admonishment that "any
evidence that the accused was threatened, tricked, or cajoled into a
waiver will, of course, show that the defendant did not voluntarily waive
his privilege." Miranda, 384 U.S. at 476.
Applying these considerations, the Court finds that Rodriguez has set
forth sufficiently detailed facts under the analysis described above to
warrant a hearing. Ordinarily, if it is the suspect who, upon receiving
the Miranda warnings, initiates discussion with an officer, and the
officer in response does not engage in express questioning or its
"functional equivalent" and does not create an atmosphere in which his
words and actions are "reasonably likely to elicit an incriminating
response from the suspects", the suspect's statements may be deemed
voluntary, and their use at trial is not prohibited. United States v.
Cota, 953 F.2d 753, 759 (2d Cir. 1992) (quoting Rhode Island v. Innis,
446 U.S. 291, 301 (1980).
Here, Rodriguez maintains that he did not engage the agent in
conversation but that the agent artfully tricked him and that he was thus
essentially duped into incriminating himself. The Government, at this
stage based on statements no more personally attested to than
Rodriguez's, asserts that it was Rodriguez who initiated the conversation
and made inculpatory statements without any prodding by the agent
whatsoever. As advanced, the respective positions squarely raise a
substantial factual dispute, the resolution of which fundamentally rests
on an assessment of the credibility of Rodriguez and the agent. The Court
concludes that a hearing is required in order to determine whether the
agent's comments were in fact the product of an innocuous intent to edify
Rodriguez about the Superseding Indictment's charges against him or
whether they were calculated to encourage Rodriguez to reveal what he
c. Marquez's Suppression Motion
Defendant Marquez requests suppression of statements he made to the
police following his arrest on assault charges in 1997. See Marquez Memo
at 10-11. Marquez claims that although his Miranda rights were
administered to him, the "shock" of his arrest affected his mental state
such that his statements were not knowingly and intelligently made. See
id. At oral argument, counsel emphasized that Marquez's age at the time
of his arrest (15 or 16 years old) contributed to his state of shock and
that Marquez is "entitled to a hearing based upon his age." Tr. at 11.
The dearth of argument and precedent that Marquez devotes to his
contention perhaps illustrates, at least, a somewhat commendable resort
to candor as a proxy for the absence of legal authority. The Court
surmises that many, if not most, criminal defendants, including the
substantial number as young as Marquez was at the time of arrest, are
shocked by their apprehension and custody. If astonishment were deemed to
convincingly abrogate a defendant's capacity to voluntarily, knowingly
and intelligently waive his Miranda rights, the number of suspected
criminals invoking the doctrine would flourish, effectively nullifying
the Miranda waiver. Such a loophole is unlikely to have escaped the
Supreme Court's consideration.
Nonetheless, even if the Court did not summarily reject Marquez's
"shock" theory of his suppression claim and were willing to consider that
in a proper case "shock" may indeed vitiate the waiver of Miranda
rights, Marquez does not cite to a single legal authority to support his
position. Moreover, even under this expansive standard for which the Court
has found no
authority, Marquez would not prevail for the simple reason
that he fails to supply any facts with sufficient detail and specificity
to justify a hearing. Marquez offers no more than a conclusory assertion
and fails to describe why the nature and degree of his shock was
disabling. Accordingly, Marquez's motion for suppression of his
post-arrest statements, or in the alternative, for a hearing, is denied.
2. Suppression of Physical Evidence
Santiago moves to suppress physical evidence recovered from the vehicle
he was driving when arrested on March 15, 1998. See Santiago Memorandum
of Law in Support of Pre-Trial Motions, dated Feb. 21, 2001 ("Santiago
Memo"), at 4-6. Santiago alleges that the search was unreasonable under
the Fourth Amendment because New York City police officers did not
conduct a narrow inventory search for purposes of impounding the
vehicle, but instead used the impoundment as an opportunity to act
excessively on their suspicions of his criminality. See id. at 5-6. The
physical evidence recovered from the car includes a loaded .22 caliber
Derringer; a loaded Lorcin .380 caliber semiautomatic; stolen license
plates; and bullets. See Government Memo at 34; Affirmation of Gary S.
Villanueva, sworn to Feb. 21, 2001 ("Villanueva Aff."). ¶ 6.
In order to sustain a challenge to the legality of a search, a
defendant must demonstrate that the Government infringed his Fourth
Amendment rights. See Rakas v. Illinois, 439 U.S. 128, 133 (1979). Fourth
Amendment rights are personal and cannot be vicariously exercised. See
Simmons v. United States, 390 U.S. 377, 389 (1968).
In Rakas, the Supreme Court rejected petitioners' argument that they
had been subjected to an illegal search as passengers in another person's
car. The Rakas Court held that petitioners' failure to establish a
property or possessory interest in the car or the items seized precluded
them from arguing that their Fourth Amendment search and seizure rights
had been violated. See Rakas, 439 U.S. at 148. The Court also reaffirmed
its holding that the expectation of privacy in a car is not equivalent to
the privacy expectation in a home. See id. at 148; see also United States
v. Martinez-Fuerte, 428 U.S. 543, 561 (1976).
In United States v. Smith, 621 F.2d 483, 489 (2d Cir. 1980), cert.
denied, 449 U.S. 1086 (1981), the Second Circuit expounded upon the
status of the law in the wake of Rakas. In a challenge to the
admissibility of search and seizure evidence, the court declared:
The threshold question must be whether the defendants had
any legitimate expectation of privacy in the area
searched; only after that analysis is completed and the
answer is yes may the defendant challenge the use of the
fruits of the search as evidence. Thus, the threshold
question of whether the defendant had a legitimate
privacy expectation and the subsequent use of the fruits
of the contested search as evidence are entirely separate
Thus, in the instant case, it must initially be determined whether
Santiago had a legitimate expectation of privacy in the car he was
driving at the time of his apprehension and from which the challenged
evidence was seized. "To prove this privacy interest, it is not necessary
that defendant own the vehicle.
Instead, defendant must show, among other things, a legitimate basis
for being in the vehicle, such as permission from the
owner." Ortega v.
United States, 897 F. Supp. 771, 777-78 (S.D.N.Y. 1995). Under Second
Circuit precedent, permission from the owner of a car to use it and
possession of the car keys have been held to establish an adequate privacy
interest such that a defendant may challenge the fruits of a search. See
United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir.), cert. denied,
444 U.S. 955 (1979). See also, United States v. Ponce, 947 F.2d 646, 649
(2d Cir. 1991), cert. denied, 503 U.S. 943 (1992).
As the Government points out, Santiago did not allege in an affidavit
that he had an ownership or possessory interest in the car. See
Government Memo at 33. In his moving papers, however, Santiago insists
that he had lawful possession of the car. See Santiago Memo at 5 n.1.
This contention was repeated at oral argument when Santiago's counsel
The entire record before this court demonstrates that
Mr. Santiago was driving the car in which he had the
keys, in which he possessed the relevant and necessary
ownership papers, including registration and insurance
card, that when that car was stopped the police
officers contacted the custodian or registered owner.
All facts indicated that Mr. Santiago had lawful
possession of the vehicle.
Tr. at 20.