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U.S. v. TROCHE

January 10, 2002

UNITED STATES OF AMERICA,
V.
CARLOS TROCHE, DEFENDANT.



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

  OPINION

Defendant Carlos Troche ("Troche") has moved (1) to suppress the physical evidence seized from his car on November 4, 2000, as well as any subsequent statements made by Troche on that date, because law enforcement officers lacked "reasonable suspicion" to stop him; (2) to suppress the physical evidence seized from his car because law enforcement officers did not have his consent to search his vehicle; (3) to suppress any statements Troche made to law enforcement on November 4, 2000 at the offices of the United States Customs Service ("Customs") because he was not advised of his Miranda rights and a reasonable person in his position would not have felt at liberty to leave; and (4) to suppress any statements made to law enforcement on March 8, 2001, following his arrest, because he was not advised of his Miranda rights. For the reasons stated below, the motion is granted in part and denied in part.

Prior Proceedings

On March 27, 2001, Troche was charged in a one-count indictment with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). On June 4, 2001, Troche filed the instant motion to suppress. After the parties made their respective submissions, an evidentiary hearing was held on November 1, 2001, at which parties requested and received leave to file post-hearing briefs. On December 26, 2001, the motion was marked fully submitted.

Facts

On November 4, 2000, Detective Frank DiGregorio ("DiGregorio") of the Queens District Attorney's Office received a tip from Khalil Sayed ("Sayed"), a cooperating witness who pleaded guilty to a money laundering charge in the United States District Court for the Eastern District of New York.*fn1 Sayed had previously provided information regarding individuals and companies involved in money laundering, but the information had later turned out to be too vague to be of use.

On the afternoon of November 4, 2000, however, Sayed informed DiGregorio that he had received a telephone call regarding a pick up of approximately $500,000 in drug proceeds from an individual in the vicinity of Broadway and West 72nd Street in Manhattan. The transaction was to occur that same evening at approximately 7:00 P.M. Based on Sayed's call, DiGregorio assembled a field team of agents and later met separately with the team and with Sayed. Pursuant to a plan devised by the field team, DiGregorio instructed Sayed to signal him with a nod when the delivery person made contact. Sayed was also able to provide information by cellular telephone, and was instructed to run away when agents approached to protect his identity and safety.

That evening, agents established their surveillance posts in the vicinity of West 72nd Street and Broadway, and Sayed took his post on the south side of 72nd Street between West End Avenue and Broadway. Between 8:00 and 8:30 P.M., after having waited about an hour, DiGregorio, who was standing due east of Sayed, observed Sayed on the telephone. Sayed then called DiGregorio and told him that the courier had arrived, and that he was in a Lincoln taxi. Meanwhile, Detective Matthew Murphy ("Murphy") of the New York City Police Department, who had been positioned on the north side of 72nd Street, had observed a black Lincoln Town Car circling the block a few times, and the driver, who was talking on a cellular telephone, appeared to be looking for someone. Special Agent Nelson Cortes ("Cortes") of the New York State Commission of Investigations also observed the Lincoln circling the area several times.

Eventually, Troche, the driver of the vehicle, performed an illegal U-turn on 72nd Street and approached the area in which Sayed was standing. Troche then illegally parked his car on the south side of 72nd Street. Sayed approached the car and engaged Troche in conversation through the passenger-side window. Sayed nodded to DiGregorio, who advised the field team that the target had been identified. Approximately eight armed agents then surrounded the car, and Sayed ran away pursuant to the pre-arranged plan. Several officers began speaking to Troche at the same time. Troche, who speaks Spanish but does not speak English, was asked for his driver's license and registration. He was also asked why he was at the location and why the individual standing at his window (Sayed) had run away. Troche responded that he was there to meet someone, but that he did not know why the person ran. When asked if the person who had run away was the person he was supposed to meet, Troche responded "no, I don't know" and claimed that he did not see the person run away. (Tr. at 19). Troche was directed to step out of the vehicle and was subjected to a pat-down search.

When the trunk was opened, the agents found a suitcase that contained a significant amount of United States currency, later determined to be approximately $500,000. The officers asked Troche whether he wanted a receipt for the currency, and he replied that he did. Troche was told that, in order to obtain the receipt, he would have to accompany them to the Customs offices at the World Trade Center.*fn2 Troche was told that he would have to be handcuffed for safety purposes on the trip to the Customs office.

The officers handcuffed Troche behind his back and put him in a police vehicle. Upon arrival at the Customs office, the officers drove Troche through a secure garage area, past a security guard and motorized barricade. The officers escorted Troche on a secure elevator to the El Dorado task force offices. Officers bypassed a publicly accessible reception area and took Troche to a secure arrest processing area across the hall. Troche was then placed in an interview room in the arrest processing area, which also contained a holding cell.

While in the interview room, Troche, who was no longer handcuffed, spoke with Agent Millie Martin ("Marin"). Marin asked Troche about his nationality and the two discussed several personal matters concerning his background. Troche was not given Miranda warnings prior to or during the questioning, but made several inculpatory statements regarding the money that had been seized. At the hearing, Marin testified that Troche voluntarily stated this information, but that she would follow-up to clarify "a lot." (Tr. at 96, 101). A contemporaneous investigatory report by Cortes indicates that the officers "extensively debriefed" Troche. (Confidential Report by Sgt. Nelson Cortes dated Nov. 5, 2000). After the debriefing, the officers consulted with Assistant United States Attorney Nikki Kowalski, who determined that Troche would not be prosecuted at that time. At approximately 11:00 P.M., Troche was given a receipt for the money that had been seized and was permitted to leave.

On March 1, 2001, Murphy filed a criminal complaint against Troche based on the events of November 4, 2000. An arrest warrant was obtained, and Troche was arrested on March 8, 2001 while he was working. Troche was handcuffed, placed in a police vehicle, and transported to the Customs office at the World Trade Center, where he was processed. Troche was advised of his Miranda rights in Spanish and signed a waiver of those rights. Murphy and another officer who spoke Spanish administered the rights, and the Spanish-speaking officer explained what the rights ...


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