Opinion
09 Cr. 159 (SAS).
June 26, 2009
For the Government: Telemachus Philip Kasulis, Assistant United States Attorney, New York, New York.
For Defendant Olivares Almaraz: Patrick J. Brackley, Esq., New York, New York.
For Defendant Jimenez Perez, Fred L. Sosinsky, Esq., New York, New York.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Defendants Manuel Olivares Almaraz and Eduardo H. Jimenez Perez have each been charged with one count of conspiracy to violate the criminal provisions of the Controlled Substances Act. On April 20, 2009, Jimenez Perez moved to suppress tangible property and statements on the basis of purported violations of his Fourth and Fifth Amendment rights. On May 1, 2009, Olivares Almaraz similarly moved to suppress physical evidence and statements. This Court held a hearing to address disputed facts on May 19, 2009, at which time I denied defendants' motions in an oral decision, with one exception. In order to assess the applicability of the Supreme Court's recent decision in Arizona v. Gant, I reserved decision concerning the suppression of evidence taken from two vehicles.
See 2/20/09 Indictment, Docket No. 6 (citing 21 U.S.C. § 846).
See Transcript, 5/19/09 Suppression Hearing ("Tr.") at 240-242.
129 S. Ct. 1710 (2009).
See Tr. at 242:6-13.
Having now reviewed Gant, I find that the warrantless searches of defendants' vehicles did not violate their Fourth Amendment rights. Therefore, defendants' motions to suppress are denied in full.
II. BACKGROUND
On February 1, 2009, law enforcement agents acted on a tip provided by a confidential informant to track a tractor-trailer to a truck stop in the Bronx, on the suspicion that the tractor-trailer contained narcotics. During that surveillance, agents observed that the roof panels of the tractor-trailer were bowed upward in a manner agents associated with hidden compartments in which narcotics are smuggled. The defendants were observed moving a large container from a car in the parking lot toward the tractor-trailer. Law enforcement agents then entered the lot, arrested Jimenez Perez and — after some searching — arrested Olivares Almaraz. While looking for Mr. Almaraz, law enforcement officers observed open black duffle bags on the ground around the tractor-trailer, which contained brick-shaped objects that had been wrapped in black tape in a manner that officers associated with kilograms of cocaine.
See id. at 13:11-16:13.
See id. at 23:7-21, 153:12-154:5.
See id. at 24:10-20.
See id. at 25:16-26:21, 32:3-32:18.
See id. at 31:16-32:2.
After officers arrested Jimenez Perez, they requested his permission to search the car from which he had been moving containers, and Jimenez Perez gave his consent. Ledgers, cell phones, and computer equipment were all seized from the car. Although lacking a search warrant, officers also searched the tractor-trailer, specifically inspecting the compartment beneath the roof panels. Approximately 83 kilograms of cocaine were seized from the tractor-trailer.
See id. at 120:11-121:1. Officers determined that Mr. Jimenez Perez had control over the car because he carried the key. See id. at 119:15-120:8.
See id. at 132:11-19.
See id. at 220:8-24 (conceding the absence of a warrant).
See id. at 205:5-24.
See 206:2-3.
III. APPLICABLE LAW
IV. DISCUSSION
Katz v. United States, 389 U.S. 347, 357 (1967).
United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004).
Id. (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)).
The Supreme Court's recent decision in Gant does not alter this conclusion. Gant addresses a search of an arrestee's car in the absence of probable cause to believe that the vehicle contained evidence of a crime. The Supreme Court's earlier decision in New York v. Belton had held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Gant added an additional requirement — that there be a "reasonable basis to believe the vehicle contains relevant evidence." In Gant's case, police had searched his car pursuant to an arrest for driving with a suspended license. The Court found that no reasonable officer would expect to find evidence of that particular crime as a result of a search; thus the search violated Gant's Fourth Amendment rights.
See 129 S. Ct. at 1719.
453 U.S. 454, 460 (1981).
See id.
As described above, here the officers had probable cause to believe that both the car and the tractor-trailer contained evidence of narcotics crimes and therefore did not rely on the Belton exception to the probable cause requirement. Gant does not alter the broader automobile exception to the warrant requirement; thus defendants' motions to suppress is denied.
V. CONCLUSION
For the reasons set forth above, defendants' motions to suppress are denied in full. The Clerk of the Court is directed to close these motions (Docket Nos. 13 20).
SO ORDERED: