United States District Court, S.D. New York
July 16, 2004.
UNITED STATES OF AMERICA,
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.
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
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
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.
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
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.
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.
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
IT IS SO ORDERED.