Opinion
02 Cr. 556 (RPP)
October 4, 2002
James Comey, United States Attorney, Southern District of New York, ATTN: Jonathan R. Streeter, A.U.S.A., New York, NY.
Counsel for Defendant Rudy Rodriguez, Oliver S. Storch, Esq., New York, NY.
OPINION AND ORDER
On June 18, 2002 and June 19, 2002, Defendant Rudy Rodriguez, by his attorney, Oliver S. Storch, Esq., made the following motions:
1. to dismiss the indictment for defects in the grand jury process;
2. to suppress the physical evidence seized from defendant's automobile;
3. for an order directing the prosecution to obtain and inspect personnel files of witnesses employed by city, state and federal law enforcement agencies for Brady material;
4. for such other and further relief as may be just, proper and equitable.
After hearing oral argument on August 27, 2002, the Court denied defendant's motion to dismiss the indictment based on defects in the grand jury process and for inspection of the grand jury minutes. This motion was denied as based on speculation, due to defendant's failure to show a particular need, as well as the presumption of regularity afforded grand jury proceedings. Dennis v. United States, 384 U.S. 855, 868 (1966); In re Grand Jury Subpeona, 103 F.3d 234, 239 (2d Cir. 1996);United States v. Torres, 901 F.2d 205, 233 (2d Cir. 1990).
The Court also denied the defendant's motion for an order directing the prosecution to obtain and inspect the personnel files of witnesses employed by city, state and federal law enforcement agencies. This motion was denied on the grounds that a more specific showing of need had to be made by the defendant. The Court did require the government to follow its normal practice of inquiring whether the witnesses' files contained any disciplinary action that could be impeachment material and examining such material where it exists. United States v. Kevin, 97 Cr. 763 (JGK), 1999 WL 194749 at *15 (S.D.N.Y. April 7, 1999). The government agreed to turn over any exculpatory material, if and when found, pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The government also agreed to turn over all impeachment material pursuant to Giglio v. United States, 405 U.S. 150, 154 (1972), and 18 U.S.C. § 3500 material on the Friday preceding the commencement of trial.
With respect to defendant's motion to suppress for illegal seizure under the Fourth Amendment to the Constitution of the United States, the Court reserved decision pending receipt of additional briefs from the parties. The government's letter brief was received on August 28, 2002. Defendant's counsel indicated by letter dated September 13, 2002 that he would not be submitting additional motions. Based on the motion papers before it, for the reasons articulated below, the Court denies the defendant's motion to suppress.
Background Facts
The facts, as shown by the complaint, are as follows:
On December 19, 2001, customs agents at Kennedy Airport inspected the luggage of Jose Eduardo Umpierrez Chagas ("Chagas") after he disembarked from a flight from Uruguay and found approximately 4 kilograms of heroin in the lining of his suitcase and in his duffel bag. (Complaint ¶ 4.) After being warned of his Miranda rights, Chagas stated that in Uruguay an individual named "Tio" offered him $5,000 to bring the drugs to the United States. (Id. ¶ 5.) He also stated that Tio gave him a voucher to stay at the Wellington Hotel in midtown Manhattan on December 19 and 20, 2001, at which place Chagas was to contact Tio in Uruguay to arrange for the delivery of the drugs. (Id.) Chagas agreed to cooperate with law enforcement agents and went to the hotel. (Id.) During a series of phone calls, Tio instructed Chagas to wait in his room at the Wellington Hotel and that someone would contact him to obtain the drugs. (Id.)
On December 20, 2001, Chagas received two telephone calls in his room at the Wellington Hotel from a man. (Id. ¶ 6.) During those calls, the man stated that he was calling on behalf of Tio, that he would meet Chagas in the hotel lobby, and the man and Chagas exchanged physical descriptions of themselves. (Id.) These telephone calls were monitored by agents of the Drug Enforcement Agency ("DEA"). (Id.) Under surveillance of DEA agents, Chagas went to the hotel lobby with a suitcase resembling the suitcase seized at his arrest, but not containing narcotics. (Id.)
The agents overheard the man conferring with another person during his telephone conversations with Chagas. (Complaint ¶ 6).
In the lobby, the agents observed Chagas meet with an individual matching the description given by the man on the telephone. (Id.) The agents observed the two men engage in conversation for several minutes, after which the man took the suitcase, left the hotel, and walked to a black Nissan Quest, double-parked near the entrance of the Wellington Hotel. (Id.) As the man placed the suitcase in the rear passenger area of the Nissan Quest, he had a brief conversation with the driver. (Id.) At that point, around 4:15 in the afternoon, the agents took both the man and the driver (defendant, Rudy Rodriguez) into custody. (Id.) The agents then opened the car door and retrieved the suitcase, which Chagas had been carrying, from the rear passenger area of the Nissan Quest. (Letter of A.U.S.A. Jonathan R. Streeter, dated August 27, 2002 at 2); (Affidavit of Rudy Rodriquez, dated June 19, 2002 at ¶ 2).
Letter of A.U.S.A. Jonathan R. Streeter, dated August 27, 2002, clarifies that the suitcase was placed in the rear passenger area of the car, and that this is undisputed by the defendant.
Discussion
The defendant argues that he merely gave his nephew a ride to the Wellington Hotel and that there is no evidence that the defendant had any knowledge of what was contained in the suitcase. However, the defendant's motion to suppress the suitcase as the evidence of a crime is denied. In a motion to suppress, the defendant bears the burden of establishing that his own Fourth Amendment rights were violated by the challenged search and seizure. See Rakas v. Illinois, 439 U.S. 128, 131 (1978). Testimony or an affidavit, based on personal knowledge stating sufficient facts to show that the defendant had a legally cognizable privacy interest in the car or in the suitcase, is a requirement to support such a motion. See Rawlings v. Kentucky, 448 U.S. 98, 104-106 (1980) (affidavit based on personal knowledge showing cognizable privacy interest in the area searched is required).
The agents had probable cause to arrest the defendant for conspiracy to possess with intent to distribute heroin. Probable cause was based on the agents' seizure of 4 kilograms of heroin from Chagas, the monitoring of the conversations of Chagas with Tio and with the co-defendant, the co-defendant's taking possession of the suitcase and his placing it in the Nissan Quest, the agents' overhearing the co-defendant conferring with a person while talking to Chagas on the telephone, and observing the co-defendant conversing with the defendant after placing the suitcase, purportedly containing narcotics, in the rear passenger area of the Nissan Quest. Moreover, there is no motion challenging the probable cause for defendant's arrest.
The Second Circuit has consistently held that occupancy or control of an automobile does not establish a legally cognizable search of an automobile. See United States v. Ponce, 947 F.2d 646, 649 (2d Cir. 1991) (in order to "mount a challenge to a search of a vehicle, defendants must show, among other things, a legitimate basis for being in it, such as permission from the owner."); United States v. Sanchez, 635 F.2d 47, 64 (2d Cir. 1980) (defendant "demonstrated neither ownership of the Pontiac nor license from the owner to possess the Pontiac. His possession of the keys was not sufficient to give him a constitutionally protected interest in the privacy of that car. . . . The burden was on [the defendant] to establish standing to object to the search."); See also United States v. Smith, 621 F.2d 483, 487 (2d Cir. 1980); United States v. Ruggiero, 824 F. Supp. 379, 392 (S.D.N.Y. 1993).
However, even assuming the defendant has demonstrated that he had a privacy interest in the area to be searched, the motion would still be denied. One of the exceptions of the Fourth Amendment's mandate that searches without prior approval of a judge or magistrate are unreasonable pro se is the "automobile exception." See United States v. Paulino, 850 F.2d 93 at 95 (2d Cir. 1988); Carroll v. United States, 267 U.S. 132, 153 (1925) (a warrantless search of an automobile is not necessarily an "unreasonable" search because the vehicle is so quickly moveable);Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (there is a lesser expectation of privacy in an automobile than in a residence.)
In California v. Carney, 471 U.S. 386 (1985), the Supreme Court reviewed the law regarding warrantless searches of vehicles. There, the Supreme Court upheld a warrantless search of a motor home (1) based on the vehicle's mobility "in a setting that objectively indicates that the vehicle is being used for transportation" Id. at 394, and; (2) based on the reduced expectation of privacy based on the fact that much of the vehicle is in plain view. Id. 391-92.
In the instant case, the agents had seen the suitcase, which they had supplied to Chagas, placed in the rear passenger compartment of the Nissan Quest by the co-defendant with defendant's implied consent. They arrested the two defendants after the suitcase was placed in the back seat where it had to be in plain view. The suitcase was known by the agents to be evidence pertaining to the conspiracy the agents were investigating, and the car, which was doubled parked at 4:15 in the afternoon in a busy midtown area, could have readily been used for transportation. Id. at 391-392, 394.
Under these circumstances, the agents' retrieval of the suitcase, which was the property of the government, did not constitute an illegal search and seizure of the defendant's property. Nor did the search of the car constitute an illegal search because the agents had observed government property being placed in the car, could see it in plain view, and had probable cause to recover it, rather than take the chance that the car, double-parked on a busy, midtown street at 4:15 in the afternoon, would be removed and the evidence lost. Such a search is not illegal under the standards of Carney, supra.
Indeed, the agents had probable cause to search the rear passenger section of the Nissan Quest incident to the arrests of the defendants.New York v. Belton, 453 U.S. 454, 460 (1981) ("when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile"); Florida v. Thomas, 532 U.S. 771, 776 (2001) (rule of Belton is a "bright line" rule).
For the reasons stated above, the motions of defendant Rudy Rodriguez are denied. This case is set down for trial at 9:30 a.m. on Monday, October 21, 2002.
IT IS SO ORDERED.