U.S. v. Arango-Correa, ARANGO-CORREA and H

Decision Date27 June 1988
Docket NumberARANGO-CORREA and H,Nos. 1123,1124,D,s. 1123
Citation851 F.2d 54
Parties26 Fed. R. Evid. Serv. 23 UNITED STATES of America, Appellee, v. Armandoernando Pulido, Defendants-Appellants. ockets 87-1522, 87-1523.
CourtU.S. Court of Appeals — Second Circuit

Lawrence V. Carra, Mineola, N.Y., for defendant-appellant Pulido.

David C. James, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D.N.Y., John Gleeson, Asst. U.S. Atty., of counsel), for appellee.

Before VAN GRAAFEILAND, PIERCE, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendants-appellants Armando Arango-Correa and Hernando Pulido appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York after a jury trial before Judge Dominick DiCarlo, United States Court of International Trade, sitting by designation. Defendants were convicted of importing, possessing with intent to distribute and conspiring to possess with intent to distribute over 500 pounds of cocaine, in violation of 21 U.S.C. Secs. 952(a), 841(a), and 846, respectively. Defendant Arango-Correa was sentenced to three concurrent prison terms of 20 years, followed by two concurrent special parole terms of three years. Defendant Pulido was sentenced to three concurrent 15-year terms of imprisonment followed by two concurrent special parole terms of three years. Both defendants are currently serving their sentences.

On appeal, Arango-Correa and Pulido challenge the admission into evidence of certain items, including a tape recording of a conversation between defendants and notebooks found in Pulido's car. Both defendants also challenge as prejudicial the display before the jury of 500 pounds of cocaine. Defendant Arango-Correa separately contends that his consent to a warrantless search of his home was obtained in violation of his fourth amendment rights. For the reasons set forth below, we affirm the judgments of conviction as to both defendants.

BACKGROUND

On April 29, 1986 upon the arrival of the ship Simon Bolivar into Brooklyn, New Agents of the DEA sought to identify the owner of the cargo by arranging a controlled delivery of the paper, rather than seizing the contraband at the pier. The government obtained a court order authorizing installation of a transmitter in one of the rolls of paper and another transmitter at a two-car garage in Queens, which was the address of Interamerican Rapido as indicated in the ship's manifest. During the course of visual surveillance of the garage, defendants Arango-Correa and Pulido were seen entering and leaving the garage, and both defendants were present to accept delivery of the rolls of paper on May 7, 1986. Audio surveillance of the garage resulted in recordings made on May 13, 1986 of Arango-Correa and Pulido inside the garage for a period of approximately two and one-half hours, speaking entirely in whispers. Although portions of the audiotape recorded during the surveillance were inaudible, parts of the conversation which could be heard contained apparent references to cocaine.

York, an Inspector of the United States Customs Service noticed a flaw in one of 36 rolls of paper which formed part of a large shipment imported from Colombia, South America. Subsequent tests by Drug Enforcement Administration ("DEA") agents confirmed the presence of cocaine inside four of the 36 rolls. The paper, of the kind used to make grocery shopping bags, was consigned to a company called Interamerican Rapido Import and Export ("Interamerican Rapido"). The rolls of paper were ultimately found to contain 500 pounds of cocaine wrapped in 227 one-kilogram packages.

Defendants were arrested following audio surveillance of the garage. A Spanish-speaking agent gave Pulido his Miranda warnings. Pulido waived his constitutional rights and agreed to accompany the arresting agents to the garage and allow a search of the premises. An inspection of the garage revealed the 36 rolls of paper, plus 23 similar rolls from a prior shipment. Rolls 10, 11, 12 and 13, the four rolls identified at the pier as containing cocaine, were discovered hidden in a corner of the garage. Pulido was further questioned at the United States Customs Service office at the World Trade Center. There, he gave the agents his consent to search his apartment.

The search of defendant Pulido's apartment produced several slips of paper bearing notations concerning drug transactions unrelated to the shipment of April 29. DEA agents also impounded Pulido's car pursuant to the forfeiture provisions of the Controlled Substances Act, 21 U.S.C. Sec. 881. During a routine inventory search of the car, an agent uncovered two notebooks containing references to narcotics transactions also unrelated to the April 29 shipment from Colombia.

Defendant Arango-Correa was arrested at approximately 7:30 p.m. on May 13, 1986. He was read his Miranda warnings both in English and Spanish, and indicated that he understood his rights. He was brought to the United States Customs Service office at the World Trade Center. There he was strip searched, although he was not subjected to a body-cavity search. He again was advised of his rights in Spanish and again stated that he understood them. He agreed to answer the agents' questions; he was not handcuffed, no weapons were drawn, and the agents spoke in normal tones of voice.

After approximately ten minutes of questioning, Arango-Correa complained of stomach pains and said that he was sleepy. He was allowed to lie down for several hours on a couch in a darkened office. After further questioning by the agents he again complained of stomach pains. The questioning ceased, and he was allowed once more to lie down. At 12:30 a.m., the agents asked Arango-Correa for consent to search his apartment. The agents explained to him that they did not have the right to search without a warrant, that he had the right to refuse consent, and that any evidence discovered during the search could be used against him. Arango-Correa stated that he understood these rights and executed a consent form in Spanish. The consent form acknowledged that he had been advised of his rights and that he was not under any pressure or force to give his consent.

In the search of Arango-Correa's apartment, DEA agents found several slips of paper bearing references to drug transactions. Some of the notations corresponded to weights and markings on packages of cocaine which were part of the April 29 shipment.

At a suppression hearing before trial, the district court considered the admissibility of the audiotapes recorded during surveillance of the garage. The court also considered admission of the notations uncovered in the search of Arango-Correa's apartment, notebooks taken from Pulido's car during the DEA's inventory search, and notes found in Pulido's apartment. Based upon findings made at the hearing, the district court denied defendants' motions to suppress this evidence. At trial, the district court permitted the display, over defendants' objection, of 500 pounds of cocaine seized from the garage. Defendants were found guilty on each count of the indictment and were sentenced.

DISCUSSION
I. Voluntariness of Consent to Search.

In support of his contention that evidence uncovered during the search of his apartment should have been suppressed, Arango-Correa argues that his consent was vitiated by the fact that he was in custody for five hours before he consented to the search. Arango-Correa further contends that he was subjected to subtle but intense coercion because he was strip-searched and questioned by DEA agents while in custody.

The government is required to demonstrate that "consent [to search] was in fact voluntarily given, and not the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973); see United States v. Ceballos, 812 F.2d 42, 49 (2d Cir.1987). The test of voluntariness is whether the consent was the product of an essentially free and unconstrained choice by its maker, Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2046, and is a question of fact to be determined from all of the surrounding circumstances. Id. at 248-49, 93 S.Ct. at 2059. The district court's factual finding that Arango-Correa's consent was voluntarily given, therefore, will not be set aside by this Court unless it was clearly erroneous. United States v. Puglisi, 790 F.2d 240, 244 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 106, 93 L.Ed.2d 55 (1986).

The district court's finding that Arango-Correa voluntarily consented to the search of his apartment is amply supported by the record. The district court undertook a thorough inquiry of the circumstances surrounding Arango-Correa's consent as required by Schneckloth. The fact that Arango-Correa was in custody for five hours did not compel a finding that his consent was involuntary. To the extent that Arango-Correa urges us to hold that a five-hour detention renders a consent to search involuntary per se, we specifically decline to do so.

Defendant was well treated while in custody and was not subjected to the kind of intensive interrogation over many hours or days which would overwhelm the frightened prisoner and vitiate consent. Compare Stawicki v. Israel, 778 F.2d 380, 383 (7th Cir.1985) (5 1/2 hour detention including 1 1/2 hour interrogation did not render confession involuntary), cert. denied, 479 U.S. 842, 107 S.Ct. 150, 93 L.Ed.2d 91 (1986) and Shriner v. Wainwright, 715 F.2d 1452, 1455 (11th Cir.1983) (10-hour detention including five-hour interrogation did not render confession involuntary), cert. denied, 465 U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984) and United States v. Busic, 592 F.2d 13, 22 (2d Cir.1978) (despite weariness due to long flight...

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