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United States District Court, S.D. New York

July 16, 2004.


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


On March 1, 2004, Defendant Manual Fernandez Jimenez moved to suppress $890,000 in cash seized from bags in the trunk of Defendant's livery cab, and statements made by Defendant at the traffic stop on October 21, 2003, as well as statements made at the police station following the traffic stop. On April 26, 2004, the Court held an evidentiary hearing to determine whether there were facts sufficient to suppress evidence stemming from the traffic stop. Consequently, Defendant brings this motion For the following reasons, Defendant's motion is denied.


  On October 21, 2003, Defendant was arrested and subsequently charged with conspiracy to launder the proceeds of narcotics trafficking in violation of 18 U.S.C. § 1956(h). Prior to the hearing on April 26, 2004, the government declared to the Court that at the hearing, it would not rely on events prior to a traffic violation observed on October 21, 2003 and moved to preclude cross-examination of the government witnesses regarding the scope, nature and subject matter of its ongoing investigation. (Letter from Joan Loughnane to Judge Patterson of 4/14/04.) The government's application was granted. The facts developed at the hearing on April 26, 2004, show the following.

  At approximately 9:50 p.m. on October 21, 2003, Officer Daniel Santiago of the New York City Police Department observed a black Lincoln livery cab, which was heading north on 10th Avenue in front of him, make a left turn on to 29th Street without signaling the turn. (Tr. at 6-8.) Officer Santiago then turned on his sirens and motioned the Lincoln over to the side of the road. (Id. at 9.) He and Officer Karl (his partner) approached the car. (Id. at 34.) Officer Santiago, who speaks Spanish and English asked the driver (Defendant) in English for his license and registration and the driver responded in English and complied. (Id. at 9-10.) Officer Santiago told Defendant that he had been stopped for making a turn without signaling, then checked Defendant's turn signal to determine if it was functioning properly. (Id. at 9-10.) Officer Santiago testified that Defendant was not free to go as Officer Santiago was talking to him. (Id. at 25.)

  Det. Fred Klie of the United States Customs Task Force was riding in the patrol car with Officers Santiago and Karl that evening. (Id. at 33.) After Officer Santiago spoke with Defendant, Det. Klie approached the Lincoln and asked Defendant, in English, where he was coming from. (Id. at 34.) According to Det. Klie, Defendant "responded that he was someplace in the 80s, he met an individual up there who told him to come down and he was going to meet him on 10th and 20 something or other." (Id. at 35.) Det. Klie asked Defendant if he had drugs or paraphernalia in the car. (Id. at 36.) According to Det. Klie, after Defendant replied in the negative, "I then asked him if I could have consent to search the vehicle, which he said yes, and I asked him if I could search his trunk. In fact, he reached down and popped the trunk for me." (Id.) Det. Klie testified that he then asked Defendant to step out of the car. Next, Det. Klie searched the interior of the car and looked in the trunk. (Id. at 37.) Inside the trunk were two duffel bags and one black, plastic bag. (Id. at 40.) Upon opening one of the bags, Det. Klie observed a large amount of United States currency. (Id.) He testified that he did not ask Defendant's permission to open the bag. (Id. at 43.) When the Detective asked Defendant whose bags they were, Defendant replied that they belonged to the individual up in the 80s who was supposed to meet him in the 20s. (Id. at 40.) Officer Santiago then handcuffed the Defendant and brought him to the precinct. (Id. at 45.)

  Officer Santiago testified that no one told Defendant that he had the right to refuse the search and Det. Klie did not explain why the car was searched. (Id. at 26.) Officer Santiago added that Defendant did not appear dangerous at time of search. (Id. at 27.) He stated that he had not run the Defendant's license and registration, as he was going to stop Defendant anyway. (Id. at 23-24.)

  Det. Klie testified that when he asked the Defendant for consent to search, Defendant was "extremely cordial," "friendly," and "helpful." (Id. at 37.) Det. Klie stated that he used his normal speaking voice, did not speak to Defendant in a threatening fashion, and did not have his weapons drawn. (Id. at 36-37.)

  Upon Defendant's arrival at the precinct, Det. Jose Correa of the United States Customs money laundering group (id. at 47) gave Defendant his Miranda warnings in Spanish, both verbally and in writing. (Id. at 48; see Gov't Ex. 2.) Defendant initialed each sentence of a Miranda advice of rights form and signed it. (Gov't Ex. 2.) After Det. Correa administered the Miranda warnings, he asked, in Spanish, whether Defendant was willing to speak with him and other agents. Defendant responded that he had no reason not to talk to them. (Tr. at 52.) Det. Correa and two agents then spoke to Defendant for one and a half to two hours. (Tr. at 48, 53.) The four of them sat around a table in the break room of the precinct. At one point they took a break and the detectives provided Defendant with a Snapple. (Id. at 53.)

  In his affidavit, Defendant states, "Upon arriving at the precinct, I was advised of my rights, and I asked if I needed a lawyer . . . They then advised me that if I did not say the truth I would never see my family again, and I would spend many years in jail." (Affidavit of Manuel Fernandez-Jimenez at ¶ 7.) Det. Correa testified that at no point in the questioning did the Defendant ask for an attorney or ask whether he needed an attorney. (Tr. at 54.) Det. Correa also testified that no one presented Defendant with photos of his wife and children, nor did he nor anyone tell Defendant, in the detective's presence, that Defendant would spend "many years in jail," nor did anyone tell Defendant that he would never see his family again. (Id. at 55.)


  Defendant concedes that though the traffic violation may have been a pretext to stopping Defendant, the initial stop is justified if a traffic violation occurred. (Mem. Law Further Supp. Def. Manuel Fernandez-Jiminez's Mot. Suppress Evidence [hereinafter "Def.'s Mem."] at 4 (citing Whren v. United States, 317 U.S. 806, 811-12 (1996))); see also United States v. Dhinsa, 171 F.3d 721, 724-25 (2d Cir. 1999) ("[A]n officer's use of traffic violation as pretext to stop a car in order to obtain evidence for some more serious crime is of no constitutional significance."). Defendant does not concede, however, that a traffic violation did occur. He states in an affidavit, "I did not make any illegal turns to the best of my recollection."*fn1 (Affidavit of Manuel Fernandez-Jimenez at ¶ 3.) Both Officer Santiago and Det. Klie testified that they saw Defendant make a left turn without a turn signal. (Tr. at 7-8, 34.) Failure to signal a turn is prohibited under New York Law. N.Y. Veh. & Traf. L. § 1163(b).*fn2 Det. Klie and Officer Santiago were both credible witnesses and their observations that no turn signal was used show that Officer Santiago had reasonable grounds to believe that a traffic violation occurred, thereby justifying the traffic stop.

  Defendant claims that the continued detention and the consent to search are invalid. (Def.'s Mem at 4.) Incident to a lawful traffic stop, a police officer may, inter alia, request the driver's license and registration and inquire where the driver is going to and coming from. United States v. Sparks, No. 03cr269, 2004 U.S. Dist. LEXIS 2278, at *14 (S.D.N.Y. Feb. 13, 2004). "Detention beyond the time required to resolve the initial observed or suspected violation is only permitted where observations amounting to an articulable and reasonable suspicion justify a further intrusion." United States v. Restrepo, 890 F. Supp. 180, 193 (E.D.N.Y. 1995).

  Here, Officer Santiago asked Defendant for his license and registration (Tr. at 9), and Det. Klie inquired of Defendant where he was going and where he was coming from (id. at 34). These inquiries of Officer Santiago and Det. Klie were both within the scope of a traffic stop. See Sparks, 2004 U.S. Dist. LEXIS 2278, at *14. In response to Det. Klie's inquiry about the destination of his trip, Defendant explained he had met an individual "someplace in the 80s" who directed Defendant to meet him "on 10th and 20 something or other." (Tr. at 35.) This instruction is so out of the ordinary that a reasonable police officer could conclude that someone who would hire a livery cab and direct the livery cab to meet him at another location in the city, might be using the livery cab to transport contraband with or without Defendant's knowledge. Accordingly, Det. Klie asked Defendant if he had any drugs or paraphernalia in the vehicle. (Tr. at 36.) Upon receiving a negative answer, it was reasonable for Det. Klie to request Defendant's consent to search the vehicle.

  Defendant asserts that he did not voluntarily give his consent to search his car. (Def.'s Mem. at 5.) Consent is invalid if Defendant's "will has been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047 (1973). In making this determination, courts must consider the totality of the circumstances including the characteristics of the defendant, the behavior of the officer, and the conditions surrounding the request for consent. Green v. Scully, 850 F.2d 894, 901-02 (2d Cir. 1998) (citing Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047). A defendant may give consent while in custody. United States v. Moreno, 897 F.2d 26, 33 (2d Cir. 1990). Fourth Amendment search and seizure analysis is based on the objective test of a what a reasonable officer would think in those circumstances. United States v. Newton, 369 F.3d 659, 673-74 (2d Cir. 2004).

  Here, an analysis of the totality of the circumstances makes clear that a reasonable officer would think that Defendant's consent was voluntary. Det. Klie testified that Defendant's attitude was "extremely cordial," "friendly," and "helpful." (Tr. at 37.) Both Officer Santiago and Det. Klie testified that Defendant's replies in English were responsive to their questions. (Id. at 10, 36.) Neither of them drew their weapons or intimidated Defendant. (Id. at 36-37.) Defendant was only placed in handcuffs after the statements had been made and the currency found. Though Defendant was detained pursuant to a traffic stop, and was not informed of his right to decline the search, his cooperative behavior and the calm, non-threatening behavior of Officer Santiago and Det. Klie are evidence that the consent was voluntary. Moreover, the stop occurred on a public street in Manhattan in the evening. See, Moreno, 897 F.2d at 33 (considering that consent occurred in a public place as a factor in determining that consent voluntary).

  Defendant asserts that he could not give valid consent to search for two reasons. First, Defendant contends that he was not advised that the stop was conducted pursuant to an investigation, which may lead to his exposure to criminal penalties. (Def.'s Mem at 5.) Second, he was not advised that he could decline to give consent. (Id.) Neither of these reasons alone negates consent. Rather, both are factors to consider in examining the totality of the circumstances. United States v. Isiofia, 370 F.3d 226, 233-34 (2d Cir. June 1, 2004) ("What the officers did or did not say to defendant before searching may not be dispositive, but it is certainly the type of factor a district court can — and should — consider among the totality of circumstances."); Schneckloth, 412 U.S. at 234 ("In short, neither this Court's prior cases, nor the traditional definition of `voluntariness' requires proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search."); see also Isiofia, 370 F.3d at 233 n. 3 (citing Schneckloth for the proposition that knowledge of the right to refuse consent is a factor to consider in the totality of the circumstances analysis). Although Defendant did not know of his right to refuse or that the stop was conducted pursuant to an investigation, the totality of the circumstances discussed above still indicate that Defendant's consent was voluntary.

  Defendant's consent to search the trunk, manifested by opening the trunk — without instruction — when Det. Klie asked for consent to search the trunk, encompassed consent to search the closed bags inside the trunk. United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995) (holding consent to search a vehicle includes the trunk and the opening of closed containers inside the vehicle). Additionally, since Defendant claimed the bags were not his but an individual's "up in the 80s," he has no claims for an illegal search of the bags. United States v. Welbeck, 145 F.3d 493, 498 (2d Cir. 1998) (finding no privacy interest in a bag that defendant denied was his).

  Defendant also seeks to suppress his statements made at the traffic stop, because he was not advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). (Def.'s Mem. at 6.) A Miranda warning must be given to a defendant in custody and subject to official interrogation. Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 2397 (1990). In United States v. Newton, the Second Circuit recently clarified the analysis required to determine whether a defendant is in custody for the purposes of Miranda. The first step in the inquiry is to ask, "Would a reasonable person feel free to leave?" Newton, 369 F.3d at 672. If a reasonable person would not feel free to leave, the next question to ask is: Would a "reasonable person have understood his freedom of action to have been curtailed to a degree associated with formal arrest?" Id. Generally, traffic stops do not curtail a suspect's freedom to a degree associated with formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150 (1984). Although motorists do not feel free to leave, traffic stops are not a form of custodial interrogation because they are brief and public. Id. at 438-39.

  Although Defendant states in his affidavit that he did not feel free to leave (Affidavit of Manuel Fernandez-Jimenez at ¶ 3), that statement is perfunctory and Defendant sets forth no facts explaining why he or a "reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest." See Newton, 369 F.3d at 672. Such an explanation is necessary under the circumstances here. Id. Nor has Defendant provided a reason to depart from the general rule that questioning at a traffic stop is a non-custodial interrogation. See Berkemer, 468 U.S. at 440. By letter of July 8, 2004, Defendant's counsel writes that Defendant was under arrest at the inception of the stop, because "both arresting officers . . . considered the defendant to be in custody at the inception of the stop." (Letter from Jorge Guttlein to Judge Patterson of 7/8/04.) Determining whether an individual is in custody for purposes of Miranda, requires an inquiry directed at what a reasonable arrestee feels; "A policeman's unarticulated plan has no bearing on the question whether a suspect was `in custody' at a particular time." Berkemer, 468 U.S. at 442. As stated earlier, Defendant has not articulated facts showing why he felt that he was in custody at the time of the stop. Moreover, Defendant's behavior, as testified to, belies a finding that he would reasonably have felt that he was in custody prior to being placed in handcuffs. Thus, it is irrelevant that Officer Santiago testified that Defendant was not free to leave from the inception of the stop. (See Tr. at 25.)

  Defendant's counsel also alleges that Defendant's post-Miranda statements occurred in close temporal proximity to an illegal search of the car and an unlawful arrest at the traffic stop, and therefore the post-Miranda statements should be suppressed. (Def.'s Mem. at 6-7.) See also Wong Sun v. United States, 371 U.S. 471, 484-85 (1963) (applying the exclusionary rule to verbal evidence obtained after an unlawful search and arrest). For the reasons stated above, the search at the traffic stop was lawful and thus did not taint any subsequent interrogations. Defendant's arrest was also lawful. Under New York law, a driver can be arrested for a traffic violation. United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994) (citing N.Y. Crim. Proc. L. § 140.10(1)(a)). In view of the discovery of a substantial amount of cash in the trunk, Officer Santiago had reasonable grounds to arrest Defendant for the traffic violation so that the facts and circumstances surrounding Defendant's possession of the cash could be fully investigated. Finally, Defendant's statements made during the interrogation at the police station are admissible because they were not coerced. Like the voluntariness of consent, the voluntariness of a confession is determined by evaluating the totality of the circumstances under which the confession was made. Green, 850 F.2d at 901-02. "The factors to be considered include `the type and length of questioning, the defendant's physical and mental capabilities, and the government's method of interrogation.'" United States v. Alvarado, 882 F.2d 645, 649 (2d Cir. 1989) (quoting United States v. Mast, 735 F.2d 745, 749 (2d Cir. 1984). Here, Defendant was questioned for approximately one and one half to two hours in a break room without handcuffs. (Tr. at 63.) He was given the opportunity to use the restroom and provided with a beverage. (Id. at 53.) The interrogation was conducted in a mixture of Spanish and English,*fn3 and after Defendant had signed a Miranda waiver written in Spanish. Det. Correa testified that no one threatened or touched Defendant. (Id. at 56-57.) According to Det. Correa, when he asked Defendant if he wanted to talk to the detectives, "Defendant said that he had no reason why not to talk to us." (Id. at 52.)

  In his affidavit, Defendant declared that he asked if he needed a lawyer and he was advised that if he did not cooperate he "would never see his family again." (Affidavit of Manuel Fernandez-Jimenez at ¶ 7.) During his cross-examination, Det. Correa provided detailed and credible testimony of the interrogation and according to him, the only time the subject of Defendant's family arose was when Det. Correa needed information to fill out the arrest report. (Tr. at 54.) Det. Correa also testified that Defendant did not ask for a lawyer at any point. (Id.) When the circumstances of Defendant's interrogation are viewed in their entirety, it is clear that Defendant's post-Miranda statements were made voluntarily and without coercion. III. CONCLUSION

  For the foregoing reasons, Defendant's motion to suppress is denied:


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