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United States v. Valdez

United States District Court, S.D. New York

February 28, 2017

UNITED STATES OF AMERICA
v.
JEAN VALDEZ, Defendant.

          MEMORANDUM OPINION & ORDER

          Paul G. Gardephe United States District Judge

         Defendant Jean Valdez is charged with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Dkt. No. 7) Valdez was arrested on March 28, 2016, and he has moved to suppress his post-arrest statements and physical evidence recovered from his residence and vehicle that evening. (Notice of Motion (Dkt. No. 39); Oct. 4, 2016 Tr. (Dkt. No. 51) at 5; Def. Post-Hearing Br. (Dkt. No. 63) at 3[1]) For the reasons stated below, Valdez's motion to suppress will be denied.

         BACKGROUND

         I. COMPLAINT ALLEGATIONS

         In December 2015, the Drug Enforcement Administration ("DEA") began investigating a drug trafficking organization that was transporting narcotics from New Jersey to the Bronx. (Cmplt. (Dkt. No. 1) ¶ 5) A confidential source who had proven reliable in the past informed the DEA that a 2015 Kia Sorrento (the "Kia") bearing a certain New Jersey license plate number delivered kilogram quantities of narcotics on a regular basis to a known drug trafficker operating in the Bronx. (Id. ¶¶ 6-7) The Kia was registered to a relative of Defendant Valdez. (Id. ¶ 10) Motor vehicle records revealed that a 2015 Hyundai Santa Fe (the "Hyundai") was registered to the same relative. (Id. ¶ 11) Toll records for the period between October 2015 and March 2016 showed that the Kia and the Hyundai traveled across the George Washington Bridge from New Jersey to New York "on an almost daily basis and multiple times on certain days." (Id. ¶¶ 12(a)-(b)) The vehicles stayed in New York for short periods of time before returning to New Jersey. (Id.) Both cars were regularly parked at an apartment complex located at 65 River Road in Nutley, New Jersey (the "River Road Apartment"). (Id. ¶ 12(d))

         On March 9, 2016, while conducting surveillance outside the River Road Apartment, DEA Special Agent Todd Riley observed Valdez exit the building and dispose of a trash bag. (Id. ¶ 13(a)-(b)) Agent Riley searched the trash bag and recovered, inter alia, "rubber bands, ripped pieces of U.S. currency, at least twenty dryer sheets, . . . and handwritten ledgers." (Id. ¶ 13(f)) "[T]he [l]edgers ... appeared to reflect drug-related transactions, " (Id.) Riley was also aware that "dryer sheets are typically used ... to mask the smell of drugs, " and he believed that "the rubber bands .. . were likely used to hold together stacks of U.S. currency." (Id.)

         On March 28, 2016, at about 1:00 p.m., Agent Riley observed Valdez leave the River Road Apartment carrying a backpack, enter the Kia, and drive to a warehouse parking lot in Elmwood Park, New Jersey, where he met co-defendant Jose Manuel Montes de Oca at about 1:30 p.m. (Id. ¶¶ 14(a)-(b)) Montes de Oca removed a rectangular box from the Kia and placed it in a nearby Honda Accord. (Id.) Montes de Oca left the warehouse parking lot in the Honda Accord at about 3:40 p.m. (Id. ¶ 14 (e)) Elmwood Park police officers working with the DEA stopped Montes de Oca's vehicle about fifteen minutes later. (Id. ¶ 14(f)) Montes de Oca consented to a search of his vehicle, and Agent Riley recovered one kilogram of cocaine from the box that Montes de Oca had been observed transferring from Valdez's car to his own, (Id. ¶¶ 14(g)-(n)) Montes de Oca was placed under arrest.

         At about 8:00 p.m., law enforcement officers stopped Valdez in the Kia in Clifton, New Jersey. (Id. ¶ 15(a)) Valdez "provided oral and written consent" to search the Kia, (Id., ¶ 15(b)) Agents recovered the backpack and discovered a large hidden compartment - or "trap" - in the rear area of the vehicle, (Id.) A canine unit arrived at the scene, and the dog reacted to the backpack and to the area in and around the trap, (Id. ¶ 15(c)) Valdez was then placed under arrest. (Id.)

         At about 9:15 p.m., Agent Riley interviewed Valdez at the Passaic County Sheriffs Office (the "Sheriffs Office"). (Id. ¶ 16) Riley gave Miranda warnings to Valdez, and Valdez waived his rights, (Id.) During the interview, Valdez provided written consent to search the River Road Apartment and the Hyundai parked at that location. (Id. ¶ 16(a)) Agents had recovered keys from the Kia, and Valdez showed agents which keys opened the River Road Apartment and the Hyundai. (Id. ¶ 16(c)) He also told agents how to open a trap in the Hyundai, and provided the access code necessary to gain entry to the apartment complex. (Id. ¶¶ 16(e)) Inside the River Road Apartment, Agent Riley found approximately $100, 000 in cash, a money counter, a heat sealer, several empty heat seal bags, and a ledger. (Id., ¶¶ 16(d), 17) Agents found six kilograms of cocaine in the trap inside the Hyundai. (Id., ¶¶ 16(e), 18)

         After searching the River Road Apartment and the Hyundai, Agent Riley conducted a second interview of Valdez at the DEA's Manhattan headquarters. This interview was videotaped. (Id. ¶ 19) Riley again administered Miranda warnings, and Valdez again waived his rights. (Id.) Valdez admitted that he had met with Montes de Oca earlier that day and provided him with a kilogram of cocaine. (Id. ¶ 19(a)) Valdez also stated that he had received ten kilograms of cocaine in 2016 and had sold three kilograms of cocaine. (Id. ¶ 19(b))

         II. VALDEZ'S AFFIRMATION

         In an October 7, 2016 affirmation, Valdez states the following: On March 28, 2016, at approximately 6:30 p.m., he was driving his brother's Kia in Clifton, New Jersey, when a Passaic County Sheriffs officer stopped the vehicle. (Supp. Valdez Aff. (Dkt. No. 47) ¶¶ 6-7) Also inside the Kia were Valdez's brother, Joan Valdez, and Nelson Rodriguez, a friend, (Id. ¶ 7) The officer claimed to be looking for three armed robbery suspects. (Id. ¶ 9) Prior to the stop, Valdez had committed no traffic infraction. (Id. ¶ 19) Moreover, none of the occupants of the Kia were armed and none had committed a robbery. (Id., ) The officer nonetheless directed Valdez to drive to a nearby cul-de-sac off Route 21. (Id. ¶¶ 10-11) When Valdez arrived at this location, the Kia was surrounded by law enforcement officers. (Id., ¶ 12) One officer led a drug dog around the car, but the dog "remained calm." (Id. ¶¶ 12-15) Valdez was placed under arrest. (Id ¶21)

         Valdez was then transported to the Passaic County Sheriffs Office in Wayne, New Jersey. In route to the Sheriffs Office, officers "immediately began asking [Valdez] questions, " even though he "was 'dazed' from the arrest." (Id. ¶ 22) (emphasis in original) When he arrived at the Sheriffs Office, Valdez faced " simultaneous []" and "rapid" questioning from a numerous officers. (See id. ¶¶ 24-25) Valdez "was never advised of [his] rights" and "never waived [his] rights." (Id. ¶ 23) (emphasis in original) He also "never gave oral or written consent" for the search of his residence or any vehicle. (Id. ¶¶ 25-26, 28) (emphasis in original)

         Valdez was later transported to the DEA's Manhattan offices, where agents interrogated him again. (Id. ¶¶ 32, 36) By that time, Valdez was "hungry, " "sleepy, " "nervous, " "paranoid, " and "traumatized." He "had a headache, " and his "mind was somewhere else." (Id. ¶ 33(b)) He was "petrified and cold, and [his] right leg was itching as if [he] had poison ivy." (Id. ¶ 35) (emphasis in original) "[T]he officers "never told [Valdez] that [he] could remain silent, " (Id. ¶ 38) (emphasis in original) During this second interview, Valdez "did not wa[i]ve [his] constitutional right[] to remain silent" and "did not give oral consent or written consent" to "a search of [his] vehicle, property or apartment." (Id. ¶ 41) (emphasis in original)

         III. EVIDENCE AT SUPPRESSION HEARING

         The Court conducted a three-day evidentiary hearing concerning Valdez's suppression motion between October 17, 2016 and November 2, 2016. Agent Riley, Detectives Michael Patti and Sebastian Biondo of the Passaic County Sheriffs Office, and New York City Police Department ("NYPD") Detective Joseph King testified on behalf of the Government. Valdez testified in his own behalf.

         A. The Government's Evidence

         1. Investigation

         In the months preceding March 2016, DEA agents began investigating Valdez after "receiving] information that he was selling quantities of cocaine and heroin." (Suppression Healing Transcript (Dkt. Nos. 73, 75, 77) ("Hearing Tr.") at 42, 476) DEA Task Force T32 ~ of which Agent Riley and Detective King are a part - conducted the investigation. (Id. at 32-33, 114-15, 438-39) The Task Force learned that Valdez was "coming back and forth from New Jersey to New York" and "identified .. . two cars" that he used to make these trips. (Id. at 476-77, 535-36) While surveilling Valdez, Task Force members "observed him in the Bronx on numerous occasions sitting with individuals[ who were] potential buyers, " (Id.) Valdez was also observed on numerous occasions at the River Road Apartment in Nutley, New Jersey. (See id. at 476)

         On the morning of March 28, 2016, Agent Riley was conducting surveillance outside the River Road Apartment. (Id. at 83-84) He observed Valdez "exit the apartment building carrying a book bag and get into [a] Kia Sorento." (Id. at 84) Riley surveilled Valdez to a parking lot outside of Montes de Oca's workplace. (Id. at 84, 477) In the early afternoon, he observed a brief meeting between Valdez and Montes de Oca inside the Kia. (Id. at 84-85, 477) After the meeting, Montes de Oca got out of the vehicle carrying a box. (Id. at 477) Montes de Oca drove away, followed by Agent Riley and Detective King, They stopped Montes de Oca's vehicle and recovered one kilogram of cocaine from the vehicle. (Id. at 86, 443, 477, 479, 530) Montes de Oca was then placed under arrest. (Id.) Believing that Valdez had provided the cocaine found in Montes de Oca's vehicle, Riley contacted the DEA's New Jersey office and requested assistance in stopping Valdez's Kia. (Id. at 87, 92, 443) He also spoke with Michael Patti - a Passaic County Sheriffs Office detective and a DEA Task Force officer -about stopping and searching Valdez's Kia. (Id. at 82, 86, 92, 302-06, 326, 333)

         2. Traffic Stop in Clifton, New Jersey

         Detective Patti stopped Valdez's Kia on Route 21 in Clifton, New Jersey, at about 8:00 p.m. (Id. at 82, 307-08) Patti was in a marked patrol car. (Id. at 306-08) Patti approached the Kia and observed Valdez in the driver's seat along with two passengers. (Id. at 308-09) After Patti asked Valdez for his license and registration, another officer directed Valdez to drive to a nearby parking lot off the highway. (Id. at 310-11)

         After arriving at the parking lot, Valdez and the other occupants of the Kia were directed to exit the vehicle. (Id.) Agent Riley and Detective King arrived shortly thereafter and found Valdez and the other occupants standing at the rear of the Kia. (Id. at 445-46) King asked Valdez whether the Kia was his vehicle, and whether he would "mind if [the agents] take a look in th[e] car." (Id. at 447) Valdez told King that the Kia was his vehicle, and he consented to a search. (Id.)

         Detective King and Agent Riley asked Detective Patti for a consent to search form. (Id., at 311) Patti then asked Valdez whether he consented to a search of the Kia. After Valdez said "Yes, " Patti retrieved a Passaic County Sheriffs Office consent to search form from his vehicle. (Id. at 311, 314-15, 346-47, 360-61) On the second line of the consent form, Patti wrote "Det. Patti/DEA NY" as the individuals "voluntarily authorize[d]" to conduct the search, and at the bottom of the form, Patti printed his name and the date. (Id. at 311-12, 354-55; GX 3) Patti then handed the form to King and Riley. (Hearing Tr. 311-12, 354) Riley then added, inter alia, information concerning the Kia and its location (Riley's additions are underlined):

The undersigned, residing at 301 Riverfront Blvd, Elmwood Park, NJ does hereby voluntarily authorize Det. Patti/DEA NY and other officers he may designate to assist him, to search my residence/business (or other property) located at and/or my motor vehicle, namely my 2015 Kia Sorento bearing license plate number N94FSN of the state of New Jersey, presently parked or located at 39-49 Ackerman Ave, Passaic. And I further authorize said officers to remove from my residence/motor vehicle, whatever documents, or items of property whatsoever which they deem pertinent to their investigation, with the understanding that said officers will provide me with a receipt for any item(s) removed.
I am giving this written permission to these officers freely and voluntarily, without any threats or promises having been made, and having been informed of my constitutional right not to have a search made of my person or premises and motor vehicle described herein without a search warrant and of my right to refuse consent to a search and/or seizure.

(Id., at 50-55; see also GX 3) Riley handed the form to King, who reviewed it with Valdez. (Id., at 53, 313, 450-51) Valdez then signed the form. (Hearing Tr. at 317-20, 451-54) King and Patti both observed Valdez sign the form, and King signed the form as witness. (Id.) At that time, the form only addressed consent to search the Kia; neither King nor Riley had spoken with Valdez about the River Road Apartment or the Hyundai. (Id. at 455, 464-65)

         After obtaining Valdez's consent to search the Kia, Agent Riley and Detective King searched the vehicle. (Id. at 456) At King's request, Detective Patti arranged for a canine unit to report to the scene. (Id. at 320, 456-57) Detective Sebastian Biondo of the Passaic County Sheriffs Office arrived with his trained narcotics search dog. (Id. at 395-97, 402-03) The dog did not alert to the exterior of the vehicle, but "scratch[ed] . .. and bit[] at" the black book bag that Agent Riley had observed Valdez carrying out of the River Road Apartment building earlier that day. (Id. at 404-05, 458-60) The dog also alerted to the Kia's rear cargo area, which contained a "concealed compartment." (Id. at 405, 460-61) Detective Biondo testified that the dog's behavior indicated the presence of controlled substances. (Id., at 405) Both the book bag and hidden compartment were empty, however. (Id., at 555-56)

         After the search of the Kia, Valdez was placed under arrest and transported to the Passaic County Sheriffs Office. (Id., at 322, 462) Valdez was brought to the Sheriffs Office because it was "in the vicinity of where the car stop happened, " and because the agents "were anticipating applying for a search warrant for [the River Road Apartment]." (Id. at 466)

         3. Interview at the Passaic County Sheriffs Office

         Valdez arrived at the Passaic County Sheriffs Office at about 9:00 p.m. (See GX 25 at 9-10) Agent Riley and Detective King arrived shortly thereafter and brought Valdez into an interview room. Riley took the lead in conducting the interview, which lasted twenty to thirty minutes, (Hearing Tr. at 98, 476) This interview was not recorded. (Id. at 40, 95)

         a. Miranda Warnings

         At the outset of the interview, Agent Riley orally administered Miranda warnings. He informed Valdez that "he had the right to remain silent; anything that he said could and would be held against him in a court of law. He had a right to an attorney. If he could not afford one, one would be appointed to him at no cost, and he could stop the questioning at any time." (Id. at 38, 465, 470) Riley asked Valdez if he "understood those rights, " and Valdez answered "Yes." (Id. at 38-39, 470) According to King, Valdez said "that he wished to answer some questions." (Id. at 470) Riley and King did not provide Valdez with a written Miranda waiver form, although that is their usual practice when conducting interviews at the DEA's headquarters in Manhattan, (Id. at 472-73)

         During this interview, Valdez never sought to stop the questioning, and he did not ask to speak with an attorney, (Id. at 62, 489-90, 520-21) Valdez was cooperative and at all times appeared to understand what was happening. (Id.)

         b. Substance of the Interview

         Agent Riley began the interview by "la[ying] out some of the information [the agents], .. knew about [Valdez's criminal activities].., ." (Id. at 476) Agent Riley told Valdez that he had received information that Valdez was selling cocaine and heroin; that he knew Valdez "was coming back and forth from New Jersey to New York"; and that he had observed Valdez in the Bronx on numerous occasions with suspected buyers. (Id., at 476-77) Riley also informed Valdez that he had been under surveillance and that the DEA knew about his residence at 65 River Road and the two cars - the Kia and the Hyundai - that he had used to travel between New Jersey and New York. (Id. at 42, 476, 535-36) Riley also told Valdez that he had observed Valdez's meeting with Montes de Oca earlier that day, and that the DEA had already arrested Montes de Oca and recovered one kilogram of cocaine from his vehicle. (Id. at 477)

         After learning that the DEA had recovered the cocaine from Montes de Oca, Valdez "admitted to everything." (Id. at 479) Valdez admitted that "he had been involved in a drug transaction [with Montes de Oca] that [Agent Riley] earlier observed, " and that "[h]e provided [Montes de Oca with] one kilo of cocaine." (Id., at 40, 473) Although Valdez spoke about his own drug trafficking, he told Riley and Detective King that "he was not comfortable at [the] time talking about other people inside of his organization because they were either family or close family friends." (Id. at 43, 126)

         When asked about the River Road Apartment, Valdez said that he had lived there by himself and that there was "a large amount of U.S. currency along with some paraphernalia" inside the apartment. (Id. at 40-41, 473) Valdez said that the currency - "a hundred thousand dollars in cash" - was contained in "a trash bag behind a closet door." (Id. at 41) Valdez gave Riley and King the access code for the River Road Apartment building, and he also identified the key for the River Road Apartment, which was on a key ring recovered from the Kia. (Id. at 48, 475, 502, 555, 563)

         As to the Hyundai parked outside the River Road Apartment, Valdez confirmed that he operated the vehicle and that it "had a hidden compartment in the rear . . . trunk area." (Id., at 40-42) Valdez told Riley and King that the compartment "contained seven kilos of cocaine." (Id. at 42) Valdez also instructed Riley and King how to open the secret compartment, which involved pressing various buttons in the front passenger compartment in a certain sequence. (Id. at 40-42, 47, 474-75) Valdez also identified the key for the Hyundai, which had been recovered from the Kia earlier that day. (Id., at 48, 475, 555, 563)

         c. Consent to Search

         Agent Riley and Detective King testified that Valdez provided both oral and written consent to search the River Road Apartment and the Hyundai. As to oral consent, during the interview, Riley asked Valdez whether "he would mind if [the DEA] searched both the apartment and the [Hyundai] Santa Fe." (Id. at 43-44, 480-81) Valdez agreed to the search of both the apartment and the Hyundai. (Id. at 43, 480-81)

         At the end of the interview, Agent Riley prepared a handwritten consent form to "memorialize" Valdez's oral consent to the search of the River Road Apartment and the Hyundai, (hi 43-46, 95, 480-85; see ajso GX 7) The handwritten consent form prepared by Agent Riley reads as follows:

I__, do hereby give consent to New York Drug Enforcement Task Force, G[r]oup T-32, to search 65 River Rd, Apt 214, Nutley, N.J. [and] 2015 Hyundai Santa Fe [at] same.

(Hearing Tr. at 45, 480; see also GX 7) Riley reviewed the form with Valdez and asked him to sign it. (Hearing Tr. at 46, 484-85) In the presence of both Riley and King, Valdez signed and printed his name in the blank space, and dated the form. (Id. at 46, 483-85) Valdez also wrote in the number "1780, " which is the PIN code for accessing the River Road Apartment building. (Id.) Riley and King signed the form as witnesses. (Id. at 46-47, 484)

         After Valdez signed the handwritten consent form, Agent Riley presented Valdez with the Passaic County Sheriffs Office consent to search form, which Valdez had signed at the scene of the traffic stop. (Id. at 56-57, 486; see also GX 3) In order to "memorialize the consent that [he had] just received [onto a] more formal piece of paper, " Riley told Valdez that he was going to amend the Sheriffs Office consent to search form to include the River Road Apartment. (Hearing Tr. at 56-57, 127, 130, 486-87) As amended, the form read as follows (Riley's alterations are underlined):

The undersigned, residing at 301 Riverfront Blvd, Elmwood Park, N.J. / 65 River Rd, 214, Nutley, NJ does hereby voluntarily authorize Det. Patti/DEA NY and other officers he may designate to assist him, to search my residence/business (or other property) located at 65 River Rd, 214, Nutley, NJ and/or my motor vehicle, namely my 2015 Kia Sorento bearing license plate number N94FSN of the state of New Jersey, presently parked or located at 39-49 Ackerman Ave, Passaic. And I further authorize said officers to remove from my residence/motor vehicle, whatever documents, or items of property whatsoever which they deem pertinent to their investigation, with the understanding that said officers will provide me with a receipt for any item(s) removed.
I am giving this written permission to these officers freely and voluntarily, without any threats or promises having been made, and having been informed of my constitutional right not to have a search made of my person or premises and motor vehicle described herein without a search warrant and of my right to refuse consent to a search and/or seizure.

(Hearing Tr. at 50-53, 487; see also GX 3) Riley added the address of the River Road Apartment "right in front of Valdez and explained the changes he was making to "the original consent form." (Hearing Tr. at 57-58, 487-88) Valdez did not object to the changes. (Id. at 489) Valdez was not asked to initial the changes, however, and Riley did not note the time of the amendment or have Detective King initial the changes as a witness. (Id., at 58, 128-29, 131, 136, 488-89)

         As Valdez was giving consent to search the River Road Apartment and the Hyundai, Detective King sent text message updates to all other members of the T32 Task Force. (Id. at 91, 490-91) On March 28, 2016 - the day of Valdez's arrest - task force members texted each other "contemporaneously with what was happening." (Id., at 155) After ...


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