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
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
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
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 ...