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denying defendant's motion to reopen where new witnesses were known to him and available at the time of the original hearing
Summary of this case from U.S. v. LeaverOpinion
01 Cr. 848 (SWK)
August 6, 2002
OPINION AND ORDER
Defendant Jose Luis Perez moves to reopen the previously held hearing on his motion to suppress certain evidence and statements. For the reasons set forth below, Perez' motion to reopen the suppression hearing is denied. Furthermore, Perez' motion to suppress certain evidence and statements is denied.
I. BACKGROUND
On August 30, 2001, Perez was indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. After discovery was complete, Perez, through his original counsel, David Goldstein, Esq., filed a motion to: (1) suppress physical evidence seized from the Defendant's home on the night of September 15, 1999; (2) suppress physical evidence seized from the car Perez was driving on December 1, 1998; and (3) suppress all statements Perez may have made to police on December 1, 1998, September 15, 1999, and August 31, 200l.
Originally, Perez also moved for suppression of an identification of him made after the witness viewed what he argued was an unduly suggestive photo array. Perez later withdrew that portion of the motion.
II. DEFENDANT'S MOTION TO REOPEN THE SUPPRESSION HEARING
After pre-hearing memoranda of law were filed by both the Government and the Defendant, a hearing was held on February 28, 2002 and continued on March 5, 2002. Subsequently, both sides also submitted post-hearing memoranda of law. After the motion was fully briefed and under consideration by the Court, Perez retained new counsel, Elliot J. Blumenthal, Esq., who requested that the Court reopen the suppression hearing so that additional witnesses could testify as to the timing of the events that occurred on the evening of September 15, 1999. The proposed new witnesses are tenants in the same building as Perez' home, and each has supplied an affidavit to the Court in which each asserts that the police entered Perez' home earlier than previously testified to by police, and at a time when it would have been highly unlikely Perez was able to consent to the search. Moreover, Perez asserts that his previous counsel's failure to call these witnesses amounts to ineffective assistance of counsel.
A. DISCUSSION
Perez moves to reopen the suppression hearing on the basis of new testimony by witnesses that will contradict the testimony given by the police officers who were present during the September 15, 1999 stop and search, and also on the basis that his prior counsel was ineffective in failing to call these witnesses to testify at the time of the original hearing.
1. NEW WITNESSES
The decision whether to reopen a suppression hearing lies soundly within the discretion of the district court. See United States v. Nezai, 668 F. Supp. 330, 332 (S.D.N.Y. 1987). Among the factors the court should consider is whether the moving party has proffered "newly discovered evidence that was unknown to the party, and could not through due diligence reasonably been discovered by that party, at the time of the original hearing." Id. (emphasis added); see also United States v. Tzakis, 736 F.2d 867, 872 (2d Cir. 1984) (motion to reopen hearing so newly retained defense counsel could cross-examine witness denied); United States v. Oates, 445 F. Supp. 351, 353 and n. 2 (E.D.N.Y.), aff'd without op., 591 F.2d 1332 (2d Cir. 1978). A hearing will not be reopened in the absence of "any significant, new factual matters that would have been developed at such a hearing." United States v. Tzakis, 736 F.2d at 872. Moreover, evidence that is not material or is merely cumulative or impeaching is not an adequate basis for reopening a suppression hearing. United States v. Oates, 445 F. Supp. at 353 (motion to reopen suppression hearing denied where newly discovered evidence was merely impeachment evidence and defendant was aware of witness prior to hearing). Finally, if a new witness was available at the time of the original hearing, but chose not to testify or was not called to do so by the defendant's attorney, it is not a basis for reopening the hearing. See, e.g., United States v. Nezai, 668 F. Supp. at 332; United States v. Oates, 445 F. Supp. at 353-54; United States v. Quiroz-Carrasco, 565 F.2d 1328, 1330 (5th Cir. 1978)
The two new proposed witnesses were both known to Perez and were apparently available to testify at the previous suppression hearing. In fact, as stated in the witnesses' affidavits, each proposed witness is a tenant in a building owned by Perez, and was therefore a person known to Perez and his former counsel prior to the date of the suppression hearing. Perez therefore wishes to "present facts that were known . . . at the time of the initial hearing through additional witnesses who were available . . . at the time of the hearing." United States v. Nezai, 668 F. Supp. at 334. Such a scenario fails to meet the criteria set forth in United States v. Oates, supra. Based upon the above, Perez will not be permitted to reopen the suppression hearing to present new witnesses who were known him and were available to testify at the time of the initial hearing.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Perez also asserts that he should be able to reopen the suppression hearing and present new witnesses because of the ineffective assistance of his prior counsel, David Goldstein, Esq., through his failure to call those witnesses at the hearing.
Under the standard established by Strickland v. Washington, a defendant must satisfy a two-part test in order to demonstrate ineffective assistance of counsel. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). First, "the defendant must show that `counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms.'" United States v. Bayless, 201 F.3d 116, 130 (2d Cir. 2000) (quoting United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam)). Second, the defendant must demonstrate prejudice by establishing that "there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different." Id. The conduct of counsel under this standard is to be reviewed ex ante. See id. There is, moreover, "a strong presumption that counsel's performance was reasonable." United States v. Valencia-Romero, No. 90 Cr. 193, 1991 WL 119617, *4 (E.D.N.Y. June 21, 1991) (citing United States v. Torres, 845 F.2d 1165, 1172 (2d Cir. 1988)). "[A]ctions or omissions [by counsel] that `might be considered sound trial strategy' do not constitute ineffective assistance." United States v. Berkovich, 168 F.3d 64, 67 (2d Cir. 1999) (quoting Strickland, 466 U.S. at 689); see also United States v. Bayless, 201 F.3d at 130-31 (attorney's strategic decision not to move for judge's recusal does not constitute ineffective assistance of counsel).
The Court notes that Perez' counsel appeared adequately prepared, performed in a reasonably professional manner, and was far from deficient. Counsel asked relevant questions of witnesses, wrote well-reasoned memoranda of law, and it can be assumed that he made tactical choices regarding which witnesses to call. The Court is aware that Mr. Goldstein had originally scheduled Israel Nunez to testify at the suppression hearing, but later chose not to put him on the stand. This type of tactical decision is exactly the type that the Court will not second guess. See United States v. Matalon, 445 F.2d 1215, 1219 (2d Cir. 1971). As the Government correctly points out, the two proposed witnesses will offer testimony that directly contradicts other statements supplied by the defendant to the Court as to the timing of the events on September 15, 1999, and their statements also appear to contradict the defendant's own version of the events. "[T]he advisability of calling particular witnesses . . . [is a] matter open to honest differences of opinion." Id. (quoting United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963)). Mr. Goldstein's tactical decision not to call certain available witnesses at the suppression hearing, in combination with his adequate performance at that hearing, does not meet the standard set' forth in Strickland, and therefore does not constitute ineffective assistance of counsel. On that basis, Perez' motion to reopen the suppression hearing is denied.
B. CONCLUSION
Therefore, for the reasons set forth above, Perez' motion to reopen the suppression hearing in order to allow new witnesses to testify is denied.
III. DEFENDANT'S MOTION TO SUPPRESS
A. BACKGROUND
Perez moves for the suppression of evidence seized from the vehicle he was driving and any statements he may have made to police on December 1, 1998, on the basis that the stop of the vehicle was illegal. Further, Perez argues that even if the stop of the vehicle was legal, the actions of the officers on the scene changed the nature of the stop into an illegal detention and the evidence seized from the vehicle must therefore be suppressed.
Additionally, Perez moves for the suppression of evidence seized from his home and statements he may have made to police on September 15, 1999. Perez argues that he was unlawfully detained by officers in violation of his Fourth Amendment rights. Perez also contends that he did not consent to a search of his home, thereby rendering the search illegal.
B. BURDEN OF PROOF
"Once a defendant establishes a basis for a suppression motion, the government must prove that the search was proper by a preponderance of the evidence." United States v. Awadallah, 202 F. Supp.2d 82, 101 (S.D.N.Y. 2002); See also United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 1879 (1980); United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 996 (1974); United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983)
C. THE DECEMBER 1, 1998 STOP
On March 5, 2002, the Court held a suppression hearing to determine the events surrounding the stop of the vehicle Perez was driving on December 1, 1998. The Government called one witness, Detective Russell Wroblewski of the New York City Police Department, who was involved in the surveillance of the area on that day and later participated in the stop. The facts, as adduced through that hearing, are as follows. At approximately 6:00 p.m. on December 1, 1998, Perez was seen exiting a red car in the area of 152nd Street and Broadway in Manhattan, an area under surveillance by a Drug Enforcement Administration Task Force ("DEA") and New York City police officers for possible drug dealing. Tr. at 5-6. Prior to this date, Perez was unknown to the officers conducting the surveillance. Tr. at 26. The officers observed Perez talking to a man they identified as "T.J.", who was seen making a drug sale only moments earlier. Tr. at 4-6. Perez carried a plastic bag with him from the car and accepted money from T.J. Tr. at 6. Moments later, another man exited the building at that location and, using a key in his possession, opened the truck of the car that Perez was earlier seen driving and placed a large backpack inside. Id. This man was known to the officers conducting the surveillance as Santiago Reyes. Id. Santiago Reyes, Perez, T.J., and another man identified as Elbin Reyes then had a short conversation. Tr. at 7. At the end of that conversation, Perez entered and then exited the building at 3675 Broadway, still carrying the black plastic bag. Id. During this time, Detective Doheny radioed to Detective Wroblewski that a license plate check of the red vehicle revealed that the owner of the vehicle had a suspended license. Id. Perez and Santiago Reyes then got into the red vehicle and drove away from the area. Id. at 8.
The events as described were witnessed by Detective Doheny of the New York Police Department. Detective Doheny related the events to the other officers participating in the surveillance via the police radio in his car. Detective Wroblewski listened to Detective Doheny's account of the events through the radio in his vehicle. Detective Doheny was not called to testify at the suppression hearing.
All citations to testimony in this section of the opinion are to the March 5, 2002 Transcript.
The Court notes that while T.J. was not arrested for that drug sale, the buyer was apprehended by officers.
At the suppression hearing, a man named Santiago Reyes testified that he was not in the area of 152nd Street and Broadway on December 1, 1998. He also testified that he knew he was not in that area at that time because he works during the hours when these events took place. However, he did not provide proof of his being at work on that day. Additionally, the man identified by officers at the scene as Santiago Reyes had very different physical characteristics than the man who testified at the hearing. Contrary to Perez' contention that the officers are fabricating their story, the Court believes that it is quite possible that two men named Santiago Reyes exist, or that police misidentified the man seen with Perez on December 1, 1998. This possible misidentification, however, does not affect the legality of the stop of the vehicle, as discussed below.
Once Perez and Santiago Reyes left the area, Wroblewski, Special Agent Ganci and New York police officer Fitzgerald, each in separate vehicles, followed and then stopped the red vehicle in the vicinity of 165th Street and Riverside Drive. Tr. at 8. Detective Wroblewski testified that this area is quite dark at night, with no nearby businesses or homes to shed light on the vehicle. Tr. at 31-32. Wroblewski also testified that the main reason the officers stopped the vehicle Perez was driving was to search the bags in the car and trunk. Tr. at 30. After Perez pulled over, Wroblewski approached the drivers side door while Ganci and Fitzgerald went to the passenger side. Tr. at 8. Perez obeyed the officers' request to turn off the engine of the car and produced his driver's license for inspection. Tr. at 8-9, 39. Wroblewski did not run Perez' license or ask for his insurance card. Tr. at 30.
At that point, Wroblewski testified that he noticed money sticking out of a black plastic bag on the floor of the passenger side of the vehicle. Tr. at 9. Fitzgerald asked Perez how much money was in the bag and Perez responded, "$15,000." Id. Fitzgerald then reached in through the passenger side window and grabbed the bag. Tr. at 39.
Fitzgerald asked Perez if he could search the trunk; Perez consented and popped open the trunk from inside the car. Tr. at 10. A search of the trunk turned up the backpack placed there earlier by Santiago Reyes, which contained $75,000. Tr. at 10-11. The officers seized that money, along with the money in the black plastic bag. Tr. at 12. Although Wroblewski testified that the officers had consent to search forms with them that evening, they did not ask Perez to sign one. Tr. at 43. Perez was never told he could refuse consent to the search of the car and the trunk, nor was he ever placed under arrest or given any Miranda warnings. Tr. at 42-43.
1. THE STOP
"[A]n ordinary traffic stop constitutes a limited seizure within the meaning of the Fourth and Fourteenth Amendments." United States v. Hassan El, 5 F.3d 726, 729 (4th Cir. 1993) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct, 1391 (1979)). Therefore, such stops "must be justified by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct." Id. (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968)). In evaluating whether an investigative stop is reasonable, "the reviewing court must determine `whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" United States v. Alexander, 907 F.2d 269, 272 (2d Cir. 1990) (quoting Terry, 392 U.S. at 20)
Probable cause for a stop arises when the police reasonably believe that "an offense has been or is being committed." United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987); see also United States v. Scopo, 19 F.3d 777, 781-82 (2d Cir. 1994). "When an officer observes a traffic offense — however minor — he has probable cause to stop the driver of the vehicle." United States v. Cummins, 920 F.2d 498, 500 (8th Cir. 1990)
Analysis of Fourth Amendment issues involves "`an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time' and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783 (1985) (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1722 (1978)). The Second Circuit has approved the use of the "authorization" approach used by the Fourth and Sixth Circuits in holding that when a police officer observes a traffic offense or other unlawful conduct, he or she is justified in stopping the vehicle, and "[s]uch limited detention does not become `unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity.'" United States v. Scopo, 19 F.3d at 784 (quoting United States v. Hassan El, 5 F.3d at 728).
All of the events witnessed by the officer making the stop must be considered in ruling upon its validity. See United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 1586-87 (1989). In determining whether reasonable suspicion existed a the time of the stop, the court "must view the surrounding circumstances (i) as a whole, not as discrete and separate facts, and (ii) through the eyes of a reasonable and cautious police officer on the scene guided by his experience and training." United States v. Barlin, 686 F.2d 81, 86 (2d Cir. 1982) (internal quotations omitted). The fact that a defendant was seen in a high-crime, high-drug trafficking area, while alone not dispositive, may certainly be taken into account in determining probable cause. See United States v. Torres, No. 98 CR 183, 2002 WL 72929, *3 (S.D.N.Y. Jan. 17, 2002)
In the present case, the suspended license of the owner of the vehicle alone gave officers sufficient probable cause to stop the vehicle. See United States v. Cummins, 920 F.2d at 500. That violation, in conjunction with all of the attenuating circumstances, such as the high-crime high-drug area under surveillance, the familiarity Perez exhibited with a known drug dealer, the exchange of money from T.J. to Perez, and Santiago Reyes' placement of a large heavy-looking bag in the trunk of the car Perez was seen driving, but to which he also apparently had the keys, gave the officers on the scene adequate probable cause to stop the vehicle. See United States v. Torres, 2002 WL 72929 at *3
2. THE SEARCH
Furthermore, once the officers properly stopped the vehicle, the resultant search of the vehicle was also proper, regardless of whether the record developed at `the suppression hearing demonstrated Perez' consent for the officers to search the vehicle.
Even if Perez did not voluntarily consent to the search of the vehicle, "[a] warrantless search of a movable vehicle is permissible when the police have probable cause to believe that the vehicle contains contraband." United States v. Garcia, No. 98 CR 913, 1999 WL 216653, *4 (S.D.N.Y. Apr. 13, 1999) (quoting United States v. Harwood, 998 F.2d 91, 96 (2d Cir. 1993)). "Such a search may include containers or packages in the vehicle if there is reason to believe the containers contain contraband." United States v. Torres, 2002 WL 72929 at *3
The credible testimony at the hearing established that the officers at the scene had sufficient probable cause to believe that either the backpack or the black plastic bag could contain contraband such as narcotics or money. They witnessed an earlier drug transaction involving T.J., saw Perez, T.J. and Santiago Reyes talking to each other, watched as money exchanged hands between T.J. and Perez, and saw Perez carrying a black plastic bag into and out of a building in the area, and Santiago Reyes exiting the same building with a large, heavy-looking backpack. Given the circumstances, the officers had probable cause to search the vehicle, including the trunk, for any evidence of contraband, regardless of whether Perez consented to the search. See United States v. Torres, 2002 WL 72929 at *3. Therefore, Perez' motion to suppress evidence seized from the vehicle he was driving on December 1, 1998 is denied.
3. SUPPRESSION OF STATEMENTS MADE BY PEREZ
Perez argues that any and all statements he made to officers during the stop on December 1, 1998 should be suppressed because they were the result of an unlawful detention. Perez asserts that he was in custody and was interrogated without being advised of his Miranda warnings. He argues that the conduct of the officers at the scene, including blocking him from moving and questioning him in an "accusatory fashion", conveyed to him that he was not free to leave. Def.'s Post-Hearing Mem. at 33.
As discussed above, a vehicle stop and the resultant brief detention of its occupants is a seizure within the meaning of the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648 at 653. The relevant inquiry in determining when a person is in "custody" for purposes of Miranda "is how a reasonable man in the suspect's position would have understood the situation." Id. at 442. Although an ordinary traffic stop "significantly curtails the `freedom of action' of the driver and the passengers, if any, of the detained vehicle, . . . [t]wo features of an ordinary traffic stop mitigate the danger that a person questioned will be induced `to speak where he would not otherwise do so freely.'" Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 3148-49 (1984) (citations omitted). First, the detention of a motorist during a routine traffic stop is "presumptively temporary and brief." Id. at 437. The motorist in such a situation expects that, after receiving a citation from the officer, he may be allowed to continue on his way. See id. Second, the circumstances surrounding an ordinary traffic stop are not such that the motorist feels as though he is at the mercy of the police. See id. at 438. "[T]he atmosphere surrounding an ordinary traffic stop is substantially less `police dominated' than that surrounding the kinds of interrogation at issue in Miranda itself . . ." Id. at 438-39. During a traffic stop, "the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Id. at 439. Therefore, "persons temporarily detained pursuant to such stops are not `in custody' for the purposes of Miranda." Id. at 440.
In the present circumstances, Perez was not "in custody" for the purposes of Miranda. He was pulled over by officers in the context of an ordinary traffic stop. Although three officers were present on the scene, a slightly higher number than present during a typical traffic stop, this alone did not create a custodial situation. See Cruz v. Miller, 255 F.3d 77, 83 (2d Cir. 2001) (one factor to consider is the number of officers involved in the stop, typically one or two during a traffic stop). The officers in this case did not tell Perez that he was not free to leave, nor did they ever search him or ask him to leave the car. A reasonable person in Perez' situation would have expected the stop to last only briefly and then be allowed to go on his way. The uncontroverted testimony at the suppression hearing was that the officers did not pull their guns, search Perez or his companion, or speak in a threatening manner toward him. The stop lasted no longer than was necessary under the circumstances and, therefore, the stop did not constitute a custodial situation. Perez' motion to suppress any statements he may have made to officers during that stop is denied.
D. THE SEPTEMBER 15, 1999 STOP
Perez moves to suppress any evidence seized from his home on the evening of September 15, 1999. Perez contends that his consent to the search of his home was defective in that it was tainted by an allegedly unlawful detention and interrogation. See Def.'s Post-Hearing Mem. at 22. Alternatively, Perez argues that even if he was not in an unlawful custodial situation, his consent was independently defective because he did not knowingly, voluntarily or freely consent to a search of his home because he was not advised that he could refuse consent and "merely acquiesced to the authority of the police." Id. at 14.
At a suppression hearing held on February 28, 2002, Investigator William Kelly of the New York State Police testified to the events of September 15, 1999. On September 15, 1999, Kelly received a tip from a source that he considered to be a reliable informant that a Dominican male, driving a green Dodge Caravan with a certain New York state license plate number, was a supplier of cocaine for the area of 134th Street between Broadway and Amsterdam Avenue in Manhattan and could often be seen at that area picking up money and also in the vicinity of 152nd Street and Broadway. Tr. at 7-8. Both areas are considered "notorious narcotics locations." Tr. at 7. Later that day, around 5:00 p.m., Kelly, along with Detectives Checo and Sabando in separate cars, went to the area of 152nd Street and Broadway and spotted a parked green van matching the description given by the informant. Tr. at 8. Approximately 20 minutes later, the driver got out of the van and proceeded to briefly talk to a group of unidentified people standing on the sidewalk and then got back into the van and drove away. Id. Kelly and Detective Checo each followed the van in separate cars. Tr. at 8-9. They lost sight of the van as it made a left on Irwin Avenue in the Bronx, but later found it parked behind a residence at 3428 Irwin Avenue. Tr. at 9. Kelly watched as at approximately 6:25 p.m. Perez drove to a few stores in the neighborhood and then returned to Irwin Avenue where he parked the van on the street. Id. After Perez returned to the home, he was met by a man identified as Hubin Lopez who had come from a green Lincoln parked nearby. Tr. at 9-10. Lopez and Perez entered the residence, and 15 minutes later Lopez came out carrying a large black duffle bag over his shoulder. Id. Lopez placed the bag in the trunk of his car and drove away as Perez again entered the green van and drove away in a different direction. Tr. at 10-11.
Investigator Kelly is a 20 year veteran of the New York State Police and has been a member of the DEA Task Force in Manhattan for over 12 years.
All citations to testimony in this section of the opinion are to the February 28, 2002 Transcript.
At this point, both Kelly and Sabando followed Lopez to the Triborough Bridge where they pulled him over and searched the bag. Tr. at 12. Inside it they found two other bags, each of which was empty. Id. Lopez stated that he was heading to Queens and denied being at the residence on Irwin Avenue. Tr. at 11-12. Lopez was allowed to leave and the bags were seized because officers believed a white powdery residue inside the bags could be cocaine. Tr. at 12.
Later tests determined that the white powdery residue inside the bags was not cocaine, but officers on the scene were not aware of the test results on September 15, 1999.
As Kelly left the Triborough Bridge, he ran a DECS inquiry on the Irwin Avenue residence and it produced a "hit" that large amounts of cocaine were often stored at that residence by the person who lived on the main floor and that a New York City Corrections Officer lived upstairs. Tr. at 13. Kelly returned to the residence to look for the van while other units went to the area of 152nd Street and Broadway and located the van there at approximately 9:45 p.m. Tr. at 14. After the van left that area, Kelly went to meet the other units where the van had now stopped on Greystone Avenue in the Bronx. Tr. at 14-15.
DECS is the Drug Enforcement Coordinating System, a computer database kept by law enforcement agencies in the New York area that indicates whether a person or a location is or has been the target or has been mentioned in a narcotics investigation. Tr. at 13.
Detective Warren Checo also testified at the suppression hearing as to the events leading to the stop of Perez vehicle on Greystone Avenue on September 15, 1999. At approximately 9:45 p.m. Checo followed Perez as he drove from 152nd Street and Broadway. Tr. at 66. Perez was "driving relatively fast for the speed zone" at approximately 70 miles per hour and was changing lanes "quite frequently." Id. Checo and Detective Domenitz, traveling in a separate car, did not pull Perez over; Perez pulled over on his own and indicated to the officers that he was aware that he was being followed. Tr. at 67-68. Checo and Domenitz were dressed in plain clothes and did not have their weapons drawn as they spoke with Perez outside of his van. Tr. at 68. Perez allowed the two to search the back of his van, where they found building materials. Tr. at 69. Kelly joined the conversation while Perez was explaining that he lived near 152nd Street and Broadway and that he had not been at the Irwin Avenue address earlier in the evening, nor had he met Lopez at that address earlier. Tr. at 15.
Detective Checo is an 18 year veteran of the New York City Police Department and has been a member of the New York Drug Enforcement Task Force for approximately 10 years.
The Court notes that at this time Perez also acknowledged to Checo that he knew the Detective personally because Perez once lived in a building where Checo and his grandmother used to reside. Tr. at 69.
Kelly then asked Perez to accompany him to the residence on Irwin Avenue so that he could "point out the house where I saw [him] go into." Tr. at 16. Kelly stated that Perez agreed to go with him and, after patting Perez down and noticing a set of keys in his pocket, asked Perez to get into the front seat of the police vehicle and they drove to the Irwin Avenue residence followed by a few other units. Tr. at 16-18. Kelly explained that he believed Perez wanted to leave his van on Greystone Avenue because he was visiting a girlfriend in that area. Tr. at 40-41.
Upon arriving at the Irwin Avenue residence, Perez again denied having been at that location earlier in the evening and denied knowing whether anyone was inside the home at that time. Tr. at 18. After Kelly rang the doorbell and received no answer, he "remembered the keys in Perez' pocket," and "asked him if those keys would fit the residence." Id. Perez denied that the keys would fit that residence, and gave Kelly the keys. Tr. at 18-19. A key on the ring opened the door to the residence and Kelly testified that he thought he heard a noise from within the house when he opened the door, so he yelled "Police, Police," and proceeded to enter the house with his weapon drawn when he received no response. Tr. at 19. Upon entering the house, Kelly encountered a male later identified as Israel Nunez who lived upstairs and who stated that he did not hear officers ring the doorbell. Tr. at 20. Nunez also told Kelly that Perez lived on the main floor of the residence. Id. Kelly and other officers conducted a protective sweep of the residence in order to confirm no one else was in the residence. Tr. at 21. During the protective sweep, Perez stayed in the police vehicle parked in front of the home. Tr. at 52-53. Kelly testified that an officer was posted outside of that vehicle to "watch Mr. Perez in the car" and to make sure that "he didn't go away." Tr. at 56. After Kelly came back to the car and told Perez that Nunez informed him that Perez lived there, Perez then admitted that it was his residence. Id.
Kelly also testified that Perez then agreed to let officers search the home and read and signed a consent to search form. Tr. at 22. Perez told the officers that there were no drugs in the residence, but that there would be a gun located under the bed in the master bedroom, which the officers later found. Tr. at 23. Officers also seized a shotgun, a bulletproof vest, and two loose pieces of paper that were under the baby's crib in the master bedroom. Id.
1. THE STOP
"Not every encounter between a police officer and an individual is a seizure implicating the [F]ourth [A]mendment's protections." United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990). "[A] police officer is free to approach a person in public and ask a few questions; such conduct, without more, does not constitute a seizure." Id. Additionally, under the Fourth Amendment, "a policeman who lacks probable cause but whose observations lead him reasonably to suspect' that a particular person has committed, is committing, or is about to commit a crime, may detain the person briefly in order to `investigate the circumstances that provoke suspicion.'" Berkemer, 468 U.S. at 439 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580 (1975)). This type of brief, investigatory stop is known as a "Terry Stop." Berkemer, 468 U.S. at 439.
An individual can be said to have been seized by police "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. (quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979 (1988)). The test is an objective one, looking to the reasonable man's interpretation of the conduct in question, and an assessment of the overall coercive effect of the police conduct. See Michigan v. Chesternut, 486 U.S. at 573-74. Factors that might suggest a seizure has taken place include: "the threatening presence of several officers; the display of a weapon; physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person's personal effects, such as. identification; and a request by the officer to accompany him to the police station or a police room." United States v. Lee, 916 F.2d at 819 (citations omitted)
In the present case, the initial encounter with Perez took place on a public street. Perez initiated the encounter by pulling over without being prompted to by the officers and asking why they were following him. Only two officers were present at the beginning of the encounter, and they were not dressed in uniform, nor did they display any weapons. There was no show of force by the officers, and both Detective Checo and Investigator Kelly testified that their conversations with Perez were conducted in a non-threatening tone and at no time did they raise their voices. Tr. at 16, 68, 70. Additionally, although Checo checked Perez' identification while on Greystone Avenue, he returned it to Perez shortly thereafter. These factors indicate that Perez was free to leave and that the encounter did not amount to a seizure.
On the other hand, the fact Checo recalled that he parked his vehicle behind the van and that Sabando parked his vehicle alongside it indicates that it was quite possible that Perez would be unable to move his vehicle if he wished to do so. Id. at 72. However, this factor, without more, does not indicate that a seizure took place. The fact that agents have used their cars to block a vehicle does not necessarily mean that, instead of a Terry stop, there was a de facto arrest. See, e.g., United States v. Vasquez, 638 F.2d 507, 522 (2d Cir. 1980) (no arrest where one car blocked rear of car behind civilian vehicle at red light); United States v. Lechuga, 925 F.2d 1035, 1041 (7th Cir. 1991) (same where two cars blocked stopped vehicle). In the absence of other indicia that unreasonable force was used by the officers, Perez' initial encounter with officers on Greystone Avenue did not constitute an illegal seizure.
Furthermore, even if the initial encounter on Greystone Avenue is considered a Terry stop rather than a consensual encounter, the officers had reasonable suspicion to support the stop. As discussed more fully in Section III. C.1 above, in order to justify an investigative stop, an officer need only have a "reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'" United States v. Sokolow, 490 U.S. at 7; United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995); see also United States v. Patino-Zambrano, 482 F. Supp. 245, 251-52 (E.D.N.Y. 1979), aff'd without op., 633 F.2d 208 (2d Cir. 1980); United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) ("reasonable suspicion" arises when officers are "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion"). "The investigation must be as minimally intrusive as possible, bearing in mind the circumstances that gave rise to the suspicion." United States v. Tehrani, 49 F.3d at 58. Both the length and conditions of the detention inform this determination. See id. A permissible investigative stop may become an unlawful arrest if the means of detention are "more intrusive than necessary." United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993)
Once again, the officers in this case received a tip from what they considered to be a reliable informant that Perez was a major drug supplier; they witnessed him in a neighborhood known for heavy drug activity talking to several people out on the street; a man seen earlier with Perez lied about being at the home on Irwin Avenue earlier that day; and a DECS search on the Irwin Avenue address produced a "hit" in the system that drugs were kept at that address. Those factors were sufficient to give officers reasonable suspicion that Perez was involved in the narcotics trade. See United States v. Barlin, 686 F.2d at 86-87. Therefore, even if the encounter on Greystone Avenue is considered a Terry stop by officers rather than a consensual encounter, it was a proper stop given the circumstances.
2. THE SEARCH
Perez argues that he did not voluntarily travel with Investigator Kelly to the residence on Irwin Avenue, for as a result of the pat down search and the officers' statements he felt compelled to travel with the officers and "simply acquiesced to their show of authority." Def.'s Post-Hearing Mem. at 28. The question is whether the actions of Investigator Kelly in patting down the defendant and transporting him to the home on Irwin Avenue transformed an otherwise legal investigatory stop into an illegal detention thereby tainting Perez' later consent to search the home.
As discussed above, a law enforcement officer is permitted to "stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot." United States v. Sokolow, 490 U.S. at 7. However, this investigative detention "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325 (1983). Officers may ask a suspect to move to another location as part of a lawful Terry stop. See United States v. Gori, 230 F.3d 44, 56 (2d Cir. 2000); see also Halvorsen v. Baird, 146 F.3d 680, 684-85 (9th Cir. 1998) (officers handcuffed suspect and drove him to a nearby gas station for questioning); United States v. Maher, 145 F.3d 907, 908-09 (7th Cir. 1998) (police moved a suspect from his home to his front yard in order to do a pat down); United States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (police asked suspect to return to site of possible narcotics transaction); United States v. Tehrani, 49 F.3d at 61-61 (traveler taken to small, private office in airport)
"A pat down is unquestionably a search covered by the Fourth Amendment." Leveto v. Lapina, 258 F.3d 156, 163 (3d Cir. 2001). Like other searches, the constitutionality of a pat down is judged by a standard of reasonableness. See Terry v. Ohio, 392 U.S. at 19-22. An officer may conduct a "reasonable search for weapons for the protection of the . . . officer, where [the officer] has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual." Terry, 392 U.S. at 27. The only justification for a frisk incident to a Terry stop "is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer." Terry, 392 U.S. at 29.
The testimony at the suppression hearing demonstrated evidence of "specific articulable facts" which, if viewed objectively, would lead an officer to find that there was a reasonable suspicion that Perez was involved in criminal activity, particularly narcotics trafficking. The Second Circuit has recognized that "to substantial dealers in narcotics," firearms are "tools of the trade" and often grounds for a Terry frisk. United States v. Oates, 560 F.2d at 62; see also United States v. VasQuez, 634 F.2d 41, 43 (2d Cir. 1980) (detectives justified in making a protective frisk, "particularly in view of the violent nature of narcotics crime"). Therefore, Investigator Kelly's frisk of Perez to ensure that he was not carrying a weapon prior to entering the police vehicle did not constitute an illegal search in violation of the Fourth Amendment.
Furthermore, transporting Perez to the residence on Irwin Avenue did not transform what began as a consensual encounter into an unlawful detention. At the point during the questioning where Kelly arrived on the scene and asked Perez whether he was at the Irwin Avenue residence earlier that day and Perez stated that he had not, the initial consensual encounter was transformed into a lawful Terry stop and Kelly had sufficient probable cause to briefly detain Perez. Kelly has a reasonable suspicion that Perez was involved in the narcotics trade based upon the testimony of the informant, repeatedly finding Perez in a high-drug area, Lopez and Perez' denials about earlier being at the Irwin Avenue residence, and the DECS "hit" on that residence. Asking Perez to accompany him to Irwin Avenue as a means of confirming whether or not he was at that residence earlier that day was reasonable and backed by a lawful investigative purpose. Additionally, that Perez sat in the front seat of the police vehicle and was not handcuffed also indicates that Kelly did not consider Perez to be in custody and that Perez voluntarily agreed to accompany Kelly to Irwin Avenue. The facts of the situation at hand are much like those in United States v. Patino-Zambrano, where a defendant agreed to accompany officers back to an apartment where the defendant was seen earlier, he was not handcuffed, the agents did not draw their guns, and he voluntarily agreed to go with the officers. 482 F. Supp. at 253-54. In Patino-Zambrano, such conduct by the officers did not exceed the bounds of a permissible Terry stop. See id.
Although Perez argues that the presence of the officer outside of the police car watching him transformed the Terry stop into an unlawful detention, this factor, without more, does not indicate that Perez was in custody. As in United States v. Vega, where a Terry stop of a defendant believed to be involved in a massive cocaine importation conspiracy did not turn into an arrest when officers drew their weapons, asked the defendant to accompany them in one of their cars and detained him for 62 minutes, the circumstances in this case do not indicate that an unlawful detention occurred. 72 F.3d at 515-16. The credible testimony of the officers was that Perez agreed to accompany Kelly to Irwin Avenue, the officers did not raise their voices, nor did they handcuff Perez nor pull out their weapons at any time. The testimony at the suppression hearing proved by a preponderance of the evidence that the brief detention of Perez pursuant to the lawful Terry stop was reasonable and lasted no longer than was necessary. Therefore, Perez' motion to suppress evidence seized from his home on September 15, 1999 based upon an unlawful detention by police officers is denied.
3. CONSENT
When the Government conducts a warrantless search, it bears the burden of proving that the warrantless search falls within one of the exceptions to the warrant requirement. See United States v. Perea, 986 F.2d at 639. A search conducted pursuant to consent is an exception to this requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44 (1973). The Government bears the burden of establishing that the alleged "consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." Schneckloth, 412 U.S. at 248. It is not necessary that a defendant know of his right to refuse consent at the time consent is given. See Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 421 (1996) (just as it "would be thoroughly impracticable to impose on the normal consent search the detailed requirements of an effective warning . . . so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent search may be deemed voluntary"). It is well established that "knowledge of the right to refuse consent is not a requirement to a finding of voluntariness," United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995), but is only one factor in the analysis. See Schneckloth, 412 U.S. at 226-27, 247-48 n. 37. In addition, an officer does not have an affirmative duty to advise a defendant that he may refuse to consent to a search. See United States v. Crespo, 834 F.2d 267, 271-72 (2d Cir. 1987)
After Kelly conducted the protective sweep of the residence on Irwin Avenue and Perez confirmed ownership of the home, Kelly had Perez read and sign a consent to search form. The form clearly states "I have been asked to permit special agents of the Drug Enforcement Administration to Search . . ." "I have not been threatened, nor forced in any way" and "I freely consent to this search." Gov't Pre-Hearing Mem., Ex. A. The consent to search form Perez signed used the language "asked" and "freely consent," thereby informing Perez that this search could not be conducted without his consent. Id. Moreover, Kelly did not have an affirmative duty to inform Perez that he could refuse consent. See Crespo, 834 F.2d at 271-72. Perez' conclusory statement in his Affidavit that he only signed the consent to search form because "the police were already searching and I believed that they would have continued anyway, not because I agreed to allow them to do so," fails in the face of the language printed on the consent form. Affidavit of Jose Luis Perez, dated January 11th, 2002 at ¶ 5. The Court finds that Perez read and signed the consent to search form and his consent was knowing and voluntary. Therefore, Perez' motion to suppress the evidence seized from his home on September 15, 1999 based upon a lack of voluntary consent is denied.
4. SUPPRESSION OF STATEMENTS MADE BY PEREZ
Perez argues that any and all statements he made to officers on September 15, 1999 should be suppressed because he was being unlawfully detained. Perez asserts that he was in custody and was interrogated without being advised of his Miranda warnings. As discussed more thoroughly above and in Section III.C.3, supra, Perez voluntarily agreed to accompany the officers to Irwin Avenue and was not unlawfully detained at any time. Therefore, Perez did not need to be given his Miranda warnings and the Court denies his motion to suppress any statements he may have made to police on that day.
E. THE AUGUST 31, 2001 ARREST
Perez moves for the suppression of any statements that he may have made to the officers who arrested him on August 31, 2001 in Bronx, New York. Perez asserts that he was subjected to questioning without being read his rights under Miranda. See Def.'s Pre-Hearing Mem. at 15. However, at the suppression hearing, Perez did not explain further the circumstances of the arrest nor the behavior of the officers at' the scene.
When a suspect is interrogated while in custody, he must be given a set of warnings designed to "dispel the compulsion inherent in custodial surroundings." Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619 (1967). When a defendant raises a factual issue with respect to whether he received or waived his Miranda rights, the Government bears the burden of proving by a preponderance of the evidence that the defendant was advised of his rights and that his waiver was knowing and intelligent. See United States v. Villegas, 928 F.2d 512, 518 (2d Cir. 1991); United States v. Scarpa, 897 F.2d 63, 68 (2d Cir. 1990). To prove a valid waiver, the Government must establish both that the defendant voluntarily relinquished his rights and that he had a full awareness of his rights being waived and of the consequences of waiving those rights. See United States v. Male Juvenile, 121 F.3d 34, 39 (2d Cir. 1997); United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (per curiam). All relevant circumstances are considered to determine whether the defendant waived his constitutional rights. United States v. Scarpa, 879 F.2d at 68.
At the suppression hearing on February 28, 2002, Investigator Kelly testified that at 12:35 p.m. on August 31, 2001, he arrested Perez as he left a pharmacy in Bronx, New York. Kelly also stated that he handcuffed Perez and placed him in the front seat of the police vehicle where he read him his Miranda rights from a card that he keeps in his possession. See February 28, 2002 Tr. at 3. The card that Kelly used to read Perez his rights was entered as an exhibit at the hearing. Tr. at 4. Kelly testified that Perez asked him what was going on and that he told him he was under arrest pursuant to an indictment for conspiracy to distribute narcotics. Tr. at 5. Kelly informed Perez that if he wished to cooperate with the police, "there's [sic] certain things you can do to help yourself." Id. Kelly also testified that he requested Perez sign a consent to search his home and that Perez refused. Tr. at 6. During cross-examination, Perez' counsel did not ask Kelly any questions regarding the arrest on August 31, 2001, nor did he attempt to dispute Kelly's claim that he read Perez his Miranda warnings. Perez' statement in his Affidavit that "they questioned me without giving me the `Miranda warnings'" is not enough on its own to contradict Kelly's credible testimony.
Through the testimony of Investigator Kelly, the Government proved by a preponderance of the evidence that Perez received Miranda warnings during his arrest on August 31, 2001. Therefore, Perez' motion to suppress any statements he made that day is denied.
F. CONCLUSION
Therefore, for the reasons stated above, Perez' motion to suppress evidence seized from the car he was driving on December 1, 1998 and to suppress statements he may have made to police on that day is denied. Moreover, Perez' motion to suppress evidence seized from his home and to suppress any statements he may have made to police on September 15, 1999 is also denied. Perez' motion to suppress statements he made to police pursuant to his arrest on August 31, 1999 is also denied.
SO ORDERED.