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U.S. v. LASSO

March 10, 2004.

UNITED STATES OF AMERICA, -against-, NELSON LASSO, Defendant


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

  Prior Proceedings

  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, Page 2 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.) Page 3

  The parties submitted additional papers, and this motion was marked fully submitted on February 27, 2004.

  Facts

  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 Page 4 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 denies this.

  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 Page 5 advised of his ...


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