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UNITED STATES v. DE LOS SANTOS

November 10, 1995

UNITED STATES OF AMERICA
v.
CADIDO DE LOS SANTOS, ANDRE FAIRCLOTH, JULIO PEREZ, RAMON PEREZ, THEODORE MIERZWA; EDDIE CASTILLO-TAMAREZ, AND EDWARD TIRADO, Defendants.



The opinion of the court was delivered by: SCULLIN

 This matter is before the Court on Defendant Theodore Mierzwa's motions to suppress statements and evidence obtained by the government. *fn1" These motions were part of an omnibus motion filed July 7, 1995. The Court denied most of defendant's motions on August 17, 1995, for the reasons stated in the record at that time. A suppression hearing was held on September 5, 1995, in Syracuse, New York, to consider defendant's motion to suppress.

 FACTUAL BACKGROUND

 On February 9, 1995, a federal grand jury returned an indictment charging seven defendants, including defendant Theodore Mierzwa, with conspiring to distribute and possess with intent to distribute cocaine base. *fn2" The indictment also charged defendant Mierzwa with possessing with intent to distribute cocaine base on July 14, 1994.

 Defendant was seated on the floor of the apartment and was able to see the agents as they searched the apartment for approximately five minutes. The agents found a scotch whiskey metal container underneath defendant's bed which contained hypodermic needles and drug paraphernalia. Agents also found baking soda, and a blue drinking cup on a nightstand next to defendant's bed. The blue cup contained drug paraphernalia including a crack pipe, tweezers, plastic packaging, and a glass tube. *fn3"

 After these items were seized, Drug Enforcement Administration Agent Dave Lewis arrived and asked defendant if he would sign a consent to search form. Defendant refused and stated that he was not going to sign anything. Agent Lewis brought defendant out to his vehicle and read him his Miranda rights. When asked if he understood these rights defendant responded in the affirmative. Later that same day defendant asked Agent Kerwin how the government found him. Agent Kerwin showed defendant pictures of Julio and Ramon Perez and defendant acknowledged that he knew both of them. On March 8, 1995, defendant made statements to the police regarding alleged drug dealing activities in exchange for limited use immunity. *fn4"

 DISCUSSION

 I. Suppression of Physical Evidence

 Evidence discovered during the course of a consent search is admissible against a defendant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The government bears the burden of proving by a preponderance of the evidence that the consent was freely and voluntarily given. Id. at 222; United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993). The court considers the totality of the circumstances when considering whether consent was free and voluntary. Id. Some factors courts consider include: (1) the defendant's age and education, (2) whether he was intoxicated or under the influence of drugs, (3) whether Miranda rights were given, (4) whether defendant has previous arrests or encounters with the criminal justice system, (5) the environment in which the consent was obtained, (6) the length of time defendant was detained, (7) whether any threats or promises were made by the police, (8) whether the defendant was arrested or in custody, (9) whether consent was given in public or secluded place, and (10) whether defendant voiced any objections to the search. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990); United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1989).

 In this case, defendant was arrested in his one bedroom apartment, he was not read his Miranda rights until after the search took place, and he later refused to sign a consent to search form. However, a defendant's refusal to sign a consent to search form does not vitiate consent. United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1989) (citing North Carolina v. Butler, 441 U.S. 369, 375-76, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979) (holding that the defendant had orally waived his right to remain silent even though he refused to sign a waiver form)); United States v. Boukater, 409 F.2d 537, 539 (5th Cir. 1969). Moreover, the physical evidence in this case was seized prior to defendant's refusal to sign the consent to search form.

 In light of the above, the Court finds that defendant freely and voluntarily consented to the search of his apartment. Defendant's motion to suppress the ...


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