U.S. v. Alvarado-Rodriguez, CR 98-259(SEC).

• Decision Date: 12 July 1999
• Docket Number: No. CR 98-259(SEC).,CR 98-259(SEC).
• Citation: 59 F.Supp.2d 329
• Parties: UNITED STATES of America, Plaintiff, v. Omar ALVARADO-RODRIGUEZ, Rosa I. Soto Encarnacion, Carlos Cabrera-Polo, Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 329

59 F.Supp.2d 329

UNITED STATES of America, Plaintiff, v. Omar ALVARADO-RODRIGUEZ, Rosa I. Soto Encarnacion, Carlos Cabrera-Polo, Defendants.

No. CR 98-259(SEC).

United States District Court, D. Puerto Rico.

July 12, 1999.

Miguel A. Pereira, U.S. Attorney's Office District of P.R., Criminal Division, Hato Rey, PR, for plaintiff.

Rachel Brill, Hato Rey, PR, Jorge Diaz-Reveron, Hato Rey, PR, Joseph C. Laws, Federal Public Defender, San Juan, PR, Julio Morales-Sanchez, Van Rhyn, Lora-Longoria, Hato Rey, PR, Edgar R. Vega-Pabon, Hato Rey, PR, for defendants.

OPINION AND ORDER

CASELLAS, District Judge.

Pending before the Court are several motions to suppress evidence filed by defendants Rosa Soto-Encarnación (Docket # 30), Omar Alvarado-Rodriguez (Docket # 31) and Carlos Cabrera-Polo. (Docket # 34) The Court held a hearing on the motions to suppress on February 23, 1999. Upon careful consideration of the witnesses' testimony, the parties' arguments and the applicable law, defendants' respective motions to suppress are DENIED.

On November 20, 1998 at approximately 8 a.m., Orlando Báez, a U.S. Customs Service Agent, informed Oscar Negrón, a Special Agent of the Drug Enforcement Administration ("DEA"), about an anonymous tip which identified two heroin couriers traveling from Miami to the Luis Muñoz Marín International Airport in Puerto Rico. This anonymous tip identified the couriers as Omar Alvarado and Ivette Soto. According to the tip, the couriers would be traveling with a small child and would arrive that same day, November 20, at 9:20 a.m. on American Airline flight # 709.

Prior to 9:20 a.m. Agent Negrón proceeded to verify the identities of the two alleged couriers with the flight information officers of American Airlines. He verified that two passengers had purchased two tickets from Miami to San Juan, paid in cash, the same of their flight, November 20, 1998. The passenger-name record included Omar Alvarado and Ivette Soto. Just minutes before the plane from flight 709 opened its door upon arrival, Agent Negrón obtained a physical profile of Alvarado and Soto from the flight attendant. At approximately 9:20 a.m. Negrón observed two passengers, previously identified as Omar Alvarado and Ivette Soto, deplane flight # 709 with an infant. Negrón and Task Force Agent Arturo Román ("Román") began a surveillance upon the couple and followed them to the main terminal area near Café Caribe. At that point Negrón and Román approached Alvarado-Rodriguez ("Alvarado") and Soto-Encarnación ("Soto"), identified themselves as federal agents and began a conversation with them. Negrón and Román were dressed in plain clothes and did not display their weapons during the initial meeting with the defendants.

During this conversation, Negrón asked both defendants if he could see their airline tickets and identification. Negrón reviewed the tickets and confirmed that they were one-way tickets from Miami, bought with cash and purchased on the same day of their flight. Negrón returned to the couple their identification and airline tickets. Negrón also asked the defendants the purpose of their trip; they replied that they had gone to Miami for a vacation. The defendants explained that they had planned the trip for a long time, that although they did not know anyone in Miami, they went to see the area. Soto and Alvarado also noted that they only stayed in Miami for two days, since they ran out of money. Negrón then asked if he could look inside Alvarado's briefcase, and Alvarado consented. Soto handed Negrón the keys for the briefcase. The contents of the briefcase revealed four hundred dollars ($400.00) in U.S. currency. When Negrón asked the defendants why they had said that they had run out of money, defendants failed to reply. Alvarado started sweating, looking around and shaking his hands.

Agent Negrón also noticed that Alvarado had difficulty bending at the waist and observed a bulge underneath Alvarado's sweatshirt. Negrón asked Alvarado whether he had anything under his shirt. Alvarado replied that he had nothing underneath and voluntarily lifted up his sweatshirt to reveal a white tee-shirt. At that time, the agents detected that Alvarado was concealing something underneath his tee-shirt, and Negrón lightly touched the bulge from the exterior of defendant's tee-shirt. Alvarado replied that he wore a girdle.

Negrón then requested Alvarado and Soto to accompany him to the DEA office. The defendants posed no objection and followed the agents to the office. Shortly after arriving to the DEA office, the agents brought a K-9 dog to examine Alvarado. The K-9 did not examine Soto, who was in a different room from Alvarado and was attending the child. Upon sniffing Alvarado, the K-9 detected the presence of a controlled substance on his body. At that point, the agents informed Alvarado and Soto that they were under arrest and read them their Miranda warnings. After Soto arranged to deliver the child to family members, a female agent searched her. A search of both defendants revealed that they were carrying approximately two (2) kilograms of heroin.

After their arrest, Alvarado agreed to cooperate with the DEA. Alvarado told Agent Negrón that he was supposed to deliver the heroin to one Carlos Cabrera-Polo ("Cabrera"). Alvarado explained that he had to call Cabrera to arrange the delivery of the drugs. Alvarado agreed to make a controlled telephone call to Cabrera and spoke to a person which Alvarado later identified as Cabrera. During the phone conversation, Cabrera noted that he would pick up Alvarado at the Luis Muñoz Marín International Airport at the same place where he had met Alvarado previously. Cabrera explained that he would arrive to the airport in ten minutes.

Soon after, Cabrera arrived at the airport in a green Mitsubishi Mirage vehicle; at that point, Alvarado identified the driver in the Mirage as Cabrera, the person to whom he was supposed to deliver the two kilograms of heroin. Alvarado waited for Cabrera at the airport's arrival ramp area. Cabrera failed to see Alvarado and thus drove past Alvarado and away from the airport. Several DEA agents, who began a surveillance of Cabrera upon his arrival to the airport, followed him to a house at # 118 Tapia Street in Santurce, Puerto Rico.

Alvarado then placed a second call to Cabrera and told him he was still waiting. Simultaneously with this call, DEA agents observed Cabrera speak on his cellular phone. After the phone conversation, Alvarado informed Agent Negrón that Cabrera would return to the airport. While Alvarado was waiting, another individual named Gregorio Curtin-Perdomo ("Curtin") arrived at the airport. As soon as Curtin picked up Alvarado, he was arrested and subsequently released. Cabrera arrived a second time to the airport but once again failed to detect Alvarado and left again. Alvarado made a third call and told Cabrera to hurry up because he was getting nervous because of the packages.¹ Cabrera replied that he had sent Curtin to pick up Alvarado. Alvarado responded that he had not seen Curtin.

Shortly thereafter, Cabrera returned to the airport. This time he found Alvarado. He and Alvarado met and talked briefly. Cabrera opened the trunk of his green Mirage. While Alvarado was placing his bags in the trunk, the agents arrested Cabrera, who was seated in his car. DEA agents immediately searched the interior of the car and found a cellular phone and papers. Curtin, upon his release from DEA's custody, informed the agents that Cabrera and Cabrera's wife had been living for one month in one of the bedrooms in his home. Curtin also said that Cabrera was not paying rent. Curtin then gave written consent to search his house at # 118 Tapia Street in Santurce. This written consent read, in pertinent part: "I hereby authorize you to search all of the areas including the kitchen, the living room, and the bedroom ... I am the person responsible and I have control of the house."

Pursuant to such consent, the agents and Curtin went to his house. Upon arrival, DEA agents asked Cabrera's wife if they could search the bedroom which she and her husband occupied. Cabrera's wife said they could search whatever they wanted. A search of Cabrera Polo's bedroom uncovered a "money gram," electronic money transfer receipts, a pager, and some drug paraphernalia. The agents found those items in a plastic bag inside an open box. The agents also found $2,900 in U.S. currency in a clear plastic bag on top of a desk.

For purposes of clarity, the Court will analyze the arguments of Alvarado and Soto separately from the legal contentions posed by Cabrera. Defendants Soto and Alvarado argue that Negrón's initial detention constituted an arrest without probable cause, and that the questioning during that detention constituted "custodial interrogation." Accordingly, defendants argue that the statements and evidence obtained pursuant to that detention and the subsequent questioning are inadmissible as "fruits of the poisoned tree." We proceed to examine defendant's contentions.

Applicable Law/Analysis

Investigatory Stop/Reasonable Suspicion

Defendants claim that Agent Negrón's initial questioning of the defendants in the main terminal area prior to their formal arrest constituted a "custodial interrogation" which triggered the obligation to read defendants their Miranda rights. Consequently, defendants Alvarado and Soto seek to suppress their statements prior to their arrest at the DEA office, as well as the evidence obtained subsequent to the arrest, pursuant to the agents' failure to provide the constitutionally-required Miranda warnings. The Court must determine whether agent Negrón's questioning of the defendants at the main terminal area constituted an investigatory stop, and thus did not require the agent to read Miranda warnings, or whether the agents' behavior towards defendants constituted a de facto arrest, which would trigger the Miranda rights.

T...