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June 9, 2004.


The opinion of the court was delivered by: JOHN GLEESON, District Judge


Defendants Christopher Hiruko and Daniel Gonzalez, Jr. are charged with conspiracy and substantive counterfeiting offenses. Hiruko moves to suppress counterfeit money allegedly seized from the floor in the back seat of the car that he was driving on September 11, 2003, the day the defendants were arrested. Gonzalez seeks to suppress that evidence and the counterfeit money that was seized from his person that day. Both defendants seek suppression of their post-arrest statements.

  The government opposes these motions on the ground that the evidence was obtained as the result of a lawful investigative detention. Specifically, the government asserts two theories, which both rely on the asserted fact that there were two bills on the floor in the rear of Hiruko's car. First, the government contends that the counterfeit nature of those bills was apparent on plain view. Second, it argues that, given the "drug prone location" in which the car was stopped, the bills were properly seized as contraband even if their counterfeit nature was not apparent; then, upon closer inspection, it was clear they were counterfeit. (Tr.*fn1 at 89) (explaining government's "two alternative theories.") Because I find that the government has failed to prove the two bills were even present on the floor in the rear of the car, I grant both of the defendants' motions.


  On September 11, 2003, at 3:00 in the afternoon, Detective John Soto was on a narcotics enforcement patrol in Astoria, Queens, near 49th Street and Ditmars Avenue. He drove an unmarked car accompanied by two brother officers, all of whom were in plain clothes. Soto testified that he observed a gray Nissan, with four occupants, travel at a high rate of speed through that intersection. Soto pulled the police vehicle behind the Nissan. Although an instant earlier the Nissan was allegedly speeding, it was now stuck in heavy traffic. At that time, Soto could see that none of the vehicle's occupants was wearing a seat belt.

  Soto got out of the police car and approached the Nissan's driver, the defendant Christopher Hiruko. About thirty seconds into his interview of Hiruko, Soto's attention was diverted to the two men in the back seat. As Soto put it: "I started to notice the two rear passengers. For me they were acting a little too nervous for a vehicle traffic stop. They were looking at each other, looking at me, looking at each other and looking at me and that immediately raised my suspicions." (Tr. at 15.)

  Soto discontinued his interview of Hiruko and focused on the two men sitting in the back seat, Edwin Rivera (age 17 years) and the other defendant Daniel Gonzalez (age 20 years). Gonzalez was seated behind Hiruko, closer to Soto. Soto claims to have noticed "a large lump" in Gonzalez's right front pants pocket. (Tr. at 16.) He testified that the lump "[c]ould have been narcotics, could have been a small 22 [caliber handgun], it could have been a large wad of money." (Tr. at 37.) Soto further asserted that he saw Gonzalez "fidgeting right around where the bulk was in his pants." (Tr. at 17.) Soto testified that he had a concern for his safety at that point (Tr. at 39), and thus he ordered everyone out of the car.

  Gonzalez exited from the rear driver's side door of the four-door vehicle, and Rivera exited the other rear door. Hiruko exited the driver's seat; 16 year-old Frances Cardona (who was seated in the front seat on the passenger side) exited the front passenger door. Gonzalez was not patted down as he got out; rather, Soto directed him toward the rear of the car, where another officer was positioned. Soto testified that when everyone was out of the car, he viewed two counterfeit $100 bills on the floor in the rear of the car, where Gonzalez had been sitting. Soto stated that all four occupants were then placed under arrest.

  A total of 119 additional counterfeit bills were seized as a result of the arrests. Either 59 or 61 bills were seized from Gonzalez's right front pants pocket and either 60 or 58 bills were seized either from the front passenger side of the car, where Cardona had been sitting, or in Cardona's purse, or perhaps some combination of the two.*fn2 The reason for the confusion over the precise number of bills seized from each source is that although counterfeit was allegedly seized from three locations (Gonzalez's pocket, the front passenger area or Cardona's person, and the back seat floor), only two separate seizures were vouchered. Soto admitted that the two bills seized from the rear seat floor had been had been mixed with GX 1-B, the bills seized from Gonzalez's pocket. (Tr. at 22-25.) On cross-examination, however, Soto could not say whether the two bills that he said he seized from the floor in the rear of the car were vouchered with Gonzalez's bills or into GX 1-A, the bills seized from the front of the car. (See Tr. at 55-56.)

  Just as the handcuffs were coming out — "as soon as [Hiruko] knew he was getting arrested" (Tr. at 31) — Hiruko said he had been arrested on counterfeiting charges in the past, and was on probation. He said he had taught the others in the car how to make counterfeit "as a joke," but he denied participating in making the counterfeit currency seized from the car and from Gonzalez. (Tr. at 32.) Cardona said it was not Hiruko's counterfeit money. She also said they were on the way to the mall to spend the money.

  Because counterfeiting is a federal offense that falls within the investigative jurisdiction of the United States Secret Service, the case was turned over to the Secret Service. On October 7, 2003, Hiruko and Gonzalez were indicted on charges of conspiracy to make and pass counterfeit currency (Count One), making counterfeit currency (Count Two), and attempting to pass counterfeit currency (Count Three). Neither Cardona nor Rivera were prosecuted, apparently because they are juveniles.

  As stated above, the linchpin of these motions is Soto's claim that he observed two bills on the floor of the car behind the driver's seat. I do not credit the testimony that this occurred. Specifically, the government has not proved by a preponderance of the evidence that there were any bills at all in that location. Soto's testimony on this and other issues contained inconsistencies and anomalies that cause me not to credit the testimony.

  For example, Soto apparently told the Secret Service that he saw the bills on the floor of the car "[a]s the officers approached the vehicle." (Compl. ¶ 2.) That, I find, would have been nearly impossible, given the small size of the car and the large size of its rear-seat passengers.*fn3 At the hearing, Soto first testified that he saw the bills after Gonzalez exited the car. (Tr. at 18-19.) Then he said he saw the bills "after I was interviewing the driver and referred my attention to the rear passengers." (Tr. at 50.) At that point, Gonzalez was still in the car. (See Tr. at 15-16.) But immediately after that, Soto again testified that Gonzalez and Rivera were already out of the car when the two bills were found. (Tr. at 51.) Soto apparently told the Secret Service that he noticed the bills were counterfeit because the ink was smeared. (Compl. ¶ 2.) That too, I find, would not have been possible, given the clear appearance of the bills and Soto's vantage point. At the hearing, Soto testified that he noticed the bills were counterfeit not because the ink was smeared, but because "the color of the bills was off." (Tr. at 19). Soto also apparently told the Secret Service that the front-seat counterfeit was seized from Cardona's purse (Tr. at 74), whereas he testified that it was seized from the car itself.

  I might dismiss the foregoing inconsistencies as the byproduct of poor communication if it were not for other troubling features of Soto's testimony. Soto testified that he observed a bulge in Gonzalez's pants when Gonzalez was sitting in the back of the car. I do not credit this testimony. The bills from Gonzalez's pocket were received into evidence at the hearing. When the bills are folded in half and pressed together, they measure barely half an inch in thickness. Soto's ...

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