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United States v. Ortiz

March 23, 2007

UNITED STATES OF AMERICA,
v.
GONZALO ORTIZ, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

The defendant is charged in a three-count indictment with possession of a firearm and ammunition as a felon, possession of cocaine base, and possession of marijuana. By Notice of Motion filed on November 2, 2006, the defendant sought various forms of relief, including suppression of tangible evidence, consisting of cocaine base and marijuana,*fn1 as well as statements he purportedly made. In regard to the suppression application, the Court ordered a hearing, which was held on December 5, 2006. Based upon the evidence introduced at the hearing, the Court now makes its Findings of Fact and reaches its Conclusions of Law.

FINDINGS OF FACT

Flamur Zenelovic is a uniformed police officer with the City of Rochester Police Department, and has been so employed for just under four years. He is assigned to the patrol shift on the east side of the city. Prior to his employment with the Rochester Police department, he served as a police officer with the City of Stewart, Florida Police Department for eight-and-a-half years, where for the first three years he was assigned to street patrol as a uniformed officer and then for the remaining five-and-a-half years was assigned to the narcotics enforcement unit as an investigator. As a police officer with both the city of Rochester and the city of Stewart, he had been involved in alcoholic beverage enforcement, and, prior to February 8, 2006, he had made approximately two hundred open container arrests, dealing with a variety of cans and bottles.

Before serving as a police officer with the Stewart Police Department, he was employed in Rochester at Tops Supermarkets, where he worked at a number of different stores as a stock clerk, an assistant grocery manager, and assistant store manager. Among his responsibilities as an assistant grocery manager was working with the beer vendors, making sure the aisles were properly stocked, as well as ordering and displaying beer and other alcoholic beverages.

On February 8, 2006, Officer Zenelovic was working the 3:15 p.m. to 11:30 p.m. shift, investigating drug activity on Joseph Place in the city of Rochester. Joseph Place is an open-air drug market. Prior to February 8, 2006, Officer Zenelovic had made a number of enforcement stops or contacts on Joseph Place, including arrests for possession of marijuana and for possession of cocaine. He had also assisted other officers with similar investigations on Joseph Place. Moreover, prior to February 8, 2006, he had been involved in one arrest for possession of a firearm on Joseph Place.

At approximately 7:20 p.m. on February 8, 2006, Officer Zenelovic was in his marked patrol vehicle traveling eastbound on Joseph Place, proceeding from Joseph Avenue, with his high beams on looking for suspicious activity. As he approached what turned out to be 72 Joseph Place, he observed two males standing directly in front of that location on the city sidewalk. One of the males, the defendant, was holding a brown bag out of which, Officer Zenelovic could observe, was sticking the top one to two inches of a clear glass bottle. Relying on his experience and training as a police officer and assistant grocery manager, Officer Zenelovic concluded because of how the top of the bottle was shaped, because it was glass and not plastic, and because he was aware that paper bags were utilized to conceal the labels on alcoholic beverages, it was a beer bottle and that the defendant was committing an open container violation.

Officer Zenelovic pulled his vehicle to a stop against the left side of the street, so that his driver's side door was against the curb immediately in front of 72 Joseph Place. As he did so, the defendant and the other male, Felix Valentine, who was fifteen or sixteen, moved backwards onto the driveway at 72 Joseph Place to the front steps. The defendant sat down on the steps while Valentine remained standing. The distance from the sidewalk to the front steps of 72 Joseph Place was about twelve to fifteen feet. While sitting in the front seat of his vehicle, Officer Zenelovic asked the defendant, who was still holding what Officer Zenelovic had concluded was a bottle of beer, if he lived at that location. The defendant responded no. At that point, Officer Zenelovic got out of his vehicle and approached the defendant and the other male, who were still sitting on the front steps of 72 Joseph Place. He was joined at that time by another police officer, Paul Dondorfer, who had arrived at the scene. As Officer Zenelovic was approaching, the defendant explained that he lived around the corner. Officer Zenelovic then asked if either the defendant or Valentine had identification, and neither one did. Upon approaching the individuals, Officer Zenelovic could see that the bottle, which the defendant was holding with both hands in his lap, did not, in fact, have a top on it. He then directed the defendant to put the bottle down, and the defendant complied. Once the defendant had put the bottle down, Officer Zenelovic directed him to stand up and put his hands behind his back. The defendant stood up, but placed both of his hands into the pockets on the front of his coat. The defendant was wearing a dark heavy style winter parka jacket, jeans, and a hat. Officer Zenelovic told the defendant to remove his hands from his pockets and, at the same time, reached for the defendant's left hand, which was closest to him, pulling it from the defendant's left pocket. The defendant responded by pulling his right hand from his right pocket and throwing an object, which Officer Zenelovic recognized to be a handgun, toward the front porch. Upon observing the handgun, Officer Zenelovic immediately pulled the defendant away from the porch area and handcuffed him. While he was being handcuffed, the defendant said, in sum and substance, that the gun was not his, and that he was holding it for someone. This statement of the defendant was not made in response to any question by Officer Zenelovic or by Officer Dondorfer. Officer Dondorfer took custody of the defendant and placed him in his police vehicle. Before doing so, however, Officer Dondorfer searched the defendant in Officer Zenelovic's presence, finding a bag of marijuana and a bag of rock-like substance identified as crack cocaine.*fn2 While being searched by Officer Dondorfer, the defendant stated, "the cocaine wasn't his, that, that wasn't his either." Again, this statement on the part of the defendant was not made in response to any questioning by either Officer Dondorfer or Officer Zenelovic. Subsequently, the defendant was transported to the fourth floor of the Public Safety Building.

After the defendant was taken into custody and placed into Officer Dondorfer's vehicle, Officer Zenelovic seized the brown bag and bottle evidence, which he turned into the Property Clerk's Office. However, he poured out the contents of the bottle, which through smell, he identified as beer. The defendant was charged with Possessing an Open Container, a City of Rochester Municipal Code violation and with Unlawful Possession of Marijuana, Criminal Possession of a Controlled Substance 7th Degree, and Criminal Possession of a Weapon, all New York State Penal Law violations.

Charles LoFaso has been employed by the Rochester Police Department, since June 28, 1999 as a police officer, and, since March 30, 2005, has been an investigator assigned to the east division office. On February 8, 2006, he was working the 3:15 p.m. to 11:30 p.m. shift. At approximately 8:35 p.m. on February 8, 2006, Investigator LoFaso came into contact with the defendant, who was in an interview room in the criminal investigation area on the fourth floor of the Public Safety Building. Investigator LoFaso was accompanied by his partner Investigator Guidici. The defendant may have been handcuffed inside the interview room. Investigator LoFaso first asked the defendant if he needed to use the restroom to which the defendant replied, "yes." The defendant was taken out of the interview room for that purpose.

Upon the defendant's return to the interview room, Investigator LoFaso, in Investigator Guidici's presence, read the defendant his five Miranda rights exactly as they appear on one side of Exhibit # 5 in evidence. Before doing so, however, Investigator LoFaso completed the informational side of Exhibit # 5 by documenting the date and time, as well as the defendant's name and the police officers present in the room. He also asked the defendant what was the last grade he completed and whether he could read and write English, and recorded the defendant's answers, eleventh grade and yes, respectively. Investigator LoFaso then proceeded to read the five Miranda rights printed on the reverse side of the card. After doing so, Investigator LoFaso asked the defendant the waiver questions appearing on the card. Specifically, he asked the defendant if he understood the rights he read to him, to which the defendant replied, "yea I understand the rights." Investigator LoFoso next asked the defendant if he would agree to give up his rights and talk to him and Investigator Guidici, to which the defendant replied, "yes, it's all good." Investigator Lofaso concluded that the defendant was not intoxicated based upon the fact that the defendant's speech was clear, based upon the fact that the defendant's eyes were not red, and based upon the fact that he did not smell any odor of an alcoholic beverage on the defendant's breath.

Then Investigator Lofaso and Investigator Guidici proceeded to interview the defendant in question and answer form for approximately eighteen minutes. Investigator LoFaso and Investigator Guidici spoke to the defendant about the gun, and Investigator LoFaso told him that they wanted to get his side of the story. Investigator LoFaso also told the defendant it would be to his benefit to be truthful. The defendant appeared to be somewhat nervous. In responding to questions concerning the gun, the defendant said "Man, it's not my gun. I held the gun, man, I held it for John." The defendant also told Investigator LoFaso and Investigator Guidici that the "weed was his, but the crack was not." When interviewing the defendant, neither Investigator LoFaso nor Investigator Guidici threatened him, used physical force on him, or made him any promises of any kind to get him to talk to them. Further, during the interview the defendant never indicated that he wished to stop speaking to Investigator LoFaso and Investigator Guidici, nor did he ever request to speak to an attorney. At the conclusion of this interview, Investigator LoFaso and Investigator Guidici left the room.

Subsequently, someone informed Investigator LoFaso that the defendant wanted to speak to either him or Investigator Guidici again. So, at about 9:00 p.m., Investigator LoFaso re-entered to the interview room. After returning, Investigator LoFaso was with the defendant for about six or seven minutes. During this time, the defendant repeated what he had said earlier to Investigator LoFaso and Investigator Guidici: that he was holding the gun for someone named John; and that the weed was his, but the crack was not. Investigator LoFaso responded, "I don't believe you," to which the defendant replied, "No, really, it's John's gun." Investigator LoFaso then said, "Is that all you have to say, because you already told us that before," and the defendant stated, "Yeah, that's all I have to say." During this period of time, the defendant never indicated to Investigator LoFaso that he wished to stop talking, or that he wanted to speak to a lawyer, and Investigator LoFaso never threatened him, used physical force on him, or made him any promises to get him to talk. At the conclusion of the six or seven minutes, Investigator LoFaso advised a fellow officer that he could take the defendant to booking.

CONCLUSIONS OF LAW

A. Motion to Suppress Cocaine Base and Marijuana In moving to suppress the cocaine base and marijuana discovered on his ...


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