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January 12, 1981


The opinion of the court was delivered by: SWEET

Defendant Jesus Nunez-Tapia ("Nunez") moves to suppress physical evidence and statements obtained by law enforcement authorities following his arrest on October 14, 1980 on charges relating to the armed hijacking of a tractor-trailer earlier that day. An evidentiary hearing was held on December 9 and 16. The following, pursuant to Fed.R.Crim.P. 12(e), constitutes the court's findings of fact and conclusions of law. For the reasons stated hereunder, the motion to suppress physical evidence is denied. The motion to suppress statements is granted in part and denied in part.

According to the testimony of Sgt. Michael McPartland of the Edgewater, N.J. Police Department, at about 4:15 P.M. on October 14 he and a partner in an unmarked patrol car spotted a moving tractor-trailer which matched, by description and registration, one reported by the F.B.I. to have been hijacked in New York a few hours earlier. *fn1" They pursued and stopped the vehicle, which was driven by Nunez. Nunez stepped down from the cab, asked why he had been stopped, was frisked and told he had been stopped for possession of a stolen vehicle. He volunteered that he had been hired to drive the truck and drop off the load, and was then placed under arrest, handcuffed and escorted into the patrol car. McPartland read Nunez the Miranda warnings from a standard rights card; he did not ask Nunez to sign the waiver on the reverse side of the card, and apparently did not ask him to acknowledge that he understood the rights and would answer questions. Nunez did not object to further questioning, and in response to questions made certain statements concerning his involvement. No promises or threats were made. All communication was in English, and from McPartland's observation, Nunez had no difficulty understanding or speaking English, and was cooperative throughout their encounter.

 After the warrantless arrest, a series of shipping orders for merchandise belonging to Saks Fifth Avenue was seized from the dashboard of the tractor-trailer, and the trailer itself was later found to contain goods belonging to that company.

 Within the hour, agents of the F.B.I., responding to McPartland's call, arrived on the scene, were briefed, and took over custody of Nunez. Agent Thomas A. Cottone, Jr., one of those present, testified that he first frisked Nunez, finding and removing a wallet stashed inside his left sock. The wallet was inventoried, and miscellaneous papers relevant to the investigation were found therein. Cottone testified that he then placed Nunez, still handcuffed, into the F.B.I. car, introduced himself, asked and was told by Nunez that he could not read or write English very well but could understand and speak it, orally informed Nunez of his Miranda rights, and asked and was told by Nunez that he understood his rights. Because Nunez had said he couldn't read or write the language very well, Cottone did not ask him to sign a rights waiver, but relied on his oral acknowledgements. Nunez then agreed to answer questions, and did so for approximately 45 minutes, never pausing to complain or to ask for an attorney. No promises or threats were made; no pressure was exerted. Again, all communication was in English. Cottone's observation was that Nunez spoke English fairly fluently.

 By this time the agents considered that it was too late to bring Nunez before a magistrate or other appropriate officer of the law for arraignment that evening. Instead, after unsuccessfully trying to locate space for him in a federal detention facility, at about 9:00 P.M. they left him overnight at the Bergen County Jail in Hackensack.

 Agent John Butenschoen of the F.B.I. testified that he and a partner picked up Nunez at the jail just before 10:00 A.M. the following day for transfer to the federal courthouse in Newark. During the ride, Butenschoen recited for Nunez his rights in English, and then held for him to read a standard F.B.I. form on which were printed the Miranda rights in both English and Spanish. Nunez indicated that he understood his rights, and proceeded to answer questions. According to Butenschoen, Nunez had little or no difficulty understanding or communicating in English, but he showed Nunez the Spanish printed version of the Miranda rights so as to take no chances. Nunez was delivered to and arraigned before a federal magistrate in Newark some time after noon.

 Defendant, a 29 year old native of the Dominican Republic who received a high school education before coming to this country in 1969, gave testimony in Spanish, through an interpreter, which differed substantially on crucial facts from that of the government witnesses. Shortly after immigrating he came to realize that he would need some knowledge of the language, and spent a year in a manpower training course which included one hour a day of English. He apparently has had no formal language training since then, but testified that in his work as a shipping assistant and truck driver over the years it has been necessary to communicate in English with his workmates and others he deals with as a regular part of his job. Nunez lives in a Bronx neighborhood inhabited mostly by Hispanics, with whom he communicates in Spanish; he claims that he can read and understand English "a little," (including road signs and simple conversations), cannot write in English, and can speak "some, but not much." When asked if he could carry on a conversation in English for half an hour, he said "it would depend."

 On the afternoon of his arrest, according to Nunez, after the initial brief conversation by the trailer cab, the police officers led him to the patrol car and started questioning him without having advised him of any of his Miranda rights; the F.B.I. agents then questioned him further without advising him of his rights. He understood almost everything asked of him, although there were some things he didn't understand. He asked for someone who could speak Spanish, and was told there was no one available. He had more trouble understanding some of the questions asked by the F.B.I. agents. The questions he understood he answered in English, telling his questioners, among other things, that he had been paid by certain individuals to drive the truck to New Jersey, and that he didn't know anything about the truck or its contents having been stolen.

 Nunez acknowledged that in the F.B.I. car on the way to Newark the next morning, Agent Butenschoen showed him a rights form printed in English and in Spanish. *fn2" He had difficulty reading the form in the moving car while handcuffed, and told Butenschoen that he understood somewhat, "but not very well," and that he had never been arrested before and didn't know anything about these things. He was asked if he could afford a lawyer, and responded that he would talk with his family and see about it.

 While arrests, searches and seizures based on valid warrants are preferred for constitutional reasons, see, e.g. Arkansas v. Sanders, 442 U.S. 753, 758-59, 99 S. Ct. 2586, 757-758, 61 L. Ed. 2d 235 (1979); United States v. Taborda, 635 F.2d 131 at 136 (2d Cir., 1980), the validity of this warrantless arrest based on probable cause is not, and cannot, seriously be challenged. See Chambers v. Maroney, 399 U.S. 42, 47, 90 S. Ct. 1975, 1979, 26 L. Ed. 2d 419 (1970); United States ex rel. Mungo v. LaVallee, 522 F.2d 211, 214-216 (2d Cir. 1975), vacated 428 U.S. 907, 96 S. Ct. 3215, 49 L. Ed. 2d 1213 (1976), cert. denied, 434 U.S. 929, 98 S. Ct. 416, 54 L. Ed. 2d 289 (1977); United States ex rel. Stanbridge v. Zelker, 514 F.2d 45 (2d Cir.), cert. denied, 423 U.S. 872, 96 S. Ct. 138, 46 L. Ed. 2d 102 (1975); see also United States v. Brawer, 482 F.2d 117, 125 (2d Cir. 1973), cert. denied, 419 U.S. 1051, 95 S. Ct. 628, 42 L. Ed. 2d 646 (1974); Richardson v. State of Maryland, 398 F. Supp. 425, 434 (D.Md.1975). Compare United States ex rel. Pella v. Reid, 527 F.2d 380, 382 (2d Cir. 1975).

 Further, Nunez may not complain of the seizure of the stolen tractor-trailer and its contents, including papers found on the dashboard of the cab, neither having nor claiming any "legitimate expectation of privacy in the area searched or in the articles seized." United States v. Smith, 621 F.2d 483, 486 (2d Cir. 1980). See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); see also United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Similarly, Nunez may not complain of the seizure of his wallet, or of the search and seizure of its contents. It is not clear from the record whether the wallet was searched and the contents seized on the scene, or at some later time. The search and seizure are valid in either event. The frisk and seizure of the wallet from defendant's person are valid as incident to arrest, Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969); United States v. Mannino, 635 F.2d 110 at 113 n.4 (2d Cir. 1980). The search and seizure of its contents is valid either as incident to the arrest, see United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); United States v. Marchand, 564 F.2d 983, 991 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S. Ct. 732, 54 L. Ed. 2d 760 (1978), or as an inventory search. United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974); United States v. Jenkins, 496 F.2d 57, 73 (2d Cir. 1974), cert. denied, 420 U.S. 925, 95 S. Ct. 1119, 43 L. Ed. 2d 394 (1975). Compare United States v. Chadwick, 433 U.S. 1, 16 n.10, 97 S. Ct. 2476, 2486 n.10, 53 L. Ed. 2d 538 (1977).

 Nunez moves for the suppression of all statements obtained as a result of questioning by New Jersey and federal authorities prior to his arraignment in Newark, urging violation of his Fifth and Sixth Amendment rights. *fn3"

 Initially, Nunez apparently contends that on the afternoon of the arrest, neither the New Jersey nor the federal authorities gave him the Miranda warnings at any time before, during or after questioning him. Were the court to find this to be true, all statements elicited in response to questioning after his arrest would of course be suppressed. Miranda v. Arizona, 384 U.S. 436, 476-77, 86 S. Ct. 1602, 1628-1629, 16 L. Ed. 2d 694 (1966); Carter v. McGinnis, 351 F. Supp. 787, 792-93 (W.D.N.Y.1972).

 However, Det. McPartland and Agent Cottone both specifically testified that they did recite to Nunez the proper Miranda warnings before initiating interrogation. Having considered the testimony adduced and observed the demeanor of both of these government witnesses, I find as a matter of fact that the warnings were given to the defendant both times. This is, however, not the end of the inquiry. If after the warnings are given interrogation continues without the presence of an attorney and a statement is taken, the government still has the burden of demonstrating that the defendant acted voluntarily, knowingly and intelligently and thus validly waived his Fifth Amendment Miranda rights. Miranda v. Arizona, supra, 384 U.S. at 475, 86 S. Ct. at 1628. See Tague v. Louisiana, 444 U.S. 469, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980); North Carolina v. Butler, 441 U.S. 369, ...

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