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U.S. v. PEREZ

February 28, 2002

UNITED STATES OF AMERICA
V.
ANABEL PEREZ, DEFENDANT.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

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 denied.

I. LEGAL STANDARD

A. Seizure of a Suspect

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).

C. Burden of Proof

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).

II. UNCONTESTED FACTS

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, 26.

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, ...


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