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United States v. Moreno

February 24, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NORBY MARIN MORENO DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Defendant, Norby Marin Moreno, has been found guilty after trial on both counts of a two-count indictment for conspiracy to possess with intent to distribute one kilogram or more of heroin, as well as possession of one kilogram or more of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Presently before the Court is defendant's pretrial motion to suppress evidence recovered subsequent to her arrest. The motion was denied prior to trial. What follows sets forth the reasons, findings of fact, and conclusions of law on which that decision was based.

BACKGROUND

The following facts are drawn from the undisputed portions of the submissions of the parties in connection with this motion, and the hearing held before the undersigned on November 25-26, 2008.

On July 31, 2008, beginning at approximately 10 a.m., Special Agent Richard Walsh of the United States Drug Enforcement Administration ("DEA"), based in Bogota, Colombia, provided DEA Special Agent Salvador Aceves, based in New York, with information concerning what Agent Walsh said was an impending heroin delivery scheduled to occur later that same day in Queens. Agent Walsh stated to Agent Aceves that Agent Walsh's information was obtained and relayed to Agent Aceves in real time during multiple phone calls, on the basis of Agent Walsh's monitoring of a wiretap authorized by Colombian courts and established in cooperation with the Colombian National Police ("CNP").*fn1

Transcript of November 25-26, 2008 Hearing ("Tr.") at 7-9, 13-14. Agent Aceves was also told by his fellow agent that the wiretap was associated with the cellular phone of a high-level member of a drug trafficking organization based in Cali, Colombia, with ties to New York City, Panama, Guatemala, Mexico, and Texas, which is the subject of a joint ongoing investigation by the DEA and the CNP.*fn2 Id. at 13, 111. Agent Aceves testified that he could not recall the identity of the individual whose phone was tapped, nor did he actually hear the recorded conversations. Id. at 48, 54-56. However, he testified that he knew Agent Walsh personally and had worked with him in the past when Agent Walsh was stationed in New York, including previous investigations involving wiretaps, that resulted in arrests and convictions and otherwise yielded reliable information. Id. at 7, 90.

Over the course of several phone calls, Agent Walsh informed Agent Aceves that he had learned the following while monitoring the wiretaps: (1) a heavy-set Hispanic female courier named "Norby" would be at Room 166 of the Metro Hotel, 7300 Queens Boulevard, Flushing, New York on that same day, July 31, 2008; (2) she would be carrying approximately 1,200 grams of heroin; (3) a male identified as "Pintor" would give Norby $10,000 in exchange for the heroin; and (4) before picking up the heroin, Pintor would call Norby's telephone and state that he was calling on behalf of "El Tio." Agent Walsh also told Agent Aceves that the drug transaction "would be taking place at any moment." Agent Aceves testified that due to the imminence of the transaction, he did not believe he had sufficient time to obtain an arrest warrant for Norby. Tr. at 62, 89.

Based on this information, on July 31, 2008, at approximately noon, Agent Aceves and DEA Special Agent David Samilo established surveillance outside Room 166 of the Metro Hotel. The layout of the Metro Hotel is similar to that of a motel, and the door to Room 166 faces the parking lot. Agent Aceves parked a DEA surveillance van in the parking lot, approximately twenty yards from the door to Room 166. From this vantage point, Agent Aceves had a clear view of the entrance to Room 166, and the surrounding area. In the next hour, several additional DEA agents arrived to participate in the surveillance, including Agents John Francola, Jeff Senn, Orest Zacharisevych, Romana Sy, and Elizabeth O'Connor. Three of the agents were located in a second DEA surveillance van parked in the hotel parking lot, two agents, including Special Agent O'Connor, were on foot inside the hotel, and an additional agent was on foot outside the hotel entrance.

At approximately 12:30 p.m., Agents Aceves and Samilo observed a heavy-set Hispanic female, later identified as the defendant, approach Room 166 carrying one or two small plastic bags, but no luggage. She opened the door of the room and entered, and left the door open behind her. After a few seconds, the woman stepped back outside of the room, examined the surrounding area for several seconds while using a cell phone, and re-entered the room. A few seconds later, she repeated substantially the same actions. The woman then re-entered the room and closed the door. At approximately 1:15 p.m., Agent O'Connor discovered, during an examination of the interior of the Metro Hotel, that Room 166 also had an additional door, opening into the interior of the building, that had up to that point not been under surveillance. At that time, the agents became concerned that Pintor or others may have entered, or the woman may have exited, Room 166 through the interior door. An agent was then placed in the interior corridor to monitor whether anyone might enter or exit via the interior door.

Shortly before 1:30 p.m., Agents Aceves, Samilo, and O'Connor decided to ask a female hotel maid to knock on the door of Room 166, with Agent O'Connor standing beside her. Agent O'Connor hoped to look into the room, to determine if "Pintor" or others were in the room with the woman. The maid agreed, and walked with Agent O'Connor to Room 166. At this time, Agents Aceves and Samilo exited the van and started walking toward the parking lot door to Room 166. Before Agents Aceves and Samilo arrived at the exterior door, the cleaning lady knocked on the door and the defendant opened it.

Upon observing the maid, the defendant smiled. However, when she observed Agent O'Connor standing next to the maid, the defendant immediately attempted to slam the door closed. Agent O'Connor, unaware of whether the defendant was armed or had another person in the room with her, identified herself as "police" and pushed the door open. She grabbed the defendant's wrist, at which time a struggle ensued. Agent O'Connor repeatedly told the defendant in Spanish, "tranquilo," or "calm down." Seconds after Agent O'Connor entered the room, Agent Samilo identified himself as "police" and entered the room, with his firearm drawn but at his side. Upon viewing the struggle between the defendant and Agent O'Connor, Agent Samilo holstered his weapon and assisted Agent O'Connor with subduing the defendant. Agent Aceves entered the room moments later, with his firearm drawn, and performed a security sweep of the room. Upon clearing the room, Agent Aceves holstered his firearm.

After struggling with the defendant for less than a minute, Agents O'Connor and Samilo restrained her, cuffing her hands behind her back. The defendant was then seated in a chair. Because the information provided by Agent Walsh in Colombia stated that Pintor might arrive at the location to meet with the defendant, the agents closed the hotel room doors for their own security.

After the doors were closed, Agent Aceves, who is fluent in Spanish, began speaking with the defendant. Agent O'Connor, who does not speak Spanish, also questioned her with the assistance of Agent Aceves. Agent O'Connor told the defendant that it was in her best interest to tell the agents anything she wished to before the agents discovered any incriminating evidence on their own. Tr. at 104. While speaking with the agents, the defendant repeatedly attempted to stand up and walk around the hotel room, although the agents asked her to remain seated.

Approximately 30 to 40 minutes after the agents had entered the room, during which the agents awaited the arrival of "Pintor," Agent Aceves asked the defendant if she would consent to a search of her room and bags. The defendant immediately consented. The defendant also stated that her bags had already been searched at John F. Kennedy International Airport. Agent Aceves provided the defendant with a written "Consent to Search" form. The form was printed in English but Agent Aceves, who previously worked as a DEA Spanish translator, translated the form in writing for the defendant, and read it to her. After providing a written Spanish ...


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