Though Agent Rivera-Rivera only believed some of the aluminum pieces contained heroin, she could seize similar pieces of aluminum found adjacent to those containing heroin as evidence. See United States v. Gomez-Vega, 519 F.Supp.2d 241, 249, 266 (D.P.R. 2007) (denying motion to suppress, among other things, aluminum wrappers found inside vehicle with heroin). Accordingly, I recommend Cotto-Cruz's motion to suppress these pieces of evidence be DENIED.
"This observation of the ... individuals fleeing could reasonably have further heightened the officers' suspicion that the ... men had run in order to avoid police detection." United States v. Gomez–Vega, 519 F.Supp.2d 241, 259 (D.P.R. 2007). "Our cases have ... recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. ... Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such."
But a review of the testimony does not reveal either perjury or inflammatory statements to goad the grand jurors into indicting petitioner, statements without which petitioner would arguably not have been indicted. It is difficult to ignore the axiom that “an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence....” United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (citing Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)); United States v. Gómez–Vega, 519 F.Supp.2d 241, 266 (D.P.R.2007); United States v. Muñoz Franco, 123 F.Supp.2d at 53; cf. United States v. Maceo, 873 F.2d 1 (1st Cir.1989). A defense attorney reviewing the transcript of this grand jury testimony would not be denying a defendant adequate assistance of counsel by failing to move to dismiss the indictment.
"The concept of standing under the Fourth Amendment refers to a defendant's burden of proving a legitimate expectation of privacy as a prerequisite to challenge unlawful police conduct." United States v. Gomez-Vega, 519 F. Supp. 2d 241, 255 (D.P.R. 2007); see also United States v. Romain, 393 F.3d 63, 68 (1st Cir. 2004) (the "Fourth Amendment does not protect privacy in any and all circumstances. Among other limitations, a criminal defendant who wishes to embark upon a Fourth Amendment challenge must show that he has a reasonable expectation of privacy in the area searched and in relation to the items seized.")