United States District Court, S.D. New York
March 10, 2004.
UNITED STATES OF AMERICA, -against-, NELSON LASSO, Defendant
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Nelson Lasso ("Lasso") has moved to suppress from use at
trial heroin seized form the vehicle he was driving on April 3, 2003, as
well as statements he made following his arrest. As set forth below,
Lasso's motion to suppress is denied.
Lasso was criminally indicted on April 29, 2003 and charged with
conspiracy to distribute heroin and with the distribution of heroin, in
violation of 18 U.S.C. § 846, 841. Lasso filed his motion to suppress
on June 23, 2003. An evidentiary hearing was held on October 8, 2003 and
continued on February 11, 2004. At the October 8, 2003 hearing,
Detectives Michael McGuire ("Detective McGuire") and John Loney
("Detective Loney") of the New York Drug Enforcement Task Force testified
for the government, and Lasso and his sister, Luz Marina Frost ("Frost")
testified for the defense.
On October 9, 2003, the government submitted a letter bringing to light
certain errors in Detective McGuire's and Detective Loney's testimony.
Both detectives testified that Lasso had written his name on the bottom
of a Miranda warnings form and that following his receipt of
the Miranda warnings, he had personally written out a
statement. According to the government,
on returning to Headquarters, the detectives conferred with Senior
Investigator Ulysses Calderin ("Investigator Calderin") of the New York
Drug Enforcement Task Force, who administered the Miranda
warnings to Lasso. Investigator Calderin informed them that he had
written Lasso's name on the Miranda form, following Lasso's
receipt of the Miranda warnings, and that he had transcribed
Lasso's oral statement. The government indicated its intention to "call
Detective McGuire, Detective Loney and Senior Investigator Calderin to
set forth the correct facts regarding the circumstances surrounding the
defendant's statement and receipt of Miranda warnings."
At the February 11, 2004 hearing, Investigator Calderin and Detective
Loney testified for the government.*fn1 Detective Loney testified that
his incorrect testimony at the previous hearing resulted from an
incorrect assumption. He explained:
during the arrest process, there is a lot going on
between photographs, fingerprints, people doing
certain aspects of the case. It's repetitious, and
I observed Mr. Lasso in a room, he was signing
other documents, and I assumed on my part, which I
shouldn't have done, that he had signed that.
(2/11/04 Tr. at 19.)
The parties submitted additional papers, and this motion was marked
fully submitted on February 27, 2004.
On or about April 3, 2003, Detectives McGuire and Loney and
Investigator Calderin were conducting surveillance at 63rd
Street and 3rd Avenue, New York, New York, based on
information from a Confidential Informant. They were advised that an
individual would arrive at this location to make a drug delivery.
While conducting surveillance, the officers noticed a Ford Winstar mini
van ("Winstar"), which was parked but had its motor running. The
driver was talking heatedly on a cell phone. Lasso was driving this
vehicle, owned by his sister.*fn2 The officers claim that they ran a
registration check, which indicated that the Winstar's insurance was
suspended, in violation of the New York State motor vehicle laws.
See N.Y. Veh. & Traff. L. § 319. However, Lasso's
sister testified that the car was insured on April 3, 2003 and that she
called to cancel the insurance after Lasso was arrested. The plates for
the car were not turned in to the DMV until December 2, 2003. (Ex. B.)
The DMV printout from the
license plate for the vehicle indicates that insurance was
suspended on March 3, 2003 (Ex. 1).
Detectives Loney and McGuire approached the car. The government claims
that Lasso consented to the officers searching the vehicle. However,
Lasso claims that he was ordered out of the car at gun point, that the
officers asked him no questions, that they did not ask to see the car's
registration or his driver's license, and that they searched the' vehicle
without his consent. During a search of the Winstar, Detective McGuire
opened a bag, which contained two packets of powder. Lasso was then
arrested. Detective McGuire testified that Lasso was advised of his
Miranda rights in the street prior to his arrest, but Lasso
At the police station, the packets were field tested for the
presence of narcotics, and the test indicated that the powdered substance
was heroin a result later confirmed by the DEA Laboratory.
Lasso made an oral statement confessing his guilt. Officer Calderin
transcribed a written statement for Lasso, which Lasso signed. This
statement indicated Lasso's awareness that he was transporting drugs and
that he was waiting to deliver the drugs to a co-conspirator. The
government alleges that Lasso made the oral statement and signed the
written statement after he was
advised of his Miranda rights. Lasso claims that he first
signed the confession and then was advised of his Miranda
A. The Heroin Will Not Be Suppressed
At the evidentiary hearing, the government did not rely on the
Confidential Informant's information as a basis for the detectives'
decision to approach or search the Winstar.*fn3 The government argues
that the detectives' approach of the Winstar and their search of the
vehicle was independently justified by the vehicle's suspended insurance
and the defendant's consent to search.
There is conflicting evidence regarding when the Winstar's insurance
was suspended. Lasso's sister testified that the vehicle was insured
until after Lasso's arrest, and the plates for the car were not turned in
to the DMV until December 2, 2003. However, the DMV printout from the
license plate for the vehicle indicates that insurance was suspended on
March 3, 2003.
The DMV record, indicating the suspension of insurance on March 3,
2003, is more persuasive than Lasso's sister's testimony. Lasso's sister
first testified that the car insurance was suspended in May; then she
testified that it was suspended at the end of April; and then she
testified that it was suspended a few days after Lasso was arrested.
Lasso's sister brought no documentation of her cancelling the insurance
in April, but rather brought a document showing that the insurance was
valid in January 2003. Her testimony further does not accord with other
DMV records. At one point she testified, "I went to Motor Vehicles, and I
give the plates to them, and then I called the insurance and I cancelled
the insurance." (10/8/03 Tr. at 50.) The DMV record shows that the plates
were not turned in until December 2, 2003 months after Lasso was
arrested. Thus, Lasso's sister did not seem to know the date the car
insurance was suspended, as she herself conceded (10/8/03 Tr. at 48), and
cannot be depended upon to establish this fact.
As Lasso committed a traffic violation by driving without valid
automobile insurance, Detectives McGuire and Loney had probable cause to
approach his vehicle. See N.Y. Veh. & Traff. L. § 319.
"[T]he observation by a police officer of even minor vehicle violations
is sufficient reason to stop a car." United States v. Garcia,
279 F. Supp.2d 294, 298 (S.D.N.Y. 2003). E.g., United States v.
Harrell, 268 F.3d 141, 148-49 (2d Cir. 2001) (observation that car
had tinted windows permitted officers to stop
the car); United States v. Dhinsa, 171 F.3d 721 (2d Cir.
1998) (observation of lane change without signaling permitted officers to
stop the car). It makes no difference that the suspended insurance was
pretextual*fn4 and that the detectives were actually interested in
furthering a drug investigation. The determination of the lawfulness of a
stop is made without regard to the officer's subjective intent, and it is
irrelevant whether the officer even writes a ticket for the observed
violation. Id. at 725-26. The sole question is whether the
officer has the legal authority to stop the car based on the traffic
violation. United States v. SCOPO, 19 F.3d 777, 783-84 (2d Cir.
Lasso next contests that he consented to a search of the vehicle. He
alleges that he was ordered out of his sister's car at gun point, never
asked any questions, and that the vehicle was searched without his
consent. Detectives McGuire and Loney testified that when they approached
the vehicle their guns were out of sight and that they did not use their
weapons at any time. Detective Loney testified that he questioned Lasso,
asked him to produce his driver's license, and then asked him if he would
step out so that the officers could search his vehicle. According to the
government, Lasso acquiesced and then Detective McGuire conducted a
search of the vehicle.
There is thus a contradiction between the officers' testimony and
Lasso's testimony as to what happened when `the officers approached the
vehicle and a difficult question of credibility. As Lasso points out,
Detectives McGuire and Loney both testified falsely as to identical facts
that Lasso signed the Miranda form and wrote out his
confession, casting some doubt on their credibility. However, Lasso has a
strong personal interest in having his version of the facts accepted and
the heroin suppressed. Lasso freely admits that he was found with just
under a kilo of heroin, which he brought with him from Queens to a
meeting with someone in Manhattan. Lasso has also served jail time for
two previous drug convictions. Lasso thus conceded that his "best chance"
of not serving a "long sentence" is "for the evidence in this case to be
suppressed." (10/8/03 at 62.)
Although the mistaken testimony by both detectives at the October 8,
2003 hearing may be suspicious, it was promptly corrected the following
day. Furthermore, in that instance, the officers were testifying about
something with which they were not directly involved. It was Investigator
Calderin who handled Lasso's Miranda rights and confession at
the office, while Detectives McGuire and Loney were the ones that
approached Lasso's car and handled the search. There is, therefore, not
the same concern with a mistake here.
Thus, as the officers' previous mistaken testimony was promptly
corrected and explained, as this time the officers testified about
matters about which they had direct knowledge, and as Lasso has a very
strong self interest in having the evidence suppressed, the government's
version of the facts will be accepted as true.
As Lasso consented to a search of his vehicle, the heroin can be
admitted as evidence. See United States v. Elliot, 50 F.3d 180,
185 (2d Cir. 1995) (holding that warrantless searches do not violate the
Fourth Amendment where law enforcement agents have obtained "the
voluntary consent of a person authorized to grant such consent.")
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)).
B. Lasso's Statement Will Not Be Suppressed,
Detective McGuire and Investigator Calderin both testified that they
advised Lasso of his Miranda rights. Detective McGuire
testified that he advised Lasso of his rights in the street at the time
of his arrest, and Investigator Calderin testified that he advised Lasso
of his rights at the police station prior to his providing an oral
statement, which Investigator Calderin then transcribed and Lasso signed.
The government has thus adequately established that Miranda
warnings were properly administered to Lasso.
Moreover, as Lasso's arrest was proper, there is no fruit of the
poisonous tree problem, and Lasso's statements are *not tainted.
Lasso's motion to suppress is thus denied.
It is so ordered.