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U.S. v. ZABALA

May 28, 1999

UNITED STATES OF AMERICA
v.
ELVIS ESPINOSA ZABALA, A/K/A "ELVIS ZABALA," A/K/A "ELVIS ESPINOSA," DANCALIS MERCEDES GARCIA, A/K/A "MARISA ESPINOSA," LOUIS RAFAEL ORTIZ-PUJOLS AND GIL MANUEL PENA-CARRION, A/K/A "BIENVENIDO DUGLAS," DEFENDANTS.



The opinion of the court was delivered by: Parker, District Judge.

  MEMORANDUM DECISION AND ORDER

Defendants Zabala, Garcia and Ortiz-Pujols had moved inter alia to suppress physical evidence and statements made following their arrest on April 14, 1998. The motions were referred to the Honorable George A. Yanthis U.S.M.J., who, in a Report and Recommendation dated February 4, 1999, recommended that the motions be denied in their entirety. Familiarity with the Report is presumed. The defendants filed timely objections to the Report and Recommendation. Accordingly, this Court reviews de novo the findings and recommendations to which objections have been made. See 28 U.S.C. § 636(b)(1)(C).

Specifically, Judge Yanthis made the following recommendations to which objections have been lodged:

1. He recommended against suppression of a duffel bag containing $310,000 in cash seized on April 14, 1998 on the ground that defendants Zabala and Ortiz-Pujols were initially detained pursuant to a valid Terry stop and, in any event, abandoned the duffel bag;

2. He concluded that an initial entry on April 14, into apartment 7G at 143 Bruce Avenue, Yonkers, New York, was consensual and that an ensuing security sweep was proper;

3. He concluded that a search later of apartment 7G pursuant to a warrant was proper and recommended that the items seized during that search should not be suppressed;

4. He concluded that subsequent searches, building on the information obtained from the Bruce Avenue search, occurred pursuant to valid warrants;

5. He concluded that statements made by Zabala and Ortiz-Pujols disclaiming ownership of the duffel bag were admissible and that statements made by defendant Garcia at the police station, as well as statements made between her and Zabala, should not be suppressed; and

6. He concluded that defendants' severance motion should be denied.

The Court's resolution of defendants' various objections follows.

Defendants Zabala and Ortiz-Pujols take sharp exception to Judge Yanthis' refusal to suppress the duffel bag and, in particular, his conclusion that their stop on Bruce Avenue and subsequent restraint constituted a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Defendants, in essence, argue that the circumstances of the encounter, especially the level of force and restraint employed by the arresting officers exceeded what is permissible under Terry. Defendants also point to the fact that earlier on the day of their arrest, the investigating officers met and planned to stop and search them if they were again seen moving apparently full duffel bags from Bruce Avenue. This constellation of factors, according to the defendants, amounted to a full-blown arrest, not a Terry stop.

As an initial matter, the government contends that each of the defendants has failed to establish standing to contest the search of the duffel bag. It is well established that "[t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). To meet this test a defendant may establish the existence of rights protected by the Fourth Amendment by showing (a) that he enjoyed an expectation of privacy that society is prepared to recognize as reasonable, and (b) that he conducted himself and dealt with the property in a way that indicated a subjective expectation of privacy. United States v. Perea, 986 F.2d 633, 639 (2d Cir. 1993); California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). It is reasonably well established that one need not be the owner of the property for the privacy interest to be one that the Fourth Amendment protects, so long as one has the right to exclude others from dealing with the property and conducts oneself in a manner consistent with these expectations. It is also clear that a person who possesses personal property belonging to another, and who has a right to exclude third persons from possession of that property, has a protected interest in the property. United States v. Perea, 986 F.2d at 640; United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir. 1979).

In their initial motions to suppress, the sole averment relating to standing by defendant Ortiz-Pujols was that "At no time did I consent or give permission for the police to search the duffel bag found in the trunk of the maroon Lincoln Town Car (N.Y. Registration T1788787C)." Zabala, on the other hand, tendered no substantive affidavit or other testimony of his own to attempt to establish standing but, in a cursory fashion, merely adopted the lengthy recitation of the purportedly relevant facts in his counsel's affidavit.

At the Court's invitation, standing was revisited at a May 19, 1999 hearing at which both Zabala and Ortiz-Pujols testified to supplement the record. Zabala testified that he "possessed a duffel bag and the money inside of it" and placed it in the trunk of the car. Ortiz-Pujols similarly testified, in response to his counsel's ...


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