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United States v. Landaverde

United States District Court, E.D. New York

January 8, 2020

UNITED STATES OF AMERICA,
v.
JOSE AGUILAR LANDAVERDE, Defendant.

          MEMORANDUM OF DECISION

          BRIAN M. COGAN U.S.D.J.

         Defendant faces charges for Hobbs Act robbery conspiracy, Hobbs Act narcotics distribution conspiracy, and unlawful use of firearms in furtherance of both. Defendant had moved to suppress evidence gathered in connection with a November 2007 car stop. I held an evidentiary hearing and subsequently denied the motion from the bench. This opinion explains the grounds for that ruling.

         FINDINGS OF FACT

         On November 15, 2007, Corporal Donnie Carter of the Sampson County Sheriff's Office observed defendant driving a vehicle that he believed violated the window tint laws. Prior to pulling defendant over for that infraction, Corporal Carter observed both defendant and his passenger change positions from relaxed to rigid upon them passing the marked police car. Specifically, he saw that defendant had gone from a relaxed posture to a stiff posture and that he sat up straighter, fixing his hands at the proper “ten-and-two” position. He also observed the passenger slide into a crouched position, pressing himself into the seat as if to hide his body from the officer's sight.

         Once Corporal Carter had pulled the vehicle over to the side of the road and exited his patrol car, he approached the passenger's side of the vehicle and identified himself. Defendant thereafter handed Corporal Carter a North Carolina driver's license in the name of “Rolando Ruiz” and presented the vehicle registration, which showed that the car he was driving belonged to his passenger, Rigoberto Rivera. Corporal Carter immediately noticed that the car contained an “overwhelming” odor of air fresheners, which he knew from his experience could be used to mask the scent of narcotics.

         After asking defendant to step out from the driver's seat of the car, Corporal Carter performed a consent search on defendant's person, finding a necklace in his pocket. He then requested that defendant sit in the patrol car with him while he ran defendant's driver's license and the vehicle registration. While together in the patrol car, Corporal Carter asked defendant where he was coming from, to which defendant responded that he and Rivera had been in Raleigh to visit a friend. When Corporal Carter inquired about the friend, defendant could not recall his name, but said he knew him only by his nickname.

         Corporal Carter then asked about the passenger's (Rivera's) name. Defendant hesitated for a few moments before answering. Defendant further stated that he worked in a restaurant in Clinton, North Carolina. During the entire discussion, Corporal Carter observed that defendant appeared stiff and rigid, and was looking straight ahead instead of looking at Corporal Carter.

         Corporal Scott Grantham, also of the Sampson County Sheriff's Office, arrived on the scene while Corporal Carter was still sitting with defendant in the patrol car. Corporal Grantham went up to Rivera and asked from where he had driven. Rivera replied that he and defendant were roofers who had been in Raleigh all day, but were not able to work because of the rain. When Corporals Carter and Grantham then compared their respective discussions in defendant's presence, defendant appeared to become flustered when his story didn't match up with Rivera's, and interjected that Rivera does not speak English.

         At that point, Corporal Carter issued defendant a warning ticket for the window tint. He then approached Rivera's side of the vehicle, asking him to step out. After receiving consent, Corporal Carter performed a search of Rivera's person, finding jewelry in his pockets as well as flex handcuffs and approximately $3, 100 in cash. Corporal Carter recognized that these items also were indicia of criminal activity. Specifically, the fact that both defendant and Rivera had jewelry in their pockets was a sign that they had recently been involved in activity consistent with a robbery.

         Corporal Grantham then retrieved his certified narcotics detection dog, K-9 Beny, in order to conduct a free-air search of the vehicle. At the time of the stop, Corporal Grantham and Beny had been a certified narcotic detection team for approximately one year, after completing the required 238 hours of training. Beny was certified by the North American Police Work Dog Association in November 2006 and was re-certified in September 2007 (never failing any of his certification tests). Pursuant to these certifications, Beny was qualified to detect cocaine, heroin, marijuana, and methamphetamine. During field training, Beny was rewarded both when he alerted in the presence of narcotics and when he did not alert in situations where narcotics were absent. In short, Beny was not primed or encouraged only to find narcotics, but to get the answer correct.

         Corporal Grantham and Beny circled the car twice in a counterclockwise direction. At various points, Corporal Grantham “presented” the seams of the car for Beny to sniff. During the first revolution, Beny stopped at the front passenger door seam, showing interest and possibly alerting. However, Corporal Grantham noticed that there was an object on the ground outside that door, and he could not be sure that Beny was not distracted by the object. The pair continued in this manner around the car without incident or alert until they reached the trunk. When Corporal Grantham then moved his hand to the seam of the trunk to present that area, Beny jumped with his front paws upon the vehicle. Corporal Grantham moved on without any apparent recognition of an alert.

         During the second revolution, Beny again appeared to show interest in the front passenger door upon Corporal Grantham presenting the seam. According to Corporal Grantham, he observed Beny change his posture and breathing, and begin to scratch the door seam, which, consistent with his typical bark/bite/scratch mode of alert, signaled to Corporal Grantham that Beny was giving a positive alert. Taking that as a cue, Corporal Grantham opened the door and allowed Beny to search the vehicle. Soon after, Beny scratched and barked at a duffel bag in the back seat of the vehicle. Corporal Grantham then extracted the bag from the vehicle, at which point Rivera took off running. After catching up to and apprehending Rivera, the officers placed him under arrest and returned to the duffel bag.

         Upon opening the bag, the officers found several large bundles of U.S. currency. They also found additional bundles of U.S. currency underneath the driver's seat of the vehicle, wrapped in a similar manner to the money in ...


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