MATSUMOTO, District Judge:
In a third Superseding Indictment, defendants Michael Garrett ("Mr. Garrett")
These charges arise from the defendants' alleged involvement in a group known as "Together Forever" or "TF Mafia" that operated in the neighborhood of Brownsville in Brooklyn, New York as well as in Scranton, Pennsylvania. (Id. at 2.) The indictment alleges that defendants were both leaders of TF Mafia. (Id.)
After Mr. Rivera was stopped on January 18, 2012 by the Pennsylvania State Police ("PSP") and a police search of the vehicle yielded quantities of cocaine and heroin (see Gov.'s Memo. of Law in Resp. to Defs. Paul Rivera and Michael Garrett's Mots. to Suppress and Garrett's Initial Pre-Trial Mots. ("Opp.") filed 7/8/14, ECF No. 117, at 3-4; Compl. filed 2/5/13, ECF No. 1), Mr. Rivera was charged with several felony violations of Pennsylvania law and was incarcerated in Pennsylvania pending trial. (Opp. at 4.) The defendants thereafter came to the attention of the Federal Bureau of Investigation ("FBI"). (Opp. at 3.) On February 5, 2013, the Honorable Ramon E. Reyes, Jr., United States Magistrate Judge for the Eastern District of New York, issued an arrest warrant for Mr. Rivera based on a complaint charging him with conspiracy to distribute one or more controlled substances in violation of 21 U.S.C. § 846. (Compl.) Mr. Rivera was subsequently removed to federal custody. On March 11, 2013, a federal grand jury returned an indictment charging Mr. Rivera with conspiring to distribute one or more controlled substances in violation of 21 U.S.C. § 846. (Indictment as to Paul Rivera filed 3/11/2013, ECF No. 11.)
On June 24, 2013, defendants were charged together in a superseding indictment alleging a conspiracy to distribute one or more controlled substances and possession of cocaine and heroin with the intent to distribute. (Superseding Indictment filed 6/24/13, ECF No. 31.) On October 7, 2013, the grand jury returned a second superseding indictment that brought numerous charges against defendants, including racketeering conspiracy and racketeering, with specified predicate acts of narcotics trafficking, sex trafficking, money laundering, witness tampering, and murder. (Superseding Indictment (S-2) filed 10/7/13, ECF No. 62.) On April 28, 2014, the grand jury returned the current third superseding indictment (S-3).
Presently before the court are the following pre-trial motions filed by defendants.
Mr. Garrett moves to (a) suppress physical evidence recovered from a September 1, 2010 car stop, (b) suppress Mr. Garrett's post-arrest statements after his arrest in this case on June 12, 2013, (c) direct the to government disclose all evidence favorable
Mr. Rivera moves to (a) suppress physical evidence recovered pursuant to a search of a vehicle search on January 18, 2012, and (b) suppress Mr. Rivera's statements made to the government during a proffer session dated August 30, 2012. (Rivera Mots. filed 6/10/14, ECF No. 113.)
Mr. Garrett moves to suppress evidence seized from his car when he was stopped on September 1, 2010 by a New Jersey State Police ("NJSP") trooper for alleged traffic violations on the grounds that the stop was without probable cause, and the search that yielded the contraband was unlawful, because it was conducted without Mr. Garrett's consent and without probable cause. (See Garrett Mots. at 1-2.) The government argues that the stop of Mr. Garrett's vehicle was based on probable cause, because Mr. Garrett violated New Jersey traffic laws, the subsequent search of a package found in the trunk of the Garrett Vehicle was lawful, because Mr. Garrett lacked standing to challenge it, the search was supported by probable cause, and the contraband inevitably would have been discovered. (See Opp. at 46-51.)
On September 8, 2014, September 9, 2014, and October 29, 2014, the court held an evidentiary hearing addressing Mr. Garrett's and Mr. Rivera's motions to suppress evidence. Regarding Mr. Garrett's September 1, 2010 car stop, the government presented Todd Unangst
During the evidentiary hearing, the witnesses for the government presented a credible and largely consistent account of Mr. Garrett's car stop on September 1, 2010.
According to Trooper Rivas
Trooper Rivas testified that failing to maintain a lane and changing lanes without using a directional signal are violations of New Jersey state law and that, based on his observations of the traffic violations, he determined that he would stop the Garrett Vehicle. (Id. at 148, 155.) Trooper Rivas testified that he then turned on the lights on his police car and pulled the Garrett Vehicle over to the side of the road. (Id. at 221-22; see also Gov. Ex. DD
Trooper Rivas testified that he then advised Mr. Garrett that he was going to check his license and registration for traffic violations and asked if Mr. Garrett had any recent traffic violations. (T1 at 159-60; see also Gov. Ex. DD at 22:34:30-22:35:15.) Mr. Garrett responded that he had been stopped a few times in the past and had received a few traffic tickets, but that he should be in good standing. (Id.)
Trooper Rivas testified that after returning to his police vehicle and running Mr. Garrett's license and registration, he learned that Mr. Garrett's license had been suspended and that Mr. Garrett was not permitted to drive. (T1 at 160-61.) Trooper Rivas also learned that there was a traffic warrant for Mr. Garrett's arrest in Knowlton Township, New Jersey. (Id.) Trooper Rivas testified that because Mr. Garrett was a suspended driver, Mr. Garrett was not permitted to operate a motor vehicle. (Id.) Trooper Rivas testified that in light of the fact that Mr. Garrett was a suspended driver and had a warrant for his arrest, he decided to place Mr. Garrett under arrest and to impound the vehicle. (Id.) In light of Mr. Garrett's arrest, Trooper Rivas decided to have the Garrett Vehicle towed by a tow operator under contract with the NJSP to the operator's private tow yard and impounded. (Id. at 161-62.)
While Trooper Rivas was gathering additional information from Mr. Garrett, NJSP Trooper Rachel Trent ("Trooper Trent") arrived on the scene. (T1 at 164; Gov. Ex. DD at 22:42:50.) Trooper Rivas testified that he placed Mr. Garrett under arrest and transported him back to the NJSP Hope Station while Trooper Trent waited with the Garrett Vehicle until the tow truck operator arrived. (T1 at 164.) While Trooper Rivas was driving to the station with Mr. Garrett from the scene of the stop, Mr. Garrett advised that he needed his three cell phones from the center console of his vehicle. (Id. at 171-72.) Trooper Rivas placed a radio call to Trooper Trent requesting Mr. Garrett's phones, and she retrieved the three phones accordingly. (Id.)
At the station, Trooper Rivas required Mr. Garrett to remove his shoes and belt pursuant to NJSP operating procedures, before placing Mr. Garrett into a holding cell. (T1 164-65.) Trooper Rivas testified that he observed a partially smoked marijuana blunt in Mr. Garrett's left shoe. (Id.) After discovering the blunt, Trooper Rivas testified that he read Mr. Garrett his Miranda rights.
Meanwhile, at the scene of the car stop, a tow operator, Mr. Unangst, reported to the scene. (T1 at 116-17.) Mr. Unangst testified at the evidentiary hearing that he responded to a request by the NJSP to tow the Garrett Vehicle back to Mr. Unangst's impound lot. (Id.) Mr. Unangst testified that when he arrived on the scene, the Garrett Vehicle was on the side of the road with a police vehicle parked behind it. (Id. at 117-18.) Mr. Unangst also testified that a female police officer
Mr. Unangst testified that with "higher-end" cars like the Mr. Garrett's Mercedes, equipment called a "tow loop" is used to tow the vehicle without damaging the suspension or the frame of the vehicle. (T1 at 120.) The tow loop screws into the front bumper, and the tow hook from the tow truck attaches to the tow loop instead of the front bumper itself. (Id.) Mr. Unangst testified that in the course of his work as a tow truck operator, Mr. Unangst routinely used tow loops to tow high-end vehicles, which he understands to be the common practice among tow truck companies generally. (Id. at 128.)
As was his common practice, Mr. Unangst used a key to open the trunk and retrieve the tow loop from the Garrett Vehicle. (T1 at 129-30.) Mr. Unangst testified that he did not recall exactly how he obtained the keys for the Garrett Vehicle, but he believed that either Trooper Trent handed him the keys for the Garrett Vehicle or the keys were left for him in or near the Garrett Vehicle. (Id. at 129, 140.) Mr. Unangst testified that the NJSP did not direct him to open the trunk of the Garrett Vehicle. (Id. at 120, 128.)
Mr. Unangst testified that when he opened the trunk of the Garrett Vehicle, he noticed that it smelled like marijuana. (T1 121-22.) Mr. Unangst then lifted the floor mat of the trunk to search for the tow loop in the spare tire and tools chamber. (Id. at 122.) After lifting up the floor mat, Mr. Unangst saw a bag that was approximately ten to twelve inches in length. (Id.) Mr. Unangst testified that he thought the package contained marijuana. (Id. at 123.) Mr. Unangst then motioned to Trooper Trent to approach the trunk. (Id.) Mr. Unangst testified that when Trooper Trent saw the package, she advised Mr. Unangst that he would have to tow the Garrett Vehicle back to the state police barracks rather than to his impound lot as originally planned. (Id.) According to the CAD Report, Trooper Trent then notified the NJSP control center and the Hope Police Station that she was in custody of "CDS" (a term for "controlled dangerous substance") and would be returning to the station. (Gov. Ex. SH-3500-AR-25.) Accordingly, Mr. Unangst then towed the Garrett Vehicle back to the NJSP barracks. (T1 at 123.)
Trooper Rivas testified that Trooper Trent informed him about the discovery of the bag and brought a "clear vacuum sealed bag with a black bag inside of it" to Trooper Rivas at the station. (T1 at 165.) Trooper Rivas then showed Mr. Garrett the package that had been recovered from the Garrett vehicle. (Id. at 168.) Trooper
Trooper Rivas testified that he then conducted additional investigation of Mr. Garrett's criminal history which revealed "a significant criminal history" that included narcotics and violence. (T1 at 169.) Trooper Rivas credibly testified that based on the totality of the circumstances, he reached a belief that the package found in the Garrett Vehicle contained "a CDS, Controlled Dangerous Substance, some kind of drug." (Id. at 169.)
Detective Shotwell
Detective Shotwell testified that he examined the vacuum-sealed package that had been recovered from the trunk of the Garrett Vehicle. (T1 at 244.) He noted that the clear vacuum-sealed package contained another dark-colored plastic bag within. (Id. at 244-45.) Detective Shotwell testified that he found the package to be suspicious, because vacuum-sealing sucks air out of a package and is used to mask the smell of the contents of the package. (Id. at 245.) Detective Shotwell also noted that the package did not appear to have been from the car manufacturer. (Id.)
Detective Shotwell testified that when he picked up the package, he could feel that the package contained several small-sized "bundles" within the dark plastic bag. (T1 at 245-46.) Detective Shotwell believed, based on his experience and the totality of the circumstances and the way the package and bundles looked and felt, that the smaller bundles inside the package contained narcotics. Detective Shotwell testified that, in the course of his career as a law enforcement officer, he had previously seen narcotics similarly packaged in a number of smaller bags, although not in the specific manner presented. (Id. at 246.)
Thereafter, Detective Shotwell testified that he discussed whether he should open the bag with his supervisor, Sergeant Walsh. (T1 at 246-47). They both agreed that the package should be opened for further investigation. (Id.)
Detective Shotwell opened the bag and testified that his first impression was an
Trooper Rivas also testified that the morning after he opened the package, he called a K-9 unit to perform an exterior sniff of the vehicle, and the canine alerted to the trunk of the vehicle. (T1 at 177-78.) Trooper Rivas testified that he then applied for a search warrant for the Garrett Vehicle, which was approved by Warren County Superior Court Judge John J. Coyle. (Id. at 178-79; Gov. Ex. C.
Mr. Garrett was ultimately issued three citations as a result of the September 1, 2010 car stop which included: driving with a suspended license; careless driving; and operating a motor vehicle while in possession of CDS. (T1 at 163-64; 17273.) On October 31, 2011, Mr. Garrett pleaded guilty to the tickets for careless driving and driving with a suspended license, as well as to a charge of possession of marijuana. (Gov. Ex. S.
In his affirmations filed on June 9, 2014 and July 29, 2014, Mr. Garrett stated that (1) prior to his September 1, 2010 stop, he did not make an illegal lane change and did not fail to signal; (2) he did not consent to any search of his vehicle and its contents; and (3) he "did not deny knowledge of the package in the trunk." (Garrett Affirm. filed with Garrett Mots. at 3; Garrett Affirm. filed with Garrett Reply, ECF No. 123-1.)
Mr. Garrett seeks to suppress the physical evidence recovered from the Garrett Vehicle on the grounds that Trooper Rivas did not have probable cause to stop the Garrett Vehicle and that the bag found in the trunk of the Garrett Vehicle was illegally seized and searched. For the reasons set forth below, the court denies Mr. Garrett's motion, finding that the NJSP officers had probable cause for each of the actions they took over the course of the
As an initial matter, Mr. Garrett's affirmations challenge two factual claims made by Trooper Rivas: (1) that Trooper Rivas observed Mr. Garrett changing lanes without signaling and failing to maintain the lane and (2) that Mr. Garrett told Trooper Rivas that the package found in the trunk of the Garrett Vehicle did not belong to him. In both cases, the court finds Trooper Rivas's testimony to be credible.
The court finds that Trooper Rivas was a truthful and reliable witness. The only inconsistency that Mr. Garrett has identified was the 16-minute discrepancy as to when the car stop began. Not only did Trooper Rivas provide a credible explanation for the discrepancy, but this inconsistency is, at best, minor, and does not cast doubt on Trooper Rivas's testimony or candor.
In contrast, the court declines to give significant weight to Mr. Garrett's affirmations. Because Mr. Garrett exercised his right not to testify, his testimony by affirmation was not subject to cross-examination. See, e.g., United States v. Walia, No. 14-cr-213 (MKB), 2014 WL 3563426, at *13 n. 8 (E.D.N.Y. July 18, 2014) ("As a general matter, credible testimony at a hearing is entitled to more weight than an affidavit, because testimony has been subjected to cross-examination." (quoting United States v. Medina, 19 F.Supp.3d 518, 535 n. 13 (S.D.N.Y.2014) (collecting cases))); DiMattina v. United States, 949 F.Supp.2d 387, 411 (E.D.N.Y.2013) ("Without the threat of cross-examination, [the defendant's] affidavits are viewed as self-serving and given little weight.")
With respect to Mr. Garrett's claim that he "did not make an illegal lane change, nor did [he] neglect to signal as the law requires," the court also considers that the MVR footage showed Mr. Garrett acknowledging and apologizing for his difficulty with maintaining his lane, and offering problems with the air pressure in his tires as an explanation. (Gov. Ex. DD.) Moreover, Mr. Garrett pleaded guilty under oath to committing careless driving by making a lane change without using his turn signal before his vehicle was stopped. (Gov. Ex. S.) The court also notes that Mr. Garrett failed to claim in his initial pretrial motion that he did not make an illegal lane change, and only presented this assertion by affirmation in his reply, which further casts doubt on Mr. Garrett's denial that he did not make an illegal lane change. Thus, the court finds Officer Rivas's testimony that he observed Mr. Garrett making an illegal lane change and failing to maintain his lane to be entirely credible and finds Mr. Garrett's statements to be inconsistent and unbelievable.
The court also finds credible Trooper Rivas's testimony that Mr. Garrett advised Trooper Rivas that the package did not belong to Mr. Garrett. In Mr. Garrett's affirmation filed with his reply, Mr. Garrett avers that he never denied "knowledge
The Fourth Amendment protects the "right of the people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. This protection extends to vehicle stops. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). "[T]he Fourth Amendment requires that an officer making a traffic stop have probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity." United States v. Harrison, 606 F.3d 42, 45 (2d Cir.2010) (citation and internal quotation marks omitted). As set forth above, the court finds that Trooper Rivas's observation of the Garrett Vehicle engaging in an illegal lane change and failing to maintain his lane established that Trooper Rivas had probable cause to believe that Mr. Garrett committed violations of New Jersey traffic laws. Thus, the stop of the Garrett Vehicle on September 1, 2010 was reasonable, based on probable cause, and proper under the United States Constitution.
A warrantless search and seizure is "per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir.1999) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)) (internal citations and quotation marks omitted). The "plain view" exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize an object "if its incriminating character is immediately apparent, and if the officer[] ha[s] a lawful right of access to the object." Kiyuyung, 171 F.3d at 83 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)).
The first issue is whether Trooper Trent and Mr. Unangst had a lawful right to observe the package in plain view as the Garrett Vehicle was being prepared by Mr. Unangst to be towed. The court finds that the NJSP decision to tow the Garrett Vehicle and remove it from the highway was reasonable to safeguard Mr. Garrett's property and to ensure the safety of the public, given that Mr. Garrett's license was suspended and he could not drive legally, and that there was an outstanding warrant for his arrest. Thereafter, in an effort to protect Mr. Garrett's property, a high-end Mercedes vehicle, Mr. Unangst, the private tow truck operator, acted according to industry practice by opening the trunk in order to locate the tow hooks, and then discovered the package in question and
The second issue is whether the "incriminating character" of the package found in the Garrett Vehicle was "immediately apparent." The Supreme Court has articulated this standard as whether the police have "probable cause to believe that an object in plain view is contraband without conducting some further search of the object." Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Mr. Garrett argues that because the drugs were not visible in the bag "by sight or shape," the incriminating character of "the bag's contents" was not immediately apparent. (Garrett Post-Hr'g Mot. at 3.) (emphasis added). The court disagrees. The law does not require that narcotics be plainly observable in order to justify the seizure of a package under the plain view doctrine. See Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (holding that the police properly seized green balloon from defendant's automobile, because officer was aware that balloons tied in the manner of the one possessed by the defendant were frequently used to carry narcotics, noting that "the opaque fabric of the balloon is all but irrelevant"); United States v. Lopez-Salcedo, No. 11 Cr. 482(LMM), 2011 WL 5838283 (S.D.N.Y. Nov. 18, 2011) (upholding officer's seizure based on officer's immediate recognition that package contained drugs). In United States v. Barrios-Moriera, the Second Circuit held that a law enforcement agent had probable cause to seize a package that he believed contained cocaine, because "the rectangular package, measuring a certain size, wrapped in duct tape, spoke volumes as to its contents, particularly to an experienced DEA agent." 872 F.2d 12, 17 (2d Cir.1989), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), and cert. denied, 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989) (internal quotations omitted).
Here, the court finds that the incriminating character of the vacuum-sealed package found in the trunk of the Garrett Vehicle was immediately apparent based on its shape and the manner in which it was packaged. The uncontroverted evidence establishes that Mr. Unangst opened the trunk of the Garrett Vehicle to search for tow hooks, smelled marijuana, and discovered the vacuum-sealed package in the spare tire compartment, which he suspected contained marijuana and prompted him to alert Trooper Trent. Consequently, Trooper Trent notified the radio dispatcher that she was in custody of suspected CDS and took the vacuum-sealed package to Hope Police Station.
"The Supreme Court has, in fact, stressed that analysis of fourth amendment issues involves `an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time' and not on the officer's actual state of mind at the time the challenged action was taken." United States v. Scopo, 19 F.3d 777, 783 (2d Cir.1994) (citing Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (quoting
Mr. Garrett also argues that the subsequent warrantless search of the package found in the trunk of the Garrett Vehicle by Detective Shotwell was unlawful because (1) the initial seizure of the package was unlawful, and (2) the "plain feel" doctrine does not apply. As the court previously has determined that the warrantless seizure of the package was lawful, the court addresses the "plain feel" exception.
The "plain feel" doctrine is a variation of the "plain view" doctrine that provides that law enforcement "may lawfully seize evidence they touch and can plainly feel is contraband or contains contraband." See United States v. Colon, No. 10 Cr. 498(RPP), 2011 WL 569874, at *13 (S.D.N.Y. Feb. 8, 2011) (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). The Second Circuit has also held that law enforcement's search of a container that plainly feels like it contains contraband is lawful. See United States v. Ocampo, 650 F.2d 421, 429 (2d Cir.1981) (holding that search of brown bag where law enforcement agents could plainly feel that the bag contained currency was lawful). However, where the nature of the object is not immediately apparent by touch, law enforcement is prohibited from "physical manipulation" such as "feel[ing] the bag in an exploratory manner." Bond v. United States, 529 U.S. 334, 338-39, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). In Minnesota v. Dickerson, the Supreme Court found a search to be unconstitutional where an officer "determined that the lump was contraband only after squeezing, sliding and otherwise manipulating the contents of the defendant's pocket — a pocket which the officer already knew contained no weapon." 508 U.S. at 378, 113 S.Ct. 2130. Based on the evidence in the record, the court finds that Detective Shotwell determined that there were smaller packages within the vacuum-sealed bag that he suspected contained narcotics, from a "plain feel" of the bag.
500 U.S. at 580, 111 S.Ct. 1982. Prior to Acevedo, separate doctrines permitted the warrantless search of an automobile to include a search of closed containers found inside the car when there is probable cause to search the vehicle, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), but prohibited the warrantless search of a closed container located in a vehicle when there is probable cause to search only the container, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). In Acevedo, the Court resolved this distinction, finding that the police may engage in a warrantless search of a container found within a vehicle when they have probable cause to believe the container itself holds contraband or evidence. 500 U.S. at 580, 111 S.Ct. 1982. The Supreme Court reasoned that "prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests." Id. at 574, 111 S.Ct. 1982 (quoting United States v. Ross, 456 U.S. 798, 821 n. 28, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)).
At the time of the seizure of the package, the NJSP had probable cause to search the rectangular, vacuum-sealed container pursuant to Acevedo. As previously discussed, Mr. Unangst had alerted Trooper Trent to the vacuum-sealed package in the trunk of the Garrett Vehicle, because he believed it contained marijuana; Trooper Trent observed the rectangular, vacuum-sealed bag in the spare tire compartment of the Garrett Vehicle which she reasonably believed contained CDS; the trunk of the Garrett Vehicle smelled like marijuana; and Trooper Trent had retrieved three of Mr. Garrett's cell phones from the center console of the Garrett Vehicle. That the search of the vacuumsealed package was delayed until Trooper Trent brought the package to Hope Police Station does not render the search unconstitutional. See United States v. Johns, 469 U.S. 478, 487, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985) (upholding warrantless search of containers three days after they were removed from the trucks).
When Detective Shotwell made the determination to open the package at Hope Police Station, he had knowledge of the following additional facts: he could feel smaller packaged items within the vacuum-sealed
Even assuming the seizure and search of the vacuum-sealed bag was unlawful, the court also analyzes the NJSP actions under the doctrine of inevitable discovery. The court concludes that the contraband recovered from the trunk of the Garrett Vehicle inevitably would have been obtained by the NJSP and is also admissible on this ground.
Even if the court were to find Fourth Amendment error, which it does not, in Trooper Trent's seizure of the vacuum-sealed package from the trunk of the Garrett Vehicle and the subsequent search of the package, the court concludes that the contraband found in the package inevitably would have been discovered. As set forth, supra, the NJSP acted lawfully to stop the Garrett Vehicle for traffic violations, arrest him and impound his vehicle based on his suspended license and the outstanding arrest warrant, and tow the Garrett Vehicle from the roadside, which would have led to the lawful discovery of the vacuum-sealed package in plain view. At the moment of Trooper Trent's decision to bring the package back to Hope Police Station based on her probable cause determination that the package contained CDS, she called to inform the NJSP officers at Hope Police Station that she found a package in the Garrett Vehicle that she suspected contained CDS. Even if Trooper Trent left the vacuum-sealed package in the trunk, Detective Shotwell
Mr. Garrett moves to suppress all statements that he made after his arrest in this case on June 12, 2013 on the grounds that the statements were made in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (Garrett Mots. at 3-4.) In light of the government's representation that it will not seek to introduce Mr. Garrett's post-arrest statements in its case-in-chief, the court denies the motion as moot.
Mr. Garrett moves to compel the immediate production of all evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and other exculpatory evidence. Mr. Garrett also cites Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), which touches upon the government's burden to produce impeachment evidence.
"Under Brady and its progeny, `the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is `material' either to guilt or to punishment.'" United States v. Certified Environmental Services, Inc., 753 F.3d 72, 91 (2d Cir.2014) (quoting United States v. Coppa, 267 F.3d 132, 139 (2d Cir.2001)). "Favorable evidence" that must be disclosed for purposes of Brady "includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness," also known as "Giglio material." Id. "[A] prosecutor must disclose evidence if, without such disclosure, a reasonable probability will exist that the outcome of a trial in which the evidence had been disclosed would have been different." Coppa, 267 F.3d at 142.
The government must disclose all Brady and Giglio material "in time for its effective use at trial." Id. The required timing of such a disclosure depends on the materiality of the evidence and the particular circumstances of each case; accordingly, the Second Circuit has refrained from defining the phrase "in time for effective use." United States v. Taylor, 17 F.Supp.3d 162, 177 (E.D.N.Y.2014). A defendant has "no pretrial discovery right to Giglio materials." United States v. RW Prof'l Leasing Servs. Corp., 317 F.Supp.2d 167, 179 (E.D.N.Y.2004) (citing United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). "A district court has the discretion to order Brady/Giglio disclosure at any time as a matter of sound case management." Taylor, 17 F.Supp.3d at 177 (internal citation omitted).
In its opposition memorandum, the government has represented to the court and Mr. Garrett that it is aware of its obligations under Brady, that it is unaware of any Brady material in its possession, and
Additionally, the government plans to produce Giglio material "in advance of trial" to the extent advance production of the materials is possible. (Opp. At 79-80.) Thus, as there is no pre-trial right to Giglio material and the government has represented that it will produce Giglio materials in advance of trial, the court denies Mr. Garrett's motion for immediate disclosure of Giglio material.
Mr. Garrett requests that the government list any evidence pursuant to Federal Rule of Evidence 404(b) in a timely manner. Rule 404(b) requires that the government provide "reasonable notice in advance of trial" of its intent to introduce evidence of a defendant's other crimes or bad acts. Fed.R.Evid. 404(b). In light of the fact that the court has already ordered the government to submit its motion to admit evidence pursuant to Rule 404(b) by February 13, 2015 (Third Criminal Pretrial Scheduling Order, ECF No. 139), the court denies Mr. Garrett's motion as moot.
Mr. Garrett moves to sever his trial from that of Mr. Rivera on the basis that the introduction of Mr. Rivera's confessions (e.g., his proffer statements to government agents on August 30, 2012) would violate Mr. Garrett's constitutional confrontation rights as set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Defendant also argues that a joint trial will "impermissibly poison the jury against Garrett" due to the anticipated admission of "certain evidence against Rivera that is largely inadmissible against Garrett." (Garrett Mots. at 45.) Mr. Garrett also requests the court to direct the government to identify defendants' statements it intends to introduce so that Mr. Garrett may make a comprehensive request for severance.
Rule 8(b) of the Federal Rules of Criminal Procedure ("Rule 8(b)") provides that an indictment or information may charge multiple defendants who allegedly "participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R.Crim.P. 8(b). The Supreme Court has recognized and reaffirmed "a preference in the federal system for joint trials of defendants who are indicted together" because they promote efficiency and prevent the injustice of inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Where "the crime charged involves a common scheme or plan," a joint trial of the participants is typically proper. United States v. Girard, 601 F.2d 69, 72 (2d Cir.1979) (citing United States v. Arroyo-Angulo, 580 F.2d 1137, 1144 (2d Cir.1978)); United States v. Green, 561 F.2d 423 (2d Cir.1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 739, 54 L.Ed.2d 764 (1978). Joint trials also "limit inconveniences to witnesses, avoid delays in bringing defendants to trial and permit the entire story to be presented to a single jury." United States v. Rucker, 32 F.Supp.2d 545, 547 (E.D.N.Y.1999).
"[T]he appropriate analysis to be used when applying the Bruton rule requires that [the court] view the redacted confession in isolation from other evidence introduced at trial." United States v. Williams, 936 F.2d 698, 700 (2d Cir.1991). The Jass court explained that Bruton and its progeny "do not construe the Confrontation Clause to demand further that a confession be redacted so as to permit no incriminating inference against the non-declarant defendant." 569 F.3d at 60. The Court further explained that "[t]he critical inquiry is [] not whether a jury might infer from other facts ... that a declarant's neutral allusion to a confederate might have referenced the defendant" but "whether the neutral allusion sufficiently conceals the fact of explicit identification to eliminate the overwhelming probability that a jury hearing the confession at a joint trial will not be able to follow an appropriate limiting instruction." Id. at 61.
When employing redaction to avoid Bruton concerns, the Second Circuit thus recognizes two acceptable types of redactions: (1) redactions eliminating altogether any reference to a co-defendant's existence; and (2) redactions replacing a co-defendant's name with neutral pronouns so that the statement, standing alone, does not refer to the co-defendant. Jass, 569 F.3d at 56.
In addition, courts should sever defendants who are properly joined under Rule 8(b) when the prejudice against a defendant is so great that "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Rittweger, 524 F.3d 171, 179 (2d Cir.2008) (quoting Zafiro, 506 U.S. at 539, 113 S.Ct. 933). A defendant seeking severance under Rule 14 bears an "`extremely difficult burden' of proving ... that the prejudice would be so great as to deprive him of his right to a fair trial." United States v. Bellomo, 954 F.Supp. 630, 649 (S.D.N.Y.1997) (quoting United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir.1989)).
The determination of whether such prejudice exists is highly fact-specific and must be evaluated on a case-by-case basis. Id. Moreover, the decision of whether to sever a trial is committed to the sound discretion of the district court.
With respect to Mr. Garrett's argument that severance is necessary because the government's introduction of Rivera's "multiple confessions" will violate Mr. Garrett's rights under Bruton, the court respectfully disagrees. The government may, under certain conditions articulated in its submissions
The court has reviewed the government's Exhibit O and finds that Exhibit O's modifications "sufficiently conceal[] the fact of explicit identification" such that a jury hearing the confession at a joint trial will be able to follow an appropriate limiting instruction. Jass, 569 F.3d at 61. First, because Mr. Rivera's statements were made at a proffer session, instead of in a written or recorded form, the government has represented that if it does introduce Mr. Rivera's statements at trial, it will do so through the testimony of a law enforcement agent present at the proffer session. (Opp. at 86.) Therefore, as demonstrated in the government's Exhibit O, the risk of clumsy redactions, which are prohibited by the Confrontation Clause, is minimized. See Gray v. Maryland, 523 U.S. 185, 192, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) ("Redactions that simply replace a name with an obvious blank space or a word such as `deleted' or a symbol or other similarly indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result.") Furthermore, the court has reviewed the government's Exhibit O, and notes that the government's modifications have eliminated all references to Mr. Garrett in accordance with the Second Circuit's decision in Jass.
The court also finds that Mr. Garrett has failed to meet his heavy burden of proving that severance is warranted because he will be so greatly prejudiced that he will be deprived of a fair trial if the court permits "the admission of certain evidence against Rivera that is largely inadmissible against Garrett." (Garrett Mots. at 4-5.) Mr. Garrett is particularly concerned that prejudice may result from the admission of statements by Mr. Rivera that implicate Mr. Garrett. (Garrett Mots. at 4.)
First, with respect to Mr. Garrett's concern about "the admission of certain evidence against Rivera that is largely inadmissible against Garrett," the court notes that the statements about which Mr. Garrett is concerned would likely be admitted against Mr. Garrett in a separate trial. Statements (as distinguished from Mr. Rivera's proffer statement, which may implicate Bruton) made by co-defendants in furtherance of a conspiracy during the period of the charged conspiracy, even statements by one defendant that may implicate another defendant, are admissible as co-conspirator declarations and are "not hearsay" under Federal Rule of Evidence 801(d)(2)(E). Fed.R.Evid. 801(d)(2)(E);
Second, severance is not necessarily required simply because evidence is admissible against one defendant but not another. United States v. Carson, 702 F.2d 351, 367 (2d Cir.1983); see also United States v. Rucker, 586 F.2d 899, 902 (2d Cir.1978) ("The fact that evidence may be admissible against one defendant but not against others does not require separate trials."); United States v. Cardascia, 951 F.2d 474, 482 (2d Cir.1991) (noting that "disparit[ies] in the quantity of evidence and of proof of culpability are inevitable in any multi-defendant trial, and by themselves do not warrant a severance").
The court recognizes that there could be instances in which severance is necessary because the volume of evidence adduced at trial that is only relevant against one defendant is grossly disproportional to that of his or her co-defendants. In United States v. DiNome, 954 F.2d 839 (2d Cir. 1992), for example, the Second Circuit found reversible error in the trial court's denial of severance as to certain defendants because "an infinitesimal fraction" of evidence offered during a sixteen-month trial related to those certain defendants, who were therefore "swamped" by a "mass of irrelevant evidence." Id. at 844-45.
The concerns in DiNome will be absent in the instant trial, which is estimated to last six weeks and involves just two defendants, Mr. Garrett and Mr. Rivera, both of whom are alleged to be members of the same conspiracy. The court accepts and the defendants do not challenge the government's representations that Mr. Rivera and Mr. Garrett "are fairly equally represented in the government's voluminous discovery to date." (Opp. at 88; see Opp. at 28-30.) Indeed, the Second Circuit has stated that joint trials are often "particularly appropriate" where, as here, defendants allegedly participated in the same criminal conspiracy. United States v. Spinelli, 352 F.3d 48, 55 (2d Cir.2003).
Furthermore, the court denies Mr. Garrett's request that the government identify "which statements it intends to introduce so defendant may make a comprehensive request for severance." As previously discussed, the statements which Mr. Garrett references would likely be admissible against Mr. Garrett under Rule 801(d)(2)(E), even in a separate trial. Thus, the government's disclosure of these statements is unlikely to bolster Mr. Garrett's argument for severance. In any event, the court finds that the disclosure of this information would likely be insufficient to establish that a joint trial would be so prejudicial as to constitute a "miscarriage of justice." United States v. Locascio, 6 F.3d 924, 947 (2d Cir.1993). Should the parties object at trial, the court will certainly evaluate all statements that the government seeks to introduce for prejudice against each defendant and exclude testimony when the interests of justice so require.
Mr. Garrett maintains that the superseding indictment and the government's discovery disclosures do not provide adequate information to defend against the money laundering allegations charged as Count Eight and Racketeering Act Five. (Garrett Mots. at 16-17.) Mr. Garrett thus seeks a bill of particulars that includes specific descriptions of Garrett's actions and detailed information about each alleged money laundering transaction. (Id. at 17.)
Federal Rule of Criminal Procedure 7(f) allows a defendant to seek a bill of particulars in order to (1) "identify with
A defendant's request for a bill of particulars may be denied "if the information sought by defendant is provided in the indictment or in some acceptable alternate form," such as discovery. Bortnovsky, 820 F.2d at 574. "[O]nly where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused" is a bill of particulars required. Perryman, 881 F.Supp.2d at 430 (quoting Torres, 901 F.2d at 234).
Having reviewed the superseding indictment and the letters that have accompanied the government's production of discovery to date (see, e.g., Letter re Rule 16 Discovery (#2) as to Michael Garrett, ECF No. 60) (containing Garrett's and TF Mafia Muzik LLC's tax records and bank account records), the court respectfully denies Mr. Garrett's motion for a bill of particulars. The court recognizes that "[a] bill of particulars is not designed to: obtain the government's evidence; restrict the government's evidence prior to trial; assist the defendant's investigation; obtain the precise way in which the government intends to prove its case; interpret its evidence for the defendant, or disclose its legal theory." United States v. Bellomo, 263 F.Supp.2d 561, 580 (E.D.N.Y.2003).
The superseding indictment provides information as to the nature of the alleged money laundering offense, its timing, and Mr. Garrett's alleged participation. Moreover, during discovery, the government provided Mr. Garrett with TF Mafia Musik's banking records and tax records and the report of Mr. Rivera's proffer wherein Mr. Rivera articulated Mr. Garrett's alleged role in facilitating money laundering (Opp., Ex. K; Garrett Mots., Ex. C, at 10). The superseding indictment and subsequent discovery is sufficient to advise Mr. Garrett of the nature of the charges and the acts of money laundering of which he is accused, thereby enabling him to prepare for trial. See, e.g., United States v. Walters, 963 F.Supp.2d 125, 134 (E.D.N.Y. 2013) (denying defendant's request for bill of particulars for alleged wire fraud conspiracy and money laundering conspiracy where government has provided bank records showing various banking transactions).
In his notice of motion, Mr. Garrett also requests that the court permit him to bring further motions upon the basis of newly discovered information. Other than the motions addressed in the Third Criminal Pretrial Scheduling Order (ECF No. 139), the court permits Mr. Garrett to
Mr. Garrett also requests permission to join in the motions of his co-defendant as appropriate. The court grants Mr. Garrett's request to join in Rivera's motions.
Mr. Rivera moves to suppress evidence seized from the vehicle he was driving when he was stopped on January 18, 2012 by a Pennsylvania State Police ("PSP") trooper for an alleged traffic violation on the grounds that the PSP trooper lacked probable cause to stop Rivera's vehicle. (Rivera Mots. at 3-4.) Mr. Rivera also argues that his prolonged roadside detention after the traffic stop was unlawful and the PSP troopers did not have probable cause for his arrest and the search of his vehicle. (Id. at 4-9.) The government responds that the PSP trooper had a valid basis for stopping Mr. Rivera's vehicle, and that Mr. Rivera's roadside detention and the search of his vehicle were reasonable. (Opp. at 52-57.)
At the evidentiary hearings, the government presented the testimony of several witnesses relating to the January 18, 2012 car stop: Trooper Thomas Horan ("Trooper Horan"), who initially stopped Mr. Rivera's vehicle; Trooper Paul J. Lindsay ("Trooper Lindsay") who arrived at the scene to assist Officer Horan; and Trooper Gerald L. Powell ("Trooper Powell"), who handled the K-9 unit that reported to the scene. Mr. Rivera did not present any witnesses regarding his motion to suppress and relied upon his affidavits submitted in connection with his motion papers. (See Rivera Aff. filed with Rivera Mots. ("Rivera Aff."), ECF No. 113-1; Second Rivera Aff. Filled with Rivera Mots. ("Second Rivera Aff."), ECF No. 113-2.) Mr. Rivera and the government filed post-hearing submissions with the court. (See Memo. of Law in Supp. of Paul Rivera's Pre-Trial Mots. to Suppress ("Rivera Post-Hr'g Memo."), ECF No. 146; Gov. Post-Hr'g Memo, ECF No. 148; Reply Br. in Supp. Of Paul Rivera's Pre-trial Mots. to Suppress ("Rivera Post-Hr'g Reply"), ECF No. 150)
During the evidentiary hearing, the witnesses for the government presented a credible and largely consistent account of Mr. Rivera's car stop on January 18, 2012.
According to PSP Trooper Horan, who the court found to be credible, he was on duty and patrolling Interstate 81 ("I-81") in Susquehanna County, Pennsylvania on the morning of January 18, 2012. (T2 at 289-92.) The government introduced Exhibit U, which Trooper Horan testified was the mobile unit log reflecting all calls that Trooper Horan made to the radio dispatcher from his January 18, 2012 shift. (Id. at 289-90.) According to Exhibit U, Trooper Horan indicated a traffic stop at 8:08 a.m. on January 18, 2012. Trooper Horan testified that at that approximate time, he was driving north on I-81 in the left lane of the highway when he observed a silver Honda Accord with New York license place FWH5874 (the "Rivera Vehicle") directly in front of him in the left lane at approximately mile marker 206.9. (Id. at 292-96; Gov. Ex. U.) Trooper Horan testified that he observed the Rivera Vehicle move into the right lane, at which point he passed the Rivera Vehicle on the left. (T2 at 292.) Immediately after he passed the Rivera Vehicle, Trooper Horan observed the Rivera Vehicle move back into the left lane behind his police vehicle. (Id.)
Trooper Horan testified that he then radioed the Rivera Vehicle stop to the local barracks, exited his vehicle, and approached the passenger side of the Rivera Vehicle. (T2 at 296.) Trooper Horan testified that a female occupant sitting in the front passenger seat, who was later identified as Shelby Rivera, opened the front passenger window. (Id. at 296-97.) Trooper Horan testified that he spoke to the vehicle occupants through the open window and explained that he pulled over the Rivera Vehicle for a left-lane violation. (Id. at 297.) Trooper Horan noted that there were five occupants in the vehicle including Shelby Rivera in the front passenger seat, and three back seat occupants: a man later identified as John Portalatin ("Mr. Portalatin"), a minor female, and a woman later identified as Kathryn Rivera. (Id.) Trooper Horan further testified that Mr. Rivera stated that he understood the left-lane violation and did not deny that he had not been driving in the left lane. (Id. at 298.)
Trooper Horan testified that as he was speaking to the vehicle occupants, he noticed a strong smell of perfume coming from inside the vehicle, and that as the smell of perfume dissipated, he could detect the odor of marijuana. (Id. at 297.) Trooper Horan testified that the smell of marijuana was significant to Trooper Horan, because he immediately suspected the presence of criminal activity in addition to the traffic violation. (Id. at 297-98.) Trooper Horan testified that he then proceeded to ask who the vehicle belonged to, and Mr. Rivera informed him that it belonged to his boss, Michael Garrett. (Id.) Trooper Horan testified that Mr. Rivera appeared "extremely nervous"; Trooper Horan noticed that Mr. Rivera would not make eye contact and Mr. Rivera's carotid artery was visibly pulsating. (Id. at 298-99.)
Trooper Horan testified that, because he smelled marijuana, he returned to his patrol vehicle and contacted the local barracks, PSP Gibson, to request backup. (Id. at 299.) Trooper Horan testified that, while in his vehicle, he also checked the criminal histories of the vehicle occupants and learned that Mr. Rivera had an extensive criminal history for narcotics and weapons possession and that Mr. Portalatin, one of the vehicle occupants, had been charged with narcotics possession. (Id. at 299-300.) He also checked the car's license
Trooper Horan testified that he thereafter re-approached the Rivera Vehicle and asked Mr. Rivera who owned the car, and Rivera again stated that his boss, Michael Garrett, owned the car. (Id.) Trooper Horan then asked Mr. Rivera to retrieve the car's registration, and Mr. Rivera was unable to do so. (Id.) Trooper Horan then asked where the Mr. Rivera Vehicle was going, and Mr. Rivera responded that he was going to Binghamton, New York to drop off Shelby Rivera to meet her sister. (Id. at 301.) When Trooper Horan asked how long the duration of the trip would be, Mr. Rivera stated that they were going "down and back." (Id.) Trooper Horan testified that he also asked whether any of the vehicle occupants had been arrested, and all five passengers stated that they had never been arrested. (Id. at 302.)
Trooper Horan testified that while he was speaking to the vehicle occupants, he again smelled both perfume and marijuana. (Id. at 301.) Trooper Horan began to ask more questions, and Mr. Rivera began to sweat, with "beads of sweat dripping off of his head." (Id.) Trooper Horan also observed that Mr. Portalatin would not look at Trooper Horan, was visibly shaking, and his hands were trembling. (Id.) Trooper Horan testified that he continued to be suspicious that there was criminal activity going on at that point. (Id.)
Trooper Horan testified that Trooper Lindsay then arrived to the scene, responding to his call for backup. (Id. at 301-302.) Trooper Lindsay testified that he arrived at approximately 8:35 a.m., parked his vehicle behind Trooper Horan's, and proceeded to discuss the situation with Trooper Horan. (Id. at 378-79.) Trooper Lindsay testified that while Trooper Horan was conducting some "traffic business", Trooper Lindsay approached the Rivera Vehicle and asked Mr. Rivera to step out and to the rear of the Rivera Vehicle. (Id.) Trooper Lindsay spoke briefly with Mr. Rivera about where he was going. (Id.) Trooper Horan testified that he then joined Mr. Rivera and Trooper Lindsay's conversation at the rear of the Rivera Vehicle. (Id.) Trooper Horan testified that when Mr. Rivera was asked where he was going, he stated that he was going to Binghamton, New York to drop off the "girls" with their families and then he and "Young," referring to Mr. Portalatin, were going to record for a record label. (Id. at 302.) Trooper Horan testified that he stated: "I thought you were just going down and back" to which Mr. Rivera responded: "I am." (Id.) Trooper Horan then asked Mr. Rivera for a second time whether he had ever been arrested, at which point Mr. Rivera responded that he was arrested for extortion in 2000, but failed to mention any of the other arrests on his criminal record. (Id.) Trooper Horan also asked if he knew "Young's" real name, and Mr. Rivera stated that he did not. (Id. at 304.)
Trooper Horan testified that during the conversation, he observed that Mr. Rivera was sweating, which was notable, because it was a cold day. (Id. at 303.) Trooper Horan also testified that he noticed that Mr. Rivera was repeatedly sticking out his tongue, which Trooper Horan found to be odd. (Id.) Trooper Lindsay also testified that during the conversation, he noticed that Mr. Rivera's carotid artery was
Trooper Horan testified that based on "the indicators that [he] had seen at this point" and the smell of marijuana, he decided to request a "K-9" unit, comprised of a trooper and a canine trained to detect narcotics, to report to the scene. (Id. at 305.) Trooper Horan then asked Mr. Rivera for consent to search the Rivera Vehicle and Mr. Rivera refused to give consent. (Id. at 306.)
Trooper Horan testified that the PSP are typically required to use their own PSP canine units, if they are able, and that there was only one K-9 unit for the entire northeast. (Id. at 305.) Trooper Horan testified that it took approximately 30 to 35 minutes from the time he requested the K-9 unit to its arrival at the scene of the vehicle stop, which Trooper Horan characterized as a "good turnaround" for that area. (Id. at 305-306.)
Trooper Powell was on duty on the morning of January 18, 2012 and received a call at 8:40 A.M. and traveled approximately 30 miles to reach the scene at 9:15 A.M. (T2 at 406-407; Gov. Ex. X (Canine Section Utilization Report).) Trooper Horan testified that when Trooper Powell arrived on the scene, he informed Trooper Powell that Mr. Rivera had denied consent to a search, so that Trooper Powell would have the canine conduct an exterior sniff of the vehicle. (Id. at 306.)
Trooper Horan then had all of the passengers in the Rivera Vehicle exit and walked them to the front of Trooper Horan's patrol vehicle away from traffic. (Id. at 306-307.) Trooper Horan testified that other than asking the occupants to vacate the vehicle, he did not make any changes to the Rivera Vehicle at the time of the canine search. (Id. at 307.) Trooper Powell testified that prior to conducting a canine sniff, he would inspect the vehicle for metal pieces or anything that might hurt the canine, but otherwise would leave the vehicle the way it was left by the occupants. (Id. at 400-401.) Troopers Horan and Lindsay testified that during the canine sniff they were primarily focused on the occupants who were standing outside the vehicle on the side of the highway to ensure their safety. (Id. at 306-307; 381.)
Trooper Powell testified that he did not have any independent memory of Mr. Rivera's car stop on January 18, 2012 (id. at 407), but that generally when he arrives with his canine, he speaks with the officer involved to determine whether there is "reasonable suspicious [sic] of criminal activity" prior to conducting the canine sniff. (Id. at 399-400.) Trooper Powell explained that his practice during a canine sniff of the exterior of a vehicle was to first walk the dog around the exterior of the vehicle (a "fast pass") and then to walk the dog around a second time more slowly, moving his hand over the vehicle in a "V" pattern to direct the dog's nose to higher and lower points on the vehicle (a "detail"). (Id. at 400-404.) When the dog alerts to an odor, it will enter the vehicle to follow the odor. (Id.) Trooper Powell also testified that a dog's sense of smell is a thousand times better than a human's sense of smell, and that a dog is able to detect residual odors. (Id. at 409.)
Thereafter, at approximately 9:29 a.m., Mr. Rivera and the other vehicle occupants were taken into custody and the vehicle was brought to the PSP station. (T2 at 310; Gov. Exs. U and V). Trooper Horan then applied for a warrant to search the vehicle, which was granted by the Honorable Jodi Ellen Cordner. (T2 at 310-12; Gov. Ex. D.) Pursuant to the search warrant, at approximately 12:40 P.M., the Rivera Vehicle was searched and the PSP recovered a red plastic bag that contained two vacuum-sealed packages from the trunk compartment that typically contains the spare tire. (T2 at 312-14; Gov. Ex. V.) Inside each of the vacuum-sealed packages was a black plastic bag: one plastic bag contained approximately six ounces of what Trooper Horan believed to be crack cocaine at the time. (Id.) A field test was conducted on the white chunky substance recovered from one of the black bags, and the results of the field test determined that the substance was cocaine. (Id. at 317.) The other black plastic bag contained a clear plastic bag with 170 bags of heroin stamped "Monster Mash." (Id.)
According to Trooper Horan's incident report, after finding the narcotics in the vehicle, all five vehicle occupants were formally placed under arrest. (Gov. Ex. V.) Trooper Horan also testified that the search of Mr. Portalatin yielded a blue capped vial of vegetable matter which tested positive for marijuana and the search of Kathryn Rivera yielded a balloon-type object that was suspected of being drug paraphernalia. (T2 at 318-19.) During Kathryn Rivera's interview after her arrest, she advised that Mr. Portalatin and Mr. Rivera had been smoking marijuana prior to the traffic stop. (Id. at 319.)
In his affidavit dated June 6, 2014, Mr. Rivera asserted that on the morning of January 18, 2012, he was driving a vehicle that had been loaned to him by his cousin
According to Mr. Rivera's affidavit, a police officer exited the police vehicle and approached Mr. Rivera and requested Mr. Rivera's driver's license, vehicle registration and insurance. (Id. at ¶ 4.) Mr. Rivera states he produced the requested documents and the officer returned to his vehicle with the documents. (Id.) Mr. Rivera states that several minutes later, the officer approached his vehicle and "demanded" that each vehicle occupant produce identification. (Id.) Mr. Rivera states that after the officer took the vehicle occupants' identification documents, another police vehicle arrived with a second police officer approximately 30 minutes later. (Id.) Mr. Rivera states that thereafter he was instructed to exit the vehicle and that the officers questioned him about where he was going for "several minutes." (Id. at ¶ 5.) According to Mr. Rivera's affidavit, the officers then permitted him to return to his vehicle while the officers proceeded to interview each of the vehicle occupants, "one at a time, outside the vehicle." (Id.)
Mr. Rivera states that the officers then gave him a citation and told him that they were going to search his vehicle and that a canine unit was en route. (Id. at ¶ 6.) Mr. Rivera denies ever giving consent to search the vehicle. (Id.) Mr. Rivera states that approximately one and a half hours after he was initially pulled over, a third police officer arrived to the scene with a canine. (Id. at ¶ 7.) According to Mr. Rivera's affidavit, the officers then opened up all of the doors to the Rivera Vehicle without his permission and proceeded to lead the canine around the vehicle and permitted the canine to enter the vehicle. (Id.)
Mr. Rivera states that he observed the canine enter the interior of his vehicle through the front door on the driver's side and then again through the back door on the driver's side. (Id.) Mr. Rivera avers that he did not hear the canine make any noises at any point. (Id.)
Mr. Rivera states that thereafter, the officers removed the dog from the back seat of the vehicle and began to search the entire "passenger compartment" of the vehicle. (Id.) According to Mr. Rivera's affidavit, after the officers searched the interior of the vehicle, an officer asked to search the trunk of the vehicle. (Id. at ¶ 8.) Mr. Rivera states that he refused to give the police permission to search the trunk. (Id. at ¶ 9.) Mr. Rivera states that the police then stated that all of the occupants would have to be detained and the vehicle would be brought to the nearest police station to be searched. (Id.) Mr. Rivera states that he continued to refuse consent for the police to search the trunk of the vehicle, at which point all of the vehicle occupants, including Mr. Rivera, were placed under arrest and taken to a police station, where they remained under arrest for several hours. (Id. at ¶ 10.) Mr. Rivera states that the police searched the trunk of his vehicle, and he was informed that they recovered narcotics. (Id. at ¶ 11.)
Mr. Rivera seeks to suppress the physical evidence recovered from the Rivera Vehicle on the grounds that Trooper Horan did not have probable cause to stop the Rivera Vehicle, the prolonged roadside seizure of the Mr. Rivera and his vehicle was unreasonable, and that the PSP troopers did not have probable cause to arrest Rivera or search his vehicle. The court respectfully denies Mr. Rivera's motion, finding that there was probable cause to stop the Rivera Vehicle and that the PSP troopers
Mr. Rivera's affidavit offers a significantly different account of the circumstances of his car stop on January 18, 2012 from that of the government witnesses and exhibits. In particular, contrary to the testimony of the government witnesses, Mr. Rivera claims that (1) he was driving in the right-hand lane on I-81; (2) nobody in his car was smoking marijuana; (3) the police officers opened all of the doors to the Rivera Vehicle prior to the K-9 unit search; and (4) after the canine search, the officers searched the entire interior of the vehicle.
The court finds that the testimony of Trooper Horan, Trooper Lindsay, and Trooper Powell was credible, consistent, and reliable. The only inconsistency that Mr. Rivera has identified is that Trooper Horan failed to specify that he initially observed Mr. Rivera in the left lane in his preliminary hearing testimony before Judge Suzanne Brainard of Susquehanna County, Pennsylvania. However, the court does not find this omission to be inconsistent. In the state court hearing, Trooper Horan testified that he "passed a vehicle, looked in [his] rearview, and noted that the vehicle [he] had just passed was immediately into the left lane," which is entirely consistent with Trooper Horan's testimony before this court that he first observed the Rivera Vehicle driving in the left lane in front of the police vehicle, the Rivera Vehicle then moved into the right lane, at which point Trooper Horan passed the Rivera Vehicle and observed the Rivera Vehicle immediately move back into the left lane behind Trooper Horan's police vehicle. That Trooper Horan neglected to mention in specific detail his initial observation of the Rivera Vehicle at the prior hearing does not diminish the credibility of his testimony before this court.
In contrast, the court declines to give significant weight to Mr. Rivera's affidavit. As this court previously noted with co-defendant Garrett's affirmations, because Mr. Rivera invoked his right not to testify and was not subject to cross-examination, his affidavit is accorded little weight.
Mr. Rivera's claim that he was driving in the right lane on I-81 on the morning of January 18, 2012 is contradicted by Trooper Horan's testimony that he observed the Rivera Vehicle traveling in the left lane for approximately two minutes, and Trooper Horan's contemporaneous incident report stating that he observed "a silver passenger car driving in the left lane when the right lane was available." (Gov. Ex.V.) In light of Mr. Rivera's failure to present any evidence other than his affidavit to support his claim, the court declines to credit Mr. Rivera's statement that he was driving in the right lane.
The court also declines to credit Mr. Rivera's claim that "nobody inside [his] vehicle was smoking marijuana." Trooper Horan testified that he smelled the odor of perfume and marijuana emanating from the Rivera Vehicle two times when he approached the Rivera Vehicle; Trooper Horan's incident report also stated that he smelled the "faint odor of marijuana" (Gov. Ex. V.); Kathryn Rivera, in a post-arrest interview, stated that Mr. Portalatin and Mr. Rivera had been smoking marijuana prior to the traffic stop; and Mr. Portalatin was found to be in possession of marijuana pursuant to a search incident to arrest. In light of the substantial evidence contradicting Mr. Rivera's affidavit, the court declines to credit Mr. Rivera's self-serving claim that none of the vehicle occupants was smoking marijuana.
In his affidavit, Mr. Rivera also claims that after the canine sniff of the Rivera Vehicle, the PSP troopers searched the interior of his vehicle. Troopers Horan and Lindsay testified that they did not search the car after the canine sniff, because they did not have Mr. Rivera's consent or a search warrant, which were required by Pennsylvania law at the time. The court finds the PSP troopers' testimony to be credible and declines to credit Mr. Rivera's contrary assertion.
The Supreme Court has "long acknowledged that stopping an automobile and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment." Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). An "automobile stop is thus subject to the constitutional imperative that it not be `unreasonable' under the circumstances." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Id. Officers are within their authority to stop vehicles for even minor traffic violations. See United States v. Scopo, 19 F.3d 777, 781 (2d Cir.1994) ("Although [defendant's] traffic violation, failure to signal while changing lanes as required by New York Vehicle and Traffic Law § 1163(d), was minor, the officers acted within their authority in stopping [defendant] for violation of the state law.").
The court finds that Trooper Horan had probable cause to stop the Rivera Vehicle after he observed the Rivera Vehicle traveling in the left lane, when the right lane was available, in violation of Pennsylvania law. See, e.g., United States v. Walker, 719 F.Supp.2d 586, 589 (W.D.Pa.2010) (upholding a stop where a Pennsylvania state police officer observed a vehicle traveling in the left lane in violation of Pennsylvania's "right lane" rule, which requires vehicles to travel in the right lane except when passing or in certain other circumstances); 75 Pa.C.S.A. § 3313(d). Trooper Horan also observed that the Rivera Vehicle was not passing any other vehicles. (Gov. Ex. V at 5.)
Mr. Rivera also asserts that because Trooper Horan did not expressly disclaim each of the exceptions to Pennsylvania's "right lane" rule, the government fails to demonstrate probable cause.
"[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution." Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). "[T]he Fourth Amendment demands that the scope and duration of the detention be reasonable. In assessing whether a detention is too long or intrusive to be justified as an investigative stop, courts properly `examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.'" United States v. Bailey, 743 F.3d 322, 336 (2d Cir.2014) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)).
In United States v. Place, the Supreme Court declined to adopt any "outside time limitation for a permissible Terry stop," because "[s]uch a limit would undermine the [] important need to allow authorities to graduate their responses to the demands of any particular situation." 462 U.S. 696, 709, 709 n. 10, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Additionally, "[a] traffic stop may be extended for investigatory purposes if an officer develops a reasonable suspicion of criminal activity supported by specific and articulable facts." United States v. Foreste, No. 2:12-cr-0091, 2013 WL 4710591, at *4 (D.Vt. May 7, 2013) (citing United States v. Glover, 957 F.2d 1004, 1008 (2d Cir.1992)); see also United States v. Fajardo-Guevara, 507 Fed.Appx. 365, 366-67 (5th Cir.2013) ("In order to prolong a detention after issuing a citation or determining that no citation should be issued, an officer must have developed a reasonable suspicion of additional criminal activity in the course of the stop and before the initial purpose of the stop has been fulfilled.").
Mr. Rivera contends the duration of his detention pursuant to his January 18, 2012 car stop was unreasonably long.
After the Rivera Vehicle was initially stopped by Trooper Horan who, based on
Troopers Horan and Lindsay's discussion with Mr. Rivera and the vehicle occupants continued to raise, rather than dispel, their suspicions: Trooper Horan again smelled the odor of marijuana when he re-approached the car; Mr. Rivera continued to appear nervous, was avoiding eye contact and repeatedly sticking out his tongue
Based on the totality of the circumstances, the increasing indicia of criminal activity relating to narcotics, and the fact that Mr. Rivera refused consent to search the car, Troopers Horan and Lindsay reasonably decided to request a K-9 unit to confirm or dispel their suspicions. That Mr. Rivera and his vehicle remained at the location of the stop for almost thirty minutes awaiting the arrival of the K-9 unit does not invalidate the detention. See, e.g., United States v. Mendoza, 468 F.3d 1256, 1260 (10th Cir.2006) ("Officers with reasonable suspicion to believe that the occupants of a vehicle are engaged in the unlawful transportation of contraband may detain the vehicle for a reasonable time to obtain a properly trained dog to sniff for contraband."); United States v. Davis, 430 F.3d 345 (6th Cir.2005) (finding that, following the completion of a traffic stop, reasonable suspicion of narcotics related activity justified detaining a motorist for "the additional approximately thirty to forty-five minutes it took" for a drug-sniffing dog to arrive at the scene); United States
In United States v. Glover, 957 F.2d 1004, 1009-10 (2d Cir.1992), the defendant was stopped at a bus terminal under reasonable suspicion of transporting narcotics. The police questioned the defendant and upon receiving contradictory responses and based on the fact that the defendant appeared very nervous, brought the defendant to an administrative office for further investigation. Id. at 1006-07. Although the Glover court found that the detention terminated when Glover was told he was free to leave, the court stated:
As in Glover, the PSP troopers investigating Mr. Rivera promptly conducted background and vehicle registration checks to confirm or dispel their suspicions of criminal activity. Upon further confirmation and enhancement of those suspicions, they immediately arranged for a K-9 unit to confirm or dispel their suspicions of criminal activity relating to narcotics.
In his motion to suppress, Mr. Rivera relies heavily on United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). (Rivera Mots. at 8.) In Place, law enforcement agents stopped the defendant after his arrival in an airport and seized his luggage for 90 minutes to take it to a narcotics detection dog for a "sniff test." The Supreme Court decided that an investigative seizure of personal property could be justified under the Terry doctrine, but that "[t]he length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause." Id. at 709, 103 S.Ct. 2637. However, as the Supreme Court acknowledged in United States v. Sharpe, the rationale underlying the Place Court's decision was that the police did not diligently pursue their investigation, because "the police knew of respondent's arrival time for several hours beforehand, and the Court assumed that the police could have arranged for a trained narcotics dog in advance and thus avoided the necessity of holding respondent's luggage for 90 minutes." Sharpe, 470 U.S. at 684-85, 105 S.Ct. 1568. Here, as in Sharpe, the court does not find that the police acted less than diligently or that they in any way unnecessarily prolonged the detention of Mr. Rivera and his vehicle.
At the outset, the Supreme Court has established that "conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed
To the extent that Mr. Rivera argues that the K-9 unit's sniff of the interior of the Rivera Vehicle was unlawful, the court disagrees. At the time the canine sniff was conducted, the PSP troopers had probable cause to search the passenger area of the vehicle
Furthermore, although the Second Circuit has yet to decide the issue, several appeals courts have held that no constitutional violation has occurred where a canine's entry into the car was instinctual rather than orchestrated and the officers did not open any part of the vehicle. See United States v. Vazquez, 555 F.3d 923, 930 (10th Cir.2009) (no constitutional violation where "(1) the dog's leap into the car was instinctual rather than orchestrated, and (2) the officers did not ask the driver to open the point of entry, such as a hatchback or window, used by the dog"); United States v. Sharp, 689 F.3d 616, 619-20 (6th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 777, 184 L.Ed.2d 514 (2012) ("It is a Fourth Amendment violation for a narcotics detection dog to jump into a car because of something the police did, like training the dog to jump into cars as part of the search or facilitating or encouraging the jump," but no violation occurs "as long as the canine enters the vehicle on its own initiative and is neither encouraged nor placed into the vehicle by law enforcement." (citations omitted)); United States v. Pierce, 622 F.3d 209, 213-15 (3d Cir. 2010) (same); United States v. Lyons, 486 F.3d 367, 373-74 (8th Cir.2007) (same).
According to the credible testimony of Trooper Powell, the canine handler, his usual practice is to have the dog sit in front of the passenger side outside of the vehicle, and then direct the dog to sniff the exterior of the vehicle while moving in a counter-clockwise direction. If, as here, the dog alerts to the odor of narcotics through a change in body posture, the dog is trained to follow the odor and then sit where the odor is the strongest. Once a dog alerts, the vehicle is seized, no one is
Mr. Rivera also disputes that the canine ever indicated the presence of drugs, stating in his affidavit that he "did not hear the dog make any noises at any point." Although neither Trooper Horan nor Trooper Powell testified to their specific observations of the canine sniff, because they were focused on the safety of the passengers during the canine sniff, Trooper Powell credibly testified that the canine he used alerts silently, by pinpointing the area where the odor was strongest and proceeding to sit and stare. (T2 at 422.) The court accepts the credible testimony of the troopers and finds that the canine did alert to the odor, entered the vehicle and followed the odor to the center console of the vehicle.
In light of the canine alert and the additional substantial indicia of criminal activity, the court finds that there was probable cause for Mr. Rivera's arrest. See United States v. Waltzer, 682 F.2d 370, 372 (2d Cir.1982) ("We regard the dog's designation of the luggage itself as establishing probable cause, enough for the arrest, more than enough for the stop.")
Mr. Rivera moves to suppress all "involuntary statements" that Mr. Rivera made to law enforcement agents. (Rivera Mots. at 10.) In his Post-Hearing Memorandum, Mr. Rivera specifies that he seeks to suppress statements made at an August 30, 2012 proffer session, because he made those statements while fearing for his life. (Rivera Post-Hr'g Memo. at 7-8.) Mr. Rivera claims that the government led him to believe his life was in danger, because he was notified that he was the target of a planned "hit" and that the government threatened him with the death penalty if he did not cooperate. (Id.) The government denies Mr. Rivera's claims that he was threatened with the imposition of the death penalty. (Opp. at 75.) Furthermore, the government argues that the proffered statements were not made under circumstances that meet the standard of physical or psychological coercion required for the statements to be considered involuntary. (Id. at 67.)
At the evidentiary hearings, the government presented the testimony of several witnesses: Warden Nicholas Conigliaro ("Warden Conigliaro"), the warden at Susquehanna County Correctional Facility ("SCCF"); Major Brian Keller ("Major Keller"), the head security officer at the Pennsylvania State Correctional Institution Frackville ("Frackville"); and Task Force Officer Daniel Mimnaugh ("TFO Mimnaugh"), a PSP trooper and FBI Task Force Officer present at Rivera's August 30, 2012 proffer. Mr. Rivera presented the following witnesses: Patrick Daly ("Daly"), an attorney appointed by the Pennsylvania state court to represent Rivera in Susquehanna County; Deputy Warden Joshua B. Weller ("Deputy Warden Weller"), the deputy warden at SCCF; and Ingrid Cronin ("Cronin"), a Federal Defender in Pennsylvania who represented Mr. Rivera before, during, and after his August 30, 2012 proffer. Mr. Rivera also submitted an affidavit dated June 8, 2014 in connection with his motion papers. (See Second Rivera Aff. filed with Rivera Mots. ("Second Rivera Aff."), Ex. B, ECF No. 113-2.) The court has considered the parties' pre-hearing submissions, the testimony and exhibits presented at the hearing, and the parties' post-hearing submissions.
During the evidentiary hearing, the witnesses called by both Mr. Rivera and the
After Mr. Rivera's arrest on January 18, 2012 in connection with his car stop, he was held in custody at SCCF
Warden Conigliaro testified that while Mr. Rivera's was an inmate at SCCF, he was provided with the same care and privileges as all other SCCF inmates. (T1 at 14.) While incarcerated at SCCF, Mr. Rivera did not file any grievances about the conditions of his confinement.
During the evidentiary hearing, the government introduced Mr. Rivera's document file relating to his incarceration at SCCF, which included his intake process and numerous misconduct reports, some of which resulted in misconduct charges and discipline. (T1 at 14-15; Gov. Ex. Y.) Misconduct reports were filed against Mr. Rivera for various violations of SCCF rules, which generally resulted in warnings rather than formal discipline. The violations included: standing at a window and staring at and upsetting Kathryn Rivera, his then co-defendant, after being told several times to cease doing so; wearing his sweatshirt turned inside out after previously being told not to do so; and attempting to communicate with then co-defendant Shelby Rivera after being warned not to. Mr. Rivera was called to a disciplinary hearing after he was observed entering other inmates' cells and throwing items into the cells of inmates in disciplinary segregation and received a ten day cell restriction during the time periods when other inmates were permitted to roam freely. (Gov. Ex. Y; T1 at 15-18.) Although Mr. Rivera requested disciplinary segregation at that time, he was given the
On April 3, 2012, Mr. Rivera appeared in Pennsylvania state court with his counsel, Mr. Daly, for a preliminary hearing. (Gov. Ex. E.
In a handwritten letter to Judge Kenneth Seamans, the Pennsylvania judge assigned to Mr. Rivera's case, postmarked April 18, 2012, Mr. Rivera first expressed his desire to cooperate with the federal government in an effort to have his state case dismissed. (T1 at 21-22, 78-81; Gov. Ex. F.
Meanwhile, the United States Attorney's Office in the Middle District of Pennsylvania ("MDPA") was investigating the activities of TF Mafia. (T1 at 77-78.) Mr. Rivera's letters came to the attention of Assistant United States Attorney William Houser ("AUSA Houser") and TFO Mimnaugh, and they arranged a visit with Mr. Rivera at SCCF in April 2012. (T1 at 78-81.) TFO Mimnaugh credibly testified that neither he nor AUSA Houser threatened Mr. Rivera in any way at this meeting. (Id. at 81-82.) TFO Mimnaugh also credibly testified that neither he nor AUSA Houser told Mr. Rivera that if he did not cooperate, he would receive the death penalty. (Id.) TFO Mimnaugh stated that after AUSA Houser asked Mr. Rivera if he wanted the court to appoint a federal defense attorney, Mr. Rivera stated that he wanted an attorney, at which time TFO Mimnaugh and AUSA Houser stopped speaking with Mr. Rivera. (Id.) Following the initial meeting, neither AUSA Houser nor TFO Mimnaugh ever met with Mr. Rivera without his attorney present. (Id.) After the meeting, Mr. Rivera sent a letter to AUSA Houser on or about April 30, 2012 stating that he wanted "to do the right thing," indicating that he wanted to cooperate with the federal government's investigation, and stating that he influenced Michael Garrett in a negative way. (T1 at 82-84; Gov. Ex. G.)
Federal Defender Ingrid Cronin
A proffer session was scheduled on May 30, 2012
While Mr. Rivera was incarcerated at SCCF, the federal government notified prison officials that Mr. Rivera might be in danger from another member of TF Mafia. (T3 at 16-17.) Warden Conigliaro testified that he provided this information to the local sheriff's department which was responsible for transporting Mr. Rivera to and from court, as the risk of harm to Mr. Rivera was higher when he was outside SCCF. (T1 at 23.) Warden Conigliaro testified that he never advised Mr. Rivera that anyone was trying to hurt him, never instructed anyone at SCCF to do so, and provided the information about the "hit" to his two deputy wardens and not to any correctional officers. (T1 at 23, 34.) Deputy Warden Weller also testified that he did not recall informing Mr. Rivera about the "hit." (T3 at 18.)
During Mr. Rivera's incarceration at SCCF in the spring and summer of 2012, he continued to violate prison rules and incurred approximately eight misconduct charges by failing to comply with the dress code; barking and causing excessive noise; standing on a table in the day room and removing an object that contained hot water; tampering with and jamming a lock in his cell and covering his cell door window; telling an officer that he planned to grab and detain a female correctional officer in his cell; flooding his cell; and throwing a full tray of food from his cell on the top tier that landed in the day room of the bottom tier. (Gov. Ex. Y.) For each of these infractions, disciplinary action was taken, ranging from cell restrictions and placing Mr. Rivera in disciplinary segregation. (Id.) While in segregation for twenty days in June and five days in July 2012, Mr. Rivera had daily showers, usually showed good behavior, and was offered time out of his cell. (Gov. Ex. Y at 41, 56.) Warden Conigliaro testified that due to these continued infractions and the security risks, he decided to transfer Mr. Rivera to a state facility. (T1 at 20.) Mr. Rivera was transferred to Frackville in July 2012. (Id. at 21.)
Major Keller
According to Mr. Rivera's Frackville record, admitted as Government Exhibit Z at the evidentiary hearing, Mr. Rivera was housed within the RHU for the entire time he was at the facility, with the exception of the week of August 3, 2012 to August 10, 2012, when Mr. Rivera was housed in the POC. (T1 at 49-50; Gov. Ex. Z at 79.) Major Keller testified that Mr. Rivera was transferred to the POC for that one-week period, because Mr. Rivera refused a chest X-ray for tuberculosis. (T1 at 62.) Major Keller testified that Mr. Rivera was reported for two disciplinary infractions while at Frackville; he reportedly refused to comply with a strip search, and he reportedly covered up a surveillance camera in his cell and refused to uncover the camera when requested to do so. (T1 at 51-53; Gov. Ex. Z at 71-78.)
Upon reviewing Mr. Rivera's records from Frackville, Major Keller testified that Mr. Rivera communicated with other inmates in the RHU, received both legal and non-legal visits, received phone calls, was fed regularly, and was permitted to shower and exercise regularly. (T1 at 53-58; Gov. Ex. Z.) Ms. Cronin testified that she did not remember a time when Mr. Rivera seemed under duress due to the conditions at the facility, but stated that he apparently "felt calm and at peace." (T3 at 32-33.)
TFO Mimnaugh testified that Federal Defender Cronin notified AUSA Houser that Mr. Rivera was interested in cooperating with law enforcement. (T1 at 86.) Another proffer session was held on August 30, 2012, where Mr. Rivera, Federal Defender Cronin, John Brunza, an investigator from Cronin's office, AUSA Houser, TFOs Mimnaugh and Malloy, and Special Agent Denise Cole of the Internal Revenue Service Criminal Division were present. (T1 at 88; Gov. Ex. K.
Prior to signing the proffer agreement at the outset of the proffer session, Federal Defender Cronin and Mr. Rivera spoke privately. (Gov. Ex. K at 1.) Thereafter, Mr. Rivera asked to speak to AUSA Houser alone, but AUSA Houser explained that
Mr. Rivera and Federal Defender Cronin then signed the proffer agreement. (Gov. Ex. K at 1.) Ms. Cronin testified that she observed Mr. Rivera reach out and fist-bump AUSA Houser, which Ms. Cronin understood to be a friendly gesture. (T3 at 44.) After signing the proffer agreement, TFO Mimnaugh read Mr. Rivera his Miranda rights. (T1 at 91; T3 at 44; Gov. Ex. K.) TFO Mimnaugh testified that Mr. Rivera acknowledged that he understood his rights and was ready to proceed with the proffer session. (T1 at 91; Gov. Ex. K.) Ms. Cronin testified that Rivera appeared to understand the purpose of the August 30, 2012 meeting and what cooperation meant in the federal criminal justice system. (T3 at 58-59.) She also testified that she would not have permitted the proffer to proceed if Mr. Rivera did not understand the purpose of the proffer or the proffer agreement. (Id.) During the proffer, Mr. Rivera made numerous inculpatory statements, as well as statements detailing the criminal activities of others, including Mr. Garrett. (Gov. Ex. K.)
TFO Mimnaugh and Federal Defender Cronin testified that throughout the proffer session, Mr. Rivera appeared to be in good physical condition, and that he appeared relaxed and was cordial and talkative. (T1 at 91; T3 at 44, 52.) TFO Mimnaugh testified that no one verbally or physically threatened Mr. Rivera during the session. (T1 at 92, 104-105.)
In his affidavit dated June 6, 2014, Mr. Rivera generally stated that while he was held at SCCF, "[v]iolence and incidents of sexual assault" were common and that he felt threatened by members of the Aryan Nation at the facility, but he did not provide specific information. (Second Rivera Aff. at ¶ 2.) He states that his attorney only visited him one time during his incarceration at SCCF and that the court did not honor his request for new counsel. (Id. at ¶ 3-4.) Mr. Rivera states that when he was taken to court for pre-trial matters, he was placed in a "full-body armor suit." (Id. at ¶ 4.) According to Mr. Rivera's affidavit, SCCF Warden Conigliaro informed Mr. Rivera that his cousin had put a "hit" on him. (Id. at ¶ 5.) Mr. Rivera asserts that he made contact with federal law enforcement, because he believed that was the only way to obtain an attorney to advance his interests. (Id. at ¶ 6.)
According to Mr. Rivera's affidavit, after he was transferred to Frackville, he was placed in solitary confinement for "a lengthy period of time," and he was denied all privileges and rehabilitative programming. (Id. ¶ 7.) Mr. Rivera states that due to this seclusion, he was "willing to do anything whatsoever to end [his] imposed seclusion, even if it meant providing involuntary statements to law enforcement
Mr. Rivera seeks to suppress the statements he made during the August 30, 2012 proffer session on the grounds that the statements were involuntary. The court respectfully denies Mr. Rivera's motion, finding Mr. Rivera's allegation that an "agent" threatened him with the death penalty to be incredible and contradicted by the credible testimony of the witnesses that were called by the government and Mr. Rivera. The court also finds that Mr. Rivera's allegations regarding violence, sexual assaults, and threats from the Aryan Nation at SCCF, and that he was denied all privileges at Frackville, are not supported by the records before the court, which reflect no complaints by Mr. Rivera regarding the alleged threats or conditions. Moreover, Mr. Rivera's allegations do not meet the standard of coerciveness that is required to render his proffer statements involuntary.
The court finds Warden Conigliaro's and Deputy Warden Keller's testimony about conditions at their respective facilities and their knowledge of and involvement with Mr. Rivera's detention to be credible, consistent, and reliable. The court also finds that the testimony of defense counsel Daly relating to his representation of Mr. Rivera was credible, consistent, and reliable. With respect to the proffer sessions, the court finds the testimony of TFO Mimnaugh and Federal Defender Cronin to be reliable and credible.
The court does note some minor inconsistencies with respect to the testimony by Federal Defender Cronin and TFO Mimnaugh. Ms. Cronin testified that she believed, based on her memory, that the initial proffer session where Mr. Rivera did not provide any information was on May 2, 2012 — "I believe that meeting was probably May — that would have been May 2nd" (T3 at 31) — but the government's records indicate that the proffer session took place on May 30, 2012. (Gov. Ex. H.) In addition, Ms. Cronin testified that she did not recall any discussion about the possible application of the death penalty in Mr. Rivera's case (T3 at 58), whereas TFO Mimnaugh testified that AUSA Houser "possibly" explained that the death penalty was a potential consequence. (T1 at 103.) The court continues to find the testimony of TFO Mimnaugh and Federal Defender Cronin to be credible despite these minor inconsistencies in their testimony. The witnesses suggested that their memories of these specific facts may not be entirely accurate by their use of equivocal language (e.g., "I believe" and "possibly"), which the court finds to be credible, because the events took place more than two years ago. Additionally, the court's observation of the witnesses' demeanor supports its finding that the testimony by Federal Defender Cronin and TFO Mimnaugh was truthful and credible.
The court declines to give significant weight to Mr. Rivera's affidavit discussing his incarceration and proffer. The court did not have the opportunity to observe Mr. Rivera's demeanor, because Mr. Rivera did not testify, as was his right, and was not subject to cross-examination. Accordingly, his affidavit is accorded little weight.
The court declines to credit Mr. Rivera's claim that he was placed in solitary confinement at Frackville where he was "completely
The court also declines to credit Mr. Rivera's claim that during the proffer session, he "was told by an agent that if [he] did not cooperate with the government then they would be sure that I received the death penalty." Whether or not the death penalty was even discussed at the August 30, 2012 proffer session, TFO Mimnaugh and Federal Defender Cronin both testified that Mr. Rivera was not threatened in any way, nor was he specifically threatened with the application of the death penalty. Both TFO Mimnaugh and Federal Defender Cronin described the proffer sessions as cordial and Mr. Rivera's demeanor as relaxed. In light of Mr. Rivera's failure to present any evidence other than his affidavit to support his claim that his statements were made under coercive conditions, the court declines to credit Mr. Rivera's statement that he was threatened by law enforcement agents to cooperate.
A confession is involuntary, and therefore inadmissible, if it is obtained by "techniques and methods offensive to due process, or under circumstances in which the suspect clearly had no opportunity to exercise a free and unconstrained will." Oregon v. Elstad, 470 U.S. 298, 304, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (citation and internal quotation marks omitted). The Supreme Court has held that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary.'" Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
The inquiry into voluntariness is objective; it asks whether, based on the totality of circumstances, "the government agents' conduct `was such as to overbear [a defendant's] will to resist and bring about confessions not freely self-determined.'" United States v. Kaba, 999 F.2d 47, 51 (2d Cir.1993) (quoting United States v. Guarno, 819 F.2d 28, 30 (2d Cir.1987)). Factors relevant to this determination include "the type and length of questioning, the defendant's physical and mental capabilities, and the government's method of interrogation." United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir.1987); see Deskovic v. City of Peekskill, 894 F.Supp.2d 443, 457-58 (S.D.N.Y.2012). The government must prove that a confession is voluntary by a preponderance of the evidence. Connelly, 479 U.S. at 168, 107 S.Ct. 515.
Here, the totality of the circumstances demonstrates that the conduct of the AUSAs and federal law enforcement officials was neither coercive nor threatening as to overbear Mr. Rivera's will. First, except for Mr. Rivera's first meeting with law enforcement officials in the spring of 2012 which Mr. Rivera himself requested and during which Mr. Rivera did not proffer any statements, Mr. Rivera was accompanied and represented by Ms. Cronin at each subsequent meeting. "The presence or absence of counsel is a significant condition because counsel can `assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process.'" Green v. Scully, 850 F.2d 894 (2d Cir.1988) (quoting Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 16
Second, the evidence supports a finding that the government did not coerce Mr. Rivera to make the August 30, 2012 proffer statements. Facts bearing on a determination of coercive government conduct include:
Green v. Scully, 850 F.2d at 902. There is no evidence in the record that any of the above factors existed at any time with regard to Mr. Rivera's proffer.
As previously discussed, the court finds that the law enforcement officials here did not make any threats against Mr. Rivera. Rather, the witnesses' credible testimony established that Mr. Rivera initiated the proffer sessions by sending letters stating that he wanted to cooperate with the federal investigation and that their meetings with Mr. Rivera were cordial, relaxed, and friendly. At the proffer session on August 30, 2012, where Mr. Rivera made inculpatory statements, AUSA Houser and the law enforcement agents first took care to inform Mr. Rivera of his Miranda rights, which he knowingly waived. Before Mr. Rivera made any statements, AUSA Houser also explained the proffer agreement to Mr. Rivera, which Mr. Rivera and Federal Defender Cronin signed after they consulted privately. Any discussion of the death penalty or other penal consequences that took place during the proffer session was in the context of providing Mr. Rivera with information about potential charges and penalties. It is well settled that informing a defendant of potential charges as well as the potential benefits of cooperation does not amount to coercion. See United States v. Bye, 919 F.2d 6, 9-10 (2d Cir.1990) (provision of information about possible sentence facing defendant and benefits of cooperation does not render statements involuntary). Although the court finds credible Mr. Rivera's statement that he became aware of a threat from another member of TF Mafia, Mr. Rivera has failed to show any evidence that the threat was the result of any improper conduct on the part of government officials.
The conditions of an individual's confinement prior to confession may bear on question of whether government conduct was coercive. See Brooks v. Florida, 389 U.S. 413,
Mr. Rivera's personal history and characteristics also support a finding that his proffer statements were voluntary. Relevant characteristics of the defendant include the individual's age, education, and level of intelligence, as well as their familiarity with the criminal justice system. See Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041; Green, 850 F.2d at 902. At the time of the proffer session, Mr. Rivera was 45 years old. Federal Defender Cronin and TFO Mimnaugh both testified that Mr. Rivera appeared physically well, relaxed, and friendly during their encounters with him and at the August 30, 2012 proffer session. The court has also reviewed numerous letters written by Mr. Rivera in connection with this case and finds Mr. Rivera's sound prose to be indicative of his intelligence and basic understanding of the criminal justice system, including but not limited to his rights and obligations during and pursuant to the proffer session, a proffer agreement, and his attempts to cooperate. It is also undisputed that Mr. Rivera has an extensive criminal history. These characteristics all weigh in favor of a finding that Mr. Rivera's August 30, 2012 proffer statements were voluntary.
Based on the record before the court, there is no basis to conclude that Mr. Rivera's statements were coerced or involuntarily made. Accordingly, the court respectfully denies Mr. Rivera's motion to suppress his August 30, 2012 proffer and other statements.
For the foregoing reasons, the court grants Mr. Garrett's requests to bring further
The court respectfully denies Mr. Rivera's motion to suppress physical evidence recovered from a January 18, 2012 car stop, and motion to suppress Mr. Rivera's statements made to the government, including during a proffer session dated August 30, 2012.
