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U.S. v. OVALLE

February 3, 2003

UNITED STATES OF AMERICA,
v.
JOSE OVALLE, DEFENDANT.



The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

MEMORANDUM AND ORDER

Defendant Jose Ovalle is charged in a two-count indictment with conspiracy to distribute and possess with intent to distribute "ecstasy" in violation of the federal narcotics laws, as well as with attempting to commit the same substantive offense. Ovalle has moved to suppress all physical evidence seized from his person and from his automobile and to suppress statements made by him subsequent to his arrest on June 24, 2002. An evidentiary hearing was held on November 15, 2002. Following the evidentiary hearing, the Court ordered the parties to submit post-hearing briefs. Upon consideration of the submissions of the parties, the evidence presented at the evidentiary hearing and for the reasons set forth below, the motion to suppress is denied.

BACKGROUND

The following facts are undisputed. Prior to June 24, 2002, United States Customs agents detained an individual named Gerard Frazat (co-defendant in this case) at the Canadian border and found that he was carrying ecstasy pills in his luggage. Frazat was arrested and subsequently stated that the pills were being delivered to an individual in Manhattan. Frazat stated that he had made two previous deliveries of ecstasy to New York City. Frazat agreed to arrange for a "controlled delivery" of the pills.

The controlled delivery took place on June 24, 2002, from a hotel located at 8th Avenue and 48th Street in Manhattan. Frazat made a number of telephone calls and arranged for a pick-up. Frazat was informed that someone would arrive at the hotel to pick him up with the pills. An individual telephoned Frazat and informed him that someone was downstairs. At the direction of the federal agents, Frazat went downstairs with the suitcase containing ecstasy pills. Defendant Ovalle was observed getting out of a livery cab. He took Frazat's suitcase and placed it in the trunk of his livery cab. At that point, Defendant Ovalle was arrested. At the time of the arrest, federal agents searched Defendant Ovalle and removed physical evidence from his person and automobile.

Subsequent to his arrest, Defendant answered questions from the arresting federal agents concerning his relationship with the passenger. He later made additional statements concerning his involvement in subject matter of this case.

Defendant Ovalle contests the sufficiency of the information received by the federal agents prior to Defendant's arrest to justify the detention of Defendant and the seizure incident thereto. Defendant Ovalle also seeks suppression of his post-arrest statements, arguing that the arresting officers failed effectively to advise him of his Miranda rights. The evidence relating specifically to these disputed issues is detailed herein.

DISCUSSION

Justification for Detention and Search

Defendant argues that the federal agent's observations of Defendant Ovalle's conduct outside the hotel were insufficient to justify an investigative stop of the Defendant. See Terry v. Ohio, 392 U.S. 1 (1968); Defendant's Memorandum at 2-3. Because the Court finds that the totality of information possessed by the law enforcement officials provided probable cause for the arrest of Defendant, the motion is denied insofar as it seeks suppression of the evidence recovered at the time of the arrest.

"Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990) (citing cases). "The process does not deal with hard certainties, but with probabilities," and the evidence "must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Texas v. Brown, 460 U.S. 730, 742 (1983) (internal quotations omitted). Moreover, "`where law enforcement authorities are cooperating in an investigation . . ., the knowledge of one is presumed shared by all.'" Calamia v. City of New York, 879 F.2d 1025 (2d Cir. 1989) (quoting Illinois v. Andreas, 463 U.S. 765, 771 n. 5 (1983)). See also United States v. Cruz, 834 F.2d 47, 51 (2d Cir. 1987). The Government bears the burden of establishing probable cause. See United States v. Elgisser, 334 F.2d 103, 110 (2d Cir. 1964).

The Court finds, based on the evidence presented at the hearing, that there was probable cause for Defendant's arrest. Prior to Ovalle's arrest, co-defendant Gerard Frazat was arrested after crossing the Canadian border into the United States. Five kilos of ecstasy were found in Frazat's suitcase. (Tr. 5.) Frazat agreed to cooperate in a controlled delivery of ecstasy and to provide information concerning his supplier and the arrangements for the delivery of drugs to New York City. (Tr. 5-6.) Frazat told federal agents that he was supposed to call a contact in Amsterdam when he arrived at hotel in New York and give the contact his location, and that arrangements would be made for delivery of the ecstasy. (Tr. 7.) Frazat also explained to the federal agents the procedures for the drug delivery, which included pickup by the same car used to deliver the ecstasy on his prior trips. (Tr. 8.)

At a hotel in Manhattan, Frazat placed a call, which was monitored by the federal agents, to a person identified as "Tony." (Tr. 8.) In this call, he confirmed that he had arrived in New York and told Tony the location of the hotel. (Tr. 8, 53-55, 57-58.) Subsequently, three telephone calls were made to Frazat from the person federal agents believed to be Tony. (Tr. 11.) In coded conversations, Tony asked whether Frazat was ready to see his "girlfriend" and indicated that he would check the availability of that person and whether they could meet that evening or the next morning. (Tr. 11, 58-60.)

In a subsequent telephone call, Tony stated that he had contacted the "girlfriend" and that she would be at the hotel in twenty minutes, in same vehicle as last time. In a third telephone call, Tony told Frazat that this girlfriend was ...


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