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United States v. Pablo Plaza

United States District Court, W.D. New York

November 21, 2014

UNITED STATES OF AMERICA, Plaintiff(s),
v.
PABLO PLAZA (DOB xx/xx/72), Defendant(s)

For James Kendrick, also known as JD, Defendant: Beverly Van Ness, LEAD ATTORNEY, New York, NY; Bobbi C. Sternheim, LEAD ATTORNEY, Law Offices of Bobbi C. Sternheim, New York, NY; Daniel J. Henry, Jr., LEAD ATTORNEY, VILLARINI & HENRY, L.L.P., Hamburg, NY; Matthew R. Lembke, LEAD ATTORNEY, Cerulli, Massare & Kembke, Rochester, NY.

For Pablo Plaza, also known as Paul, Defendant: Edward David Wilford, LEAD ATTORNEY, New York, NY; Scott M. Green, LEAD ATTORNEY, Rochester, NY.

For Pablo Plaza, also known as Plaza, Defendant: Matthew R. Lembke, LEAD ATTORNEY, Cerulli, Massare & Kembke, Rochester, NY; William T. Easton, LEAD ATTORNEY, Rochester, NY; Kevin W. Spitler, Buffalo, NY.

For Janine Plaza Pierce, also known as Jan, Defendant: Cheryl Meyers Buth, LEAD ATTORNEY, Murphy Meyers LLP, Orchard Park, NY; Matthew R. Lembke, LEAD ATTORNEY, Cerulli, Massare & Kembke, Rochester, NY; Richard A. Reeve, Sheehan & Reeve, New Haven, CT.

For Edwin Negron, also known as E, Defendant: John J. Molloy, LEAD ATTORNEY, West Seneca, NY; David P. Hoose, Northampton, MA.

For Angelo Cruz, also known as Kubiak, Defendant: Herbert L. Greenman, LEAD ATTORNEY, Lipsitz Green Scime Cambria LLP, Buffalo, NY; Peter J. Pullano, One East Main St., Rochester, NY.

For Angelo Ocasio, Defendant: Gilbert R. Perez, LEAD ATTORNEY, Rochester, NY.

For Jeffrey Davis, Defendant: Anne M. Burger, LEAD ATTORNEY, Federal Public Defender, Rochester, NY.

For Zavier Vazquez, Defendant: Michael Patrick Schiano, LEAD ATTORNEY, The Schiano Law Office, Rochester, NY.

For Phillip Barnes, also known as Cream, Defendant: David L. Owens, LEAD ATTORNEY, Rochester, NY.

For Matilda Delgado, Defendant: Jeffrey Wicks, LEAD ATTORNEY, Jeffrey Wicks, PLLC, Rochester, NY.

For USA, Plaintiff: Everardo A. Rodriguez, LEAD ATTORNEY, Rochester, NY.

REPORT & RECOMMENDATION

JONATHAN W. FELDMAN, United States Magistrate Judge.

Preliminary Statement

On July 17, 2012, a federal grand jury returned a Second Superceding Indictment against defendant Pablo Plaza (Date of Birth xx/xx/72), which includes Counts for federal firearm and drug related crimes, as well as murder while engaged in a drug crime. See Second Superceding Indictment (Docket # 268). By text Order of Judge Charles J. Siragusa dated July 8, 2010, all pre-trial motions have been referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Docket # 17). Currently pending before the Court is defendant Plaza's motion to suppress a statement. The Government has filed papers in opposition to this motion. (Docket # 454). On July 30, 2012, a suppression hearing was held and arguments were heard from the parties' attorneys. The following is my Report and Recommendation as to the defendant's motion to suppress a statement.

Relevant Facts

The testimony adduced at the suppression hearing on July 30, 2012, revealed that on March 2, 2011, Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF") Special Agent Patrick Hoffman was on duty and assigned to execute a federal search warrant at 166 Meigs Street, Apartment Number 5, in Rochester, New York, and an arrest warrant for defendant Pablo Plaza (Date of Birth xx/xx/72) (hereinafter " defendant Plaza"). See Transcript of July 30, 2012 Hearing (hereinafter " 7/30/12 Tr.") (Docket # 299) at pp. 135-136. Hoffman testified that he went to 166 Meigs Street with two fellow ATF agents from the Buffalo field office, namely Special Agents Brian Tumiel and Jerry O'Sullivan, as well as officers from the Rochester Police Department (" RPD") Violent Crime Team Firearms Suppression Unit. Id. at p. 138. Hoffman and his team arrived at 166 Meigs Street at approximately 6:00 a.m. Id. Hoffman explained that " [i]t was a no-knock search warrant, so we executed it by breaching the door with a battering team. And once we breached the door, we made entry into the apartment and secured all individuals within the apartment, and secured the entire apartment also." Id. at pp. 138-139.

Hoffman explained that as soon as they breached the door, everyone on the law enforcement team had their weapons drawn and " myself and Sergeant McDonald made the quick right into the master bedroom" and found defendant Plaza and his girlfriend, Ms. Friedman, in bed. Id. at pp. 140, 162. Hoffman testified that he " secured" Plaza and Friedman in the bedroom and " Plaza was handcuffed immediately." Id. at pp. 140, 155. With their weapons drawn, the rest of the law enforcement team " systematically clear[ed]" the rest of the residence, going from room to room to determine whether any other individuals were in the apartment. Id. at pp. 140, 162. Plaza and Friedman were the only two individuals found in the apartment. Id. at pp. 139-140.

After clearing the residence, but before the officers commenced the search, Ms. Friedman was placed on the couch in the living room, " handcuffed with her hands in front of her, " while defendant Plaza was placed in a chair next to the dining room table on the far side of the dining room " handcuffed, I believe, behind the back." Id. at pp. 141-14 2. At that point, the officers no longer had their weapons drawn. Id. at p. 162. Hoffman took " three or four pre-photos of the residence" before the officers began to search the apartment. Id. at p. 141. Once he was done taking the photographs, Hoffman " instructed the rest of the team to commence the search of the residence." Id. Plaza and Friedman remained handcuffed throughout the entire time period of the search. Id. at p. 155.

Once the search commenced, Hoffman discovered " a Sentry safe" in the master bedroom. Id. at pp. 143-144. Hoffman testified that the safe " was locked" when the officers found it. Id. Hoffman went to the dining room and " asked Mr. Plaza for the combination to the Sentry Safe." Id. at pp. 144-145. Hoffman did not read Plaza his Miranda rights prior to asking him for the combination. Id. at p. 144. Hoffman testified that he asked Plaza for the combination to the safe " [b]ecause I wanted to take the easiest route to get into the safe." Id. Hoffman testified that in asking Plaza for the combination to the safe, it was not his intent to elicit any incriminating statements from Plaza. Id. Hoffman testified that had he not been able to obtain the combination from Plaza, he " would have breached the safe with the battering ram and a tool called a 'halogen tool.'" [1] Id. Hoffman explained that he has had to " bust a safe open" on several occasions while executing search warrants, and noted that " [i]t happens all the time." Id. at pp. 144-145.

Upon being given the combination to the safe by Plaza, Hoffman returned to the master bedroom where the safe was located and " took the numbers that he told me and punched it into the electronic code and opened the safe." Id. at p. 145. Inside the safe Hoffman " found 65.5 grams of powder cocaine; 1.1 grams of crack cocaine" and an " electronic scale." Id. at p. 14 6. Hoffman was " the evidence custodian" during the search, and his responsibilities included photographing the evidence and placing it into an evidence bag. Id. Hoffman testified that in accordance with these responsibilities, he photographed the evidence he found in the safe, placed it into a plastic evidence bag in the bedroom where it was found, and then processed all the evidence on the coffee table in the living room. Id. at pp. 146-147. Hoffman brought the evidence from the master bedroom to the living room coffee table within just " a minute or two... Not long." Id. at pp. 165-166.

In order to " process the evidence, " Hoffman had " an evidence log and a photo log" and he wrote down the location of where the evidence was found and then correlated that information with the photo log. Id. at p. 147. Hoffman explained that he chose to process the evidence on the coffee table in the living room rather than in the bedroom where it was found because the bedroom was still being searched and the coffee table was the " easiest" and " neatest" place to process the evidence because he was " out of everybody's way." Id. Hoffman chose not to process the evidence in the bedroom because " [t]he only feasible place to process the evidence would be on a flat surface, which would be the bed, but when you typically search a bedroom, the first thing you look on is the actual bed, underneath it and between it, on top of it. And once that's clear, you start to do a systematic search of the rest of the apartment and throw all non-evidence items onto that bed." Id. at p. 148. Hoffman explained that after gathering all of the evidence, " I have a main processing station" where all of the evidence is kept " because after you execute a search warrant, the house is quite messy and you don't want to lose any evidence, which there's always potential to lose evidence if you're processing it in every room, which is a complete mess. So I had a systematic process of getting all the evidence within my custody." Id. at pp. 160-161.

Hoffman testified that he chose to process the evidence on the coffee table in the living room after considering its distance from the defendant - " I wouldn't want to process any evidence near a defendant" - as well as its size - he needed " room to do everything." Id. at p. 14 9. Ms. Friedman was able to observe Hoffman processing the evidence and could see the drugs and other contents of the safe. Id. at p. 157. Defendant Plaza was unable to see Hoffman processing the evidence because his view was obstructed by furniture in the room. Id. at p. 166. While processing the evidence, Hoffman did not communicate with Plaza in any way. Id. at p. 149.

Hoffman testified that at one point during the execution of the search, one of the other officers asked him " what I recovered from the master bedroom out of the safe, " and Hoffman told him that he found " a deuce" (a.k.a. 62 grams) of powder cocaine and some crack. Id. at p. 150. At that point defendant Plaza stated " [t]hat shit is mine, not hers." Id. at p. 151. Hoffman testified that the officer was approximately ten feet away from Plaza when he asked Hoffman what he had found. Id. at p. 157.

Hoffman testified that he did not follow up or ask Plaza any questions after he made that statement, nor did he read Plaza his Miranda rights. Id. at p. 151. Hoffman did not read him his rights because " [i]t wasn't my intent to interview or interrogate Mr. Plaza." Id. Hoffman testified that at the time Plaza made the statement, neither Hoffman nor any of the other officers had made any threats about arresting Ms. Friedman. Id. at p. 154.

At the completion of the search, Hoffman prepared a search warrant return " [t]o advise the lessee of the apartment all the items that we have taken from the apartment" and gave it to Ms. Friedman. Id. at pp. 146, 154. The search of 166 Meigs Street lasted " just under an hour, " and after the search both defendant Plaza and Ms. Friedman were transported by uniformed police officers to the Public Safety Building. Id. at p. 154.

Hoffman testified that although Plaza was in custody and not free to leave from the moment he was handcuffed during the entire search, at no point did Hoffman read Plaza his Miranda rights while they were in the apartment. Id. at p. 159.

Discussion

Plaza seeks to suppress the statement " [t]hat shit is mine, not hers" that he allegedly made to law enforcement on March 2, 2011, during the execution of the search warrant at 166 Meigs Street. According to Plaza, his statement should be suppressed because while he was in custody and without the benefit of Miranda warnings the police intended to elicit incriminating statements from him by processing drug evidence found during the search in front of him and his girlfriend. Plaza argues that his statement was not a spontaneous utterance and was instead the result of questioning or its functional equivalent.

It is well settled that police may not interrogate a suspect who has been taken into custody without first advising him of his Miranda rights. United State v. Newton, 369 F.3d 659, 668 (2d Cir. 2004). It is only in the context of a custodial interrogation that a defendant is entitled to be informed of his Miranda rights. Dickerson v. United States, 530 U.S. 428, 434-35, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); Tankleff v. Senkowski, 135 F.3d 235, 242-43 (2d Cir. 1998). Here, there is no dispute that the defendant was in custody at the time he made the statement at issue. Thus, the admissibility of Plaza's admission hinges on whether he was interrogated by law enforcement.

The test for determining whether the conduct of law enforcement agents amounted to " interrogation" is whether the words or actions of law enforcement agents " were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Thus, the term " interrogation" includes both express questioning or its functional equivalent and includes any " practice that the police should know is reasonably likely to evoke an incriminating response from a suspect." Id. at 300-02. In making this assessment, the Court must consider " the totality of the circumstances of the agents' conduct." United States v. Cota, 953 F.2d 753, 758 (2d Cir. 1992). The determination of whether a statement is likely to elicit an incriminating response " focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Innis, 446 U.S. at 301. However, " Miranda does not protect an accused from a spontaneous admission made under circumstances not induced by the investigating officers or during a conversation not initiated by the officers." United States v. Hayes, 120 F.3d 739, 744 (8th Cir. 1997)(internal quotations and citations omitted).

Here, I find that the statement made by Plaza was spontaneous and not the product of police questioning or its functional equivalent because the police conduct at issue was not reasonably likely to elicit an incriminating response. Though Plaza may have felt that Hoffman's seizure of the drugs found in the safe during the search of the residence required an admission in order to exculpate Ms. Friedman from criminal liability, his inculpatory statement was neither coerced nor involuntary and the choice to make such a statement was his and was not the product of police questioning. Indeed, his statement was a reaction to a question directed at Hoffman, not at defendant.[2] See United States v. Figueroa, 300 F.App'x 93, 95 (2d Cir. 2008) (holding that the district court [Larimer, J.] did not err in finding that the statements at issue were not " made in response to express questioning or its functional equivalent" since " [a]ll three statements were made while the officers were going about their routine tasks in conducting a search, securing a crime scene, and making an arrest"); United States v. Mitchell, No. 11-CR-6019, 2012 WL 4325462, at *2 (W.D.N.Y. Aug. 16, 2012) (" While Mitchell may have felt the discovery of drugs and a firearm during the search of the residence deserved an explanation in order to exculpate Ms. Smith from criminal liability, the choice to offer an explanation was his and was not the product of interrogation or its functional equivalent."), adopted by 2012 WL 4324923 (W.D.N.Y. Sept. 20, 2012); United States v. Hemingway, No. 05-CR-6108L, 2007 WL 499470, at *1 (W.D.N.Y. Feb. 13, 2007)(statements made by defendant seeking to exculpate brother after narcotics found in kitchen during execution of search warrant were spontaneous under Innis). Accordingly, it is my Report and Recommendation that defendant's motion to suppress a statement be denied.

Conclusion

For the above reasons, it is my Report and Recommendation that defendant's motion to suppress the statement he gave to law enforcement on March 2, 2011 during the search of 166 Meigs Street be denied.

SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report and Recommendation in accordance with the above statute and Rule 59(b)(2) of the Local Rules of Criminal Procedure for the Western District of New York.[3]

The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).

The parties are reminded that, pursuant to Rule 59(b)(2) of the Local Rules of Criminal Procedure for the Western District of New York, " [w]ritten objections ... shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority." Failure to comply with the provisions of Rule 59(b)(2) may result in the District Court's refusal to consider the objection.

Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant.

SO ORDERED.


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