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UNITED STATES v. DARIO ZAPATA SERNA

December 20, 1985

UNITED STATES OF AMERICA
v.
DARIO ZAPATA SERNA, Defendant.



The opinion of the court was delivered by: SWEET

SWEET, D.J.

Defendant Dario Zapata Serna ("Serna") has moved pursuant to Rule 12(b)(3) and Rule 41(f) of the Federal Rules of Criminal Procedure to suppress evidence which the government obtained during his arrest and in a later search of his home on June 19 and 20, 1985. For the reasons set forth below, an evidentiary hearing is required to determine whether the initial occupation of the home was a limited security check or a warrantless search of the premises, and to determine whether the Ceballos' consent to search was a voluntary waiver of Fourth Amendment rights. The government has, however, established that it had sufficient probable cause to support both the arrest and the search of Serna's home and that the trash searches were entirely proper.

 Serna is charged, pursuant to 21 U.S.C. § 846, with participation in a conspiracy to possess cocaine with intent to distribute and to launder the proceeds of that cocaine trade by transporting monetary instruments out of the United States in violation of 31 U.S.C. § 5316. Serna seeks to suppress all items found on his person during his arrest, all items found as a result of the search of his home, and all items found as a result of the searches of trash outside his home. The government contends that it established probable cause for the arrest and search as a matter of law, and that illegal entry into a home cannot taint evidence collected under a later search warrant issued on the basis of independently obtained probable cause.

 Facts

 On May 11, 1985, the New York Drug Enforcement Task Force ("NYDETF" or "Agents") commenced an investigation of Serna, a Colombian national residing in Queens, New York, in connection with a nationwide investigation into a cocaine smuggling and distribution organization allegedly headed by Juan Ramon Matta-Ballesteros ("Ballesteros"). The NYDETF placed Serna under periodic surveillance for five weeks, observing him at his home located at 225-05 Horace Harding Boulevard in Queens, New York, following his car, and searching his trash which had been placed outside his home for collection.

 On the evening of June 19, 1985, the Agents had Serna under surveillance as he drove through Queens. At approximately 8:00 p.m. Serna was arrested suddenly, allegedly because he detected this surveillance. Serna claims that the Agents physically abused and threatened him during the course of the arrest and attempted to extract a consent to search his home during the arrest. According to Serna, he refused to consent and his repeated request for an attorney were unheeded. It is undisputed that the Agents then drove Serna to the home on Horace Harding Boulevard where Serna resided with Luis Albeiro Ceballos and Theresa Darlene Ceballos and their infant child. According to the government, Serna's wife also occupies this house. Serna, however, claims that she resides in Miami, Florida. Serna and the Ceballos family shared the rent for these premises and shared the common rooms of the home, with Serna's private quarters located on a lower floor of the house.

 While Serna was held in custody in an official car in the driveway, the Agents attempted to enter the home without a search warrant at approximately 9:45 p.m. on June 19. According to the government, the Agents requested entry and were denied such entry by Theresa Darlene Ceballos, who was home alone with her child. The Agents then showed their badges, identified themselves, and forced their way through the front door, believing that there was drug related contraband inside which was in danger of being destroyed. The Agents then conducted a "security check" of the home to determine if anyone else was present and remained in the common rooms until a search warrant for Serna's quarters was obtained at approximatey 1:20 p.m. on June 20, 1985, the following day.

 Mrs. Ceballos tells a different version of the concededly forced and warrantless entry. She contends that the Agents did not identify themselves but simply broke through the door with weapons drawn, terrorized her and her infant, and began a systematic search of the entire house.

 Meanwhile, also on the evening of June 19, 1985, Luis Albeiro Ceballos, also a Colombian national, was detained by Agents as he was leaving a baseball game at Shea Stadium. Although Ceballos was held in custody for approximately twenty-four hours, he was never arrested, and no charges were filed against him. It is undisputed that Ceballos was taken back to the home he shared with Serna on Horace Harding Boulevard and that he and his wife then signed a "consent to search" form at approximately 1:10 a.m. on June 20, 1985. However, Mr. and Mrs. Ceballos claim that this consent was coerced by various threats from the agents, including the ultimatum that their child would be taken from them if they did not consent to the search.

 A large number of agents remained at the Serna-Ceballos home throughout the evening. The nature and area of the search is hotly contested. Luis and Theresa Ceballos contend that the Agents searched the entire home upon initial entry, and did not restrict their search to a "security check", nor did they restrain their "consent search" to the common areas of the home. The government contends that it followed the initias entry by a security check, and that no further search was undertaken until the Ceballos' consented to a search of the premises. Only after the warrant to search Serna's premises was obtained did they search Serna's "apartment" downstairs. The Agents finally left the Serna-Ceballos residence at 7:00 p.m. on June 20, 1985, over twenty-one hours after entering the house. Various items were seized in this search in addition to the items which were found in Serna's possession at the time of his arrest and the items which had been found in the trash outside the Serna-Ceballos home.

 During the late evening of June 19, 1985 and into the morning of June 20, 1985 the Assistant United States Attorney and NYDETF prepared and filed a complaint against Serna in the Southern District of New York, charging Serna with participation in a conspiracy to possess cocaine with intent to distribute and with an attempt to launder the proceeds of those sales by transporting unreported monetary instruments out of the United States. As probable cause for both the arrest of Serna and the issuance of the search warrant, the government alleged in its complaint: 1) information from a "confidential informant" detailing the existence of an international cocaine smuggling organization headed by Ballesteros which distributed drugs in, among other places, New York City, 2) information derived from a taped interview of Hippolito Rivera-Ramirez, who had been convicted in California of possession of 115 pounds of cocaine and who had stated that the 115 pounds of cocaine belonged to Ballesteros and that money to finance a deal involving this cocaine was brought from New York City by "Dario," an employee of Ballesteros, 3) information derived from ledgers seized in California showing that in July, 1981, in New York City, "Dario" sold 100 kilograms of cocaine to Rivera-Ramirez in return for $4.7 million, 4) information provided by the Spanish Police that Ballesteros, who was residing in Madrid, was in touch with "Dario," a/k/a "Cucho," in New York City at a phone located at 225-05 Horace Harding Boulevard and that "Dario" was a principal figure in Ballesteros' cocaine organization, and 5) information derived from various documents found in Serna's trash, as well as observations from the five-week surveillance of Serna. The government's recital of the evidence supporting the existence of probable cause for the Serna arrest was provided by the affidavit of NYDETF Special Agent Gerald Murphy.

 Following issuance of this complaint, the Assistant United States Attorney obtained a warrant from the Eastern District of New York to search Serna's home. The supporting affidavit provided by NYDETF Agent Thomas Deignan incorporated all of the probable cause allegations contained in the Murphy affidavit attached to the complaint, as well as predictions of what narcotics-related contraband would be found in the house. The aforementioned search conducted pursuant to this warrant took place on the afternoon of June 20, 1985.

 Appearing before Magistrate Grubin on June 20, 1985, Serna's appointed counsel moved to dismiss the complaint for lack of probable cause, which motion was denied. One week later before Magistrate Washington, Serna's retained counsel again moved to dismiss the complaint, and the motion was denied.

 Discussion

 The government contends that its citation of the Supreme Court's recent decision in Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) obviates the need for an evidentiary hearing on the defendant's suppression motion. According to the government, Serna's Fourth Amendment objections to both the pre and post search warrant improprieties of the entry into the Serna-Ceballos home are legally insufficient to warrant an evidentiary hearing because this case falls under the Supreme Court's exception for warrantless "seizures" of possessory interests in the home and for the search warrants based on independently obtained probable cause. This court concludes, however, that Serna's affidavits have raised factual doubts as to whether the government falls under the limited circumstances outlined in the Segura opinion and that an evidentiary hearing is required to resolve these factual disputes.

 The relevant facts in Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) are set out briefly as follows. The NYDETF had the Segura defendants under surveillance on information that these defendants had been trafficking in cocaine from their apartment. On the evening of the arrest and search in question, NYDETF agents arrested Segura in the lobby of the apartment building occupied by other suspects in the alleged drug conspiracy. The agents arrested these additional suspects and made limited security check of the apartment despite the fact that a warrant to search the apartment could not be obtained until the following day. The NYDETF agents took Segura upstairs to the apartment of the additional suspects and entered the apartment without requesting or receiving permission from the occupants. While securing the premises to prevent destruction of evidence, the agents observed, in plain view, various drug paraphernalia. The occupant of the apartment was then arrested, and two agents remained in the apartment until a search warrant was obtained nineteen hours after the initial entry.

 The Court posed and resolved the Fourth Amendment issues in the following manner:

 Resolution of this issue requires us to consider two separate questions: first, whether the entry and internal securing of the premises constituted an impermissible seizure of all the contents of the apartment, seen and unseen; second, whether the evidence first discovered during the search of the apartment pursuant to a valid warrant issued the day after the entry should have been suppressed as fruit of the illegal entry. Our disposition of both questions is carefully limited. ...

 On this first question, we conclude that, assuming that there was a seizure of all the contents of the petitioners' apartment when agents secured the premises from within, that seizure did not violate the Fourth amendment. Specifically, we hold that where officers, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from with in to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment's proscription against unreasonable seizures.

 The illegality of the initial entry, as we will show, has no bearing on the second question. The resolution of this second question requires that we determine whether the initial entry tainted the discovery of the evidence now challenged. On this issue, we hold that the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as "fruit" of the illegal entry because the warrant and the information on which it was based were unrelated to the entry and ...


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