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January 16, 1990


The opinion of the court was delivered by: BUA


 Before the court are the various pretrial motions filed by defendants Alfredo Torres and Javier Santillanes. Each motion is addressed separately below.

 As a preliminary matter, the court finds that a suppression hearing is not necessary to resolve Torres' motion to quash arrest and suppress evidence. A defendant bears the burden of showing that disputed issues of material fact exist which necessitate an evidentiary hearing. Nechy v. United States, 665 F.2d 775, 776 (7th Cir. 1981). "To justify a hearing, the facts presented in the motion [to suppress] must be 'definite, specific, detailed and nonconjectural.'" United States v. Rollins, 862 F.2d 1282, 1291 (7th Cir. 1988); see also United States v. Hamm, 786 F.2d 804, 807 (7th Cir. 1986). In this case, Torres' motion is void of virtually any factual detail concerning the circumstances surrounding his arrest. Therefore, Torres has failed to meet his burden of showing the need for an evidentiary hearing.

 The only particular facts relating to the arrest which the court has been provided are contained in the government's consolidated response to Torres' motions. Therein, the government states that in the weeks immediately prior to December 1, 1989, law enforcement agents had completed two separate undercover drug transactions with defendant Linda Briseno; in the second of those transactions, agents had observed Briseno meeting with Santillanes just prior to executing the deal. In November 1989, the agents set up a third drug deal with Briseno for December 1, 1989 at 3:30pm. At 2:45pm on December 1, the agents observed Santillanes and Torres as those two defendants traveled to the area where Briseno's office is located. The agents then watched as Santillanes and Torres left their car for a short period of time, returned to their car, then drove to a bar. At approximately 4:30pm, the drug deal was cancelled. Ten minutes later, agents observed as Torres and Santillanes again drove to the area near Briseno's office. After the agents witnessed Torres receiving a package from Briseno, Torres and Santillanes drove off. Shortly thereafter, the agents stopped the car and ordered Torres and Santillanes out of the car. The agents then seized two packages appearing to contain black tar heroin which were laying on the floor of the passenger side of the car.

 Based on those facts, the court finds that Torres' motion to quash arrest and suppress evidence must be denied. Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), "a police officer who observes suspicious activity may, though he lacks the probable cause traditionally necessary to make an arrest, stop an individual briefly to investigate the circumstances provoking suspicion, provided the officer is 'able to point to specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant that intrusion.'" United States v. Ocampo, 890 F.2d 1363, 1368 (7th Cir. 1989). In this case, the above facts clearly establish reasonably suspicious circumstances to make a Terry stop of defendants. Moreover, the agents in this case had probable cause to arrest the defendants once they discovered the heroin which was laying in the car in plain view. Therefore, Torres' motion to quash arrest and suppress evidence is denied.

 II. Torres' Motion to Suppress Confession

 After his arrest, Torres made certain admissions and incriminating statements to law enforcement agents. Torres claims that he made those statements without having received any Miranda warnings and only after government agents promised him that he would be released from custody and treated leniently if he cooperated with the government. Torres argues that because his admissions were made without Miranda warnings and were induced by promises of compromise, the admissions were involuntary and, therefore, they should be suppressed.

 The government responds that Torres was given Miranda warnings immediately upon his arrest and that he signed a waiver form setting forth his Miranda rights prior to being interrogated by agents at the DEA office. The government also contends that Torres gave information to the agents because he "wanted to talk", and that the totality of the circumstances shows that the incriminating statements made by Torres were voluntary, not coerced by any promises on the government's part.

 The court finds that an evidentiary hearing is required to resolve this motion. Only a factual inquiry can determine whether Torres was advised of his Miranda rights prior to making the incriminating statements. A factual investigation also needs to be made to more fully flush out the "totality of circumstances" surrounding the government agents' interrogation of Torres and to ascertain what, if any, promises were made to Torres regarding leniency on the government's part if Torres agreed to cooperate. These factual questions must be settled before Torres' motion can be resolved. See U.S. v. Long, 852 F.2d 975, 976-78 (7th Cir. 1988) (holding that all of the circumstances must be reviewed in determining whether a defendant voluntarily confessed, including the nature of the promises made to defendant regarding leniency); U.S. v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) ("A statement is involuntary if it is extracted . . . [from] a suspect in response to a promise made by law enforcement personnel . . . [if] the promise [is] sufficiently compelling to overbear the suspect's will in light of all the attendant circumstances.") (emphasis added). Therefore, the court sets Torres' motion to suppress for a hearing before Magistrate Rosemond on Thursday, January 18, 1990, at 11:30am.

 III. Torres' Motion to Preserve Handwriting Notes of Government Agents

 Pursuant to the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), Torres has moved for the preservation of any handwritten notes of government agents relating to his case. The government has agreed to preserve all such materials and make them available to Torres. Therefore, Torres' motion is denied as moot.

 IV. Torres' Motion for Notice of Intent to Use Evidence of Other Crimes, Wrongs, Acts, and ...

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