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UNITED STATES v. MARTINEZ

November 29, 1994

UNITED STATES OF AMERICA, Plaintiff, against ANGEL MARTINEZ, VICTOR MANUEL RIVERA, a/k/a "Ruben Rivera Mato," NELSON VARGAS PAULA, and DANNY MARTES, a/k/a "Manny," a/k/a "Jose Lopez Maldonado," Defendants.

Kimba M. Wood, United States District Judge


The opinion of the court was delivered by: KIMBA M. WOOD

WOOD, D.J.

 Defendants are charged with distributing and conspiring to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. ยงยง 841 and 846. They move to suppress evidence obtained pursuant to search warrants issued in Puerto Rico, or, alternatively, for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), to determine the validity of the Puerto Rican warrants. *fn1" For the reasons stated below, defendants' motions are denied.

 Background

 Defendants were arrested in New York on February 5, 1994, when they allegedly accepted the delivery of packages containing cocaine that had been shipped from Puerto Rico. The government gives the following account of the events leading up to defendants' arrest, which is not contested by defendants. On February 3, 1994, Postal Inspectors in San Juan, Puerto Rico received a tip from a confidential informant that a shipment of narcotics would be sent via Express Mail to New York. O'Neill Aff. P 2. At or about 7:00 p.m. on February 3, Postal Inspector Ivette O'Neill inspected packages at the Air Mail Facility at the San Juan Airport. Id. She noticed two packages of the same shape and size, with the same wrapping. Id. One package ("Package 1") was addressed to Ruben Rivera Mato at 2899 Kingsbridge Terrace, Apartment 44A, Bronx, New York ("Premises 1"); the second package ("Package 2") was addressed to "Jose Lopez Maldonado" at 2120 Tiebout Avenue, Apartment C22, Bronx, New York ("Premises 2"). See O'Neill Aff. Ex. 1. According to O'Neill, both packages met certain criteria of the Postal Inspectors' "drug-smuggling profile," in that they were heavy, well-wrapped, came from "a known drug source state," bore handwritten labels, and were being sent to a "high crime area," i.e., the Bronx. *fn2" Id. at P 4. O'Neill states that, in addition, she noticed that the handwriting on the two airbills was the same, although the two packages had different return addresses and were mailed from two different post offices. Id. at P 3. O'Neill took custody of the packages for the purposes of submitting them to a canine sniff by a dog trained in drug detection.

 According to O'Neill, postal inspectors in the San Juan airport normally conduct canine sniffs with trained dogs handled by United States Customs Agents. O'Neill states that she attempted to reach the Customs Agents on the evening of February 3, after seizing the packages, but was unable to do so. On the morning of February 4, 1994, she took the two packages to the Customs Agents' section of the San Juan Airport. There, some time before 11:00 a.m., the packages were subjected to a canine sniff by a dog known as "Alex," who reacted positively for the presence of narcotics. *fn3" Id. at P 3. O'Neill states that on the same day, she verified that the return address on Package 1 was fictitious, and that the sender of Package 2 did not receive mail at the return address listed on the package. Id. at P 6.

 O'Neill then prepared an affidavit in support of an application for warrants to search the packages. The affidavit stated (1) that the packages had been found to exhibit several factors meeting the Postal Inspectors' "drug-smuggling profile" during a "routine inspection" at the San Juan Airport Air Mail facility; (2) that the packages had been submitted to "Alex," who had reacted positively for narcotics as to both packages; (3) that the return address on Package 1 was fictitious, and that although the return address on Package 2 was an existing Post Office Box number, the sender of Package 2 was not an authorized customer for that box number; and (4) that the labels on the two packages had similar handwriting, and were mailed at two different post offices on the same day. The affidavit made no reference to a tip from a confidential informant. On the basis of O'Neill's affidavit, warrants to search the packages were issued by United States Magistrate Judge Jesus Castellano of the District of Puerto Rico at 4:15 p.m. Rivera Notice of Motion Ex. C; O'Neill Aff. P 7. The packages were opened at about 5:00 p.m., and were found to contain approximately five kilograms of a mixture containing cocaine. O'Neill Aff. P 7.

 The Postal Inspectors and the New York Drug Enforcement Task Force ("DETF") agreed that a postal inspector posing as a mail carrier would deliver the packages to their destinations. Once the packages were accepted at these destinations, the premises would be searched and the persons receiving the packages would be arrested. DETF therefore applied for anticipatory warrants to search the premises, contingent on acceptance of the packages by individuals identifying themselves as the addressees or as acting on their behalf. In an affidavit in support of the application for the anticipatory warrants, DETF agent Dave Joseph ("Joseph") stated, among other things, that the packages had been positively identified for cocaine by a drug-sniffing dog, and that they contained five kilograms of cocaine. Unlike O'Neill's affidavit, Joseph's affidavit stated that Postal Inspectors in San Juan had received a tip from a confidential informant. Joseph Aff. P 5(b), Rivera's Notice of Motion Ex. E. Anticipatory warrants were issued on February 4, 1994, by United States Magistrate Judge Nina Gershon of the Southern District of New York.

 On or about February 5, 1994, a postal inspector posing as a mail carrier brought Package 1 to its delivery address, Premises 1. According to the government, the inspector met defendant Martinez in the hallway of Premises 1. Martinez stated that the package was for someone who was staying with him, and directed the inspector to Martinez's apartment. Defendant Rivera came to the door of the apartment and signed for the package, using the name "Ruben Mato." Shortly thereafter, DETF agents searched the apartment, found the contents of the package, and arrested Martinez and Rivera. Amended Complaint, Rivera's Notice of Motion Ex. I.

 Also on or about February 5, 1994, a postal inspector posing as a mail carrier brought Package 2 to its delivery address, Premises 2. According to the government, when the postal inspector arrived, he saw defendants Martes and Paula in the vestibule of the building. They stated that the package was for them. Martes asked to accept delivery in the hallway, and the inspector stated that he was required to deliver it to the Premises 2. When the inspector rang Premises 2, the inhabitants stated that they did not know anyone by the name of the addressee of Package 2. The inspector then returned to Martes and Paula. The government states that Martes led the inspector to Premises 2 and accepted delivery of Package 2 outside the door. Martes then went inside Premises 2 with the package. Shortly thereafter, DETF agents arrested Paula and searched Premises 2. They found Package 2 inside. A back window in the apartment was open, and Martes was not in the apartment. Martes ultimately surrendered approximately a month later. Defendants then filed the instant motion to suppress.

 Defendants offer two arguments in support of their suppression motion. First, defendants argue that the seizure and detention of the packages by O'Neill constituted an "unreasonable seizure" in violation of defendants' Fourth Amendment rights. *fn4" Second, defendants contend that O'Neill's omission of the informant's tip from her affidavit in support of the Puerto Rican warrants renders those warrants invalid, or, alternatively, entitles defendants to a hearing on the validity of the warrants pursuant to Franks v. Delaware.

 I. Detention of the Packages

 In United States v. Van Leeuwen, 397 U.S. 249, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970), the United States Supreme Court held that the temporary detention of packages for purposes of investigation is not an "unreasonable seizure" in violation of the Fourth Amendment, provided (1) law enforcement authorities have a reasonable suspicion of criminal activity; and (2) the packages are not detained for an unreasonable length of time. See also United States v. Place, 462 U.S. 696, 702, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (applying doctrine of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), to detention of personal property, and holding that detention of luggage on less than probable cause, in order to pursue a limited course of investigation, does not violate defendant's Fourth Amendment rights where there is "reasonable articulable ...


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