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U.S. v. MUNOZ

November 16, 1990

UNITED STATES OF AMERICA
v.
MIGUEL MUNOZ, A/K/A "BEEPER", RODOLFO RODRIGUEZ, ENRIQUE HOUELLEMONT, A/K/A "EREPPA", DANIEL BRETTON, A/K/A "RAOUL", CRISTO REY RAMIREZ-PENA, A/K/A "BACALAO", VICTOR ALBERTO GIL, A/K/A "VITICO", NELSON OMAR TABAR-LARO, HECTOR GARCIA, A/K/A "JABAO", PEDRO PIZZARRO, A/K/A "BOLIN", AND MARILYN MONTALVO, A/K/A "RAMONA MUNOZ", DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Defendants Miguel Munoz ("Munoz") and Marilyn Montalvo ("Montalvo," a/k/a "Ramona Munoz"), joined by all the remaining defendants, move pursuant to Rules 41 and 12(b)(3) of the Federal Rules of Criminal Procedure to suppress evidence obtained as a result of a search conducted on February 6, 1990 by agents of the Federal Bureau of Investigation ("FBI"), and for an evidentiary hearing in connection therewith. The Court heard oral argument on the motion to suppress evidence on October 22, 1990. For the reasons set forth below the motion is denied.

BACKGROUND

The relevant facts are as follows:

In support of the application for the search warrant executed on February 6, 1990, Special Agent Robert Daniel Shea ("Agent Shea") submitted an affidavit dated February 2, 1990. Agent Shea's affidavit stated that during debriefings subsequent to December 26, 1989, Gonzalez had advised him that he had distributed cocaine for defendant Rodolfo Rodriguez ("Rodriguez") for approximately six months prior to December 1989; that Gonzalez had had 2 kilos of cocaine stolen from him; that after he had advised Rodriguez of this "problem" he was held captive by Rodriguez, Munoz and others, primarily at the House; that during the time of Gonzalez' captivity, December 21, 1990 to December 26, 1990, a number of telephone calls from various persons were made to Gonzalez' relatives, making threats and demanding money; that, while Gonzalez was held at the House, defendants Ramirez-Pena, Munoz, Gil, Garcia, Tabar-Laro, Houellemont and Montalvo made statements threatening Gonzalez and his family directly or by implication, and that, while Gonzalez was at the House, defendants Munoz and Gil discussed drug deals and prior kidnappings. Shea Aff. February 2, 1990, 2-6.

Agent Shea's affidavit then recounted the circumstances of the events leading up to the arrest on December 26, 1990 of defendant Rodriguez in the company of Gonzalez' brother, and of defendants Munoz, Houellemont and Tabar-Laro near 180th Street and Audubon Avenue in Manhattan.*fn1 Agent Shea's affidavit also set forth that law enforcement agents freed Gonzalez after he left the House in the company of two defendants who were arrested,*fn2 and that upon his release Gonzalez told those agents there were more people in the House. Three agents then, "based on the exigent circumstances of the kidnapping," arrested defendant Gil as he was leaving the House, entered the House and observed another male, Raoul (Last Name Unknown, "LNU"), who was not apprehended at the time, dive through a second story window and escape through Woodlawn Cemetery. Agent Shea then stated "As the agents were not armed with a warrant, only a `protective' or `security sweep' of the House was conducted and no items were seized."*fn3 Shea Aff. at 8, n. 3. The Shea affidavit further recited that after arrest defendant Gil advised that the House is owned by defendants Montalvo and Rodriguez, and that Bolin Munoz and Raoul (LNU), as well as defendants Munoz, Garcia, and Ramirez-Pena, often stay at the House.

In making application for the search warrant, Agent Shea's affidavit went on to point out, based on his experience and the nature of certain events recounted by Gonzalez, that evidence of Gonzalez' captivity and material relating to the identity and whereabouts of several co-conspirators not yet arrested were likely to be found at the House, that most of the co-conspirators who were arrested had been remanded and thus had not been in a position to remove evidence from the House, and that those persons who might have attempted to sanitize the House might not have appreciated the evidentiary value of many of the items sought. Shea Aff. at 9, n. 4.

Defendants' motion to suppress and for an evidentiary hearing is based on two affidavits, one dated September 14, 1990 by Ivan S. Fisher, attorney for defendant Miguel Munoz, and one dated September 13, 1990 by Ramona Munoz, also known as defendant Marilyn Montalvo (the "Munoz/Montalvo affidavit").

Defendant Munoz/Montalvo's affidavit states she was told that the FBI agents entered the House where she lived on December 26, 1990; that she was not at the House at the time they entered the House and that she did not return to the House until December 28, at which time she found the door locked and had to use her keys. Defendant Munoz/Montalvo then states that to the best of her knowledge, nobody other than the FBI agents had been in the House since the arrest on December 26, 1989, and that there was no indication of a robbery as nothing of value had been taken. She states, however, that her dresser drawers were open and clothes removed and thrown on the bed. Laundry bags full of clothes were also emptied on the bed; mail left in the kitchen and den had been placed on the living room table; and flowers had been removed from vases and strewn on the furniture. In the attic, shoes, sheets and curtains, which had been neatly put away, were lying in disarray on the floor. Munoz/Montalvo Aff. at 2. She then concludes that the FBI agents had searched her House on December 26. Id. at 3.

Attorney Fisher's affidavit utilizes the Munoz/Montalvo affidavit and inadmissible hearsay information to offer the conclusion that an illegal search of the House had been conducted by the agents on December 26, and not a security sweep; that the search was not justified by exigent circumstances; and that the February 2, 1990 search warrant application by Agent Shea contained information derived from the December 26, 1990 "search" and was therefore tainted. Fisher Aff. at 2.

In reply, the government submits a second affidavit by Agent Shea stating that he made the application for a search warrant without knowledge of any item seen by the agents who entered the House on December 26, 1989 other than a photograph of a woman on the wall of the living room (upon which he placed no reliance); that the delay in the application for a search warrant was due to Gonzalez' need for counsel and the time required for Gonzalez to reach an agreement with the Government; that his application was based wholly on his debriefing of Gonzalez and his own experience in similar cases; and that in that debriefing no one inquired about any items that were seen by the agents on December 26, 1989. Shea Aff. of November 5, 1990 ("second Shea affidavit"). The Government also submits affidavits of Special Agents Thomas Neer and Joseph Sconzo, two of the three FBI agents who entered the House on December 26, 1989, stating that they took part in a security sweep, "looking only in places where persons might have been hiding," and that a "search" of the premises was not conducted on that occasion. Aff. of Thomas Neer, November 5, 1990; Aff. of Joseph Sconzo, November 5, 1990. Defendants submit in reply an affidavit of Charles Kelly, an investigator employed by the defense, which infers, based on hearsay information, that the actions of the FBI agents on December 26, 1989 constituted an illegal search. Kelly Aff., November 13, 1990.

DISCUSSION

Defendants' motion to suppress is based on two contentions: (1) the warrant was invalidly issued because it is the fruit of an earlier impermissible search and illegal eavesdropping, and (2) the warrant was invalidly issued because information on which ...


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