539 F.3d 88 (2nd Cir. 2008), 06-5648, United States v. Valentine

Docket Nº:06-5648-cr.
Citation:539 F.3d 88
Party Name:UNITED STATES of America, Appellee, v. Luis VALENTINE, Defendant-Appellant.
Case Date:August 05, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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539 F.3d 88 (2nd Cir. 2008)

UNITED STATES of America, Appellee,


Luis VALENTINE, Defendant-Appellant.

No. 06-5648-cr.

United States Court of Appeals, Second Circuit.

August 5, 2008

Argued: April 4, 2008.

Amended: Aug. 18, 2008.

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Colleen P. Cassidy, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.

Emily Berger, Assistant United States Attorney (Daniel A. Spector, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, New York, NY, for Appellee.

Before: CALABRESI and LEVAL, Circuit Judges, and NEVAS, District Judge.[*]

NEVAS, District Judge, sitting by designation:

Defendant Luis Valentine appeals from the district court's denial of his motion to suppress evidence obtained from his car and his residence. Valentine contends that the district court erred in concluding that (1) his arrest and the subsequent search of his car were legal and (2) his wife's consent to search their apartment was voluntary and that the firearms found during the search should not be suppressed.1


A. The Controlled Delivery

On Friday, October 8, 2004, members of a drug enforcement task force based at John F. Kennedy Airport in New York learned that boxes containing a sofa and loveseat had arrived from Puerto Rico, and that approximately 50 kilograms of cocaine were hidden inside the furniture. The boxes were shipped via FedEx and addressed to Luis Lebron, basement apartment of 377 Vernon Avenue, Brooklyn, New York. The task force officers, consisting of NYPD officers and DEA agents, intercepted the shipment and planned a controlled delivery for the following Monday.

Because there were no FedEx trucks available for the controlled delivery that Monday, DEA Special Agent Christopher Banzer and NYPD Detective Rodney Perez dressed in FedEx uniforms, rented a delivery van and put magnetic FedEx signs on its sides. Another group of agents and police officers parked an undercover surveillance van across the street from 377 Vernon, where they recorded video of the location and received audio transmissions from a wireless device worn by Det. Perez. Other officers 2 were positioned in various locations within a few blocks of 377 Vernon.

As the officers pulled up in the delivery van at approximately 11:47 a.m., they saw Valentine getting out of a sedan parked near the building. Valentine walked toward the building and said something that Special Agent Banzer interpreted as “Paolo, FedEx, FedEx," 3 and waved to a man named Pedro Rodriguez further down the street. Det. Perez asked Valentine if he could help unload the heavy boxes and Valentine agreed so long as Det. Perez paid him. Rodriguez then approached the officers and Valentine and the group discussed

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who would sign for the delivery. Valentine then went inside 377 Vernon and came out with a man identified only as “Angel." Angel said he would call Lebron to ask him to come home to sign for the delivery. Angel called Lebron and gave the phone to Det. Perez. The person on the phone purporting to be Lebron stated that he was at work and could not leave, but they should leave the delivery on the sidewalk for him. Valentine was not present for the phone call. Ultimately, no one signed for the boxes and Det. Perez and Special Agent Banzer went back to their office at JFK without making the delivery.4

After the delivery van left, several of the officers continued surveilling 377 Vernon. Special Agent Robert Yoos, a 20-year veteran of the DEA, watched the apartment building from an unmarked police car. NYPD Detective Michael Johnson, with seven years' experience with the police department, continued surveillance from a van across the street. The officers observed Valentine going in and out of 377 Vernon and talking with various individuals on the sidewalk.

At approximately 1:00 p.m., Valentine, dressed in a gray hooded sweatshirt, came out of 377 Vernon and gestured to other people standing nearby and proceeded to walk up the block. Special Agent Yoos and Det. Johnson observed Valentine and the other people enter a vacant lot. None of the officers could see what transpired in the lot.5 A few minutes later, Valentine reappeared alone at the other end of the block, holding a cup of coffee or some other beverage. Valentine walked back to 377 Vernon and later removed his sweatshirt and placed it in his car.

A supervising agent, who was not on the scene, authorized Valentine's arrest based on information furnished to him by Special Agent Yoos and Det. Johnson. Yoos then told NYPD Sergeant Allan Hoehl and NYPD Detective Paul Crockett to move in and arrest Valentine, while Special Agent Yoos walked up the street to arrest the other people loitering on the block who had entered the vacant lot with Valentine.6

B. Valentine's Arrest

Valentine had stepped out of his car and was walking toward the trunk area at approximately 1:30 p.m. when Sergeant Hoehl and Det. Crockett blocked his car with their unmarked police cars. The officers, wearing plainclothes and badges, approached Valentine from the front and rear of his car and told him they were police officers and that he was under arrest. Valentine struggled with the officers, and Det. Johnson and at least two other officers ran over to assist in Valentine's arrest. Sergeant Hoehl stated that because he felt Valentine reach for his gun at one point during the scuffle, Sergeant Hoehl hit him on the head with handcuffs to subdue him. Once the officers had Valentine handcuffed, they called an ambulance to treat Valentine's resulting head wound.

After Valentine's arrest, Det. Johnson searched Valentine's car and found the gray sweatshirt Valentine had been wearing earlier in the day. Inside a pocket of the sweatshirt, he found some glassine

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bags of heroin. No other contraband was found in the car.

C. The Search of Valentine's Apartment

Special Agent Yoos, parked up the street a few blocks, arrived at 377 Vernon shortly after Valentine's arrest. Special Agent Yoos then called for Sergeant Hoehl and Det. Crockett to accompany him to Valentine's apartment. When they knocked on the door, Valentine's wife, Annette Pena Morales, answered. She appeared as though she had just awakened and looked nervous, concerned, but also calm. Special Agent Yoos told Morales that he and the other officers were working on a narcotics case and that they had just arrested Valentine. Morales told the officers that she lived there with Valentine and their two children. She stated that she had been looking out the window and had witnessed Valentine's arrest.

Special Agent Yoos then asked Morales if they could come inside to discuss the matter further. Morales allowed the officers to enter the apartment. Special Agent Yoos informed her that her husband had just been arrested for a very serious narcotics offense. He then asked Morales if other people had been in the apartment earlier that day, and Morales said that her daughter and her daughter's boyfriend had visited. Special Agent Yoos asked if other people were currently in the apartment, and Morales said no.

As to what next transpired, Morales's testimony varies significantly from that of the officers.7 According to the officers, Special Agent Yoos asked Morales if any guns or drugs were in her apartment and she denied that such items were present...

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