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U.S. v. LASSO

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

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 Miranda rights. Lasso claims that he first signed the confession and then was advised of his Miranda rights.

  Discussion

  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. Page 6

  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 Page 7 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. 1994).

  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. Page 8

  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. Page 9

  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. Page 10

  Moreover, as Lasso's arrest was proper, there is no fruit of the poisonous tree problem, and Lasso's statements are *not tainted.

  Conclusion

  Lasso's motion to suppress is thus denied.

  It is so ordered.


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