguez. (Tr. 148). Giovino, Connors testified, was to go back up to the apartment to identify the man in the shower. (Tr. 147).

On cross-examination, Giovino testified that he re-entered PH-L about 30 minutes after he had first departed from the apartment. The time was placed at approximately 11:45 a.m. During the second entry, Giovino was able to determine that the fourth individual in PH-L was not Rodriguez. (Tr. 76).

Giovino testified that when he went to the apartment for a second time he entered alone; again he was admitted by Ospina. (Tr. 27).

Q — What was the purpose for your going to the apartment? What was the objective for going into the apartment the second time — the first time for that matter?

A — The first time was to try and find out if Mr. Rodriguez, the person we knew as Rodriguez actually was there so we could arrest him. (Cf. Tr. 16, 57, 74, 75 and 115).

The second time was to identify the fourth person who I could not see the first time I was there because he was in the bathroom. I had no idea how long he was going to be in the bathroom so I didn’t feel the need or reason to wait there for him.

Giovino further testified that the second entry was just before lunch. Giovino spent five minutes in the apartment and was able to see all four people in the apartment.

Q — What did you do after you observed all four individuals, realized that none of them were the fugitive or was the fugitive.

A — Being that the reason for me being there was to find out if Mr. Rodriguez was there, I was satisfied that he was not there at that time so I excused myself again from the work area and made up an excuse to go back downstairs to tell my group. (Tr. 28-29).

E. The Third Entry

Giovino testified that he went back to the security office after he left PH-L for the second time to discuss the situation with his supervisor. Thereafter, he returned to PH-L about an hour and a half later— “enough time to let the workman have his lunch break so I wouldn’t have to go back in there alone at any time.” (Tr. 29).

Q — What did you have with you when you returned to [PH-L]? What were you seeking to do at that point?

A — I put up a work order. We were trying to decide whether or not Mr. Rodriguez actually still lived in that apartment or Mr. Seraline, the person we were talking was Seraline Rodriguez.

We had decided to use a device of a work order and getting someone to sign for the work asking for Mr. Seraline himself to sign the work order.

I approached Mr. Ospina—

Q — The door to the apartment was opened by Mr. Ospina for the third time?

A — Yes, sir____

Q — What was the substance of your conversation with Mr. Ospina the third time you arrived at the apartment?

A — I notified him that the work was just about to be completed as far as the construction went. The only thing left to do would be to clean up a little bit, do some painting which was true and that I needed a signature on the work order just to acknowledge that it was done.

I told him that it was standard practice. I asked for the gentleman who actually rented the apartment to sign the work order. He advised me that Mr. Seraline who was the person who rented the apartment was not there. I asked him when he would return so that I may have him sign it. He said the gentleman would not be back. In fact, was out of the country. He was in Columbia and he would not return.

I said ‘Well, is there anyone else, a relative or another person who actually lives in the apartment who is responsible for the apartment to sign the work order?’

He advised me Mr. Seraline’s nephew or brother would be back soon and that he could sign the work order. Basically, that was it. I said that I’d be back.

Oh, excuse me, he also included that he and his friends, the other people who live in the apartment including Mr. Seraline’s alleged nephew or brother were going to be vacating the apartment within that month____ (Tr. 30-32).

Giovino testified that he actually entered the apartment for the third time, went into the bedroom to survey the work, and returned to the doorway where the above stated conversation took place. (Tr. 33).

Q — What did you do after you left the apartment at that time?

A — Returned to the security office, told the people in my group that Mr. Ospina at that time was alone; that the other gentlemen had left and the time it took me to come back. I didn’t know where they went and this Mr. Ospina told me that the gentleman who rented the apartment, Mr. Seraline, would not return____ (Tr. 33-34).

On cross-examination, Giovino placed the time of the third entry into PH-L at about 1:00 or 1:30 p.m. (Tr. 79). He also testified that although the agents were satisfied that Rodriguez wasn’t at the Bay Club, “it is standard procedure to wait for Mr. Rodriguez to return to his residence.” (Tr. 97).

Connors testified that Giovino’s third entry, mistakenly referred to in the testimony as the second entry, occurred at approximately 2:00 p.m. (Tr. 149).

Ospina testified that Giovino came to the apartment in the afternoon looking for Omar Seraline and that he, Ospina, told Giovino that Seraline was out of the country. Additionally, Ospina told Giovino that he and Zuluaga were going to vacate the apartment at the end of the month. (Tr. 476-77).

F. The Arrest of Juan Carlos Ospina

Giovino’s knowledge of the events constituting Ospina’s arrest was based on direct radio communication with his supervisor, who was present in the Bay Club garage at the time it occurred. (Tr. 36). Accordingly, Giovino testified that he was not present at the time the following events took place. (Tr. 88, 93).

About thirty minutes after Giovino’s third entry into PH-L, he was advised by fellow officers that in the garage space assigned to PH-L there was a white Toyota Célica GT with an expired temporary registration sticker with the name Juan Carlos Ospina on it.

The agents who were down there who were on surveillance saw [Ospina] drive from the parking spot to the entrance of the garage, a good distance somewhere an eighth to a quarter of a mile. It’s a big garage. He had to go from one level to another. He stopped at the entrance and was doing some sort of work, I was told, between his Toyota and a Corvette which was by the entrance to the garage.

I think he was jump — starting it or something to that effect — it was at that point that I was advised Mr. Ospina was stopped by the agents in my group. (Testimony of Giovino at Tr. 35).

Giovino testified that Ospina told the agents, who identified themselves as such, that he had no identification with him but that he had it “upstairs.” The- agents asked Ospina if he could get some identification and Ospina said, “Certainly.” (Tr. 36).

Giovino, on cross-examination, testified that he believed there were approximately “three plus several other[ ]” officers present at the time Ospina was stopped. (Tr. 94). Moreover, Giovino testified that the stop occurred approximately two hours after the last time he left the apartment. (Tr. 98, cf. Tr. 34).

Giovino conceded that Ospina’s car was “seized” without a warrant therefor; (Tr. 98-99), and that such seizure took place prior to the point in time when the agents admit to having “arrested” Ospina. Moreover, it is all but conceded that at the time the automobile was “seized,” there was no probable cause to arrest Ospina.

Connors, on direct examination, testified that he, too, was stationed in the security office of the Bay Club; he was advised by fellow agents that Ospina was getting into his vehicle and was headed toward the exit of the parking lot. (Tr. 128).

The other members of the Task Force were instructed to stop Mr. Ospina from leaving the garage____ Immediately, when the order was given to stop him, myself and other members went over to the parking garage, at which time they were just leaving that area to enter the elevator area of the building.” (Tr. 128-129).

Connors testified that there were approximately four officers present at the initial stop and that he was not among them. (Tr. 129). Moreover, Connors described the encounter between Ospina and the agents as follows:

The vehicle was stopped and he was asked to produce some identification and paperwork for the vehicle he was driving.

He had nothing on him and further inspection of the vehicle revealed a temporary registration of the vehicle in the back window which had expired so the vehicle was not registered either.

He said he had identification in the apartment when asked and he said he would go upstairs and get it and the officers accompanied him to get it and that is when I met up with him — I met them by the bank of elevators. (Tr. 130-31).

On cross-examination, Connors testified that he was in the security office with Giovino when he [Connors] gave the order to stop Ospina. (Tr. 142-43).

Q — What was the reason for the stop?

A — The reason being there was no one left in the apartment. The apartment was vacant—

Q — Right, and for the purpose of identifying—

A — I didn’t know it was Ospina at that time — to identify him.

Q — Your sole purpose was to identify him; correct?

A — Yes.

Q — So you wanted him stopped by fellow officers to find out who he was?

A — Yes.

Q — You knew he was not this fellow [Rodriguez]?

A — That is correct.

Q — You were already told by Giovino that [Rodriguez] wasn’t up there?

A — He didn’t know if he was there at the time.

Q — He told you there were four people in there and he saw all four?

A — There was a fellow in the shower and we had no idea who he was. (Tr. 144-45, cf. Tr. 33-34).

Connors repeated several times that Giovino was unable to identify the person in the shower. (T. 146-48). However, during a lunch break, Connors “read the affidavit” and recalled that Giovino told him that the person in the shower was not Rodriguez. (Tr. 149).

Connors further testified that there were “four or five” agents present at the initial stop of Ospina. (Tr. 150).

Q — And then there were two [more] of you?

A — There was one of me.

Q — Just you came by yourself?

A — That first — initially, yes. (Tr. 150; cf Tr. 129).

Connors also testified that Giovino came to the garage “later on,” but that “I don’t believe I saw him in the garage.” (Tr. 150). Connors did not believe there were seven agents in the garage, but he did believe four agents went to the elevator with Ospina. Moreover, Connors testified that Ospina was detained “less than five minutes” from the time the command to detain was given until the time the four agents were headed to the elevator bank with Ospina. (Tr. 151).

Q — Did any of the policemen when they stopped Mr. Ospina search the Toyota?

A — I believe so, yes.

Q — How many times did they search the Toyota?

A — I cannot answer that. I don’t know____

Q — What are the policemen going through Mr. Ospina’s Toyota for?

A — I believe to make sure there were no weapons or anything in the front seat area. (Tr. 152).

Connors testified that the trunk was not searched in his presence. Connors was told by other agents that the front seat area was searched. (Tr. 153).

Connors repeated that Ospina did not show any identification in the garage. (Tr. 154, 157). Ospina was, Connors-testified, patted down for weapons. Connors did not know if any agents took Ospina’s wallet and went through it. (Tr. 155).

Q — Did anyone remove a beeper from Mr. Ospina’s person?

A — Yes, sir.

Q — They did?

A — Yes, sir.

Q — Who was the one who removed the beeper?

A — It was handed to me, I believe, by Detective Platzer. (Tr. 155).

Connors testified that he did not know under what authority Ospina’s beeper was taken. (Tr. 161). Moreover, Connors testified that Ospina was not free to leave. (Tr. 157, 162).

Connors also testified that he did not see, in the garage, a photocopy of Ospina’s passport, nor did he see purchase papers for the automobile. He did, however, see the automobile papers in the apartment. (Tr. 164).

Q — Who made the decision to do it the way you did it?

A — We exhausted our means and the only way we could do it was the way we did it.

Q — To get into the apartment?

A — Yes....

Q — ... Are you the one who made the decision [to detain Ospina]?

A — I had a conversation with someone and a decision was made to stop him____

Q — Did you expect him to be in possession of some narcotic or weapons?

A — I didn’t know who it was at the time.

Q — How long did it take you to find out?

A — Until we went up to the apartment.

Q — Just a minute. You didn’t know when you saw him that he lived in the apartment?

A — I had no idea of knowing who he was. (Tr. 180-83).

On redirect, the Assistant U.S. Attorney elicited from Connors that the decision to stop Ospina was based on a conversation by Connors with the Assistant. (Tr. 195-96). Connors, on re-cross, testified that the Assistant offered no guidance as to the parameters of the stop. (Tr. 203).

Detective Platzer testified on direct examination that while surveilling the Toyota in the garage he and Dolinsky received an order to have the occupant of the Toyota identify himself.

Myself and special agent Dolinsky pulled our car — I pulled my vehicle from — my vehicle from blocking Mr. Ospina from pulling out we exited my vehicle and identified ourselves____ I had my shield in my hand and identified myself to him and asked him for a license and registration to the vehicle. (Tr. 218; with regard to “I had my shield in my hand ...” Cf. Tr. 232, 319 and 321 wherein Platzer states that he had a gun in his other hand).

Platzer testified that Ospina responded that he had his registration with him in the automobile, (emphasis supplied) (Tr. 218, 220, 226; cf. Giovino at Tr. 35-36, Connors at Tr. 130-31). The agents asked Ospina to step out of the car, which he did, and “Dolinsky reached into the driver’s side and removed the registration to the vehicle.” (Tr. 218).

Upon examining the registration to the vehicle we noticed that the vehicle was not registered at that location.

Approximately this time special agent Giovino, detective Connors, special agent Sullivan, detective Healy and Pena arrived on the scene. (Tr. 218; cf. Giovino at .Tr. 88, 93; Connors at Tr. 150).

The agents continued to question Ospina as to the location of his residence. Apparently, it was the agents’ desire that Ospina prove that he lived in PH-L.

We asked him if he had any papers on him that would show he lived at this address and he stated he had these papers up in his apartment and that he would take the officers up to show them the papers showing that he lived at this address. (Tr. 219).

On cross-examination, Platzer testified that he was six feet three, 195 pounds. Furthermore, he testified that Ospina was detained in the garage “maybe 15, 20 minutes.” (Tr. 222, cf. Tr. 151).

Platzer reiterated that the agent’s vehicle was used to block in the Toyota. The garage attendant, Platzer stated, was not in the immediate vicinity of the Toyota at this time. Furthermore, it was Platzer’s testimony that five other officers — that is, a total of seven — the entire group assigned to the Bay Club that day, were present. (Tr. 221).

Q — Is it your testimony that no one searched the Toyota at that point?

A — At that point, not that I saw (Tr. 225, cf. Connors at Tr. 152).

Platzer denied seeing Ospina placed up against a wall. Moreover, Platzer testified, in direct contradition to Connors’ testimony, that he did not remove a beeper from Ospina, did not see any other officer remove a beeper, and that he had no knowledge of a beeper being on Ospina’s person in the garage. (Tr. 225).

Q — Wasn’t it your function to try and get some identification to try and find out who he was?

A — Yes.

Q — Did you ask for a wallet, let’s see some ID, pal?

A — He pointed to the Toyota — to a flap in the door and stated his identification and papers were there, at which point special agent Dolinsky reached over and removed the registration to the vehicle with Mr. Ospina’s name on it but not registered to those — to that location we were at. (Tr. 226).

Platzer testified that Dolinsky showed him Ospina’s registration. The other five officers, upon their arrival, were “standing there,” but Platzer didn’t see any of them searching the vehicle.

Platzer further testified that the name Ospina identified himself to be was the same name as on the registration; that Ospina said he lived in PH-L; and, that he did not remember being shown a photocopy of Ospina’s passport.

Q — Do you remember taking from Mr. Ospina the keys to the Toyota?

A — That I took them?

Q — Yes.

A — No.

Q — Did you see any of your brother officers take the keys?

A — I don’t know.

Q — But you know one or some of your brother officers took the keys to the Toyota?

A — I believe so. It’s possible but I don’t remember.

Q — Did you see any of the officers take from my client’s person the keys to the apartment?

A — No.

Q — Did you see three officers escort my client to the elevator?

A — No. I was — no, I didn’t. I seen people walk away with him but I didn’t know where they were going.

Q — You had no idea where they were going?

A — I had an idea.

Q — They were going upstairs?

A — Yes. (Tr. 229-230).

Again, Platzer was asked how long he was in the garage with Ospina and the seven officers, Platzer replied, “Maybe ten, fifteen minutes.” (Tr. 231, cf. Tr. 222).

On cross-examination by Zuluaga’s attorney Platzer stated that he took no notes and filed no reports with respect to Ospina. Platzer admitted to having his gun in his hand as well as his shield at the time of the initial stop. Moreover, the license plate on the automobile was not checked with motor vehicles, nor did he write the number down. (Tr. 232-33).

Q — So that your whole participation in this activity is what you just described— you stood there, saw this man in the car, took out your gun and shield and turned him over to the other policemen, is that right?

A — That’s correct. (Tr. 233).

Dolinsky testified, on direct examination, as to the circumstances of stopping Ospina. He testified that he and Platzer pulled their vehicle behind Ospina’s “to block him and impede his leaving the location.” The agents identified themselves and asked Ospina for his license and registration.

Ospina stepped out of his vehicle and indicated that he had his license and registration in a pouch alongside the passenger side door.

He pointed to that pouch and I indicated that was going to go in there and retrieve thé identification, license and registration and whatever, and he said that will be no problem.

I retrieved the license and registration and myself and detective Platzer perused the identification and it was for a different location than that of the complex. (Tr. 238).

Dolinsky believed that the registration was in Ospina’s name. (Tr. 238). The agents asked more questions of Ospina about where he lived and Ospina “emphatically stated he did live there____ and he would take us up to his apartment and show us some bills made out to himself with this address on it.” (Tr. 239).

Dolinsky identified three other agents (Sullivan, Connors and LaSalla) as being present at this time. (Tr. 239). However, at Tr. 240 Dolinsky said, “Connors and I believe detective LaSalla and special agent Sullivan and I believe detective Healy and Pena accompanied him upstairs [from the garage].” (Tr. 240).

On cross-examination, Dolinsky testified that the period Ospina was detained in the garage was “approximately ten minutes.” (Tr. 244). Dolinsky further testified that all of the agents, except Giovino, were in the garage at the time of the stop. (Tr. 245).

Q — My client had a pouch in the car that you retrieved, right?

A — I believe it was in a pouch____

Q — In there was the license and registration?

A — Some type of identification. (Cf Platzer at Tr. 218, 229; Dolinsky at Tr. 238).

Q — You testified license and registration, officer on direct. Was it the license and registration?

A — I believe I said license and registration or some type of identification.

Q — ... But it showed he had some right to operate that car, correct,?

A — Correct. (Tr. 246).

Incredibly, Dolinsky testified that the identification was in “someone’s name.” (Tr. 246, cf. Tr. 238 on direct wherein the following question was asked of Dolinsky regarding the registration: Q — Was it in the name of Juan Carlos Ospina; A — I believe it was; see also Tr. 218, 229, 246.).

Q ... was my client free to leave after he had given you all of the identification he had — his license and registration— this is who I am. My name is Ospina and this is my car — was he free to go then?

A — Yes, he was. {Cf. Connors at Tr. 157).

Q — He was? Did you tell him you can go now?

A — No.

Q — Was he surrounded by several police officers?

A — I wouldn’t say surrounded, no.

Q — How many cops were there?

A — Approximately five or six (Cf. Dolinsky at Tr. 239, 240, 255).

Q — Did you remove a beeper from my client’s person?

A — I didn’t.

Q — Did you see him have a beeper?

A — No. (Tr. 250).

Dolinsky testified that he did not put Ospina up against a wall; that he did not search the trunk of the Toyota; and that he did not remove the keys to the Toyota. Dolinsky did testify, however, that he believed detective Lasalla “may have put the Toyota back in its original location.” (Tr. 251, cf. Giovino Tr. 98-99).

Dolinsky also testified that he didn’t recall seeing any agents display a gun. Moreover, Dolinsky testified that the Toyota was not searched before Ospina was brought upstairs. (Tr. 252).

Q — Isn’t it true that Mr. Ospina’s person was searched and you removed from him — either you or your brother officers — the keys to the apartment, the keys to the car and his wallet and the beeper?

A — I don’t recall seeing any beeper. I recall the defendant taking out his wallet to look for further identification and in doing so I think he removed the keys for his apartment in order to prove to us that he resided there. (Tr. 253).

Again, defense counsel asked Dolinsky about the identification supplied by Ospina:

Q — And when you fellows came up to him and asked for identification, he provided it, didn’t he, or told you where it was?

A — Um-hum. That’s correct.

Q — He was cooperating with you, right?

A — Yes.

Q — After he did that did you say to him, okay, Ospina, you can go?

A — No, I didn’t.

Q — Did you ever convey to him that he was free to leave?

A — Did we come out and say you are free to leave or something like that?

Q — Yes.

A — No, we didn’t. (Tr. 257-58).

On cross-examination by Zuluaga’s attorney, Dolinsky was asked whether he returned to Ospina his license a