The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
In March 2000, three law enforcement agents followed Anabel Perez into
an elevator and asked him if they could look inside a large plastic
cooler that he had placed by his feet. When Perez gave them permission,
an agent opened the cooler and "found over twenty-six brick-shaped
objects wrapped in a combination of cellophane and/or tape." Complaint
¶ 4. "The officers asked Perez what the objects were, and Perez said
[the bricks were] narcotics." Id. Perez was immediately placed under
arrest and subsequently charged with possession of more than five
kilograms of cocaine with intent to distribute. See id. (citing
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 841(b)(1)(A)).
Perez has moved pursuant to Federal Rule of Criminal Procedure 12(b)
(3) to suppress all physical evidence found and all statements that he
made as a result of the encounter on the grounds that (1) he was
unlawfully detained and (2) his consent was involuntary. See 9/29/00
Notice of Motion; 9/29/00 Affirmation of Louis R. Aidala, Defendant's
Attorney, in Support of Motion to Suppress ("Def. Aff."). An evidentiary
hearing was held on November 6, 2001, and oral argument was heard on
December 10, 2001. For the reasons below, the motion to suppress is
The Fourth Amendment states: "The right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause. . . ." U.S. Const. amend. W. "As our [Fourth
Amendment] cases make clear, there are three levels of interaction
between agents of the government and private citizens" with each level
requiring a different degree of justification. United States v. Tehrani,
49 F.3d 54, 58 (2d Cir. 1995). First, the police may initiate a voluntary
encounter with an individual and ask questions as long as the person is
willing to listen. See Brown v. City of Onconta, 221 F.3d 329,
340 (2d Cir. 2000). Such an encounter does not constitute a seizure and
therefore does not require any justification nor "trigger Fourth
Amendment scrutiny unless it loses its consensual nature." Florida v.
Bostick, 501 U.S. 429, 434 (1991). Second, the police may briefly detain
a person as part of an investigation if
they have "a reasonable suspicion
supported by articulable facts that criminal activity `may be afoot'."
United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,
392 U.S. 1, 30 (1968)). Third, the police may arrest an individual if
they have probable cause to believe that he has committed a felony or a
criminal offense in the police's presence. See Atwater v. City of
Lago Vista, 121 S.Ct. 1536, 1557-58 (2001). A consensual encounter
ripens into a seizure, whether an investigative detention or an arrest,
when a reasonable person under all the circumstances would believe he
was not free to walk away or otherwise ignore the police's presence.
See United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992). "The
test is an objective one based on how a reasonable innocent person
would view the encounter." Id. (citations omitted).
B. Search of a Suspect or His Property
The Fourth Amendment also "generally requires police to secure a
warrant before conducting a search." Maryland v. Dyson, 527 U.S. 465, 466
(1999) (per curiam). Warrantless searches "conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment — subject only to a few
specifically established and well-delineated exceptions." Katz v. United
States, 389 U.S. 347, 357, (1967)."[O]ne of the specifically established
exceptions to the requirements of both a warrant and probable cause is a
search that is conducted pursuant to consent." Schneckloth v.
Bustamonte, 412 U.S. 218, 219, (1973). See also Anobile v. Pelligrino,
274 F.3d 45, 61 (2d Cir. 2001).
Once a defendant establishes a basis for a suppression motion, the
government must prove that the search was proper by a preponderance of
the evidence. See See also United States v. Mendenhall, 446 U.S. 544, 557
(1980); United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974); Bumper
v. North Carolina, 391 U.S. 543, 548 (1968); United States v. Calvente,
722 F.2d 1019, 1023 (2d Cir. 1983).
On March 1, 2000, five agents from the Drug Enforcement Agency
("DEA"), New York State Police and New York City Police Department were
observing a building located at 2545 Sedgwick Avenue in the Bronx, New
York. See 11/6/01 Transcript ("Tr.") at 26, 129-30; 3/3/00 DEA Report of
Investigation. Based on past experience, the agents had concluded that a
high level of drug trafficking centered around the building and that
drugs were stored in different apartments inside the building. See Tr. at
26, 130, 158-59. Since November 1998, the agents had arrested between
four to six people in the building; they had also seized multiple
kilograms of cocaine and more than a kilogram of heroin. See id. at 21,
Around two o'clock in the afternoon, Special Agent Timothy Plancon was
positioned across the street from the building when he observed a man
slowly drive a dark-colored Lexus in front of its entrance.*fn1 See id.
at 22-23, 28-29. The
driver would later be identified as the defendant,
Anabel Perez. See Complaint ¶ 2. A few minutes later, when Agent
Plancon watched Perez drive by the building's entrance from the opposite
direction, he made a comment about the car to Agent Kevin O'Grady who was
also in the observation post. See Tr. at 26, 29. Shortly thereafter, the
agents saw Perez drive by the building for a third time. See id. at
29-30. Perez then pulled over to the curb about 100 feet from the
entrance. See id. After sitting in the car for a few minutes talking on a
cell phone, Perez got out of the car and walked around to the front of
the car while looking up and down the street in a surveillance-conscious
manner. See id. at 30-31. Agent O'Grady described these events to the
other agents by radio. See id. at 31-32, 132-33, 177.
Perez opened the trunk of the car and removed a large red and white
plastic container (i.e., a Rubbermaid cooler). See id. at 32-33. The top
of the cooler was taped closed and Perez appeared to have difficulty
lifting it. See id. at 33, 136. After placing the cooler on the
sidewalk, Perez removed a suitcase from the back seat of the car and
placed it in the trunk. See id. at 32. Perez then picked up the cooler and
began walking towards the entrance of the building. See id. Perez
continued to look up and down the street. See id. At this point, ...