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UNITED STATES v. PEREZ

November 27, 1996

UNITED STATES OF AMERICA against ORLANDO PEREZ and TEDDY RAMOS, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendants Teddy Ramos ("Ramos") and Orlando Perez ("Perez") have moved to suppress evidence against them. For the reasons set forth below, Ramos' motion will be granted and Perez's motion will be denied.

 Prior Proceedings

 The prior proceedings in this action have been fully set forth in a prior Opinion of this court, dated September 6, 1996, familiarity with which is assumed. Those proceedings relevant to the instant motion are described below.

 The eight count indictment, S1 96 Cr. 167, handed down on March 29, 1996, charges Perez with participating in and conspiring to participate in a racketeering enterprise, the Almighty Latin King Queen Nation (the "Latin Kings"), through a pattern of racketeering activity, in violation of Title 18, United States Code, Sections 1961 and 1962(c) and (d) ("RICO"). Ramos is jointly charged in Counts Three, Four, and Seven of the indictment. *fn1"

 On June 13, 1996, Ramos moved (1) to dismiss Counts Three, Four and Seven of the indictment on the grounds that the enactment of Section 1959 exceeded Congress' authority to regulate interstate commerce; (2) pursuant to Fed. R. Crim. P. 18 to dismiss those counts for improper venue; (3) pursuant to Fed. R. Crim. P. 14 to sever those counts; (4) pursuant to Fed. R. Crim. P. 12 (b)(3) to suppress Ramos' post-arrest statement, or seeking a hearing regarding the circumstances under which the statement was made; (5) pursuant to Fed. R. Crim. P. 7(f) to compel the Government to provide a bill of particulars; and (6) to compel the Government to provide immediate access to Brady and Giglio material, to provide a list of Government witnesses, and to disclose evidence of other crimes pursuant to Fed. R. Evid. 404(b).

 On June 13, 1996, Perez moved: (1) to suppress his post-arrest statements on the ground that they were obtained in violation of the Fifth and Sixth Amendment; (2) to suppress the fruits of the Government's search of Perez's room in his father's apartment on the grounds that the search was conducted in violation of the Fourth Amendment; (3) to suppress tape recordings of telephone conversations between Perez and various inmates of the Metropolitan Correction Center ("MCC") on the grounds that the interception violated the Fourth, Fifth and Sixth Amendments; (4) to preclude the Government from introducing Perez's prior record at trial; and (5) to compel the Government to provide Perez with discovery and particulars concerning the charges.

 By Opinion dated September 6, 1996, this Court denied Ramos' and Perez's motions in part as set forth therein, and held that a hearing would be required to determine whether Ramos' statements and the fruits of the warrantless search of Perez's room would be admissible.

 From September 17 to September 19, 1996, the Court held a hearing regarding the admissibility of Ramos' post-arrest statements and the fruits of the warrantless search of Perez's room in his father's apartment. Post-hearing briefs were submitted on October 28, 1996, at which time the motions to suppress were considered fully submitted.

 Facts

 I. Ramos' Post-Arrest Statements

 The evidence at the suppression hearing established the following relevant facts. On March 29, 1996, at approximately 8:40 a.m., Special Agent Vincent Sullivan ("Agent Sullivan") of the Federal Bureau of Investigation ("FBI") arrested Ramos in front of 250 East 112th Street, New York, New York. A federal arrest warrant had been issued on March 13, 1996 pursuant to a sealed indictment charging Ramos with murder in aid of racketeering (18 U.S.C. § 1959(a)(1)), conspiracy to commit such a murder (18 U.S.C. § 1959(a)(2)), and a possession of gun during such a murder (18 U.S.C. § 924(c)).

 Agent Sullivan was the first officer to reach Ramos and put on the handcuffs. New York City Police Detective Angelo Cioffi ("Detective Chioffi") and Special Agent Theresa Meehan (Agent Meehan") arrived just after Agent Sullivan. Upon his arrest, Ramos immediately asked what the charges were. Agent Sullivan replied that "it had to do with his membership in the Latin Kings." Ramos then stated: "It can't be me, I just got out, you have the wrong guy." Agent Sullivan identified himself as an FBI agent and reiterated that the arrest "had to do with the Latin Kings." Ramos was not told that he was being arrested on a racketeering and murder charge, or shown the warrant for his arrest.

 After Ramos was arrested, Agent Sullivan and Detective Cioffi walked him to an automobile that was used to transport him to FBI headquarters at 26 Federal Plaza in Manhattan. Prior to leaving the scene for FBI headquarters, at approximately 8:45 am, Agent Sullivan orally advised Ramos of his Miranda rights. Detective Cioffi and New York City Police Detective Dexter Hanora accompanied Agent Sullivan and Ramos in the car ride to FBI headquarters. Ramos said nothing during the seventy-minute drive.

 At approximately 10:05 am, after arriving at FBI headquarters, Agent Sullivan and Detective Cioffi transported Ramos to an interview room on the 28th floor of the Headquarters. They removed Ramos' handcuffs from behind his back and handcuffed him to a railing. Agent Sullivan then took Ramos' pedigree information and recorded that information on an FBI form.

 After the pedigree information was taken, Agent Sullivan read the advice of rights form aloud and had Ramos read it back to him. Ramos then requested counsel, and again asked about the charges underlying the arrest. Agent Sullivan responded by again telling Ramos that "it had to do with his membership and activities in a gang known as the Latin Kings" and added, "we know you are a Latin King." Ramos then stated that he was no longer a member of the Latin Kings and had last been with them in 1993. From 10:45 to 10:50 a.m., Agent Sullivan attempted to elicit a confession or assistance in the investigation. Ramos responded that he did not want to talk.

 II. The Search of Perez's Father's Apartment

 The evidence at the suppression hearing established that on March 15, 1996, at approximately 5:30 am, 10 to 15 FBI agents and New York City Police Detectives went to 2150 Creston Avenue in the Bronx to execute an arrest warrant for Orlando Perez. One group of officers went to Apartment 3C and another group went to Apartment 4H. The group that went to Apartment 4H knocked on the door and announced "police" or "FBI." A few minutes later, the door was opened by Jaime Ortiz ("Ortiz"), Perez's father. Ortiz informed the officers that his son was not present and had left town the previous day.

 With their guns drawn, the officers entered the apartment without asking Ortiz's permission and conducted a "security sweep," looking for Perez in all rooms and closets and confirming that he was not in the apartment. The agents holstered their guns upon completion of the sweep, and no agent had his or her gun drawn after that point.

 Agent Meehan, who entered the apartment immediately after the "entry team" members who conducted the sweep of the apartment, spoke to Ortiz about his son's whereabouts. Ortiz informed Agent Meehan that he believed that the defendant had gone upstate and might be staying with Ortiz's mother or an aunt.

 In response to questioning by Agent Meehan, Ortiz stated that the defendant had taken with him a flowered bag that was part of a matched luggage set, and Agent Meehan asked if she could see what the luggage looked like. Ortiz went into the defendant's bedroom with Agent Meehan and another agent, took a flowered bag out of the closet, and showed it to the agents.

 While Ortiz was retrieving the luggage from the bedroom closet, the agent with Agent Meehan noticed some Latin King-related documents lying on top of a closed green storage bin in the bottom of the armoire next to the closet, and called this to Agent Meehan's attention. The agents then discussed in Ortiz's presence whether to obtain a warrant to search the apartment.

 Agent Meehan asked Ortiz for permission to search the apartment, and informed him that she would like to try to get a search warrant but indicated that would take some time and that it would be faster if he were to consent. In response to questioning by Agent Meehan, Ortiz stated that he rented the apartment and was the sole named tenant on the lease; that his son did not pay rent to him; and that Ortiz had access to his son's bedroom.

 At the hearing, Ortiz testified that the bedroom was solely his son's bedroom, that no one else lived in that bedroom with Perez, that Ortiz never used that bedroom for any purpose and that Ortiz never stored anything in that room. Ortiz further testified that he would never have gone through the items which Perez had in that room because they were his son's personal and private belongings. He also explained ...


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