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UNITED STATES v. EVELIO MARTINEZ

April 23, 1986

UNITED STATES OF AMERICA, against EVELIO MARTINEZ, CARMEN RODRIGUEZ, and RAMON ALFONSO, Defendants


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge:

OPINION AND ORDER

 Defendants Evelio Martinez ("Martinez"), Carmen Rodriguez ("Rodriguez"), and Ramon Alfonso ("Alfonso") are charged in a superceding indictment with conspiring to violate the federal narcotics laws in violation of 21 U.S.C. § 846. In addition, Martinez and Rodriguez are charged with possessing with intent to distribute approximately 998 grams of of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. Defendants have filed pretrial motions. The motions are denied.

 BACKGROUND *fn1"

 In September 1985, an individual named Richard Kennedy ("Kennedy") asked a government informant ("Informant") to participate in a burglary of Rafael Hernandez ("Hernandez"), an alleged cocaine dealer. Kennedy also told the Informant that two other individuals, Toto Vargas ("Vargas") and his son Frank, would assist in the burglary. Kennedy further told the Informant that Hernandez posessed ten kilograms of cocaine, and large amounts of cash and jewelry.

 On September 22, 1985, Kennedy, Vargas, Frank, and the Informant met together to attempt to commit the burglary. Armed with several firearms, they went to 612 West 178th Street, New York, New York, where, according to Vargas, Hernandez kept his cocaine, cash, and jewelry. Vargas said that these items were hidden in a closet behind a false wall. When the four men arrived at 612 West 178th Street, the Informant was sent to apartment 24 to see if anyone was home. Con Edison records indicated that the utilities for this apartment were registered to Hernandez. After learning that Hernandez was not at home, the burglars postponed the burglary until the next day. The following day, the burglary was again postponed because Kennedy had been arrested in Nassau County on unrelated charges.

 Four days later, on September 27, 1985, Vargas told the Informant that the burglary would go forward that night with Joseph Raso ("Raso") replacing Kennedy. Vargas further stated that he had spoken with Hernandez's girlfriend, Marie Jackson, a/k/a Inez ("Inez"), the night before. She informed Vargas that ten kilograms of cocaine and $100,000 in cash were still in Hernandez's apartment, but that Hernandez was planning to take the cash to Miami the next day. Vargas also told the Informant that he had previously seen Hernandez wearing large amounts of expensive jewelry, and had previously heard him boast:ing about keeping money and drugs in his apartment. Later that evening, Vargas, Frank, Raso, and the Informant met together and headed for Hernandez's apartment. Having been advised by the Informant of the burglary plans, the Government intercepted and arrested the would-be burglars en route to Hernandez's apartment.

 The arresting officers seized from the burglars' car many items including a gun, two sets of handcuffs, several lengths of rope, and two phoney New York Police Department shields. The burglars had planned to flash these shields in order to gain entry into the apartment. After being advised of his constitutional rights, Vargas admitted that he and his associates were on their way to Hernandez's apartment to steal cocaine, cash and jewelry. Vargas stated that he had learned about the valuables from Inez. Vargas further stated that Inez had told him that she frequently visited Hernandez's apartment, and that she had often seen large amounts of cocaine and cash there, most recently within the past few days.

 Based on the above facts, the government sought and obtained a search warrant for Hernandez's apartment from Magistrate Sharon Grubin. Because the Informant had been told that Hernandez was taking a large amount of cash to Miami the following day, a search warrant upon oral testimony was obtained pursuant to Rule 41(c)(2) of the Federal Rules of Criminal Procedure. The search revealed over one kilogram of cocaine, scales, strainers and cocaine diluents. This contraband was seized from a closet that also contained defendant Rodriguez's clothes. Several .38 caliber bullets were recovered from her purse. A Cuban passport, belonging to defendant Martinez along with several pictures of Martinez were also recovered from the apartment. In addition, seized from a closet was an attache case that contained a checkbook belonging to Martinez, papers documenting Martinez's ownership of three automobiles, including two cadillacs, and a key to safe deposit box number 5043, located at Citibank, 181st Street and Broadway, New York, New York. A loaded .38 caliber pistol was found next to the attache case.

 At the time of the search, defendant Rodriguez and another woman were present in the apartment. While the agents were searching the apartment, they heard shouting in Spanish from the street below. Defendants Martinez, and Alfonso along with Jose Gonzalez were seen together on the street near the apartment building. Martinez pointed to one of the agents and yelled in Spanish: "One for one. Leave the woman alone. She doesn't have anything to do with it." As Martinez was shouting, Alfonso and Gonzalez were scanning the block in both directions. Several federal officers announced themselves and started approaching the three men. All three men started to retreat and Gonzalez reached for the back of his waistband as if he were about to draw a gun. The officers ordered all three men to freeze. A loaded .38 caliber semi-automatic handgun was recovered from Gonzalez and a loaded .38 caliber handgun was recovered from defendant Alfonso. Defendant Martinez was unarmed. All three men were then arrested.

 DISCUSSION

 I. Evelio Martinez2

 Martinez moves to suppress a statement that he made to a law enforcement official at some point after his arrest. When asked what he did for a living, Martinez responded that he was an "unemployed handyman." Martinez' motion is based on an alleged failure to advise him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). In support of the motion, defendant's counsel has submitted an affidavit asserting that defendant was not advised of his rights. Affidavit of Gerald M. LaBush dated January 7, 1986 PP 8, 9. The court need not reach the merits of this claim, nor must the court conduct a hearing to resolve factual disputes, however, because these assertions are unsupported by an affidavit from anyone with personal knowledge of the underlying facts. See United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967); United States v. Barr, 605 F. Supp. 114, 119 n.2 (S.D.N.Y. 1985); United States v. Abrams, 543 F. Supp. 1184, 1193 n.11 (S.D.N.Y. 1982). Further, Detective Rocco Sanfilippo submitted a sworn affidavit stating that Miranda warnings were given. Martinez' motion to suppress the statements is therefore denied.

 II. Carmen Rodriguez

 Defendant Rodriguez has moved:

 
1) To suppress physical ...

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