United States District Court, E.D. New York
Decided April 8, 2013
For Isfrain Serrano, also known as, Nuni, Defendant: Michael Daniel Weil, LEAD ATTORNEY, Federal Defenders of New York, Inc., Brooklyn, NY.
For USA, Plaintiff: Tanisha R. Payne, LEAD ATTORNEY, United States Attorney's Office, Eastern District Of New York, Brooklyn, NY.
HON. WILLIAM F. KUNTZ, II, United States District Judge.
MEMORANDUM AND ORDER
By indictment filed December 1, 2011, Isfrain Jose Serrano (" Defendant" ) is charged with conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine and heroin, in violation of 21 U.S.C. § 841(a)(1). Defendant moves this Court pursuant to Federal Rules of Criminal Procedure 12(b)(3) and (41)(h) to suppress evidence recovered fro his residence and statements made by him after his arrest. For the reasons that follow, the motion is denied.
BACKGROUND AND FINDINGS OF FACT
This Court held a suppression hearing on October 18, 2012 and November 14, 2012 (the " Hearing" ). At the Hearing, the Government presented seven witnesses: New York City Police Department (" NYPD" ) Lieutenant Jerry Caicedo, NYPD Detectives Jose Morales and Joshua Rosenbaum, Suffolk County Police Department (" SCPD" ) Detective Patrick Walsh (retired), SCPD Deputy Sheriff Sergeant Jeffrey Bolettieri, Drug Enforcement
Administration (" DEA" ) Agent David Campbell, and Village of Hempstead Police Department Detective Michael Bornstein. Defendant did not present any witnesses.
Upon consideration of the motion, Hearing evidence, and post-Hearing briefing, the Court finds the following facts to be true.
Early Investigation of Defendant
In September 2011, Officer Bolettieri and Agent Campbell met with a cooperating witness (" CW" ). Hearing Tr. at 367:2-370:22; Sealed Aff. by Jeffrey Bolettieri in Supp. of App. for Arrest Warrant and Search Warrant (" Bolettieri Aff." ), at ¶ 3. At the debriefing, the CW identified Defendant as having participated in a narcotics transaction in March 2011. Hearing Tr. at 287:2-24, 369:1-11. Law enforcement agents, who had already been investigating the CW at that time and had conducted surveillance of the March 2011 transaction, confirmed that Defendant was the same person they had seen at the transaction. Hearing Tr. 287:2-24, 367:2-372:1, 425:23-427:5, 511:11-16.
The CW advised law enforcement officers that he had regularly purchased cocaine and heroin from Defendant at the Defendant's residence since 2008. Id. at 369:12-370:22; Bolettieri Aff. at ¶ 3. The CW also stated that he had personally observed narcotics, firearms, a kilogram press, and large quantities of cash in either Defendant's residence or the basement of the same building. Hearing Tr. at 369:12-370:22; Bolettieri Aff. at ¶ 3. Based on the CW's purchases of narcotics from Defendant and his personal observations of narcotics deliveries and sales while present in the Defendant's residence, the CW estimated Defendant sold about four or five kilograms of cocaine per week. Hearing Tr. at 428:21-429:4; Bolettieri Aff. at ¶ 3. In October and November 2011, law enforcement agents recorded conversations between the CW and Defendant in which the CW expressed interest in purchasing cocaine, heroin, and firearms, and Defendant indicated that he could obtain and sell the requested narcotics to the CW. Hearing Ex. 9A at 29:26-33, 31:00-20, 33:13-34: 1; Bolitierri Aff. at ¶ 6.
The Warrant Application
On November 3, 2011, Officer Bolettieri filed an application with this Court seeking an arrest warrant for Defendant, as well as a search warrant to search Defendant's first floor apartment in Brooklyn and the basement of the premises, located at 144 Kingsland Avenue. Dkt No. 11-mj-1090, ECF No. 1. According to Officer Bolettieri's supporting affidavit, the DEA had probable cause to believe Defendant was " involved in the distribution of kilogram-quantities of cocaine and other controlled substances" and had used his residence " as his base of operations for narcotics-related activities," such as by " stor[ing] cocaine . . . for short periods of time before distributing cocaine to other co-conspirators." Bolettieri Aff. at ¶ 2.
Officer Bolettieri's affidavit relied on three pieces of evidence to establish probable cause. First, the affidavit relied on information provided by the CW regarding Defendant's drug trafficking activities, as detailed above. Bolettieri Aff. at ¶ 3. The affidavit admitted that the CW had recently been charged with conspiracy to distribute cocaine and was cooperating with the government with the hope of receiving a reduced sentence. Id. The affidavit also stated that information provided by the CW had proven to be reliable in ...