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UNITED STATES v. ROJAS

November 1, 1995

UNITED STATES OF AMERICA, against FREDDY ROJAS, HUMBERTO LLANOS, and ARMANDO MOSQUERA, Defendants.


The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 Freddy Rojas, Humberto Llanos and Armando Mosquera are charged in a two-count indictment with conspiring to distribute and to possess with intent to distribute cocaine (Count I) and with possessing cocaine with intent to distribute (Count II). All the defendants have moved to suppress evidence. For the reasons set forth below, the motions are denied, except with respect to the statements elicited from Mosquera after the discovery of narcotics in his apartment. To that limited extent, Mosquera's motion is granted.

 The Facts

 On March 7, 1995, agents, detectives and investigators assigned to the Eldorado Task Force were conducting surveillance in the vicinity of 20-46 31st Street, Long Island City, New York ("the 31st Street location"). The surveillance was initiated as a result of confidential information provided to the Task Force. The subjects of this surveillance were the defendant Freddy Rojas and a blue Chrysler Caravan. (July Tr. at 14.) *fn1"

 On two or three occasions, Rojas was observed exiting the 31st Street location to use a pay phone on a nearby street corner. At approximately 2:30 p.m., Rojas left the 31st Street location again and walked toward 20th Avenue. He was seen meeting and speaking with the driver of a gray van, who was later identified to be the defendant Humberto Llanos. After speaking briefly with Llanos, Rojas got into his blue Caravan and drove it away, following the gray van driven by Llanos. (July Tr. at 16.)

 The two vans drove to 48th Street. Rojas parked his blue Caravan, got out of it and got into the gray van driven by Llanos, only to go just one more block, where they parked in the vicinity of 30-70 48th Street ("the 48th Street location"). (July Tr. at 17.)

 Llanos exited the gray van and entered the 48th Street location. Rojas remained in the gray van. Llanos soon returned to the van and drove in it (with Rojas) a short distance to an international telephone-calling location near Broadway and 45th Street. Both Llanos and Rojas entered the location, and after several minutes both came out and re-entered the gray van. They thereupon drove a short distance to another international telephone-calling location, named Macarina's, on Whitney Avenue near Broadway. Again, both entered the location, and after approximately 15 minutes both re-entered the van and drove to yet a third international telephone-calling location, this one in the vicinity of Roosevelt Avenue and 85th Avenue. Both subjects entered the location, and after several minutes exited, re-entered the van, and drove back to the location on 48th Street where Rojas had left the blue Caravan. Rojas exited the gray van, entered the blue Caravan, and drove off. (July Tr. at 17-19.)

 At this time, which was approximately 3:30 p.m., the team that had been conducting surveillance of Rojas split into two teams. Investigator Bruce Schwartz and certain other law enforcement officers continued the surveillance of Rojas; Special Agent John Kane, Detective Joseph Calvacca and others followed Llanos. (July Tr. at 19.)

 Rojas returned to Macarina's, the second of the international telephone-calling places he had previously visited with Llanos. Rojas went into this location for approximately 10 to 15 minutes, returned to the blue Caravan, and again returned to the vicinity of the 48th Street location. Specifically, he parked just off 30th Avenue, approximately one block from the 48th Street location. (July Tr. at 19-21.)

 Rojas exited his vehicle and walked toward the 48th Street location, holding a black duffel bag. He was approached by Investigator Schwartz and Detective Sergeant Niki Elders. Investigator Schwartz did not have his gun drawn. Sergeant Elders, however, had her weapon unholstered, and it was pointed at Rojas. *fn2" (Aug. Tr. at 190-93.) Schwartz identified himself in English as a police officer and asked for identification from Rojas. He also asked Rojas if he would open the bag. Rojas agreed to open the bag, and when Schwartz looked in it he saw brick-shaped objects wrapped in black electrical tape. He immediately concluded from the appearance of those objects that they were either cocaine or heroin, and Rojas was arrested. It was subsequently determined that Rojas's bag contained approximately 10 kilograms of cocaine. (July Tr. at 21-22, 39, 42; Aug. Tr. at 190-93.)

 When Rojas was placed under arrest, he was advised of his Miranda rights by Schwartz and placed in the passenger seat of a car at the scene. Special Agent Christopher Ammirati arrived at the scene shortly thereafter and entered the vehicle containing Rojas. When Ammirati entered the vehicle, Investigator George Soto was already in the process of advising Rojas of his rights in Spanish. When Rojas stated that he spoke English, Ammirati then advised Rojas again of his rights in English. Rojas waived those rights and made a number of statements, including the statement that he would consent to a search of his residence. After first giving an incorrect address, he admitted that his address was the 20-46 31st Street address where the surveillance had commenced, and that location was searched by the officers. A loaded firearm was seized from under the mattress in the back bedroom. (July Tr. at 22-24; Aug. Tr. at 5-11.)

 Meanwhile, Llanos was still under surveillance. After dropping off Rojas near the 48th Street location, Llanos was observed going to yet two more international telephone-calling locations. *fn3" While Llanos was exiting the second of these locations, the surveillance agents learned over the radio that Rojas had been arrested. Llanos was then followed to the 48th Street location, which he entered. Agent Kane followed Llanos into the building, saw him enter apartment 3F, and called for back-up assistance. Four additional officers then joined Kane outside the entrance to apartment 3F. (Aug. Tr. at 11.)

 After a short time, the door opened and Llanos came out. As Llanos came out into the hallway, the third defendant, Armando Mosquera, wearing only his underwear, was observed in the open doorway to the apartment. (Aug. Tr. at 142-43).

 Detective Calvacca approached Llanos in the hallway. Although Calvacca is not a Spanish speaker, he told Llanos that he was "Policia". As he approached Llanos, Calvacca did not have his weapon drawn. Although one other member of the law enforcement team did have a weapon drawn, the weapon was pointed down. (Aug. Tr. at 120-21.)

 As Calvacca approached Llanos, Investigator George Soto, the Spanish-speaker among the law enforcement officials present, approached Mosquera. Soto had his gun drawn, but it was pointed down. In Spanish, he asked Mosquera for permission to search the apartment for narcotics, money, records of narcotics dealing, and weapons. Mosquera consented to the search, adding that the agents would not find anything in the apartment. (Aug. Tr. at 143-45.)

 After Mosquera agreed to the search of the one-bedroom apartment, Agents Kane and Ammirati conducted a brief security sweep of it. While the security sweep was being conducted, Mosquera, who was still standing in the doorway, was placed in handcuffs. *fn4" At the conclusion of the security sweep, the handcuffs were taken off Mosquera. He and Llanos were thereupon taken into the apartment. Llanos was taken into the ...


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