Opinion
S1 01 CR. 1113 (SAS).
December 27, 2001.
Ronnie Abrams, Dan Himmelfarb, Marc Mukasey, Assistant U.S. Attorneys, United States Attorney's Office, New York, New York., Attorney[s] for Plaintiff[s].
Gregory G. Smith, Esq., Gregory Smith Associates, New York, New York, Attorney[s] for Defendant[s].
OPINION AND ORDER
On October 11, 2001, defendant Alex Restrepo made a number of pretrial motions. The following constitutes the Court's rulings on these motions:
1. Motion to Dismiss Charges on Which Defendant Was Not Extradited from Colombia
On December 28, 1999, defendant was indicted in this district in a superseding indictment charging him with twelve counts of criminal conduct. On October 27, 2000, defendant was extradited to this country by the Colombian government on four of those twelve counts. Under the international law principle of "specialty," a defendant extradited to the United States may not be tried on charges "other than those for which he was extradited." United States v. Levy, 25 F.3d 146, 159 (2d Cir. 1994). Based on that doctrine, defendant moves to dismiss the remaining eight counts.
The Government has agreed that it will only try Restrepo on the four counts for which he was extradited. However, the Government notes that the principle of specialty does not prohibit the Government from trying an extradited defendant on charges for which he was not extradited once "`a reasonable time and opportunity have been given him, after his release, or trial upon [the] charge[s] [for which he was extradited], to return to the country from whose asylum he ha[s] been forcibly taken.'"Van Cauwenberghe v. Biard, 486 U.S. 517, 523 (1988) (quoting United States v. Rauscher, 119 U.S. 407, 430 (1886)). Thus, because there could come a time when it would be appropriate to try Restrepo on the remaining charges, the motion to dismiss the remaining charges is denied.
2. Motion to Prevent the Government from Seeking the Death Penalty
Colombia will not extradite a person for a crime punishable by death unless it is assured by the country seeking the extradition that it will not seek the death penalty. The United States gave that assurance to Colombia when it sought Restrepo's extradition. The Government repeated that assurance when it filed its opposition to defendant's motions. See Gov't Mem. at 11. Nonetheless, to provide absolute assurance to Restrepo on this issue, his motion to order the Government not to seek the death penalty is granted.
In its opposition papers the Government stated that it "takes no position on whether the Court should issue an order prohibiting the Government from seeking the death penalty against Restrepo." Government's Memorandum of Law in Opposition to Defendant Alex Restrepo's Pretrial Motions ("Gov't Mem.") at 11.
3. Motion to Suppress Post-Arrest Statements to American Law-Enforcement Officials
Restrepo was arrested in Colombia on December 1, 1999, pursuant to a provisional arrest warrant. On December 9, 1999, two detectives of the New York City Police Department traveled to Colombia and interviewed Restrepo. The Government intends to introduce at trial statements made by Restrepo during that interview. See DEA Form 6 Report of Detective William J. O'Flaherty, Ex. F to Declaration of Gregory G. Smith, defendant's counsel, in Support of Defendant's Motions ("Smith Decl."). Restrepo now asserts that he was not given Miranda warnings prior to making these statements and that his requests for counsel were ignored.See Supporting Declaration of Alex Restrepo, dated October 3, 2001, at ¶¶ 7-11, Ex. E to Smith Decl.
A provisional arrest warrant authorizes the arrest and temporary detention in a foreign country of a defendant who has been charged with a crime in the United States until formal extradition papers can be filed.
The Government disputes Restrepo's version of the facts, but recognizes the existence of a disputed issue of fact. Accordingly, the Government consents to an evidentiary hearing on the question of whether Restrepo's post-arrest statements to American law enforcement agents should be suppressed. See Gov't Mem. at 12. The suppression hearing is scheduled for January 3, 2002 at 10:00 a.m.
4. Motion to Suppress Evidence Seized from a Black Ford Explorer
On August 28, 1999, members of the New York City Police Department stopped and searched a black Ford Explorer driven by Mabel Fernandez, Alex Restrepo's wife. The Government intends to introduce the fruits of that search — a .45 caliber magazine with six live .45-caliber bullets — at Restrepo's trial. Restrepo moves to suppress this evidence asserting that the police acted without a warrant and without consent, and that the police had neither probable cause nor reasonable suspicion to stop and search the vehicle. See Defendant Restrepo's Memorandum of Points and Authorities ("Def. Mem.") at 4; Smith Decl. at ¶ 26.
The Government, in turn, explains that it had reasonable suspicion to stop the Ford Explorer. The Government further contends that once the vehicle was stopped, the police had the right to remove the passengers from the car and to check the car to see whether anyone remained inside. Finally, the Government contends that the seized items were in plain view when the officers looked in the back seat of the car. See Gov't Mem. at pp. 14-18; Affidavit of Detective James J. Motto ("Motto Aff."), Ex. B to the Affirmation of AUSA Marc L. Mukasey in Support of Government's Opposition to Defendant's Motions ("Mukasey Aff."); Sealed Complaint dated September 3, 1999 ("Compl."), sworn to by Detective Motto, Ex. A to the Mukasey Aff.; Affidavit of Detective John Webb ("Webb Aff."), Ex. F to the Mukasey Aff.
The Government only seeks to offer the items claimed to be in plain view. If other evidence was seized as a result of a search of the entire vehicle, the Government does not seek to offer such evidence.
a. Relevant Facts
The following facts are undisputed. As of August 28, 1999, Det. Motto had information that Restrepo had been personally involved in several robberies including the robbery of the American Sirloin Meat Company in the Bronx on August 27, 1999. See Motto Aff. ¶ 4; Compl. ¶¶ 2a, 2b, 2d and 2h. The information on which Det. Motto relied included facts provided by two cooperating witnesses and one confidential informant. This information was corroborated by motor vehicle records, police records and eyewitness accounts. See Motto Aff. ¶ 4; Compl. ¶ ¶ 8-12, 14-17, 19-28. In addition, Det. Motto had specific information linking Restrepo to the August 27, 1999 robbery. See Gov't Mem. at 16. Finally, Det. Motto had specific information that Restrepo was known to drive a Black 1997 Ford Explorer with New York license plate # Y773WM, based on information from a confidential informant and his own observation of Restrepo entering the Ford Explorer. See Motto Aff. ¶ 5. Based on this information, communicated to members of Det. Motto's group, Detective John Webb and other officers stopped the Ford Explorer. Two women were removed from the car, one of whom was Mabel Fernandez, known to be Restrepo's wife. See Gov't Mem. at 17. Det. Webb then opened the back door of the car in order to see whether anyone was in the back. In doing so, Det. Webb observed, in plain view, a loaded magazine on the floor behind the passenger seat which was loaded with six .45 caliber bullets. See Webb Aff. ¶ 5. As noted earlier, defendant does not allege any facts that are inconsistent with the facts summarized herein.
In her declaration in support of certain motions made in her own case, Mabel Fernandez, Restrepo's wife, concedes that the car she was driving on the evening of August 28, 1999 was her husband's car. Supporting Declaration of Mabel Fernandez ("Fernandez Decl."), dated February 2, 2001, Ex. D to Smith Decl. ("On the evening of August 28, 1999, I was driving my husband's vehicle in Queens.").
Fernandez states that she was in the car with a female friend and her friend's two young children. See Fernandez Decl. ¶ 4.
Fernandez swears that the "[o]fficers searched the entire car. . . ." Fernandez Decl. ¶ 5.
b. Discussion
It is well settled that police officers may make an investigative stop of an automobile if they have a "reasonable suspicion, based on specific and articulable facts, of unlawful conduct." United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994) (quotation marks omitted). Based on the above facts, there is no question that the police had reasonable suspicion to conduct an investigative stop of the Ford Explorer on the night of August 28, 1999.
At the time the Ford Explorer was stopped, the police had reason to believe that Alex Restrepo was involved in a robbery-murder that occurred the night before, and that Restrepo was the owner and/or driver of the Ford Explorer. Given the close temporal proximity of the stop to the crime, the police had reasonable suspicion to believe that Restrepo might be in the vehicle when they observed the car in close physical proximity to Restrepo's home. See, e.g., Adams v. Williams, 407 U.S. 143 (1972);United States v. Salazar, 945 F.2d 47 (2d Cir. 1991); United States v. Medina, No. S3 94 Cr. 872, 1998 WL 241724 (S.D.N.Y. May 11, 1998). Once the police stopped the car, they were "authorized to take such steps as were reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop." United States v. Hensley, 469 U.S. 221, 235 (1985). Given that Restrepo was suspected of armed robbery and murder, the officers' conduct in removing the women from the front seat and looking in the back seat was well within "the permissible range in the context of suspects who are reported to be armed and dangerous." Id. Finally, "[h]aving stopped [the car, the] police were entitled to seize evidence revealed in plain view in the course of the lawful stop. . . ." Id.
5. Motion to Suppress Evidence Seized from Restrepo's New York Residence
The Government states that it does not intend to offer any evidence seized during this search at Restrepo's trial. Accordingly, this motion is moot. See Gov't Mem. at 23.
6. Motion to Suppress an In-Court Identification
On August 28, 1999, the day after the robbery-murder, a civilian witness was shown a photo array and identified the defendant Alex Restrepo as the person he had observed "running past the witness immediately after the shooting at the South Bronx meat company on August 27, 1999." Affidavit of Detective Alan S. Berberich ("Berberich Aff."), Ex. C to the Mukasey Aff., ¶ 4. Restrepo seeks to preclude this witness from making an in-court identification because he asserts that the photo array shown to the witness was "impermissibly suggestive." Smith Decl. ¶ 21.
a. The Photo Array
The challenged photo array, including thirteen photographs in the order in which they were presented to the witness, is before the Court. See Ex. D to Mukasey Aff. The array includes five Polaroid head shots, four persons with Union County, New Jersey arrest placards around their necks, and four persons with Queens, New York arrest placard around their necks.
In his affidavit, Det. Berberich states that he asked the witness to look at each photograph in the array and to tell him whether he recognized anyone and, if so, why he recognized the person. See Berberich Aff. ¶ 4. The witness responded that he recognized Alex Restrepo as the man who ran past him immediately after the shooting. Det. Berberich states that he did not say anything to the witness between the time he showed the witness the photo book and the time the witness identified Alex Restrepo. Det. Berberich further states that two other officers were present and neither of them said anything to the witness between the time he was shown the book and the time of the identification. See id. ¶ 5.
Defendant first argues that this process was "impermissibly suggestive" because "the people used in this photo array were people who bore no resemblance to defendant Restrepo." Smith Decl. ¶ 12. Defendant's next attack on the array is that four of the photographs should be discounted because they depict males wearing a Union County, New Jersey placard. Defendant argues that because the crime occurred in the Bronx, which is closer to Queens than to New Jersey, these photographs should not have been included in the array. Defendant next argues that the five photographs of Polaroid head shots are of males without an arrest record, and they too should be discounted. Defendant concludes with the argument that only four of the pictures are legitimately in the array, and the other three men from Queens do not look anything like the defendant. See Def. Mem. at 8.
A review of the array reveals that all of the men appear to be dark-haired Hispanic males of roughly similar age. There is nothing about the defendant's photograph that makes it stand out from the others. Contrary to defendant's contention, the men look reasonably similar. Based on my review of the array, it is no way impermissibly suggestive.
b. Legal Standard and Discussion
In evaluating whether a photo array is unduly suggestive, a court must consider several factors, including: "[1] the size of the array, [2] the manner of presentation by the officers, and [3] the contents of the array." United States v. Thai, 29 F.3d 785, 808 (2d Cir. 1994). Here, the photo array consisted of thirteen photographs. The Second Circuit has repeatedly upheld the use of arrays consisting of only six photographs.See United States v. Salameh, 152 F.3d 88, 126 (2d Cir. 1998); United States v. Jacobetz, 955 F.2d 786, 803 (2d Cir. 1992); United States v. Archibald, 734 F.2d 938, 949 (2d Cir. 1984), modified on other grounds, 756 F.2d 223 (2d Cir. 1984); United States v. Marrero, 705 F.2d 652, 655 n. 5 (2d Cir. 1983)
Contrary to defendant's argument, there is nothing improper about mixing Polaroid head shots with arrest photographs. Even if this were impermissible, that would still leave eight photographs in this array. Similarly, defendant's argument that the identity of the county of the prior arrest is somehow suggestive has been soundly rejected by the Second Circuit. "An array is not unduly suggestive merely because legends on the pictures reveal that the defendant was arrested in one [location] and . . . other persons were arrested in another." United States v. Concepcion, 983 F.2d 369, 378 (2d Cir. 1992). In Archibald, the Second Circuit described the name of the borough appearing on an arrest photo as "insignificant" and rejected the claim that a photo array was unduly suggestive, despite the fact that the defendant's photo was an arrest photo from the borough in which the crime occurred while the other five photographs in the array were arrest photos from other boroughs. 734 F.2d at 940. Here, none of the photographs had arrest photographs from the Bronx, and three photographs, other than that of Restrepo, had arrest placards from the Bronx.
The Government has also established the second and third prong of theThai test. Det. Berberich's affidavit establishes that there was nothing impermissibly suggestive about the manner of the array's presentation. Finally, a review of the array itself reveals that it was not impermissibly suggestive. As noted earlier, Restrepo's looks were not unique; to the contrary, all of the men were of similar age, race, skin color and hair color. See Salameh, 152 F.3d at 126 ("[The] array consist[s] of . . . photographs depicting men very similar in appearance to each other. . . ."); Thai, 29 F.3d at 809 ("All of the men pictured appear to be of roughly the same age and ha[ve] similar hair color.");Jacobetz, 955 F.2d at 803 ("[T]he photo array [depicts] male Caucasians of approximately the same height and hair features. . . ."); United States v. Maldonado-Rivera, 922 F.2d 934, 974-75 (2d Cir. 1990) ("The ethnicity of the . . . persons depicted is indeterminate, and the majority may well be Hispanic . . . and there [is] no feature of [defendant's] photo that ma[kes] his stand out from all the rest.");United States v. Rosa, 11 F.3d 315, 330 (2d Cir. 1993) (photograph of defendant had no unique "identifying marks").
Because the propriety of the identification procedure has been established by uncontroverted evidence, there is no need for an evidentiary hearing. See United States v. Fruchter, 104 F. Supp.2d 289, 308 (S.D.N.Y. 2000) ("A motion to suppress does not require a hearing unless there is a factual dispute."). Accordingly, the witness is permitted to make an in-court identification.
The Government has not identified the witness who selected defendant's photograph from the photo array. As a result, the defendant has not yet had the opportunity to question this witness to determine whether something happened during the procedure that made it unduly suggestive. Thus, defendant may argue that he has not had a full opportunity to present a disputed issue of fact. To the extent there is some merit to this argument, I will permit the defendant to voir dire this witness outside the presence of the jury during the trial in order to learn whether he presents a different version of the facts of the identification procedure. Because of this ruling, the Government may not mention the pre-trial identification during its opening statement.
7. Motion to Suppress Evidence Seized by the Colombian Police and Statements Made to the Colombian Police, and the Defendant's Request for the Appointment of an Authority on Colombian Law
Defendant moves to suppress evidence seized by the Colombian police and statements made to them in response to questioning, as well as for the appointment of an authority on Colombian law. For the reasons set forth below, these motions are denied.
a. Facts Surrounding the Search and the Questioning
On December 1, 1999, Colombian authorities arrested Restrepo in the home of Pepe Mirand, pursuant to a provisional arrest warrant. The authorities searched the Mirand home in conjunction with that arrest. Weapons, ammunition, identification documents and other items were seized during that search. See Gov't Mem. at 32-33. No American law enforcement agents were present during the arrest and search. See Affidavit of Robert C. Lunnen ("Lunnen Aff."), Ex. E to Mukasey Aff.
On May 9, 2000, Colombian Special Prosecutors interviewed Restrepo at the Columbian National Police Facility. Subsequent interviews were conducted on May 22, 1999 and June 7, 2000. See Transcripts of Defendant's Statements to Colombian prosecutors, Ex. G. to Smith Decl. No American law enforcement officers were present during these interviews.See Motto Aff. ¶ 8. "As far as the Government is aware, no Miranda warnings were given to Restrepo by the Colombian prosecutors." Gov't Mem. at 33.
b. Legal Standard
i. The Search Incident to Restrepo's Arrest
The exclusionary rule requiring that evidence seized in violation of the Fourth Amendment must be suppressed does not apply to foreign searches conducted pursuant to foreign law by foreign officials. See United States v. Janis, 428 U.S. 433, 455-56 n. 31 (1976); United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995); United States v. Mount, 757 F.2d 1315, 1317-18 (D.C. Cir. 1985); United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir. 1978); United States v. Molina-Chacon, 627 F. Supp. 1253, 1258-59 (E.D.N.Y. 1986). There are, however, two exceptional situations in which an American court might apply the exclusionary rule to a foreign search. The first is where American law enforcement officers participated in the search in some significant way; the second is if the circumstances of the search "shock the judicial conscience." Stowe, 588 F.2d at 341-42; see also Barona, 56 F.3d at 1091; Molina-Chacon, 627 F. Supp. at 1258-59.
ii. The Post-Arrest Custodial Questioning
In United States v. Welch, 455 F.2d 211 (2d Cir. 1972), the Second Circuit held that the failure of foreign police to give Miranda warnings did not, by itself, require suppression of a defendant's statement. See id. at 213; see also United States v. Bin-Laden, 160 F. Supp.2d 670, 679 n. 12 (S.D.N Y 2001) ("[T]he Miranda warning/waiver framework applies to the evaluation of overseas interrogation conducted by American law enforcement agents only."(emphasis added)); Molina-Chacon, 627 F. Supp. at 1262 ("[T]he Miranda warnings attendant to the Fifth Amendment generally [do] not apply to interrogations conducted by foreign officials."). "[S]ince the Miranda requirements were primarily designed to prevent United States police officers from relying upon improper interrogation techniques and as the requirements have little, if any, deterrent effect upon foreign police officers, the Miranda warnings should not serve as the sine qua non of admissibility." Welch, 455 F.2d at 213 (emphasis in original); see also United States v. Cotroni, 527 F.2d 708, 711 (2d Cir. 1975) ("[I]nformation furnished American officials by foreign police need not be excluded simply because the procedures followed in securing it did not fully comply with our nation's constitutional requirements. The absence of Miranda warnings may be overlooked. . . ."); United States v. Yousef, 925 F. Supp. 1063, 1076 (S.D.N.Y. 1996) (noting that law enforcement agencies in other countries would not be deterred from improper interrogation techniques by application of the exclusionary rule by a United States court). The Welch court went on to hold that as long as the "totality of the circumstances" indicated that the statements were voluntary, they should not be excluded. Welch, 455 F.2d at 213; see also United States v. Martindale, 790 F.2d 1129, 1132 (4th Cir. 1986) ("[S]o long as the trustworthiness of the confession satisfies legal standards, the fact that the defendant was not given Miranda warnings before questioning by foreign police will not, by itself, render his confession inadmissible." (quoting United States v. Chavarria, 443 F.2d 904, 905 (9th Cir. 1971)); United States v. Covington, 783 F.2d 1052, 1056 (9th Cir. 1986) (same).
c. Discussion
i. The Search
Restrepo cannot meet either of the exceptions to the general rule that the Fourth Amendment exclusionary rule will not apply to a search conducted by foreign agents in a foreign country. He does not and cannot allege that any American law enforcement officers participated in this search. Nor does Restrepo allege any misconduct or misbehavior on the part of the searching officers that shock this Court.
The Government submits the affidavit of Robert C. Lunnen, an attorney and the Judicial Attache for the Department of Justice assigned to the United States Embassy in Colombia, to support the proposition that the search was conducted in accordance with Colombian law, which does not require a search warrant to search the home in which a defendant is arrested. Based on this affidavit, the Government also argues that the search complies with Colombian law. See Gov't Mem. at 36. Because defendant has no means to contest this statement of Colombian law, I decline to reach this issue. However, based on the cases cited above, the issue is irrelevant. Because the purpose of the exclusionary rule is to "protect the people of the United States against arbitrary action by their own Government," United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990), the fruits of this search will not be excluded absent proof of one of the two exceptions noted earlier. Accordingly, defendant's motion to suppress the fruits of this search is denied.
ii. The Statements
Nowhere in his papers has Restrepo alleged that his statements were involuntary or coerced. Rather, both he and his attorney allege that he was not provided with counsel during these interviews. See Restrepo Decl. ¶ 12, Smith Decl. ¶ 17. Thus, even in the absence of Miranda warnings, defendant has failed to offer any evidence that the totality of the circumstances would require that his statements be suppressed. Restrepo makes no claim of any shocking conduct such as use of force, unreasonable custodial conditions during the interview, complaints regarding the length of interviews, or even a claim of being denied access to a lawyer. Under these circumstances, there is no need for an evidentiary hearing.
Restrepo's final argument is that the statements should be suppressed because they are the fruits of an unlawful arrest where the arrest was "based upon faulty, inaccurate, and misleading information given to the Columbian [sic] government by prosecutors in the United States." Smith Decl. ¶ 18. Restrepo fails to identify in what way the information provided to the Colombian authorities was false or misleading. A review of the Sealed Complaint reveals that there was surely probable cause to arrest Restrepo. See Compl. Because of this conclusion, there is no need to analyze whether the arrest was made in accordance with Colombian law. Under these circumstances, it cannot be said that the statements were the fruits of an illegal arrest. Accordingly, defendant's motion to suppress these statements is denied.
Because it is not necessary to decide any issue of Colombian law, defendant's request for an appointment of an authority in Colombian law is denied.