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UNITED STATES v. VIERA

August 17, 1983

UNITED STATES of America
v.
Andres VIERA, Fernando Lanigan, and Ramona Ibert, Defendants.



The opinion of the court was delivered by: BONSAL

MEMORANDUM

BONSAL, District Judge.

 By indictment filed February 1, 1983, defendants Andres Viera, Fernando Lanigan, and Ramona Ibert were charged with one count of conspiracy to distribute cocaine and one count of possession with intent to distribute cocaine. Defendants Viera and Lanigan move to suppress oral and written statements made by them following their arrest. Defendant Ibert moves to suppress physical evidence seized from her apartment and statements made by her following her arrest. A hearing was held on these motions on April 5-7, 11, and 14, 1983, following which the parties filed memoranda of law, the last being filed on July 12, 1983.

 At the hearing, six Secret Service agents and two employees of the Metropolitan Correctional Center testified for the government. Defendants Viera and Lanigan testified and called a Western Union employee as a witness. Based on the testimony and the exhibits received into evidence, the following facts appear.

 Defendants Viera and Lanigan went to the Western Union office at 1440 Broadway at 3:15 p.m. on January 24, 1983. Viera purchased a money order in the amount of $2200 to be wired to his wife in Miami, Florida. In counting the money, the teller, Mr. Hollowell, observed what he believed to be four counterfeit $20 bills. He refused to accept the bills and Viera put up the additional $80 necessary to complete the transaction. Hollowell refused to return the alleged counterfeit bills to Viera, stating that he could not do so without authority from the Treasury Department. He telephoned the Secret Service to report the event and then told the defendants that if they wanted the bills back, they would have to await the arrival of the Secret Service agents. Both Viera and Lanigan testified that they voluntarily decided to wait for the arrival of the Secret Service agents.

 Approximately half an hour later, Secret Service Agents Sira and Torres arrived at the Western Union office. Both agents were casually dressed and no weapons were visible on their persons. They examined the four bills Hollowell gave them and concluded that they were counterfeit. Hollowell pointed out the defendants and the agents showed Viera and Lanigan their badges and stated that they wanted to talk to them about the bills. Because the lobby of the office was too crowded, Sira arranged for the use of an alcove or hallway in which Viera and Lanigan could be questioned. Viera agreed to accompany the agents there and informed Lanigan in Spanish (he did not speak English) that the agents wanted to question them. Once in the alcove, the agents asked to see the defendants' money and driver's licenses, which they examined and returned to the defendants.

 Finding the alcove too small to permit questioning, Agent Sira asked Viera if he and Lanigan would be willing to accompany him and Torres to the Secret Service field office at the World Trade Center. Viera agreed to go, as did Lanigan after Viera and Agent Torres explained the agents' request to him in Spanish. Viera drove to the Secret Service office in his own car, accompanied by Torres. Lanigan rode in Sira's car. Neither defendant was restrained in any way during the trip.

 When the cars arrived at the World Trade Center, the agents searched Viera's car, both Viera and Lanigan having consented. The search disclosed no contraband. Viera and Lanigan entered the Secret Service office at approximately 4:30 p.m. and were placed in separate "interview" rooms, each of which required a key to leave. Both men remained in the interview rooms for most of the next seven hours. They were permitted to leave the rooms in order to use the bathroom and get a drink of water, but were accompanied by an agent when they did so.

 Viera was advised of his Miranda rights by Agent Sira, who informed him that he was not under arrest. Viera agreed to be interviewed and told Sira that he had never been arrested before and that he had no idea where the counterfeit bills had come from. Lanigan was questioned in Spanish by another agent, Saez. Lanigan denied knowing anything about the counterfeit bills and stated that they belonged to his friend Viera, with whom he had travelled to New York from Florida about ten days before. At this point, Agent Saez gave Lanigan his Miranda rights in Spanish.

 During the course of the agents' initial interviews of the defendants, which lasted between a half hour and an hour, the following story emerged: Viera and Lanigan had driven from Florida to New York in a rented car; Viera had flown back to Florida for a couple of days, and then flown to New York again in order to drive the car back to Florida; Viera had come to visit his mother-in-law, although his wife was not with him; Lanigan was unemployed and had a child to support but had only come to New York to accompany Viera; and the two men had stayed in a number of different places while in New York, including several hotels near Kennedy Airport.

 In light of what they felt were weaknesses in Viera's and Lanigan's stories, and the fact that an analysis had revealed the four $20 bills were brand new counterfeits, the agents asked Viera and Lanigan to take polygraph tests. In response to Lanigan's question asking him what a polygraph test was, Agent Saez explained in Spanish that it was a "lie detector" test. He then stated: "If you pass the test, well, I will apologize to you for being down here. If you don't, you might have problems in the future. I don't know."

 Both defendants agreed to take the polygraph tests and signed forms waiving their Miranda rights and consenting thereto. While the test was being administered to Viera at approximately 5:40 p.m., a criminal record check revealed that he had a prior record but that Lanigan did not. The test was not given to Lanigan until approximately 8:00 p.m., allegedly due to a lack of available personnel. According to the agents, the results of the polygraph tests indicated that Viera and Lanigan had been untruthful in answering certain questions relating to counterfeit bills.

 Following the polygraph tests, the agents resumed questioning Viera and Lanigan. At approximately 10:00 p.m. Viera told Agent Sira that he had come to New York to sell cocaine with Lanigan, but continued to insist that he knew nothing about the origin of the counterfeit bills. Viera told the agents where he and Lanigan had been staying and consented to a search of his personal belongings at Apartment 32, 602 West 137th Street. When Lanigan was told about Viera's reference to cocaine, he became visibly upset and exclaimed, "If that's what he said, that's what happened."

 At approximately 10:45 p.m., Viera and Lanigan were again advised of their Miranda rights and then were arrested. Viera signed a written statement, which asserts that Viera and Lanigan came to New York "for the purpose of selling cocaine." It states that someone named "Ruddy" assisted them in selling cocaine; that the money Viera used for the money order sent to his wife was proceeds from cocaine sales; that Viera voluntarily went to the Secret Service office; and that he does not know who gave him and Lanigan the counterfeit bills. Before Viera signed the statement, Sira read him the advice of rights printed at the top of it.

 After his arrest, Lanigan continued to deny knowing anything about counterfeit currency, but gave the agents permission to search his bags at two apartments where he had been staying: his mother-in-law's apartment on West 82nd Street, and the apartment on West 137th Street where Viera had also left his luggage.

 At approximately 11:30 p.m., Agents Marinzel, Rohde, D'Amico, and Sloan went to Apartment 32 at 602 West 137th Street. Although it is not clear whether they knew it at the time, the apartment belonged to the man named "Ruddy" whom Viera had named in his statement. The agents arrived there shortly after midnight. Agent Marinzel knocked on the door and identified himself as a Secret Service agent. Defendant Ramona Ibert, "Ruddy"'s wife, answered, asking who was there and what they wanted. Marinzel again identified himself and stated that he wanted to talk to Ibert about something important but didn't want to disturb her neighbors by talking in the hallway. This exchange was repeated and then Ibert opened the door. When the agents entered, Ibert motioned to Marinzel to follow her down a hall toward the back of the apartment. Marinzel asked if anyone else was there and Ibert replied that only she and her two children, who were asleep, were in the apartment.

 As a safety precaution, the other agents "secured the apartment" by looking into each room, while Marinzel accompanied Ibert down the hall into the living room. Ibert asked what the agents were doing and Marinzel told her that they wanted to make sure there was no one else in the apartment. Agent Sloan noticed a blacklight sitting on top of the television in the living room and asked what it was for. Ibert replied that it belonged to her husband, who was in the grocery business. Marinzel then explained that the agents were there in connection with a counterfeit investigation and aked Ibert to show them the luggage belonging to Viera and Lanigan, who had ...


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