The opinion of the court was delivered by: John F. Keenan, United States District Judge
On July 18, 2006, Defendant Juan Ernesto Mercedes Naut ("Defendant", or "Naut") was indicted by a grand jury for one count of money laundering, in violation of 18 U.S.C. § 1956(h), and one count of illegal re-entry by an alien previously deported and previously convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).
By motion dated June 14, 2007, the defendant seeks an order from this Court suppressing "certain physical evidence seized from [the defendant] by law enforcement, and Dismissing the Indictment pursuant to Rule 12(b)(3)(C), of the Federal Rules of Criminal Procedure." (Notice of Motion at 1.) According to the accompanying affidavit, the defendant seeks to suppress "physical evidence seized, post arrest statements, and such other relief as is just." (Affidavit of Juan Mercedes Naut, sworn to on June 14, 2007*fn1 ("Naut Aff.") at 2). In his affidavit, the defendant does not contest the facial validity of the Indictment.
The Court held a suppression hearing on September 5, 2007 and permitted post-hearing briefing.
Factual Findings At The Hearing
At the Suppression Hearing, the Government called as its witnesses three NYPD detectives who were involved in Naut's arrest: Detectives Anthony Bonilla, Detective John Figueroa, and Detective Rafael Hernandez. The witnesses testified as follows.
On June 29, 2006, a field team consisting of Detectives Bonilla, Figueroa and Hernandez, Lieutenant Sweeney, and other law enforcement officers was conducting surveillance of an apartment building located at 34 Hillside Avenue, New York, New York. Detective Bonilla was dressed in plainclothes and stationed in an unmarked car parked on Hillside Avenue, opposite the building. (Tr. 7.)*fn2 Shortly after 3:00 pm, Bonilla observed two men, who were later identified as Naut and Naut's nephew, Efrain Alicea, exit the building and hold a brief conversation in front of the building's entrance. (Tr. 8-9, 34.) Alicea was carrying a gym bag on his shoulder. The bag appeared to be heavily weighted and made of nylon material. The outlines of rectangular objects were pressing against and visible through the bag's fabric. (Tr. 10-11, 36.)
Bonilla observed Naut and Alicea walk down Hillside Avenue in the direction of Broadway. (Tr. 12.) Naut walked three to five feet behind Alicea. (Tr. 13.) While walking, Naut looked around at passing vehicular and pedestrian traffic and at parked cars. (Tr. 12.) Bonilla believed that Naut was conducting countersurveillance of the area in an attempt to detect the presence of police officers. Based on his training and experience in investigating drug trafficking, Bonilla concluded that Naut's actions and the appearance of the gym bag carried by Alicea indicated that the bag contained "contraband," specifically "[d]rugs or U.S. currency." (Tr. 13.)
After Naut and Alicea passed Bonilla in his unmarked car, Bonilla radioed his field team to advise them of Naut's and Alicea's location and description. Bonilla also advised the field team "that the bag looks good." (Tr. 14.) Bonilla then left his car to follow Naut and Alicea on foot. (Tr. 14.)
Detective Figueroa, dressed in plainclothes and stationed in an unmarked car near the intersection of Hillside Avenue and Broadway, received Bonilla's initial radio transmission advising the field team of Naut's and Alicea's description and location. (Tr. 62-63.) Figueroa observed Naut and Alicea walking west on Hillside Avenue toward the intersection of Broadway and Nagle Avenue. Figueroa testified that the bag that Alicea carried appeared to be heavy and filled to capacity with square objects. (Tr. 64-65.) According to Figueroa, Naut appeared to be protecting Alicea and "watching his back." (Tr. 67.) Figueroa also testified that Naut was looking around in a "countersurveillance manner" and that Alicea appeared to be clutching the gym bag protectively. From the actions of Naut and Alicea, the appearance of the bag, and the "drug-prone" nature of the neighborhood, Figueroa testified that, in his training and experience, he believed the gym bag contained drugs or drug proceeds. After observing Naut and Alicea turn right onto Nagle Avenue, Figueroa left his car and followed them on foot. (Tr. 68-69.)
As Bonilla and Figueroa followed them, Naut and Alicea continued on Nagle Avenue to a parking garage located at 31 Nagle Avenue. (Tr. 15-17, 71.) While following Naut and Alicea, Bonilla advised his field team of Naut's and Alicea's location via his Nextel cell phone. (Tr. 17.) Bonilla testified that, before entering the garage, Alicea handed Naut the gym bag. (Tr. 18.) According to Figueroa, Alicea handed Naut the bag "[w]hen they entered" the garage. (Tr. 72.) Bonilla advised the field team, via cell phone, that Alicea and Naut had entered the garage, and shortly thereafter Bonilla followed them inside. (Tr. 18, 47.) Figueroa also followed Naut and Alicea into the garage. (Tr. 71.) After entering the garage, both Naut and Bonilla stood near the garage's entrance, observing Naut and Alicea. (Tr. 73-74.)
Naut and Alicea approached the window of the parking attendant's booth near the pay phone on the left wall of the garage. (Tr. 19, 71.) At this point, Naut was carrying the gym bag. Naut looked around the garage and appeared to notice both Figueroa and Bonilla. (Tr. 20, 73.) Bonilla pretended to be speaking on his cell phone. (Tr. 20.) After looking at Bonilla and Figueroa, Naut dropped the duffel bag to the floor between him and Alicea. (Tr. 20-21, 72.) Figueroa and Bonilla then approached Naut and Alicea. (Tr. 21, 73.) Figueroa and Bonilla identified themselves as police officers, displayed their badges, and asked Naut and Alicea if they could speak with them. (Tr. 21, 73-74, 77-78.) According to Bonilla, Naut and Alicea said nothing in response. (Tr. 22.) According to Figueroa, Naut and Alicea "agreed" to speak with the detectives. (Tr. 74.)
Bonilla and Figueroa then asked Naut and Alicea if the bag belonged to them. (Tr. 22-23, 74-75.) Bonilla testified that he posed the question "numerous times" in both Spanish and English. (Tr. 22.) Figueroa testified that he asked the question once, in English, to both Alicea and Naut. (Tr. 75.) Naut and Alicea denied owning the bag. (Tr. 22-23, 75.) Detective Hernandez, responding to Bonilla's cell phone transmission, then entered the parking garage. (Tr. 104.)
Bonilla and Figueroa then asked both Naut and Alicea if they could look inside the bag. (Tr. 23, 75, 106.) Bonilla and Figueroa testified that both Naut and Alicea responded that the bag did not belong to them and that Bonilla and Figueroa could search the bag. (Tr. 23, 75-76.) Specifically, Bonilla testified that he asked both Naut and Alicea, "that's your bag?" and that he asked the question "numerous times" in both Spanish and English. (Tr. 23.) According to Bonilla, Naut said, "That's not mine. You can open it. I don't care." (Tr. 23.) When asked what Alicea said, Bonilla testified, "He said it wasn't his bag. He didn't care. . . . He said we could open it." (Tr. 23.) Figueroa testified that he asked both Naut and Alicea, "Do you mind if I look in your bag?"; that Alicea said, "No problem"; and that Naut gave "[t]he same" response. (Tr. 75.) When asked whether those were the exact words Alicea and Naut had spoken, Figueroa testified, "Sum and substance." (Tr. 75-76.) Hernandez testified that, although he did not hear Naut respond to Figueroa's question as to whether Figueroa could search the bag, he saw Naut shrug. (Tr. 106.)
The bag was then opened. Bonilla and Figueroa did not see who opened the bag, because they were focused on Naut and Alicea. (Tr. 49, 76). Bonilla testified, however, that he believed the bag was opened by Lieutenant Sweeney, who had entered the parking garage at some point after Figueroa and Bonilla. (Tr. 24, 49.) Figueroa testified that he did not know who opened the bag. (Tr. 77.) Hernandez testified that he observed Sweeney open the bag. (Tr. 107.) Bonilla and Figueroa testified that the bag was opened only after Naut and Alicea said that the detectives could open it. (Tr. ...