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UNITED STATES v. TOBON-SIERRA

January 14, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS ALBERTO TOBON-SIERRA, WILLIAM JESUS BALVIN, JUAN ANTONIO VELEZ-MONTOYA and RAYMOND GARCIA, a/k/a "Tony," and FRANCISCO SISO, Defendants.



The opinion of the court was delivered by: COTE

 DENISE COTE, District Judge:

 On May 21, 1996, defendants Jesus Alberto Tobon-Sierra ("Tobon-Sierra"), William Jesus Balvin, Juan Antonio Velez-Montoya, and Raymond Garcia ("Garcia") were indicted for conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 846. On July 25, 1996, in a superseding indictment, Francisco Siso ("Siso") was also indicted for participating in the conspiracy.

 On October 1, 1996, this Court issued an Opinion denying Garcia's original request for a suppression hearing and his motion to suppress on the ground that Garcia lacked standing to raise the issue because he had not submitted an affidavit indicating his privacy interest in the automobile that was the subject of the search. Garcia has now filed an affidavit in support of his motion. For the reasons stated below, Garcia's renewed motion to suppress is denied.

 Facts

 For the purposes of this motion, the following facts are undisputed. This case involves a drug trafficking conspiracy which began in or about April 1996. In April 1996, Tobon-Sierra began meeting with a confidential informant to discuss a purchase of cocaine from the informant. The purchase was eventually scheduled to take place on May 8, 1996 at a McDonald's restaurant in Queens.

 On May 8, while being surveilled by DEA agents, the informant met with Tobon-Sierra inside the McDonald's. They were joined at various times by Balvin and Velez-Montoya. Subsequently, Velez-Montoya left the McDonald's, and later returned in a blue Nissan automobile. Following directly behind the Nissan was a grey Buick which was driven by Garcia. Both cars were travelling at a "low rate of speed," and parked directly in front of the McDonald's. Velez-Montoya left the Nissan and entered the McDonald's, while Garcia remained in the Buick. While Velez-Montoya was in the McDonald's, the informant left the restaurant and spoke with Garcia, who was still sitting in the Buick. Garcia told the informant that he had given $ 19,000 to Velez-Montoya for the cocaine.

 Soon after the informant spoke with Garcia, the DEA agents began to arrest the conspirators. Two or three agents wearing identifying jackets began moving toward the Buick from behind. Garcia turned around in the car, looked out the rear window, and then immediately moved to the passenger side and exited the Buick. Garcia began moving "quickly" away from the Buick, and was stopped and arrested "approximately five feet" from the car. Garcia does not dispute any of these facts, but observes in his affidavit that he was "probably more than five feet from the Buick" at the time of his arrest.

 After Garcia was arrested and handcuffed, an agent immediately searched the Buick and found a hidden compartment above the glove compartment in the dashboard. Another agent found a calculator and a scale in the glove compartment. Based on these discoveries, the agents impounded the vehicle. On May 14, 1996, a DEA forensic chemist tested the hidden compartment, and found traces of cocaine. The DEA also determined that the Buick was registered to Felipe DeLacruz, who was listed at a different address than the one Garcia gave to the DEA upon his arrest.

 Garcia's affidavit indicates that he "believed" that he was in legal possession of the Buick, and that he purchased the car in January 1996 for what he describes as "fair consideration." Garcia further states that he "believed" that he received good title at the time of the purchase.

 On October 7, 1996, after the Court had denied Garcia's original motion, the Government informed the Court that it now believed that the defendant's name was not actually "Raymond Garcia," despite the fact that the defendant identified himself as Raymond Garcia to the DEA agents who arrested him. At the time of his arrest, the defendant possessed an identification card from his employer indicating that he was "Raymond Garcia," and the defendant gave both the DEA and Pretrial Services a social security number and date of birth for "Raymond Garcia." The defendant also signed the affidavit filed in support of his motion to suppress with the name "Raymond Garcia." When the Government learned that the "real" Raymond Garcia had been reporting regularly to his probation officer after having been convicted of attempted criminal sale of a controlled substance in the New York State Supreme Court, Bronx County, the Government sent the defendant's fingerprints to the Federal Bureau of Investigation's special processing center. As a result of the fingerprinting examination, the defendant was identified as "Antonio Garcia," who had a more extensive criminal history than Raymond Garcia, and had an outstanding arrest warrant issued by the New York State Department of Corrections because he had escaped from a work release program. At a pre-trial conference on October 9, 1996, Garcia's counsel indicated that he did not wish to contest the Government's assertions in the October 7 letter regarding Garcia's identity. Both Garcia and the Government took the position that a hearing on the motion to suppress is unnecessary since there are no material issues of fact in dispute.

 Discussion

 Garcia moves to suppress all physical evidence seized during a search conducted by DEA agents of the automobile driven by Garcia on the day of his arrest. Garcia argues that (1) he has standing to challenge the search; and (2) that the search was not valid as incident to a lawful arrest because he was not an "occupant" of his vehicle when he was arrested.

 I find that the defendant -- whose name is Antonio Garcia -- filed a false affidavit in support of his motion to suppress insofar as the name he signed was not his real name. Since it would not be appropriate to consider a perjurious affidavit, Garcia has failed to establish that he has standing to contest the search of an automobile that is not registered in his name and for which he has failed to establish a legitimate expectation ...


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