701 F.3d 64 (2nd Cir. 2012), 10-3567-cr, United States v. Moreno

Docket Nº:10-3567-cr.
Citation:701 F.3d 64
Opinion Judge:LIVINGSTON, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Norby Marin MORENO, Defendant-Appellant.
Attorney:David A. Lewis, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant. Ali Kazemi, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New Y...
Judge Panel:Before: CABRANES, LIVINGSTON, and CARNEY, Circuit Judges. Judge CARNEY concurs in a separate opinion. SUSAN L. CARNEY, Circuit Judge, concurring:
Case Date:November 20, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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701 F.3d 64 (2nd Cir. 2012)

UNITED STATES of America, Appellee,


Norby Marin MORENO, Defendant-Appellant.

No. 10-3567-cr.

United States Court of Appeals, Second Circuit.

November 20, 2012

Argued: Oct. 20, 2011.

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[Copyrighted Material Omitted]

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David A. Lewis, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.

Ali Kazemi, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: CABRANES, LIVINGSTON, and CARNEY, Circuit Judges.

Judge CARNEY concurs in a separate opinion.

LIVINGSTON, Circuit Judge:

Defendant-Appellant Norby Marin Moreno (" Marin" ) 1 appeals from an August 20, 2010 judgment of the United States District Court for the Eastern District of New York (Gleeson, J. ), convicting her, following a jury trial, of conspiracy to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The district court sentenced Marin to 120 months' incarceration, three years of supervised release, and a $200 special assessment.

On appeal, Marin contends that the district court erred in denying her pretrial motion to suppress the approximately 1.2 kilograms of heroin found hidden in four perfume canisters in her luggage after she consented to a search of her motel room and bags on the day of her arrest. Marin first contends that the district court erred in concluding that exigent circumstances supported the warrantless entry of Drug Enforcement Agency (" DEA" ) agents into her room and that her consent to search was a fruit of this illegal entry and was therefore invalid. She next argues that even assuming the agents' warrantless entry was justified by an exigency, her consent to search was not voluntary.

For the reasons stated below, we conclude that the district court did not err (much less clearly err) in determining that exigent circumstances justified the agents' warrantless entry into Marin's room. Further, we find no error in the district court's finding that Marin's consent was voluntary. Accordingly, we affirm the judgment of the district court.2


1. Evidence at the Suppression Hearing

The following background is taken from the district court's Memorandum Opinion and Order denying Marin's motion to suppress

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and from the testimony of DEA Special Agents Salvatore Aceves (" Aceves" ) and Elizabeth O'Connor (" O'Connor" ) at a two-day pretrial suppression hearing before Judge Charles P. Sifton.3 We view the evidence in the light most favorable to the government. See United States v. Worjloh, 546 F.3d 104, 108 (2d Cir.2008) (per curiam); see also United States v. Ansaldi, 372 F.3d 118, 129 (2d Cir.2004).

On the morning of July 31, 2008, Aceves, from the DEA's New York Field Division, received information from DEA Special Agent Richard Walsh (" Walsh" ), who was stationed in Bogota, Colombia, that over a kilogram of heroin was to be delivered by courier at the Metro Hotel in Queens that very day.4 Walsh was working with the Colombian National Police (the " CNP" ) on an investigation into a drug trafficking organization that was ferrying large amounts of cocaine and heroin to the United States and into New York City through Panama, Guatemala, and Mexico. Pursuant to Colombian law, the CNP, working with Walsh, had placed taps on the telephones of members of the drug organization. These taps had resulted in previous substantial narcotics seizures.

On this occasion, Walsh, who had worked with Aceves in the New York office prior to his posting to Colombia, contacted Aceves from a Bogota " wire room" in which he was listening to calls to and from a phone associated with a high-level member of the drug organization. Walsh called to alert Aceves to the impending heroin delivery in New York City. Walsh relayed information to Aceves— including that the drug courier would be at the Metro Hotel and that the courier's name was " Norby" — as Walsh obtained it from the interceptions. By approximately 10:00 a.m. on July 31, Aceves had learned from Walsh over the course of several conversations

that a heavyset Hispanic woman named Norby would be at the Metro Hotel in Room 166 with approximately 1,200 grams of heroin and that she'd be waiting for a male known only as Pintora to arrive and that either he or someone would arrive to receive the heroin; that he would be giving her $10,000. [Aceves was] also told [by Walsh] that beforehand, [Pintora] would contact [Norby] and he would tell her that he was calling on behalf of El Tio, which means the uncle.... [T]hat was their code to her for her to proceed as scheduled.

Walsh informed Aceves that Norby was " already there" and that the transaction would take place " at any moment," according to the intercepted conversations.

After receiving this information from Walsh, Aceves drove to the Metro Motel, arriving at approximately 12:00 noon. He established surveillance of the motel by parking his van in the parking lot outside Room 166 so that the van faced the exterior door of Room 166, which opened onto the parking lot, from about 25 feet away. Aceves was soon joined by six other DEA agents, including O'Connor, who was in charge. By about 12:45 p.m., the agents had formed a perimeter around the motel. Agents were stationed in Aceves's van facing Room 166; in a second van also parked in the gravel parking lot; inside the motel, in a common area; and on Queens Boulevard near the motel's main entrance.

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At approximately 12:30 p.m., as this perimeter was still being established, Aceves observed a heavyset Hispanic woman matching Walsh's description in the parking lot of the Metro Motel; he saw her approach the exterior door of Room 166. The woman, who was later revealed to be Marin, was carrying one or two small plastic bags and she held a cell phone to her ear. She stepped inside Room 166, leaving the door open, and then after a few seconds stepped outside again and looked around the surrounding area; she repeated this movement twice before finally entering the room and closing the door.

Marin had been inside Room 166 for approximately half an hour when the agents discovered that in addition to the exterior door that opened onto the parking lot where Aceves's van was stationed, Room 166 also had an interior door that opened into an interior corridor of the motel. The agents were immediately concerned that because they had been unaware of the interior door when they first established their perimeter, Marin might have left Room 166 via the interior door, or Pintora or another person might have arrived without their knowledge.5 As Agent Aceves testified, " [t]he drug transaction could have already taken place while we were merely surveilling the exterior door." An agent was promptly posted in the interior corridor. Shortly before 1:30 p.m., Agents O'Connor, Aceves, and Special Agent David Samilo (" Samilo" ) decided that Agent O'Connor would ask a female member of the motel's cleaning staff to knock on the exterior door of Room 166, with Agent O'Connor standing beside her, in the hope that O'Connor by this measure might ascertain who was inside.

Shortly thereafter, the motel's housekeeper, accompanied by O'Connor, knocked on the exterior door of Room 166 and announced " room service or maid service" or " [s]omething to that effect." The housekeeper wore a solid color uniform dress. O'Connor was dressed in plain clothes— a short sleeved white golf shirt and khaki green capri slacks— but also wore a two-and-one-half inch gold badge on her hip that identified her as a DEA agent. As the housekeeper knocked on the door to Room 166, Samilo, followed by Aceves, approached the door from Aceves's van. Both agents were wearing badges and bullet-proof vests over their short-sleeve shirts.

Marin opened the door in response to the housekeeper's knock. She " made eye contact with the maid, [and] smiled," but when she saw O'Connor, " the smile dropped from her face, and she went to slam the door in [O'Connor's] face." O'Connor, who did not have her weapon drawn and was unaware whether Marin was armed or had another person in the room, first put up her hand to block the door, announcing " calm," " tran[q]uila" and " we are the police," and then, as Marin resisted, grabbed her wrist, pushing the door open and calling for Agent Samilo's help. With Samilo's assistance, the altercation was over within seconds, as O'Connor successfully handcuffed Marin inside the motel room. During that same brief interval, Aceves entered the room with his gun drawn and conducted a brief security sweep; after ascertaining that no one else was in Room 166, he holstered his weapon. The agents, aware from Agent Walsh's information that Pintora or his associate could be arriving to meet the courier at

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any moment, secured the room by closing the doors.

After Marin was seated on a chair, Aceves, who is fluent in Spanish, spoke with her, eliciting her name, " where she was coming from, [and] when she arrived." He also translated for O'Connor, who in addition to speaking with Marin was responding to phone calls from other agents on the surveillance operation. Marin was calm. O'Connor told her, in substance, that it was in her interest to cooperate and that " if there's something here that shouldn't be here it's in your best interest to tell us now while you can before we find it on our own." After a brief interval during which the...

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