The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
Defendant Richard Vega is charged in counts 1 and 3 of a
three-count indictment with violations of 21 U.S.C. §§ 841(a)(1)
and 846 and 18 U.S.C. § 2 specifically, with conspiracy to
possess with intent to distribute 100 grams or more of a mixture
and substance containing heroin (count 1) and with unlawful
possession with intent to distribute heroin (count 3). On March
14, 2005 Vega filed an omnibus motion seeking, inter alia, to
suppress evidence of approximately 654 grams of heroin seized
from a vehicle he was driving on January 4, 2005. On May 24, 2005
Magistrate Judge Leslie G. Foschio issued a Report and
Recommendation ("the R&R") in which he concluded that Vega's
motion to suppress should be denied because Vega had failed to
establish a possessory interest in the vehicle searched and,
alternatively, because the agents had probable cause to search
the vehicle. On June 7, 2005 Vega filed objections to the R&R.
The government filed a response on July 20, 2005. The objections
were argued and submitted on July 29, 2005. The relevant facts are taken from Drug Enforcement
Administration agent Mark F. Gentile's affidavit in support of
the criminal complaint. On January 3, 2005, a confidential
informant ("the CI") contacted agent Gentile advising that the CI
could obtain a sample of heroin on January 4, 2005. On January 4,
agents began surveillance of the CI and observed him meeting with
several individuals, subsequently identified as Victor Quinones,
Juan Jimenez and Osvaldo Jimenez, in a Pennsylvania-registered
Chevrolet Impala. From those individuals, the CI procured a
sample of a substance which field-tested positive for heroin. The
CI then made arrangements to purchase one-half kilogram of
The agents continued their surveillance of the CI and the
individuals in the Impala and observed them arrive at 24 Argus
Street in Buffalo, New York. At that address, Victor Quinones
exited the Impala and entered a blue Honda Accord being driven by
defendant Richard Vega. Both the Impala and the Accord left the
Argus Street address and proceeded south toward the Skyway, at
which time the agents directed an Erie County Deputy Sheriff to
stop both vehicles. Once the vehicles were stopped, the agents
observed a black napkin wrapped around approximately 654 grams of
heroin in plain view on the floorboards of the Accord.
Vega made a motion to suppress the heroin, arguing that he had
a legitimate expectation of privacy in the Accord he was
operating and therefore the warrantless search and seizure
violated his Fourth Amendment rights. In the R&R, the Magistrate
Judge concluded that Vega's motion to suppress the heroin should be denied without an evidentiary hearing because Vega had
failed to allege facts demonstrating a possessory interest in the
Accord, and thus had failed to establish his standing to contest
the search of the Accord and seizure of the heroin. In his
objections, Vega argues first that his possessory interest in the
Accord is established by the facts of the case and secondly that
the agents lacked probable cause to stop his vehicle, requiring
that the heroin be suppressed.
The district court reviews de novo the portions of an R&R to
which objections have been filed. See 28 U.S.C. § 636(b)(1)(A).
If a party fails to object to a particular portion of an R&R,
further review thereof is generally precluded. See Mario v.
P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15,
16 (2d Cir. 1989)). Furthermore, on de novo review, the Court
generally does not consider arguments or evidence which could
have been, but were not, presented to the Magistrate Judge. See
Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec.
Co., 840 F.2d 985 (1st Cir. 1988). Herein, upon de novo review
of the R&R and after reviewing the submissions and hearing
argument from the parties, the Court adopts the proposed findings
and conclusions of the R&R.
"[A] defendant is obligated to show that he had a legitimate
expectation of privacy in the area searched before he can invoke
the protection of the Fourth Amendment." United States v.
Smith, 621 F.2d 483, 486 (2d Cir. 1980). "[I]n order to
challenge a search, a defendant must submit an affidavit from
someone with personal knowledge demonstrating sufficient facts to show that
[the defendant] had a legally cognizable privacy interest in the
searched premises at the time of the search." United States v.
Ruggiero, 824 F. Supp. 379, 391 (S.D.N.Y. 1993), aff'd sub
nom. United States v. Aulicino, 44 F.3d 1102 (2d Cir. 1995)
(internal citations omitted).
Vega failed to submit by affidavit or otherwise any
evidence demonstrating his ownership of the Accord or that he had
the permission of the registered owner to use the Accord. The
affidavit in support of the omnibus motion submitted by Vega's
counsel which affidavit is made upon information and belief
alleges only that Vega was operating the Accord and lawfully
traveling on a public thoroughfare at the time it was pulled over
by the agents. See Torres's Affidavit at ¶¶ 33, 34. Neither
assertion, even if made upon personal knowledge, is sufficient to
establish Vega's right to challenge the search of the Accord and
the seizure of the heroin on Fourth Amendment grounds. "[M]ere
occupancy [or control] of a car does not demonstrate the required
`legitimate basis'" to challenge a search on Fourth Amendment
grounds. Ruggiero, supra, at 392. Vega's argument that his
"ownership and operation" of the Accord are established by the
reference to "Vega's vehicle" in the government's affidavit
opposing his motion to suppress and by agent Gentile's affidavit
in support of the criminal complaint is patently without merit.
See Objections at 5. Furthermore, as the Magistrate Judge found, even if Vega had
successfully demonstrated his interest in the Accord, the
warrantless search was justified by the "automobile exception" to
the Fourth Amendment warrant requirement. "Police may conduct a
warrantless search of a readily mobile motor vehicle if probable
cause exists to believe the vehicle contains contraband or other
evidence of a crime." United States v. Gaskin, 364 F.3d 438,
456 (2d Cir. 2004) (citations omitted). Probable cause exists
"where the facts and circumstances within * * * the officer's
knowledge and of which they had reasonably trustworthy
information are sufficient in themselves to warrant a man of
reasonable caution in the belief that evidence of a crime will be
found in the place to be searched." Ibid. (citations and
quotations omitted). "The standard does not demand certainty but
only a fair probability that contraband or evidence of a crime
will be found." Ibid. (citations omitted).
Here, the agents' surveillance revealed that the individuals in
the Impala, including Victor Quinones, had provided a sample of a
substance to the CI. That sample had tested positive for heroin.
The individuals in the Impala had then agreed to provide the CI
with one-half kilogram of heroin. After making such arrangements,
the individuals had met with Vega at the Argus Street address and
Quinones had entered the Accord with Vega. Based on all of the
facts and circumstances existing on January 4, 2005, the agents
had probable cause to believe that contraband or other evidence of a crime would be
found in the Accord, justifying the warrantless search.
Accordingly, it is hereby ORDERED that Vega's objections to
the R&R are denied and the R&R is ...