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United States District Court, Southern District of New York

February 3, 2003


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


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.


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.


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 downstairs, in same black car as last time. (Tr. 12, 46, 47, 60.)

The Court finds that the references to an assignation with a "girlfriend," and Tony's attention to the availability of that person imply that a particular individual with connections to the drug operation was being sent and, thus, that it was reasonable for the federal agents to believe that a particular individual connected with the drug scheme would be arriving at the hotel to pick up Frazat. This, in conjunction with Tony's reference to use of the same car as last time, suggests that it was reasonable for the federal agents to believe that the person coming to the hotel was part of the drug distribution operation, not simply an unaffiliated cab driver.

In addition, Agent Williams testified, Frazat had said a that "a Dominican" would be picking him up. (Tr. 23-24.) Ovalle is Hispanic. Frazat had described a procedure in which he would give a suitcase to driver, the driver would put the suitcase in the car, suitcase would be given to a third person upon arrival at location and that the third person would pay Frazat money for the drugs. (Tr. 25.) Frazat had also described a black car as the pickup vehicle on prior occasions. (Tr. 26.)

Following the telephone calls from Tony, federal agents called other agents in the hotel room and reported that a black limousine was outside the hotel. (Tr. 12, 61.) When Frazat exited the hotel, Ovalle opened the trunk, got out of his black livery automobile and gestured to Frazat to approach — without Frazat make any signals. Ovalle then, without saying anything took the suitcase Frazat was carrying and placed it in trunk of the automobile. (Tr. 12-13, 62, 63-64.) The Court finds that this conduct makes reasonable the federal agents' belief that Ovalle was familiar with Frazat, and that he knew who and what he was to pick up.

Thus, reviewing the record as a whole, the Court finds that the Government has presented sufficient evidence to establish by a preponderance of the evidence that the federal agents had probable cause to believe that Ovalle was a participant in a conspiracy to distribute the drugs in the suitcase carried by Frazat and was thus, committing a crime.

Accordingly, Defendant's motion is denied to the extent it seeks suppression of the physical evidence seized upon Defendant's arrest.

Defendant's Post-Arrest Statements/Miranda Warnings

Defendant Ovalle was in custody from time of his arrest. Federal agents testified that Ovalle was questioned twice: first in Ovalle's automobile a short distance from the scene of the arrest, and a second time at the office of the United States Customs Agency. Ovalle allegedly made exculpatory statements in the automobile and incriminating statements at the Customs office.

The Government proffered evidence that Defendant was not only advised of his Miranda rights, but signed a waiver of those rights. Under Miranda, an uncounseled statement made by an accused during custodial interrogation should be suppressed unless the Government proves that the defendant voluntarily waived his right to counsel and privilege against self-incrimination. See United States v. Gaines, 295 F.3d 293 (2d Cir. 2002). The Government must prove by a preponderance of the evidence that the defendant relinquished his rights voluntarily, with a full awareness of the rights being waived and the consequences of doing so. Id. (citing United States v. Male Juvenile, 121 F.3d 34, 39 (2d Cir. 1997)). For the following reasons, the Court finds that the Miranda warnings given to Defendant were sufficient and that Defendant waived knowingly and voluntarily his right to counsel and privilege against self-incrimination.

Ovalle's Statements in the Automobile

The federal agents' testimony during the evidentiary hearing concerning their interactions with Defendant Ovalle is inconsistent as to when communications with Ovalle began, whether there was any attempt to communicate with him in English before an agent spoke to him in Spanish, and why questioning in car was terminated. (See Tr. 13-14, 36-37, 43-45, 50, 64-65, 74-75, 89-90.)

The agents' testimony is, however, consistent that a Miranda warning was given before Defendant Ovalle made any statements in response to questioning. (Tr. 13, 40-42, 65, 72, 80.) The Government introduced evidence of the content of the initial Miranda warning, which was read from a card written in English and Spanish carried by one of the arresting agents. (See Federal Law Enforcement Training Center Legal Division card, Defendant's Ex. A; Tr. 65, 80, 81, 86, 105-107.)

The English version of the card reads as follows:

Before asking any questions, ask if the person is willing to answer questions. If the response is yes, then advise of the Miranda warnings. If the response is no, do not question nor give the Miranda warnings. If there has been no request for counsel, you may return later to attempt questioning.
A waiver is not presumed because the person is silent after the warnings are given.
The warnings:

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to consult with an attorney and to have them present during questioning.
If you cannot afford an attorney, one will be appointed to represent you prior to any questioning.
The waiver:

Do you understand your rights?

Are you willing to waive these rights and talk to me?

Defendant's Ex. A.

At the evidentiary hearing, the Court asked the certified Spanish court interpreter to translate the Spanish text of the card, which was translated as follows:

You have the right not to say anything.

Anything you say now can be used against you in a courthouse.
You have the right to speak with an attorney and have him present during the interrogation.
If you cannot pay a lawyer, one can be provided to represent you before any interrogation.
The waiver. Did you understand your rights? Are you willing to give up these rights and talk to me?
(Tr. 105-106.)

Defendant Ovalle argues that the first Miranda warning was deficient because the Spanish version of the card advises that statements can be used against the accused in a "courthouse" rather utilizing than the traditional "court of law" formulation. The Court finds that this distinction is not significant.*fn1 In his post-hearing papers, which were apparently prepared before counsel received a copy of the English/Spanish warning card, Defendant further argued that the warning on the card was defective because it omitted advice that a lawyer could be consulted before questioning and could be present at interrogation, and that the card did not say that a lawyer will be provided free of charge if the defendant cannot afford a lawyer. However, the card does include this information in substance. (See Ex. A.)

Defendant also points out, accurately, that the card does not say specifically that an accused individual can stop the questioning at any time and it also does not include advice that a foreign national may contact his Embassy. (See also Tr. 92.) Concerning whether Defendant should have been advised that he may stop questioning at any time, the Second Circuit has held that "[t]he Supreme Court did not prescribe an exact format to be used in advising a suspect of his constitutional right to remain silent, but rather left to the courts the duty of guarding against any invasion of that right. In resolving these questions of the adequacy of the warning we should give precedence to substance over form." United States v. Lamia, 429 F.2d 373, 376 (2d Cir.) cert. denied, 400 U.S. 907 (1970). Here, the federal agents told Defendant that he had the right to remain silent and that anything he said could be used against him. That warning encompassed Defendant's right to remain silent during the federal agents' interrogation. Moreover, there was no testimony concerning persistent interrogation by the federal agents. Had Ovalle expressed a wish to exercise his right to remain silent in the course of questioning, and the questioning nonetheless continued, then his right to remain silent would have been violated. There is no evidence that he made such a statement during the questioning by the federal agents. See United States v. Lamia, 429 F.2d at 376; see also United States v. Alba, 732 F. Supp. 306, 310 (D.Conn. 1990) ("[t]here is nothing in Miranda which requires a statement that one who answers questions has the right to stop doing so.").

Concerning Defendant's contention that he should have been advised of his right to notify his consulate, the Second Circuit, among other Circuits, has held the consular-notification provision of the Vienna Convention*fn2 does create any fundamental rights for a foreign national. See United States v. De La Pava, 268 F.3d 157, 165 (2d Cir. 2001) (determining that "the Government's failure to comply with the consular-notification provision [of the Vienna Convention] is not grounds for dismissal of [an] indictment."); see also United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000) ("there is no right in a criminal prosecution to have evidence excluded or an indictment dismissed due to a violation of [the consular notification provision of the Vienna Convention]."); United States v. Chaparro-Alcantara, 226 F.3d 616, 618 (7th Cir. 2000), cert. denied, 531 U.S. 1026 (2000) (holding that dismissal of an indictment is not an available remedy for a violation of the Vienna Convention); United States v. Nai Fook Li, 206 F.3d 56, 60 (1st Cir. 2000) (en banc), cert. denied, 531 U.S. 956 (2000) ("the appropriate remedies [for lack of consular notification] do not include suppression of evidence or dismissal of the indictment."); United States v. Lombera-Camorlinga, 206 F.3d 882, 887-88 (9th Cir. 2000) (en banc) (failure to comply with Article 36(1)(b) did not warrant exclusion of post-arrest statements made by a foreign national). The Court, accordingly, holds that failure to notify Defendant Ovalle of his right to contact his consulate did not infringe his rights under Miranda and does not warrant suppression of the statements made following administration of the warnings from the card.

Further, Agent Morales testified that Ovalle listened to and indicated that he comprehended his rights as read to him. (Tr. 66, 87-88, 96-97.) The Court finds the testimony of Agent Morales credible and sufficient to carry Government's burden of showing that Defendant made a knowing and voluntary waiver of his Miranda rights in connection with interrogation in the automobile.

The Second Miranda Warning

For reasons the testimony at the evidentiary hearing did not make clear, the agents stopped questioning Defendant Ovalle in the automobile after he protested his innocence. They transported Defendant to the Customs office, processed him and then renewed questioning following a second administration of Miranda warnings. (Tr. 14, 48, 50, 102-103.) On this occasion, written and verbal versions of warnings were given. Agent Morales testified that he read a printed form to Ovalle and that Ovalle also looked at the form. Ovalle executed an acknowledgment and waiver form and indicated comprehension of his rights. Agents Morales and Agent Williams signed the form as witnesses. (See Government Ex. 3;) (Tr. 14, 49, 67-68, 86, 93-94, 96, 99-100, 104.) Defendant made inculpatory statements following this second administration of the Miranda warnings.

This second Miranda warning included a more extensive version of the advice of rights. Defendant Ovalle raises no issues with respect to its content, contending only that evidence presented at the suppression hearing was insufficient to establish that Defendant's waiver was knowing and voluntary.

Upon examination of the evidence, the Court finds that the written waiver acknowledgment, together with testimony concerning reading of rights to Defendant Ovalle on both occasions and his responses to the rights advisories, was sufficient in totality to carry the Government's burden of demonstrating by a preponderance of the evidence that Defendant Ovalle knowingly and voluntarily waived his rights before making statements at the United States Customs office.


For the foregoing reasons, the Defendant's motion to suppress evidence is denied in its entirety, as the Government has shown a lawful basis for the arrest and seizure of evidence in connection therewith and that Defendant Ovalle knowingly and voluntarily waived his rights prior to making the challenged statements.


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