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UNITED STATES v. DARIO ZAPATA SERNA

February 26, 1986

UNITED STATES OF AMERICA, against 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 an arrest and later search of his home. Serna has also moved for an order dismissing his indictment pursuant to Rule 48(b) charging that the government violated his rights under the Speedy Trial Act, 18 U.S.C. 3161 et seq.Pursuant to a previous opinion of this court, United States of America v. Serna, No. 85 Crim. 611 (S.D.N.Y December 19, 1985), Serna's request for an evidentiary hearing was granted, and after considering the evidence presented at the hearing, Serna's motion to suppress the evidence is denied, as is Serna's motion to dismiss the indictment pursuant to Rule 48(b).

 Prior Proceedings

 Serna is charged with participation in a conspiracy to possess cocaine with intent to distribute cocaine pursuant to 21 U.S.C. § 846 and with laundering the proceeds of that trade by transporting monetary instruments outside the United States in violation of 31 U.S.C. § 5316. Serna sought to suppress the evidence of alleged drug paraphernalia obtained from a Drug Enforcement Agency ("DECA") search of his home on June 19 and 20, 1985. This court's opinion of December 19, 1985, whose facts are incorporated herein by reference, held that the circumstances surrounding the government's concededly forced entry into Serna's home, the suspicious circumstances of the consent search of the common rooms of the home obtained from Mr. Luis Albeior Ceballos and Mrs. Theresa Darlene Ceballos (the "Ceballos") who shared the premises, and the unexplained delay in obtaining the warrant to search Serna's quarters in the shared home necessitated an evidentiary hearing on the events of that evening.

 The evidentiary hearing was granted in order to determine whether the facts of the case at bar satisfied the Supreme Court's limited exception to the fourth Amendment's exclusionary rule set out in Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). In Segura the Supreme Court held that 1) officers, with probable cause to enter a dwelling, may "seize" its contents or conduct a limited security check of the premises to preserve the status quo while others are in good faith obtaining a search warrant without violating the fourth Amendment's proscription against unreasonable searches and seizures, and that 2) regardless of the legality of the initial entry, evidence later discovered pursuant to a valid search warrant issued on information known to the officers before entry would not be tainted as "fruit" of the illegal entry. Id. at 3382-3383. Three aspects of the search of the Serna residence which related to the three steps of entry and occupation of the home required further evidence with respect to the government's contention that the search fell within the Segura exception:

 
1) Was the "limited security" check of the house from 9:45 p.m., June 19, 1985, to 1:10 a.m., June 20, 1985 a reasonable "seizure" of the premises?
 
2) Was the Ceballos' consent to search the common rooms voluntarily given or extracted by use of threats and coercion?
 
3) Was the information contained in the affidavit in support of the search warrant known to the DEA agents in advance of their entry, so as to constitute as "independent source" erasing the taint of the prior illegal entry under Segura?

 On the morning of January 23, 1986, immediately preceding the evidentiary hearing, the government advised the court by letter that it would not "use at trial or otherwise use against Zapata-Serma any of the material seized from the 'common area' at 225-05 Horace Harding boulevard." This concession further narrowed the hearing issues, as questions concerning the illegality of entry and the validity of the consent search pertained only to evidence obtained from the common rooms leaving the question as to whether the later warrant for Serna's portion of the house was obtained with an "independent source" for the information in the warrant affidavit. Segura v. United States, supra, 104 S. Ct. at 3382-3383. The sole issue which remained, therefore, was whether the government possessed the probable prior to entering the premises and whether there was an independent source for this information other than the long occupation of the Serna-Ceballos home.

 Evidence Presented

 The government produced two witnesses at the hearing to corroborate and supplement the facts outlined in its original memorandum in opposition to Serna's motion suppress the evidence. Special Agent Gerard Murphy ("Murphy"), the DEA Agent supervising and coordinating the operation, testified about the layout of the Serna-Ceballos home, the surveillance and arrest of the suspects on the evening of June 19, 1985 and the process of compiling information and obtaining the search warrant for Serna's quarter on June 20, 1985.

 According to Murphy, who proceeded paragraph by paragraph through the affidavit submitted in support of the issuance of the search warrant, all information in the affidavit was complied from 1981 through June, 1983 as part of a larger investigation of an international drug conspiracy in which Serna was allegedly implicated. This evidence was not challenged by defense counsel nor rebutted by testimony of a defense witness. Only one paragraph contained information obtained after arrest - paragraph nine which stated that Serna denied his identity upon arrest.

 Murphy also testified to the scope of the dragnet which occurred on the evening of June 19, 1985. Approximately eleven suspects were arrested or detained that night, in addition to Mrs. Ceballo's and her child who were detained in their home as part of the government's security check of the premises. Agent Murphy, occupied with the arrest of a suspect who was later released, arrived at the Horace Harding Boulevard home after the forced entry and found approximately five DEA agents conducting an alleged security sweep of the home. Murphy remained at the home for approximately one and one-half hours until approximately 12:00 p.m., when he returned to his Manhattan office and contacted the Assistant United States Attorney (the "ASUA") handling the case to ask him to meet at DEA headquarters to prepare the complaint and affidavits required to obtain a search warrant.

 Murphy accounted for the long delay (between 1:30 a.m. when he and the AUSA began preparing the documents and 6:30 p.m., when the warrant was issued) with a description of the confusion surrounding the sudden arrests of the drug suspects. According to Murphy, neither he nor the AUSA had prepared for the arrest of eleven suspects and search of the Serna-Ceballos home. The AUSA had not evaluated the evidence or set the affidavit information down in a complaint. As the documents were being prepared, suspects were being processed and arraigned in both the Southern and Eastern Districts of New York, causing a shortage of available DEA agents. Although the warrant application was originally signed by Murphy, it had to be retyped to permit Special Agent Thomas J. Deignan to be the affiant, and it was Agent Diegman who appeared in the Eastern District in support of the warrant as soon as he had ...


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