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United States v. Morales

August 11, 2006

UNITED STATES OF AMERICA
v.
RAMON MORALES ET AL., DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

The defendant Ramon Morales ("Morales") has moved to suppress evidence seized on March 16, 2005 and April 28, 2005.*fn1

Morales was arrested without a warrant on March 16, 2005 and heroin and cash were seized from his person. Morales was arrested again on April 28, 2005, also without a warrant, and on that day heroin was seized from his car. After he allegedly consented to a search of his home orally and in writing, cash and other items were found in a search of Morales's home. An evidentiary hearing was held on May 23, 2006, and the Court now makes the following findings of fact and reaches the following conclusions of law.

I.

Beginning in about November 2004, the New York Drug Enforcement Task Force ("DETF") conducted an investigation of Jaime Londono ("Londono") and others. The investigation included court-ordered wire intercepts of Londono and others with whom he dealt, including Morales. (Tr. 4-5.) Based on information obtained from surveillance and the wire intercepts, the DETF seized multiple kilogram quantities of heroin. (Tr. 6.) The agents responded to locations that Londono or his associates were directed to go to receive the drugs. (Tr. 6.) Morales communicated with Londono regularly concerning the purchase of drugs and the payment for those drugs. (Tr. 7, 10-38; Gov't Exs. 20-42.)

Between about December 15, 2004 and the defendant's arrest on March 16, 2005, DETF agents intercepted telephone calls between Londono and Morales, Londono and his associates (Luis Orozco-Castano and Edison Belalcazar), Morales and Belalcazar, and Morales and customers relating to the sale of narcotics and the payment for the drugs. (Tr. at 10-38; Gov't Exs. 20-42.) In particular, in a series of telephone calls from shortly after noon until about 4:30 p.m. on March 16, 2005, Londono, OrozcoCastanos, Belalcazar, and Morales discussed two quantities of narcotics to be delivered to Morales and payment by Morales, and Belalcazar going to Morales' home on behalf of Londono in connection with the transaction. (Id.) When Belalcazar was in the neighborhood, Belalcazar warned Morales about a "gray car" which in fact turned out to be surveillance by law enforcement agents. (Tr. 35; Gov't Ex. 38.) While these conversations were occurring, Morales received a telephone call from a potential customer and agreed to a quick sale through his car window. (Tr. 30; Gov't Ex. 30.) Subsequently, Morales had conversations with an unidentified male to set up a meeting in person. Thereafter the unidentified male called Morales to tell Morales to come back because Morales had given him the wrong thing. (Tr. 36-38; Gov't Exs. 39-42.)

As a result of the investigation, agents conducted physical surveillance of the defendant's residence at 1331 St. Lawrence Avenue, Bronx, New York. (Tr. 81-82.) New York State Police investigator Muharem Hasan ("Investigator Hasan"), who was assigned to the DETF, was instructed that there was probable cause to arrest Morales, but that his task was to conduct surveillance and, if he saw Morales carrying something or acting in a strange way, to approach him. (Tr. 82-83, 90, 93.) Special Agent Richard Walsh of the DETF ("Agent Walsh") and Detectives Ray Lange and Ronnie Brown were also conducting surveillance of Morales and Investigator Hasan was in frequent communication with them, particularly whenever Morales moved his location. (Tr. 83.) Investigator Hasan observed Morales walking very cautiously, looking around, looking to the side of him, looking behind him, walking in a "strange way, trying to like conceal something." (Tr. 84.) Investigator Hasan then approached Morales. Investigator Hasan candidly admitted that when he approached Morales, Morales was not free to leave and he considered him to be detained. (Tr. 96.) He saw Morales reach inside his jacket and ordered him to take his hand out of the pocket. Morales complied, but as the investigator approached, Morales put his hand back into the pocket and the officer physically grabbed that hand and took it out of the pocket. (Tr. 84-85, 93) Investigator Hasan looked into the pocket for his safety and saw a tinfoil in which heroin was found. (Tr. 86, 94.) The investigator also found glassine envelopes filled with heroin in the pocket and a patdown search found a large quantity of cash in the defendant's socks. (Tr. 87.) Morales was arrested. (Tr. 87, 94.)

On April 28, 2005, Agent Walsh received information from a confidential informant who had provided substantial reliable information in the past. (Tr. 40-41, 60-61, 66-71.) In particular, the confidential informant provided information leading to several other arrests and the seizure of kilogram quantities of heroin. (Tr. 60-61, 66-71.) The only demonstrably unreliable information provided by the confidential informant in the past was that the confidential informant initially advised that a transaction was to occur on April 27, 2005, which in fact occurred on April 28, 2005, as detailed below. (Tr. 69.) In addition, the confidential informant was a participant in the drug trafficking and worked with Londono in various capacities. (Tr. 69-70.)

On April 28, 2005, the confidential informant informed Agent Walsh that the confidential informant was supposed to drive Londono to the Bronx to make a delivery of 500 grams of heroin to Morales. (Tr. 41.) Based on this information, agents set up surveillance at Morales's residence. Agents observed Morales arrive in his car and thereafter the confidential informant's car arrived. (Tr. 41, 103.) Agent Walsh saw Londono leave the confidential informant's car and enter Morales's car. Shortly thereafter, the confidential informant called Agent Walsh and told him that Londono was meeting with Morales and that Londono might ask the informant to bring narcotics over. (Tr. 41-42.) Thereafter, Agent Walsh observed the confidential informant leave Morales's car and walk to the confidential informant's car. After the confidential informant left Morales's car, he called Agent Walsh and told him that he had delivered the narcotics to Morales. (Tr. 42, 102.) Agent Walsh then instructed other agents to move in and arrest Morales. (Tr. 42, 103, 112.)

While Morales was in his car, several agents approached, with guns drawn, identified themselves and arrested Morales. Agents grabbed Morales out of the car and holstered their weapons. (Tr. 104, 103, 112.) Special Agent Marlo Luna ("Agent Luna") asked Morales in Spanish for his consent to search the vehicle and Morales agreed, although Agent Luna testified candidly that he would have searched the car even in the absence of the consent. (Tr. 105, 113.) The agents searched the vehicle and seized a pouch containing glassine envelopes filled with heroin from behind the visor on the driver's side of the vehicle and a bag with heroin on the back seat of the car. (Tr. 105-06.)

Morales was placed in Agent Walsh's car. Special Agent Forget read Morales his Miranda rights in Spanish. Morales indicated that he was aware of his rights and waived them. Agent Walsh asked Morales for consent to search his home and he verbally consented. Morales then signed a consent form written in Spanish, giving consent to search his residence. The form was witnessed by both Agents Walsh and Forget. (Tr. 34-44; Gov't Ex. 10.) At the time he signed the form, Morales was not in handcuffs. The only officers present were Agents Walsh and Forget, and they did not have their guns drawn. There is no evidence that the agents pressured Morales into signing the form. The agents used a normal tone of voice and Morales was calm and lucid. (Tr. 47-48.) The defendant has submitted an affidavit asserting that he "never consented to the search of my apartment at 1331 St. Lawrence Avenue, Bronx, New York." (Affidavit of Ramon Morales sworn to March 16, 2006, ¶ 3.) However, Morales does not explain away the written consent to search form or detail any circumstances indicating that his consent was not given voluntarily.

Agents searched Morales and recovered a cellular telephone. (Tr. 49.) Morales accompanied agents to his home, where they conducted a search. Morales did not want his wife to come in during the search and be startled. (Tr. 77.) The agents seized approximately $40,000 in cash and other items. (Tr. 49-52; Gov't Exs. 6-7.)

II.

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