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U.S. v. FERNANDEZ-JIMENEZ

July 16, 2004.

UNITED STATES OF AMERICA,
v.
MANUEL FERNANDEZ-JIMENEZ Defendant.



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

OPINION AND ORDER

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.

I. BACKGROUND

  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.)

  II. ANALYSIS

  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. ...


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