U.S. v. Jaramillo
| Decision Date | 08 June 1994 |
| Docket Number | No. 1307,D,1307 |
| Parties | UNITED STATES of America, Appellee, v. Luis JARAMILLO, Defendant-Appellant. ocket 93-1696. |
| Court | U.S. Court of Appeals — Second Circuit |
Ellen M. Corcella, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty. for the Eastern District of New York, Peter A. Norling, Asst. U.S. Atty. on the brief), for appellee.
Bernard H. Udell, Brooklyn, NY, for defendant-appellant.
Before: OAKES, KEARSE, and MAHONEY, Circuit Judges.
Defendant Luis Jaramillo appeals from a final judgment of the United States District Court for the Eastern District of New York, 822 F.Supp. 118, convicting him, following his conditional plea of guilty before Eugene H. Nickerson, Judge, of violating 18 U.S.C. Sec. 922(g) (1988), which makes it a crime for an unlawful alien to possess a firearm. Jaramillo was sentenced principally to 12 months' imprisonment, to be followed by three years of supervised release. On appeal, he argues that the district court erred in denying his motion to exclude the firearm from evidence on the ground that it had been obtained in violation of his rights under the Fourth Amendment to the Constitution. For the reasons below, we conclude that the circumstances relied on by the government to justify the search of Jaramillo were insufficient. We therefore vacate the judgment of conviction and remand for further proceedings.
The present prosecution arose out of a January 1993 raid by law enforcement officers on the La Taverna bar in Queens, New York. During that raid, Jaramillo, a patron in the bar, was patted down and found to have a loaded .380 semi-automatic pistol concealed under his pants leg. An illegal alien, Jaramillo was indicted on one count of possession of a firearm in violation of 18 U.S.C. Secs. 2, 922(g)(5), 924(a)(2), and 3551 et seq. (1988). He moved to suppress the gun on the ground that the search violated his Fourth Amendment rights. An evidentiary hearing was held on his motion.
A. The Other Gun
At the suppression hearing, the sole witness was New York City Police Detective John Saager, who participated in the raid and described the events in detail. At approximately 11:30 on the night of January 21, some 15 law enforcement officers, including local police officers and members of a Drug Enforcement Administration Task Force, entered the bar "yelling police" (Transcript of Suppression Hearing March 19, 1993 ("Tr."), 11), "froze everybody up that was in the bar" (Tr. 6), and performed patdown searches on everyone.
Saager testified that the first officer to enter the bar was Police Detective Jerry Speziale. Upon entering the bar, Speziale saw one Blas Jimenez Ruibe-Cadavid ("Cadavid") take a handgun from his waistband and toss it into the lap of another person seated at his table; the second person promptly tossed the gun to the floor.
Q [by the Assistant United States Attorney ("AUSA") ]. When Detective Speziale made that observation, what did he himself do and the other law enforcement people in the bar do in response to that?
Q. What happened when you observed--where was the defendant coming from and what happened after you saw him?
A. He was coming out of the bathroom and that's when I wound up, I grabbed him, I placed him up against the wall also.
Q. Now, meanwhile, what was happening with respect to the gun that had been observed by Detective Speziale, if you know?
A. Well, I didn't really see it cause [sic ] I was more concerned with the two people on the wall, but later on--
(Tr. 7-8.) Saager testified that later, Speziale said he had recovered the gun thrown by Cadavid. After recovering the gun, Speziale arrested Cadavid and his companion.
Q. And then what happened with respect to the defendant who you were holding near the bathroom?
A. Then, for safety reasons Detective Speziale started searching the people that we had frozen in the bar. When he got to the defendant, he recovered a .380 from the defendant's right pants leg, underneath the defendant's pants leg.
(Tr. 8.)
In response to the AUSA's question as to whether "it was after seeing the gun, and as a result of that, that the other patrons in the nearby area were held against the wall to allow for the seizure" (Tr. 11), Saager testified:
It was almost simultaneously. You know, you're freezing everybody up, you know, in the area, you know.
Actually, everybody in the place was, you know, frozen up immediately.
Q. Upon the securing of the gun in the--
A. You know, even before the gun. As you're going in, as we're going into the bar, you know, like I said, we were yelling police. [Speziale] was the first one, I was the second one, and I know there was a couple of people we passed at the bar and I know some people were grabbing them and just, you know, placing them, you know, freezing the whole place for safety.
(Tr. 11-12.)
On cross-examination by Jaramillo's attorney Bernard Udell, Saager further testified as follows:
Q. At the time that those people tossed the weapon, is it fair to say that the defendant was in the bathroom?
A. Yes, sir.
Q. As far as you know, was the defendant in the bathroom at the time you entered the bar?
A. Yes, sir.
Q. Is it fair to say that when the defendant came out of the bathroom that was the first time you ever saw the defendant?
A. Yes, sir.
Q. Is it then fair to say that the defendant was secured as a result of the fact that he was another person in the bar?
A. Yes, sir.
Q. So whether that gun was tossed or not, the defendant upon showing his presence would have been secured?
A. He would have been secured, yes.
Q. And secured consisted of withholding his freedom of movement and patting him down?
A. Yes, sir.
Q. You saw the gun being tossed?
A. I didn't--[Speziale] yelled. I didn't actually see the gun.
Q. Did you see the gun being retrieved?
A. I know it was being retrieved. [Speziale] and Senior Investigator Beech were immediately to my left, and they were retrieving the gun as I was placing somebody up against the wall that was at the table next to them.
Q. That somebody was not the defendant?
A. No, sir.
Q. And that was before the defendant came out of the bathroom?
A. Yes, sir.
Q. So is it fair to say that the gun was retrieved prior to the time the defendant came out of the bathroom?
A. Yes, sir.
Q. And by retrieved I mean retrieved by a police officer?
A. Yes, sir.
Q. So that gun had been secured when you first saw the defendant?
(Tr. 16-17.)
The government relied solely on the tossed-gun incident to show that the agents had reasonable suspicion to conduct a patdown search of Jaramillo. There was no testimony that Jaramillo was recognized by the officers, or acted in any suspicious manner, or was known to have any connection with Cadavid, the gun-tosser.
The initial impetus for the officers' raid on La Taverna and their desire to begin immediately searching everyone in the bar was the officers' receipt of information from "a confidential source" suggesting that a "kidnapping and a killing" were to take place in the bar. (Tr. 12.) At the suppression hearing, however, the government chose not to rely on that information, apparently because it was unwilling to undergo exploration as to its source:
Q [by Mr. Udell]. Do you know the person who gave the confidential information?
A. No.
Q. Have you ever had--have you ever personally had conversations with that person who gave that information?
A. No.
Q. Had you ever in the past relied on that person who gave that information?
a killing from a confidential informant before they went in.
Jaramillo argued that the gun seized from him should be excluded on the authority of Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), which, as discussed in ...
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