Appeal from an oral order of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, suppressing statements of both defendants and physical evidence provided by defendant Obalaja on two grounds: 1) that they were the fruit of an illegal seizure, and 2) alternatively, that one statement of defendant Adegbite was the product of an illegal custodial interrogation.
The United States brings this expedited appeal pursuant to 18 U.S.C. § 3731 (1982 and Supp. IV 1986) seeking reversal of an oral order of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, which occurred in the course of a suppression hearing on October 22, 1987 and was entered on October 26, 1987. The order suppressed statements made by both defendants, Kofoworola Adegbite and Joseph Adeniran Obalaja, and physical evidence provided by defendant Obalaja, as the fruit of an illegal seizure. In addition, one statement of defendant Adegbite was suppressed on the alternative ground that it was the product of an illegal custodial interrogation under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).*fn1
Specifically, the district court held that when two Drug Enforcement Administration ("DEA") agents waved down an ice cream truck in which defendants were departing from a garden apartment complex in order to obtain identification from the occupants to determine whether they were the subjects of two arrest warrants, a seizure in violation of the fourth amendment occurred because the agents had no reasonable suspicion that the truck's occupants were in fact the persons described in the arrest warrants. The court also held that when an agent who, subsequent to the stop, successfully asked Adegbite for confirmation that he was in fact "Gbenro," the name listed on one arrest warrant, Adegbite's affirmative response must be suppressed on the alternative ground that defendant Adegbite was in custody for Miranda purposes and was asked to confirm his identity before he was read his Miranda rights.
We reverse the suppression order on the grounds that stopping the truck did not constitute a seizure, and that the inquiry concerning Adegbite's identity did not constitute custodial interrogation prohibited by Miranda.
On March 24, 1987, one Olasogi Olukoya was apprehended at the John F. Kennedy International Airport with approximately a half pound of heroin in his possession. On April 15, 1987, Olukoya informed a DEA agent that his instructions were to deliver the heroin upon arrival to a man named "Niran" at the airport, and if Niran was not there to call him at telephone number (301) 485-5997. Under DEA supervision, Olukoya placed a recorded call to that number on April 15, 1987 and spoke to a man named "Gbenro" in Yoruba, a Nigerian dialect, about the amount and delivery of the heroin. There followed a second recorded phone call to the same number on April 16, 1987, also monitored by the DEA, in which Olukoya talked with Gbenro and a man named "Niran." In a third call on April 17, 1987 Olukoya made arrangements with Niran for delivery of the heroin.
Magistrate A. Simon Chrein of the Eastern District of New York issued "John Doe" arrest warrants on May 1, 1987 for two men with the nicknames/aliases "Gbenro" and "Niran" who were described in the warrants as males "fluent in Yoruba, a Nigerian dialect, residing at 24 Walden Maple Court, Baltimore, Maryland, 21207, and reached at telephone number (301) 485-9597."
DEA agents in Baltimore thereafter ascertained that this telephone number was registered to 4410 Franconia Drive, Apartment J, Baltimore, Maryland, rather than to the address specified in the warrants.*fn2 They also ascertained that the number had been changed to an unlisted number, which they obtained. On May 6, 1987, a DEA agent called the new telephone number at that address and was advised that Gbenro and Niran, although resident there, were not then available, but would be the following morning. As a result, the next morning three DEA agents, Agents Czerski, Dombroski and Masiello, and local police detective Fischer went to 4410 Franconia Drive in two cars with the arrest warrants. Two of the agents, Agents Masiello and Dombroski, had worked with the DEA Nigerian Task Force in the Washington, D.C. area, an operation to investigate and interdict the trafficking of heroin by Nigerians.
Upon their arrival, Agents Masiello and Czerski saw two men whom Masiello deemed to be Africans because of their "sloppy," "[n]ot well coordinated" dress and "oily" skin in a Jack and Jill ice cream truck in a parking lot in front of the 4410 Franconia Drive building, a garden apartment complex of approximately twelve units. The agents approached the ice cream truck, which had travelled approximately fifteen to twenty yards, and waved their arms to flag it down. The agents wore plain clothes and displayed no guns or badges. When the truck stopped, the two officials identified themselves and requested identification of the driver. The driver produced a driver's license in the name of "Joseph Adeniran Obalaja," whereupon the agents noticed that the latter portion of the middle name on the license was "niran," as on the arrest warrant.
Shortly thereafter, Agent Dombroski and Detective Fischer, who had arrived earlier to stake out the building, left their car, walked to the other side of the truck and requested identification of the passenger. They were in plain clothes and did not display firearms. The passenger responded that his identification was in his room in apartment J of the building, and asked if he could retrieve it. Accompanied by Dombroski and Fischer, the passenger went up to Apartment J and proceeded to the back bedroom, subsequently identified as his residence, but was unable to produce any identification. On the way, Agent Dombroski asked the passenger what tribe he belonged to, to which he responded "Yoruba."
Meanwhile, the agents who had remained with Obalaja asked him for additional identification. In the process of reaching into his pocket, Obalaja dropped an envelope addressed to "Niran Obalaja" with the name "Gbenro," among others, listed on the back. Upon being asked by Agent Masiello for the identity of the addressee on the envelope, Obalaja then responded that he was also known as "Niran." Those agents and Obalaja then went up to Apartment J, where they joined the others.
While in the apartment, Obalaja received a phone call from another agent who was unaware of the planned arrest. Obalaja answered the telephone: "this is Niran." Agent Masiello asked Adegbite once again if he had any identification, and told him it would be in his best interest to produce some. Again, no identification was presented. Agent Masiello then asked: "you are Gbenro, aren't you?", to which Adegbite responded affirmatively. The agents then arrested the two men, read them their Miranda rights, and brought them to the Baltimore office of the DEA.
In an oral opinion delivered on October 22, 1987, Judge Korman granted the defendants' motion to suppress the statements of both defendants and the physical evidence taken from Obalaja as the fruit of an illegal seizure. Judge Korman specifically determined that waving down the moving ice cream truck constituted a seizure under the fourth amendment, and that there was no reasonable suspicion ...