Opinion
02-CR-0245E.
June 16, 2004
REPORT, RECOMMENDATION AND ORDER
Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), all pretrial matters in this case have been referred to the undersigned by the Hon. John T. Elfvin.
PRELIMINARY STATEMENT
The defendant, Darry Matos ("the defendant"), has been indicted along with a co-defendant, Victor Villanueva ("co-defendant") in a multicount Superseding Indictment charging him with having violated Title 21 U.S.C. § 841(a)(1), 844(a) and 846 and Title 18 U.S.C. § 2. He has filed a motion to suppress the evidence seized from a vehicle in which he was a passenger on the evening of October 11, 2000. A suppression hearing was held by this Court on July 2 and 8, 2003, and a transcript of said hearing was thereafter prepared and filed (Docket #s 38 and 39) and post-hearing memoranda of law were filed on behalf of the parties herein. At the hearing, the government called Special Agent ("S.A.") Mark Gentile of the Drug Enforcement Administration ("DEA") and Investigator Shales Caicedo of the New York State Police ("NYSP") who was assigned to the DEA Task Force on October 11, 2000. The defense did not call any witnesses.
FACTS
S.A. Gentile testified that a confidential source ("CS") was utilized on September 28, 2000 to make a "controlled purchase of eight ounces of powder cocaine" from Pedro Villanueva, the brother of the co-defendant, Victor Villanueva. (T. 57). Thereafter, on or about October 2, 2000, a CS advised S.A. Rehg of the DEA "that Pedro Villanueva's source of supply was currently in town from New York City" and that the source of supply and Pedro Villanueva would be at either "4 Jewett in Buffalo" or "126 Lisbon, also in Buffalo." (T. 58, 92). As a result of this information, surveillances were established by the DEA Task Force at both locations as part of its "investigation into Pedro Villanueva's drug trafficking activities" and with the objective of "identify[ing] his source of supply." (T. 59). The CS further advised that the "source of supply" would be driving "a green Nissan" automobile. (T. 60, 92, 99). During the course of the surveillance at 4 Jewett on October 2, 2000, a green Nissan automobile was observed, and a license plate check established that it was registered to a Rafael Feliz. (T. 60-61, 95-96). During this same surveillance, the defendant was observed "coming out of and going back into the apartment at 4 Jewett and walking to the green Nissan." (T. 61-62, 96). Later on that same day, October 2, 2000, the defendant was observed "driv[ing] away in the Nissan." (T. 62). The same CS advised S.A. Rehg that "Pedro Villanueva received a shipment of cocaine" on October 2, 2000 and that the green Nissan "was the load vehicle used to transport shipments of cocaine from New York to Buffalo" and that "there was a hidden compartment used to conceal the cocaine" in that vehicle. (T. 64). The CS also advised that "very early [in the] morning [of October 2, 2000], the individuals (sic) that were driving [the green Nissan] were stopped by the New York State Police for a vehicle infraction, and the trooper who did the stop actually searched the vehicle" but did not find anything in it. (T. 64, 98-99). A check with the NYSP established that the green Nissan had been stopped on October 2, 2000 by the "NYSP out of Newburgh" and a search conducted and nothing found thereby confirming the report given by the CS. (T. 66-67). The CS advised that "even though [the police] didn't find anything, the delivery [of drugs to Pedro Villanueva] was successful" notwithstanding that this stop and vehicle search occurred "prior to the delivery." (T. 123). On October 2, 2000, the defendant was observed leaving 4 Jewett and entering the green Nissan which then drove away. A surveillance of the vehicle was conducted, but the officers "lost it in traffic." (T. 65-66, 102). Thereafter, "spot checks" were conducted at "both 4 Jewett and 126 Lisbon." (T. 67).
References to the transcript of the hearings on July 2 and 8, 2003 are designated by "T" with the appropriate page number following it.
On October 11, 2000, a surveillance of the residence of Pedro Villanueva at 126 Lisbon was conducted, and at approximately 2:30-3:00 p.m., the defendant was observed coming out of that house and standing on the front porch along with "a few people," and the green Nissan was also observed at that location. (T. 67-69, 102-103). During this period of surveillance, the defendant was observed "com[ing] and go[ing] to [the green Nissan] more than once by get[ting] in it briefly, get[ting] out, [and] go[ing] back to the house." (T. 70-71, 99-100). At approximately 9:30 p.m. on October 11, 2000, the defendant was observed leaving the house at 126 Lisbon and entering the green Nissan. Jose Feliz was driving the vehicle, and the two left 126 Lisbon in the green Nissan. (T. 70-71). The officers followed it in different vehicles, including an "unmarked State Police unit" which was being driven by Investigator Caicedo. (T. 71-72). The green Nissan proceeded through the City of Buffalo and continued travelling south on Route 5 in the area of the Small Boat Harbor on Fuhrman Boulevard where it "slowed down quite a bit" to about "twenty miles per hour" notwithstanding that there were no other vehicles in front of the green Nissan. (T. 72-73, 103-104). Shortly thereafter, the green Nissan "pull[ed] to the side of the road" and "came to a stop." (T. 74-75, 105). At that point, S.A. Gentile "activated" the "emergency red light" on the dashboard of their unmarked vehicle and pulled within "two or three feet" behind the green Nissan. (T. 75). This was done because the officers "believed that the vehicle and the occupants were either on their way back to New York City and the car was loaded with money or was going to make a delivery and the car was loaded with drugs." He and S.A. Rehg "exited [their] vehicle and approached the green Nissan," Gentile "on the passenger side" and S.A. Rehg on the "driver's side." They did not draw their weapons. (T. 76). Investigator Caicedo also exited his vehicle and approached the green Nissan on the "driver's side" according to S.A. Gentile. (T. 77). Jose Feliz was in the driver's seat of the green Nissan and the defendant was in the front passenger seat. (T. 77-78). S.A. Rehg began questioning Jose Feliz but "it appeared that Feliz didn't speak English" and "it looked like he [Feliz] was getting assistance from the passenger, Matos, as far as translation;" it "looked like Matos was telling Feliz what was being said to him." (T. 78, 106). Investigator Caicedo testified that he "knew [the occupants of the vehicle] were Hispanics, and based on [his] experience, they under[stood] Spanish better, their native language" and therefore, he spoke to them in Spanish and asked the occupants, for safety reasons, to exit the vehicle. He then "asked the defendant if he had any weapons" and while doing so, "patted him down." (T. 179). At this point in time, S.A. Gentile admitted that they "weren't going to arrest [the defendant] for anything because he [Gentile] had not seen any criminal activity." (T. 106) but he "believ[ed]" they could have "obtain[ed] a search warrant" based on the information received from the CS, which information the CS had obtained from Pedro Villanueva. (T. 107-108). Although Jose Feliz was the driver of the green Nissan on the evening of October 11, 2000, the officers knew from their prior plate check that the vehicle was registered to a Rafael Feliz but they did not know the relationship, if any, between Rafael Feliz and Jose Feliz at that time. (T. 109-110).
Investigator Caicedo testified that he approached the green Nissan from the passenger's side (T. 136) and he did not draw his gun.
It was later learned that Rafael Feliz was the father of Jose Feliz. (T. 167).
After patting the defendant down, Investigator Caicedo "assisted S.A. Rehg with getting the driver out of the vehicle" because of the driver's "language problems." Investigator Caicedo asked the driver in Spanish "if he had any weapons" and he "patted him down." (T. 139, 180). Caicedo continued to converse with Jose Feliz in Spanish and "asked him where they were coming from" and Feliz responded "that they just left his father's house at 361 West Delevan in the City of Buffalo." (T. 142). Since the officers had been conducting an all day and evening surveillance on October 11, 2000 of the green Nissan at 126 Lisbon, Caicedo "knew [Feliz] was lying" and "asked him where he was going, and he advised [Caicedo] that he was looking for a hotel for Darry Matos, the passenger." (T. 142). Investigator Caicedo knew that there were no hotels in that area of Fuhrman Boulevard and "continued to ask [Feliz] why he couldn't stay at his father's house, according to his statement" and Feliz replied "that there was no room at his father's house." Feliz further stated that he was "just going to drive around until [he found] a hotel." (T. 142-143). Investigator Caicedo "was not satisfied" with this response and advised Feliz "at this point" that they "had information regarding his vehicle being utilized for the purpose of transporting narcotics." (T. 143). Feliz replied that "he has never been involved in narcotics and that if [Caicedo] wanted to search the vehicle, to go right ahead." (T. 143, 194). Investigator Caicedo chose not to search the vehicle at that time but rather, "proceeded to interview the front (sic) passenger, Mr. Darry Matos" in Spanish. He asked the defendant "where he was coming from, and he stated that he had left a friend's house." Caicedo asked the defendant where the friend's house was and the defendant replied "that he arrived from New York City to look for work, that he wasn't familiar with the area, so he couldn't provide [him] with the address of his friend's house." Caicedo then advised the defendant that Jose Feliz had told him "that he had left his father's house, Feliz's father's house on West Delevan" and the defendant "stated that that wasn't true." (T. 144). Thereupon, Caicedo advised the defendant "that there was information regarding their vehicle being involved in the transportation of narcotics" and he asked the defendant "if there was any contraband in the vehicle." (T. 144). The defendant denied being "involved in narcotics" and "granted permission to search the vehicle." (T. 145). Investigator Caicedo further testified that both Feliz and the defendant "just kept saying — it was in the rhythm of the conversation, they just kept saying we're hard workers, you know, search all you want. If you want to — if you want to let us help you, we will. Meaning searching the vehicle." (T. 145, 153, 172-173, 194). Based on these statements, Investigator Caicedo "conducted a brief search of the vehicle" but did not find any contraband (T. 145). However, Investigator Caicedo contacted the Buffalo State Police station and requested the assistance of a "K-9." (T. 147). While the officers were waiting for the arrival of the K9, Investigator Caicedo continued conversing with Feliz and the defendant and advised them that a request had been made "for a dog, narcotics dog to arrive at that location" and neither individual objected to a search by a dog. (T. 147-148). Both Feliz and the defendant "kept telling [Caicedo] that although they were not involved in narcotics, they did know of people who were in the narcotics business," that they were "hard working people" and the officers could "search all [they] want." (T. 148-149, 153, 172-173). Approximately a half hour later, two K9 dogs arrived on the scene, one from the Orchard Park, New York police department and the other from the NYSP. (T. 147, 149-150). Both dogs were walked around the green Nissan and both handlers of the dogs reported that each dog had "detected a scent" of narcotics in the area of the driver's side rear fender. (T. 150-151, 120, 188). After the dogs reacted to the scent of drugs in or around the vehicle, Investigator Caicedo spoke to both Feliz and the defendant and "advised them that the dogs detected a scent of narcotics in their vehicle," and he "solicit[ed] their cooperation as to whether there was a secret compartment in the vehicle that [they — the officers] should know about." (T. 151-152, 187-188). Feliz and the defendant stated that there were "no compartments in the vehicle, search all you want." (T. 152-153, 172-173, 188-189).
Because the dogs "indicate[d] a positive alert to the vehicle" (T. 120-121) and because "the lighting was poor" and the vehicle "was in the roadway" and "it was freezing," the officers requested the permission of Feliz and the defendant to remove the green Nissan to a "garage where [they] could be comfortable doing [their] search." (T. 153, 189). Permission to do so was given by Feliz and the defendant. (T. 153, 189-190). S.A. Rehg made arrangements to take the green Nissan to a government facility at the Peace Bridge for purposes of completing the search of the vehicle. (T. 154). Investigator Caicedo requested permission from Feliz to drive the Nissan, which permission was granted, and testified that although the defendant and Feliz were not under arrest at this time, the officers "were not going to let them drive the vehicle, [in order] to avoid a high speed pursuit." (T. 154). Caicedo further advised Feliz and the defendant "that as a safety thing, [the officers] needed to handcuff them" which was done without any objection from either individual. (T. 154, 190-191). The green Nissan and its occupants were detained at Fuhrman Boulevard for approximately "a half hour to forty-five minutes." (T. 116). The defendant and Feliz were driven to the U.S. Customs facility at the Peace Bridge by the officers, and Investigator Caicedo drove the Nissan to that location (T. 118, 190-192) where the search of the green Nissan was conducted by NYSP Trooper Suppo since "he [was] familiar with compartments and stuff like that." (T. 155). This search, which lasted "close to two hours," (T. 192-193), resulted in a finding of a "secret compartment which was located up underneath the dashboard" in an area "behind the speedometer" and a "package containing an amount of cocaine" was found there. (T. 118-119).
DISCUSSION AND ANALYSIS
The defendant argues that the officers "in this case did not process (sic) the requisite amount of objective information to justify a Terry stop [ Terry v. Ohio, 392 U.S. 1, (1968)] let alone to go further and search the vehicle" and thereafter take "the vehicle to the Customs Inspection Center after the initial search revealed no contraband" (Docket #47). The defendant also asserts that "any information possessed by the agents regarding the green Nissan vehicle and its occupants was stale and outdated when the vehicle was stopped on October 11, 2000." (Docket #47).
On the issue of whether a valid consent had been given to the officers authorizing the search of the vehicle, the defendant argues that since the defendant and Jose Feliz "were stopped and detained without reasonable suspicion, any request for a consent to search under the circumstances would not be reasonable." (Docket #47).
Lastly, the defendant asserts that "when the agents handcuffed [him] and placed him in the back seat of a police car to transport him to the U.S. Customs Inspection area at the Peace Bridge he was clearly under arrest" and "there was absolutely no probable cause" to justify such arrest and therefore, "any evidence seized as a result of these actions must be suppressed." (Docket #47).
In response, the government argues that under the factual circumstances presented on October 11, 2000, the agents "had a right to stop and inquire" of the occupants of the green Nissan when it was stopped on Fuhrman Boulevard and that the encounter "was a consensual encounter that did not violate defendant's Fourth Amendment rights." (Docket #46, p. 7). In the alternative, the government argues that if a stop of the Nissan was perpetrated by the agents, "such stop [was] permissible pursuant to Terry v. Ohio, 392 U.S. (????) (sic) [1968]." (Docket #46, p. 8). The government further asserts that the "agents had voluntary consent to search the Nissan" and therefore, did not need a warrant for that purpose. (Docket #46, p. 10) and in the alternative, the "agents had probable cause to conduct a warrantless search of the Nissan" based on the "positive hit for narcotics" on the Nissan automobile by the drug sniffing dogs. (Docket #46, p. 13).
A. CONSENSUAL ENCOUNTER:
The facts and circumstances of this case as set forth above belie the government's assertion that the events of October 11, 2000 at the Small Boat Harbor on Fuhrman Boulevard constituted a brief "consensual encounter" between the agents and the defendant. Admittedly, "[n]ot every encounter between a police officer and an individual is a seizure implicating the fourth amendment's protection." United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990). Further, the United States Supreme Court has held that:
"[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment. But if the person refuses to answer and the police take additional steps — such as those taken in Brown — to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure."INS v. Delgado, 466 U.S. 210, 216-217 (1984) (internal citations omitted).
Nevertheless, the initiation of the "encounter" on Fuhrman Boulevard by the agents, to wit, the parking of their police vehicles behind the green Nissan with a red flashing emergency light activated and the parking of an additional police vehicle in close proximity to the Nissan and the exiting of three officers from those vehicles who simultaneously approached the occupants of the Nissan from different sides and the duration of the "encounter" at Fuhrman Boulevard of approximately "a half hour to forty-five minutes (T. 116) cause me to reject the government's assertion of a consensual encounter. Instead, I find that a proper analysis of these events is better suited by applying the principles enunciated by the United States Supreme Court in the context of a Terry stop.
B. THE TERRY STOP:
The Fourth Amendment prohibits "unreasonable searches and seizures" by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1, 9, 20 L Ed 2d 889, 88 S Ct 1868 (1968); United States v. Cortez, 449 U.S. 411, 417, 66 L Ed 2d 621, 101 S Ct 690 (1981). Because the "balance between the public interest and the individual's right to personal security," United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L Ed 2d 607, 95 S Ct 2574 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity "`may be afoot,'" United States v. Sokolow, 490 U.S. 1, 7, 104 L Ed 2d 1, 109 S Ct 1581 (1989) (quoting Terry, supra, at 30, 20 L Ed 2d 889, 88 S Ct 1868). See also Cortez, 449 U.S, at 417, 66 L Ed 2d 621, 101 S Ct 690 ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity").
When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. See, e.g., id., at 417-418, 66 L Ed 2d 621, 101 S Ct 690. This process allows officers to draw on their own experience and specialized training to make inferences from the deductions about the cumulative information available to them that "might well elude an untrained person." Id., at 418, 66 L Ed 2d 621, 101 S Ct 690. See also Ornelas v. United States, 517 U.S. 690, 699, 134 L Ed 2d 911, 116 S Ct 1657 (1996) (reviewing court must give "due weight" to factual inferences drawn by resident judges and local law enforcement officers). Although an officer's reliance on a mere "`hunch'" is insufficient to justify a stop, Terry, supra, at 27, 20 L Ed 2d 889, 88 S Ct 1868, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, supra, at 7, 104 L Ed 2d 1, 109 S Ct 1581.
Our cases have recognized that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696, 134 L Ed 2d 911, 116 S Ct 1657 (principle of reasonable suspicion is not a "finely-tuned standar[d]'"); Cortez, supra, at 417, 66 L Ed 2d 621, 101 S Ct 690 (the cause "sufficient to authorize police to stop a person" is an "elusive concept"). But we have deliberately avoided reducing it to "`a neat set of legal rules,'" Ornelas, supra, at 695-696, 134 L Ed 2d 911, 116 S Ct 1657 (quoting Illinois v. Gates, 462 U.S. 213, 232, 76 L Ed 2d 527, 103 S Ct 2317 (1983)). In Sokolow, for example, we rejected a holding by the Court of Appeals that distinguished between evidence of ongoing criminal behavior and probabilistic evidence because it "create[d] unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment." 490 US, at 7-8, 104 L Ed 2d 1, 109 S Ct 1581.United States v. Arvizu, 532 U.S. 266, 273-274 (2002).
The government argues that the agents did not "stop" the green Nissan on Fuhrman Boulevard on October 11, 2000 since it had already voluntarily stopped prior to the approach by the agents. Even if it is assumed that the agents effectuated the stop of the Nissan, such action would not automatically result in a violation of the defendant's Fourth Amendment rights.
Although stopping a car and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers in remaining secure from intrusion.United States v. Hensley, 469 U.S. 221, 226 (1985).
The detention of the defendant and Feliz at Fuhrman Boulevard certainly constituted a "stop" while the agents conducted their investigation. The issue to be resolved is whether the agents' actions were "supported by reasonable suspicion to believe that criminal activity may be afoot." United States v. Arvizu, supra. In examining the "totality of the circumstances" herein, I find that there was sufficient "objective manifestation" for the agents to conclude that the defendant was engaged in criminal activity. S.A. Gentile, a trained and experienced DEA officer, testified that based on his experience, vehicles are used to store narcotics (T. 101) and that the information previously provided by the CS about the green Nissan was believable. (T. 101). He further testified that based on his experience, "the source [of narcotics] had more than one customer [in order for him] to travel all the way from New York City to Buffalo" and that Pedro Villanueva "wasn't his only customer" and "therefore, there would still be something [drugs] in [the green Nissan]" (T. 101) when they conducted their investigatory stop on October 11, 2000. On September 28, 2000, the agents had utilized a CS to make a "controlled purchase of eight ounces of powder cocaine" from Pedro Villanueva. (T. 57). Another CS advised the agents that "Pedro Villanueva received shipment of cocaine" on October 2, 2000 and that the green Nissan "was the load vehicle used to transport shipments of cocaine from New York to Buffalo" and that "there was a hidden compartment used to conceal the cocaine" in that vehicle. (T. 64). The information provided by a CS that the Nissan had been stopped by a state trooper and searched on the New York State Thruway had been verified by the agents' investigation thereby giving credence to the claim that the Nissan contained a secret compartment for the transportation of drugs. The defendant's assertion that the information supplied by the confidential sources (CS) to the agents had become "stale" and therefore no longer provided a valid basis for their actions on October 11, 2002 is totally without legal merit. The events described by the CSs, i.e., September 28, 2000 and October 2, 2000, as testified to by S.A. Gentile (T. 57, 64), presented a "picture of continuing conduct or an ongoing activity" of a criminal nature and were not just "isolated instances of illegal acts." As the Court of Appeals for the Second Circuit has stated:
In investigations of ongoing narcotics operations, we have held that intervals of weeks or months between the last described act and the application for a warrant did not necessarily make the information stale. See, e.g., United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (5 weeks); United States v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990) (18 months).Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991).
The surveillances conducted during the period October 2 through October 11, 2000 established the presence of the green Nissan in Buffalo and the occupancy of same by the defendant. The actions of the defendant as observed by the agents earlier on October 11, 2000 at 126 Lisbon, to wit, the "com[ing] and go[ing] to [the green Nissan] more than once by get[ting] in it briefly, get[ting] out, [and] go[ing] back to the house" (T. 70-71-99-100) constituted reasonable suspicion to a trained DEA agent that criminal activity was afoot. By reason of the surveillance conducted on October 11, 2000, the defendant was observed at the residence of Pedro Villaneuva at 126 Lisbon, as was the green Nissan (T. 67-69, 102-103), along with the "com[ing] and go[ing] to [the green Nissan] more than once" by the defendant. (T. 70-71, 99-100). S.A. Gentile testified that when they were following the green Nissan on Fuhrman Boulevard on October 11, 2000, they "believed that the vehicle and the occupants were either on their way back to New York City and the car was loaded with money, or was going to make a delivery and the car was loaded with drugs." (T. 120).
It is clear to this Court that the agents were "draw[ing] on their own experience and specialized training to make inferences from the deductions about the cumulative information available to [them]" and therefore, "due weight" has been given by this Court to those inferences. United States v. Arvizu, supra. As a result, I find that the agents had reasonable suspicion to detain the occupants of the green Nissan by making an investigatory stop on October 11, 2000 in accordance with Terry v. Ohio, 392 U.S. 1 (1968) and its progeny.
The fact that the occupants of the green Nissan were requested to exit their vehicle by the agents in conducting their investigation is of no legal consequence. Such directive was not violative of the Fourth Amendment's proscription of unreasonable seizures. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); Maryland v. Wilson, 579 U.S. 408, 415 (1997); Molica v. Volker, 229 F.3d 366, 369 (2d Cir. 2000). Nor did the parking of the agents' vehicles behind the green Nissan with the activated red emergency light mean that an arrest had occurred. The agents did not draw their weapons at any time or use any form of force or intimidation towards the occupants of the Nissan after approaching it.
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 stopped behind civilian vehicle at red light), cert. denied, 450 U.S. 970, 101 S.Ct. 1490, 67 L .Ed.2d 620 (1981); United States v. Lechuga, 925 F.2d 1035, 1041 (7th Cir. 1991) (same where two cars blocked stopped vehicle) . . . Nor does the fact that the officers approached a stopped car with guns drawn in order to protect themselves and bystanders on the street necessarily transmute a Terry stop into an arrest.United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993); United States v. Vargas, ___ F.3d ___, 2004 WL 1126318 (2d Cir. May 21, 2004).
The fact that the investigative stop at Fuhrman Boulevard lasted for approximately "a half hour to forty-five minutes" (T. 116) did not cause it to be transformed into a de facto arrest. As the United States Supreme Court instructed in United States v. Sharpe, 470 U.S. 675 (1985):
Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops. While it is clear that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on suspicion," United States v. Place, supra, at 709, 77 L Ed 2d 110, 103 S Ct 2637, we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. United States v. Hensley, 469 US, at 228-229, 234-235, 83 L Ed 2d 605, 105 S Ct 675; Place, supra, at 703-704, 709, 77 L Ed 2d 110, 103 S Ct 2637; Michigan v. Summers, 452 U.S. 692, 700, and n 12, 69 L Ed 2d 340, 101 S Ct 2587 (1981) (quoting 3 W. LaFave, Search and Seizure § 9.2, pp 36-37 (1978)). Much as a "bright line" rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. We sought to make this clear in Michigan v. Summers, supra:
"If the purpose underlying a Terry stop — investigating possible criminal activity — is to be served, the police must under circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams [v Williams, 407 U.S. 143 [ 32 L Ed 2d 612, 92 S Ct 1921] (1972)]." 452 US, at 700, n 12, 69 L Ed 2d 340, 101 S Ct 2587.
Later, in Place, we expressly rejected the suggestion that we adopt a hard-and-fast time limit for a permissible Terry stop:
"We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation." 462 US, at 709, n 10, 77 L Ed 2d 110, 103 S Ct 2637.
* * *
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. See Michigan v. Summers, supra, at 701, n 14, 69 L Ed 2d 340, 101 S Ct 2587 (quoting 3 W. LaFave, Search and Seizure § 9.2, p 40 (1978)); see also Place, 462 US, at 709, 77 L Ed 2d 110, 103 S Ct 2637; Royer, 460 US, at 500, 75 L Ed 2d 229, 103 S Ct 1319. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. See generally post, at 712-716, 84 L Ed 2d, at 632-635 (Brennan, J., dissenting). A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But "[t]he fact that the protection of the public might, in the abstract, have been accomplished by `less intrusive' means does not, by itself, render the search unreasonable." Cady v. Dombrowski, 413 U.S. 433, 447, 37 L Ed 2d 706, 93 S Ct 2523 (1973); see also United States v. Martinez-Fuerte, 428 U.S. 543, 557, n 12, 49 L Ed 2d 1116, 96 S Ct 3074 (1976). The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.
Initially, attempts were made by S.A. Gentile and Rehg to converse with the occupants of the green Nissan in English, and because of Feliz's non-fluency with the English language, it appeared that he was not understanding what was being asked of him and that translation assistance was being provided by the defendant. (T. 78, 106). Thereafter, Investigator Caicedo began conversing with Feliz and the defendant in Spanish which then necessitated translation by him into English for the benefit of agents Rehg and Gentile. Obviously, this process took more time than would normally occur when all the parties speak and understand English in a Terry stop. The conversations were non-intimidating in nature, and when asked "where they were coming from," Feliz falsely responded "that they just left his father's house at 361 West Delevan in the City of Buffalo." (T. 142). This falsity was immediately known to be such by the officers since they had had the green Nissan under surveillance from early afternoon on October 11, 2000. Feliz's explanation that they were looking for a hotel for the defendant also did not ring true since there are no hotels in that area of Fuhrman Boulevard. (T. 142-143).
The defendant, in his separate conversations with Investigator Caicedo, contradicted the statements made by Feliz. (T. 144). These misrepresentations and contradictions warranted further investigative questioning and follow up. At this stage of the investigation, the defendant and Feliz were advised that the agents "had information regarding [the green Nissan] being utilized for the purpose of transporting narcotics." (T. 143, 144). After being so advised, both Feliz and the defendant denied being involved with narcotics, and Feliz, as the driver of the green Nissan, voluntarily invited Investigator Caicedo to search the vehicle. (T. 143, 145, 194). However, before accepting such offer, Investigator Caicedo inquired of the defendant "if there was any contraband in the vehicle" (T. 144), to which the defendant denied being "involved in narcotics," and he also invited the officer to search the vehicle. (T. 145). Investigator Caicedo and S.A. Rehg then conducted a search of the vehicle (T. 146, 147) but nothing was found as a result of this search.
Based on the testimony of S.A. Gentile and Investigator Caicedo, it appears that less than fifteen minutes elapsed from the time of the initial encounter with the occupants of the green Nissan and the completion of this initial search of the vehicle by Rehg and Caicedo since S.A. Gentile testified that they were at the Fuhrman Boulevard scene for an approximate total of "a half hour to forty-five minutes" (T. 116) and Investigator Caicedo testified that it took approximately one-half hour for the K9 to arrive at the scene after he called for it upon completing his initial search of the vehicle. (T. 147). Applying the principles enunciated in United States v. Sharpe, supra, the delay of one-half hour in waiting for the arrival of the K9 did not cause the detention to be unreasonable. The agents acted diligently in pursuing the investigation so as to confirm or dispel their suspicions as to what might be in the Nissan. Investigator Caicedo advised both Feliz and the defendant that he was calling for a K9 to conduct a search of the vehicle, and neither one objected to such search. (T. 147-148). "An investigatory stop continues as such if it remains reasonably related in scope to the circumstances which justified the interference in the first place." United States v. Babwah, 972 F.2d 30, 33 (2d Cir. 1992). While they were awaiting the arrival of the K9, the officers and the occupants of the Nissan "were all standing off to the side of the road" engaged in conversation wherein Feliz and the defendant kept saying "we're hard working people, search all you want, I know people that are involved in narcotics. I could work for you guys for three months for free." (T. 149). They were not handcuffed and were not under arrest at this time. (T. 149).
It was not unreasonable to keep Feliz and the defendant at the scene on Fuhrman Boulevard while the agents tried to gather more information to determine whether they were involved in the crimes that the agents were investigating by having the K9 conduct a search of the Nissan. This action was reasonably related in scope to the circumstances which justified the interference in the first place, i.e., the report by the CS that the green Nissan contained a secret compartment and was used to transport narcotics.
Two K9 units appeared on the scene, and each dog was separately walked around the Nissan and each dog detected "a scent [of drugs] by the rear driver's (sic) side fender." (T. 149-151). Thereupon, Investigator Caicedo advised both Feliz and the defendant that "the dogs detected a scent of narcotics in their vehicle" and that he "was soliciting their cooperation as to whether there was a secret compartment in the vehicle that [the agents] should know about." (T. 152). Both denied the existence of a secret compartment in the vehicle and told the agents to "search all you want." (T. 153). Investigator Caicedo advised Feliz and the defendant that the officers "couldn't search [the vehicle] any more at that location" since "the lighting was poor, it was in the roadway, it was freezing" and it would be "best to go inside a garage," and they were asked if "they had a problem with that" to which they replied that they did not have an objection to that and that the officers could "search all you want." (T. 184, 153).
Although neither the defendant nor Feliz was arrested at this point in time (T. 154), it is pointed out that the positive canine response established probable cause to search the vehicle and arrest both Feliz and the defendant at that point in time. United States v. Quinn, 815 F.2d 153, 160 (1st Cir. 1987) (probable cause to search and arrest because canine sniff alerted officers to presence of drugs in car trunk). The ready mobility of a vehicle has created the "automobile exception" to the warrant requirement under the Fourth Amendment." 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. Harwood, 998 F.2d 91, 97 (2d Cir. 1993); California v. Acevedo, 500 U.S. 565 (1991); Carroll v. United States, 267 U.S. 132 (1925). Further, when the probable cause extends to the entire vehicle, a warrantless search may be conducted "of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825 (1982); United States v. Harwood, supra. Nevertheless, the agents chose instead to seek the consent of both Feliz and the defendant to move the Nissan from the Fuhrman Boulevard site to the U.S. Customs facility at the Peace Bridge. Investigator Caicedo "explained to them [the defendant and Feliz] what the dogs were basically saying that there's narcotics in the vehicle, and [the agents] needed to intensify [their] search and if there was nothing in the vehicle, they would be free to go." (T. 153). Caicedo expressly asked Feliz and the defendant if they had any objection to moving the Nissan to another location, and they indicated they did not and responded, "search all you want." (T. 153, 183-184, 189, 194).
Prior to transporting the Nissan to the Peace Bridge location, Investigator Caicedo advised the defendant and Feliz "that as a safety thing, [the officers] needed to handcuff them" even though they were not under arrest at that time. (T. 154, 191). "Although, `under ordinary circumstances, . . . using handcuffs [is] not part of a Terry stop, intrusive and aggressive police conduct is not an arrest' when it is a reasonable response to legitimate safety concerns on the part of the investigating officers." United States v. Vargas, supra quoting United States v. Miles, 247 F.3d 1009, 1012 (9th Cir. 2001). Neither the defendant nor Feliz objected to this procedure. (T. 154). Since the agents did not wish to run the risk of a "high speed pursuit," Investigator Caicedo requested permission to drive the Nissan to the Peace Bridge location which was granted (T. 154) and Caicedo drove the Nissan to that location and the defendant and Feliz were transported there in other agents' cars. Upon arrival at the Peace Bridge location, the defendant and Feliz were placed in "cubicles" located in the U.S. Customs Center (T. 191) and kept there for approximately two hours while a thorough search of the Nissan was conducted (T. 191-193). Once again, "there are no rigid limitations on the permissible duration of a stop, or on the extent to which a detainee may be moved during a stop." United States v. Babwah, 972 F.2d 30, 34 (2d Cir. 1992). The fact that the Nissan was "immobilized" at the Peace Bridge location did not cause the justification for a warrantless search to vanish. United States v. Harwood, supra at 97; United States v. Johns, 469 U.S. 478, 484 (1985); Michigan v. Thomas, 458 U.S. 259, 261 (1982).
C. THE CONSENT TO SEARCH:
The government asserts that the removal of the Nissan from the Fuhrman Boulevard location to the Peace Bridge location and subsequent search was carried out with and pursuant to the voluntary consent of the defendant and Feliz.
It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ` per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.' (citations omitted). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent (citations omitted).Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Matlock, 415 U.S. 164 (1974).
This principle was reaffirmed by the United States Supreme Court in Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) wherein it stated:
The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects (citations omitted). The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, see Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041 (1973), or from a third party who possesses common authority over the premises, see United States v. Matlock, supra, at 171, 39 L.Ed.2d 242, 94 S.Ct. 988.
In determining whether a consent to search is valid or not, the "totality of the circumstances must indicate that it was voluntarily given." United States v. Davis, 967 F.2d 84, 86 (2d Cir.), cert. denied by Content v. United States, 506 U.S. 928 (1992), citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 (1973). Stated another way, a determination must be made as to whether, under a totality of the circumstances, "the consent was a `product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority.'" United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (internal citations omitted). The burden of establishing the validity of the consent to search is upon the government. Schneckloth v. Bustamonte, supra at 222; Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion). In meeting its burden of establishing that a consent to search was validly given, the government need only show by a preponderance of the evidence that the consenting party freely and voluntarily gave his consent to search. United States v. Isiofia, ___ F.3d ___, 2004 WL 1192440 (2d Cir. June 1, 2004); United States v. Calvente, 722 F.2d 1019 (2d Cir. 1983). In this regard, the credibility of the witnesses is a question for the judge who heard them. United States v. Miley, 513 F.2d 1191, 1201 (2d Cir.), cert. denied, 423 U.S. 842 (1975). As previously indicated, the defense did not call any witnesses, and I find the testimony of S.A. Gentile and Investigator Caiceda to be credible on this issue of consent and that it was "objectively reasonable for the officer[s] to believe that the scope of the [consenting party's] consent permitted [them] to [conduct the extensive search that was undertaken at the Peace Bridge location]" as well as the initial search of the vehicle at the Fuhrman Boulevard site and therefore, the requirements of the Fourth Amendment were satisfied. Florida v. Jimeno, 500 U.S. 248, 249 (1991); United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995).
The defendant claims that since he was in "custody" when his consent to search was given, it was an invalid search. This claim is without merit. "The fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search." United States v. Watson, 423 U.S. 411, 424 (1976); United States v. Garcia, supra. Nor does the fact that there were numerous officers present when the consent was requested cause such consent to be invalid. United States v. Kon Yu-Leung, 910 F.2d 33, 41 (2d Cir. 1990); United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995). Notwithstanding this principle, I have "scrutinized with care" this claim of consent to search and find that it was voluntarily and therefore validly given by both the defendant and Feliz. See United States v. Vasquez-Santiago, 602 F.2d 1069, 1073 (2d Cir.), cert. denied 447 U.S. 911 (1979).
Furthermore, the consent to search the Nissan given by Jose Feliz alone was sufficient to validate the action taken by the agents in that regard.
[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.United States v. Matlock, 415 U.S. 164, 171 (1974).
Jose Feliz was observed as the driver of the green Nissan while it was under surveillance on October 11, 2000 and was in the driver's seat of the vehicle when it stopped on Fuhrman Boulevard. The defendant was observed sitting in the front passenger seat of the vehicle. (T. 71, 77-78, 137). The agents already knew from a prior "license plate" check that the green Nissan was registered to a Rafael Feliz. (T. 167, 168). Since Jose Feliz had the keys to the green Nissan and was observed driving it, the agents assumed that he had permission for its use and therefore, had control over the vehicle as well as joint access to it and had authority to consent to a search of the vehicle. (T. 168-169).
The Court of Appeals for the Second Circuit has addressed the issue of "authority" to give consent as follows:
To satisfy the burden imposed on it by the third party consent principle, the government must show, by a preponderance of the evidence, that the consent to search was freely and voluntarily given, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and was obtained from someone "who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Since third party consent does not involve the vicarious waiver of a defendant's constitutional rights, it validates a search only when a defendant can be said to have assumed the risk that someone having authority over the area to be searched would permit the governmental intrusion in his own right.United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981).
Since Feliz demonstrated immediate control of the Nissan as the driver of same and therefore, joint access as well, the "two prong" test enunciated by the Court of Appeals for the Second Circuit to validate the search of the vehicle was met.
We have held that a third-party consent to a search will validate the search if two prongs are present: first, the third party had access to the area searched, and second, either: (a) common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain access. United States v. Gradowski, 502 F.2d 563, 564 (2d Cir. 1974) ( per curium); see also United States v. Trzaska, 859 F.2d 1118, 1120 (2d Cir. 1988), cert. denied, 493 U.S. 839, 110 S.Ct. 123, 107 L.Ed.2d 84 (1989)."United States v. Davis, 967 F.2d, supra at 87.
Since the consent to search the Nissan was voluntarily given by Feliz, and since it was reasonable, under the totality of the circumstances herein, for the agents to conclude that Feliz, as the driver of the vehicle registered to a Rafeal Feliz, had both authority over the vehicle as well as access to it, the extensive search of the vehicle conducted at the Peace Bridge location and subsequent seizure of the drugs found therein was valid.
CONCLUSION
Based on the foregoing, I find that the agents had reasonable suspicion for conducting a Terry stop of the defendant and Jose Feliz at the Fuhrman Boulevard location on October 11, 2000 and that their initial interrogation of the defendant and Feliz warranted further investigation, i.e., a search of the Nissan, which was done after lawfully obtaining the consent to search from Jose Feliz. I further find that probable cause for the seizure of the Nissan and the arrest of the defendant as well as Feliz was established by the positive reaction of the K9s after sniffing the exterior of the vehicle while at the Fuhrman Boulevard location. As a result, the seizure of the Nissan and search of same and seizure of the drugs from within the vehicle was not in violation of the defendant's Fourth Amendment rights and therefore, it is RECOMMENDED that his motion to suppress such evidence be DENIED.
Therefore, it is hereby ORDERED pursuant to 28 U.S.C. § 636(b)(1) that:
This Report, Recommendation and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Crim.P. 58(g)(2) and Local Rule 58.2.
The district judge will ordinarily refuse to consider de novo, arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Judge's Order. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 58.2 of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 58.2, or with the similar provisions of Rule 58.2 (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Judge's refusal to consider the objection.
The Clerk is directed to send a copy of this Report, Recommendation and Order to the attorneys for the parties.