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United States of America v. Wendy Reyes

February 6, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WENDY REYES,
DEFENDANT.



The opinion of the court was delivered by: Richard J. Holwell, District Judge:

MEMORANDUM OPINION AND ORDER

Before the Court is defendant Wendy Reyes's motion to suppress (1) physical evidence, including a stack of money and a bag of heroin, obtained during a search of the vehicle Reyes was driving on the day of his arrest, January 4, 2011, and (2) statements he made during the search and after the arrest. Reyes's motion also seeks to require the government to provide certain pretrial disclosures. Evidentiary hearings were held on September 23, 2011 and October 21, 2011. After reviewing the evidence and the parties' post-hearing submissions, the Court finds that oral argument is unnecessary in this matter. For the reasons that follow, Reyes's motion is DENIED.

BACKGROUND

The government offered testimony from two Drug Enforcement Agency ("DEA") agents, Special Agents Matthew McCoy and Claudia Caballero, both of whom were present for Reyes's arrest. The defendant did not testify. The evidence established the following facts.

On January 4, 2011, DEA agents, including McCoy and Caballero, were conducting surveillance outside of 400 Third Avenue in Manhattan. The agents believed that an apartment at that address was used by Reyes's co-defendant Alvin Aviles as a "stash house" for drugs. (Tr. I (Sept. 23, 2011) at 9-10.)

DEA agents had begun an investigation of Aviles in November, 2010. (Tr. I at 5.)

Prior to January 4, 2011, DEA agents had conducted surveillance of Aviles on at least two other occasions: December 13, 2011 and December 15, 2011. (Tr. I at 8-9, 42-43.) Through their investigation, DEA agents learned that Aviles rented a residence in New Jersey. (Tr. I at 32-33.) The agents also observed Aviles spending short periods of time (usually less than one hour) at the apartment building located at 400 Third Avenue in Manhattan. (Tr. I at 5-6.) Agents learned that the apartment Aviles would visit was rented to Amparo Lopez, who also was listed as a resident of Aviles's home in New Jersey. (Tr. I at 6-7, 36.) Lopez had no criminal record. (Tr. I at 36.)

The agents never observed Aviles spend the night at 400 Third Avenue, nor did they observe him go to any place of employment during daytime hours. (Tr. I at 5, 9, 44-46.) In addition, Aviles had a criminal record, including at least two convictions relating to narcotics. (Tr. I at 30, 107-08.) The agents also learned that Aviles had purchased a money-counter, which, according to Agent McCoy, is a common tool used in the drug trade. (Tr. I at 9.) Agent McCoy could not remember when Aviles had purchased the money-counter, but based on his testimony, it is reasonable to infer that the money-counter was purchased close in time to the beginning of the DEA investigation.

On December 13, 2011, agents observed Aviles drive his Toyota Tundra to a restaurant located on Avenue D in Manhattan. Agents observed Aviles engage in conversations with a number of individuals who were standing outside the restaurant. While Aviles was outside, a rental car pulled up to the restaurant. After Aviles and the driver of the rental car greeted each other outside the rental car, they looked into the back seat of the rental car, nodded, and had a brief conversation. The two men then walked over to Aviles's truck, looked in the back seat of the truck, and nodded to each other again. Aviles then drove the rental car to 400 Third Avenue. After entering the apartment for a short time, Aviles returned the rental car to Avenue D and drove off in his truck. Although no agent was able to see the contents of the vehicles, Agent McCoy described the transaction as "pretty much a classic drug exchange." (Tr. I at 7-8.) The agents later learned that the rental car also was registered to Aviles. (Tr. I at 8.)

The events involving Reyes occurred on January 4, 2011. On that day, around 12:50 p.m., the agents observed Aviles entering the apartment building at 400 Third Avenue holding a red bag. Aviles left the building a few minutes later without the bag and drove away in his Toyota Tundra truck. (Tr. I at 11.)

Aviles returned to the area an hour later. After parking his truck, he walked up to a silver Honda Accord parked in front of 400 Third Avenue and entered the vehicle through the passenger side door. Defendant Reyes was sitting in the driver's seat of the Accord. (Tr. I at 12-13.) The two men conversed for approximately thirty to forty-five seconds, and Aviles then went into 400 Third Avenue. He returned a few minutes later holding the red bag. Agent McCoy and at least one other agent observed Aviles hand the red bag to Reyes through the driver's side window of the Accord. (Tr. I at 13.)

Agent Caballero testified that she did not see Aviles hand the bag to Reyes because her view was obstructed. (Tr. II (Oct. 21, 2011) at 39.) Caballero also testified that she saw Aviles still holding the red bag when he turned on 29th Street. (Tr. II at 41.) This would have been after the time that Aviles allegedly handed the bag to Reyes. Though this portion of Caballero's testimony is inconsistent with McCoy's, it does little to shed doubt on the credibility of McCoy's testimony that he saw Aviles hand the bag to Reyes. When Caballero was testifying on this point, she was confused about the proper way to describe her location to defense counsel and to describe the actions she saw Aviles make. (See Tr. II at 39, 40, 41.) In addition, the fact that Caballero could not see the alleged hand-off while McCoy testified that he could leads the Court to conclude that McCoy's testimony on this point is credible, despite the ostensible inconsistency with Caballero's testimony.

After receiving the bag, Reyes activated his turn signal and drove north on Third Avenue. The agents followed him in five unmarked cars. (Tr. I at 14-15.) Due to the traffic on Third Avenue, Agent McCoy followed Reyes more closely than he otherwise would have in order to avoid losing Reyes. Agent McCoy observed Reyes change lanes suddenly and without signaling between three and five times. Agent McCoy described Reyes's driving as "basically bouncing- trying to slalom through two lanes." (Tr. I at 16.) Agent McCoy testified that he believed Reyes had noticed the agents' surveillance and was trying to evade them. (Tr. I at 15-16.) At the intersection of 47th Street and Third Avenue, McCoy turned on his siren and pulled Reyes over. Agent McCoy pulled his vehicle behind Reyes's vehicle, while another DEA vehicle pulled in front of Reyes, and a third pulled up to the right. The left side of Reyes's vehicle was blocked by cars parked next to the curb. (Tr. I at 16-17.)

Agent McCoy then approached the driver's side of the vehicle on foot. He testified that he walked quickly but did not run. He also testified that he had his hand on his holstered gun but that he did not draw the gun. (Tr. I at 17, 75.) Two other agents exited their vehicles and stood near the front of Reyes's Accord. Two more agents stood near the rear passenger's side of Reyes's Accord. None of the agents drew their guns, but, upon exiting their vehicles, they did place their hands on their holstered weapons. (Tr. I at 20, 77-78.)

Agent McCoy approached the driver's side window and identified himself as law enforcement. He asked Reyes in English to turn off the engine and Reyes complied. He then asked Reyes to hand him the keys and also to present identification. Reyes complied again. After taking both the keys and Reyes's driver's license, Agent McCoy asked Reyes to step out ...


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