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 ...