U.S. v. Perea
| Decision Date | 11 February 1993 |
| Docket Number | No. 100,D,100 |
| Parties | UNITED STATES of America, Appellee, v. Ruben PEREA, Defendant-Appellant. ocket 92-1188. |
| Court | U.S. Court of Appeals — Second Circuit |
Jeffrey Toobin, Asst. U.S. Atty., Brooklyn, NY (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Emily Berger, Asst. U.S. Atty., on the brief), for appellee.
Ivan S. Fisher, New York City (Kenneth M. Tuccillo, on the brief), for defendant-appellant.
Before: KEARSE, PRATT, and McLAUGHLIN, Circuit Judges.
Defendant Ruben Perea appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York following his conditional plea of guilty before Edward R. Korman, Judge, to one count of conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846 (1988). Perea was sentenced principally to 16 months' imprisonment, to be followed by three years' supervised release. On appeal, he contends that the district court should have granted his motion to suppress certain statements and evidence as the fruits of an illegal search and arrest. For the reasons below, we vacate the judgment and remand for further proceedings in connection with the suppression motion.
The present prosecution arises out of the February 1, 1991 search of a bag seized from the trunk of a livery cab and the arrest of Perea, a passenger in the cab, in the course of an investigation by agents of the United States Customs Service ("Customs") and the United States Drug Enforcement Agency ("DEA") into money laundering. The following description is drawn largely from testimony of the agents and others at a hearing on Perea's motion to suppress, inter alia, certain of his statements and the contents of the bag.
In about November 1990, Customs agents had commenced surveillance of a residential building at 97-37 Corona Avenue, Queens, New York ("Corona building"), that they had determined was being used as a "count house" where proceeds of narcotics sales were counted before transfer to other locations. On January 28, 1991, agents observed two men in a red Oldsmobile arrive at the Corona building. The men had beepers and made several calls from a nearby pay telephone. They eventually went into the building with a shopping bag; some 12 minutes later, they emerged without the bag. Agents attempted to follow as the men drove away but were thwarted as the driver engaged in a variety of evasive tactics.
On January 30, agents observed the same Oldsmobile arrive at the Corona building. Again the occupants made calls from a pay phone before one of them went into the building. This time when the men drove away, agents were able, despite the driver's maneuvers, to follow them. After stopping at various locations in Queens to make calls from pay telephones, the men arrived at 136-20 61st Road, Queens, and the driver went into that building ("61st Road building"). A grey Nissan was parked in the driveway.
On January 31, the agents conducted surveillance of the 61st Road building. They saw in the driveway a car that was registered to an individual with prior narcotics arrests. In the evening, a man and a woman arrived in the grey Nissan that the agents had seen there the previous day.
On the morning of February 1, agents resumed surveillance of the 61st Road building, and the Nissan was again parked in the driveway. At about 9:50 a.m., a man later identified as Hernan Ortiz left the In the meantime, an agent posted outside the 61st Road building had seen the red Oldsmobile arrive at about 11:05. The driver rang the doorbell, without apparent response. He threw pebbles at a second-floor window and seemed to make gestures toward someone there. He then appeared to look for surveillance, got in the Oldsmobile, and sped away.
building and drove off in the Nissan. Agents followed as he drove to the Long Island Expressway, made a call from a telephone booth, returned to the Nissan and drove along the expressway for some miles, then exited, parked the car, and walked away. One agent continued to watch the Nissan; another apparently attempted to follow Ortiz but lost sight of him. Ortiz was next seen arriving back at the 61st Road building by livery cab at about 11:45 a.m
When Ortiz arrived back at the 61st Road building at 11:45 a.m., he left the livery cab, appeared to check for surveillance, and then entered the building. The cab remained waiting. Several minutes later, Ortiz returned to the cab with a large duffel bag that appeared to be full and heavy. He looked up and down the street, then signaled the cab driver to open the trunk. Ortiz placed the bag in the trunk of the cab and returned to the building.
A few minutes later, Perea appeared in the doorway of the 61st Road building with Ortiz. Perea left the building, appeared to check for surveillance, and then got into the cab. During this entire time, Perea had his left hand in his pocket, leading a surveilling agent to suspect that he had a weapon in the pocket. The cab pulled away, and the agent contacted other Customs and DEA agents in the area, who joined in following the cab.
During the pursuit, Perea kept looking back. He appeared to be nervous and to be urging the driver of the cab to drive evasively, and the agents became fairly certain that Perea knew he was being followed. Agents in at least four, and as many as six, vehicles used their flashing lights and sirens to stop the cab. Government cars then blocked the cab in front and back and on one side, and the agents approached the cab, some with guns drawn. Precisely what followed was the subject of conflicting testimony at the suppression hearing.
Perea testified that an agent got out of one of the cars, pointed a revolver at him, and told him not to move. Other agents surrounded the cab, and one opened the door and pulled him out. The agent placed Perea against the side of the cab, searched him, then "put [him] down hard on the ground." Agents handcuffed him while he was on the ground, and then placed him inside a government vehicle. In the meantime, while Perea was on the ground, other agents had taken the duffel bag from the trunk of the cab. He testified that the agents placed the bag in the car with him and questioned him about "a second person." In response to a question from the court, Perea testified that the agents never asked him whether the bag belonged to him.
Perea testified that he had been keeping the duffel bag in his apartment for a person who was to pay him for holding it. Perea said he knew the bag contained cocaine, marijuana, and a scale, and that he had possessed the bag for four days before he was arrested. On February 1, Ortiz came to Perea's apartment to warn him of surveillance and instructed him to take the bag to a new location in the livery cab.
Two Customs agents testified at the hearing. Special Agent Brian Aryai testified that he had simply asked Perea to leave the vehicle and did not physically pull him from the cab. The other agent who testified could not recall whether or not anyone had physically removed Perea from the cab.
Aryai testified that while Perea was getting out of the cab, another agent asked the driver whether he could search the cab's trunk. The driver agreed and gave the keys to the agent, who then found the duffel bag in the trunk. Aryai escorted Perea to the back of the cab and asked him whether the bag was his. On direct examination Aryai testified that Perea said "no Lucy Flowers, the livery cab driver, also testified. She said that when her cab arrived at the 61st Road building, Ortiz left the cab without paying and told her he would be back shortly. When he emerged from the building carrying a bag, he signaled Flowers to open the trunk, which she did from inside the vehicle. She could not see what he put in the trunk. Ortiz told Flowers to wait, and he returned to the building. Several minutes later, Perea got into the cab and told her to start driving; he said he would pay Ortiz's fare. As Flowers started to drive, she was apprehensive because of the way Perea was holding his hand in his pocket and the way he kept turning to look behind them.
that's not my bag"; on cross-examination, he testified that Perea's response was "no, go ahead." The agents opened the bag and found some 75 pounds of marijuana, 1100 grams of cocaine, and a triple-beam scale. Aryai then placed Perea under arrest, frisked and handcuffed him, and read him his Miranda warnings. Thereafter, Aryai interrogated Perea in one of the agents' cars. Perea told Aryai that the duffel bag contained narcotics and money and that he had also concealed money in the back seat of the cab. Later in the day, the agents searched the back seat and found approximately $13,000 in cash
When Flowers heard the sirens, she pulled to the side of the road thinking the officers were pursuing some other car. After government cars blocked the cab, agents approached, opened the rear door and, without explanation to Flowers, got Perea out of the cab. Flowers was not sure whether they forcibly removed him, because she did not turn around. The agents did not ask Flowers for permission to search the trunk. Rather, one demanded that she give him the key to the trunk, and she complied; the agent then removed the duffel bag from the trunk.
Flowers testified that she saw Perea lying on the ground, handcuffed. Uncertain of the sequence of events, however, because "everything happened to[o] fast," she at first testified that Perea was handcuffed before the officers opened the trunk, but later said that she thought he was handcuffed after the agents opened the trunk.
Perea and Ortiz, who was arrested shortly after the events involving Perea, were indicted on one count of conspiring to distribute and to possess with...
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