U.S. v. Gomez-Vega, Criminal No. 04-420 (CCC).

CourtUnited States District Courts. 1st Circuit. District of Puerto Rico
Writing for the CourtCarmen Consuelo Cerezo
Citation519 F.Supp.2d 241
PartiesUNITED STATES of America, Plaintiff; v. Hector GOMEZ-VEGA, Defendant.
Docket NumberCriminal No. 04-420 (CCC).
Decision Date16 October 2007
519 F.Supp.2d 241
UNITED STATES of America, Plaintiff;
v.
Hector GOMEZ-VEGA, Defendant.
Criminal No. 04-420 (CCC).
United States District Court, D. Puerto Rico.
October 16, 2007.

[519 F.Supp.2d 244]

Antonio R. Bazan-Gonzalez, United States Attorney's Office, San Juan, PR, for Plaintiff.

Eric J. Pijuan-Torres, Pijuan Law Office, San Juan, PR, for Defendant.

ORDER

CARMEN CONSUELO CEREZO, District Judge.


Having considered defendant's Motion to Dismiss Indictment for Lack of Probable Cause to Arrest/Indict Alternate Motion to Suppress and Request Evidentiary Hearing (docket entry 36), the United States' Request for Summary Denial of Motion to Dismiss Indictment or to Suppress Evidence, considered as an opposition (docket entry 40), defendant's Opposition, considered as a reply (docket entry 43), and the Magistrate Judge's Report and Recommendation (docket entry 158), to which no opposition has been filed, the same is ADOPTED and the Motion to Dismiss Indictment for Lack of Probable Cause to Arrest/Indict Alternate Motion to Suppress Evidence and Request for Evidentiary Hearing (docket entry 36) is hereby DENIED.

SO ORDERED.

REPORT AND RECOMMENDATION INTRODUCTION

CAMILLE L. VELEZ-RIVE United States Magistrate Judge.

Defendant Héctor Gómez-Vega ("Gómez-Vega") filed a "Motion to Dismiss the Indictment for Lack of Probable Cause to Arrest/Indict Alternate Motion to Suppress and Request for Evidentiary Hearing" which was referred by the Court to the undersigned Magistrate Judge for report and recommendation (Docket No. 122). Gómez-Vega claims there was no probable cause for his arrest, the warrantless search was unlawful and the evidence obtained from the vehicle driven by him, which was seized in violation of the Fourth Amendment, must be suppressed and the Indictment dismissed. (Docket No. 36).

The government filed its Opposition to above motion claiming Gómez-Vega's request to dismiss the Indictment at this stage of the proceedings is meritless and Gómez-Vega lacks standing to challenge the seizure and search of the vehicle. (Docket No. 40).

Defendant Gómez-Vega then filed a reply claiming defendant has standing to raise the suppression issue because he was the owner of the vehicle in question and had a reasonable expectation of privacy in the vehicle. (Docket No. 43).

On November 14, 2006, the evidentiary hearing started with Gómez-Vega's testimony as to the issue of standing.1 After hearing the evidence of standing, the undersigned ruled defendant Gómez-Vega had established, at that stage of the proceedings, standing to challenge the seizure of the narcotics and other evidence under the totality of the circumstances and the evidence before the Court. (Docket Nos. 128 and 149, p. 36).

The suppression hearing was re-scheduled and, upon consent of both parties, held on December 13, 2006, March 13 and 27, 2007 and July 6, 2007. (Docket Nos. 130, 137, 138, 150, 151, 152, 153 and 154).

519 F.Supp.2d 245

The testimonies of Puerto Rico Police Officer ("PRPO") Carlos Piazza, on behalf of the government, and of PRPOs Edilberto Mojica Caldero, Julio A. Gonzalez, Jose Diaz Portalatin, Carmen Santiago Rivera and Mario González Collazo, on behalf of the defense, were heard on the merits.

The transcripts of the suppression hearing were ordered to be transcribed and were filed with the Court on June 19 and 26, 2007 and July 24, 2007. (Docket Nos. 149, 150, 151, 152 and 153).

On July 6, 2007, last day of the suppression hearing, the defense requested time to file a memorandum of law. Defendant was granted twenty (20) days, upon receipt of the transcripts, to file said memorandum and the translations of the exhibits introduced by the defense. The government was granted ten (10) days to file its reply. (Docket No. 153). Defendant, failed to timely comply with the filing of said memorandum. Accordingly, on September 11, 2007, an Order was issued granting defendant until September 13, 2007 to file his memorandum and granting the government five (5) days to file its reply. (Docket No. 155).

On September 13, 2007, defendant filed his memorandum without the required translations.2 (Docket Nos. 156). On September 18, 2007, the government filed its reply to defendant's memorandum. (Docket No. 157).

FACTUAL BACKGROUND STANDING:

Testimony of defendant Gómez-Vega, as to standing, may be summarized as follows:

Gómez-Vega, after being properly advised by his counsel and the undersigned of the possible consequences of testifying at the suppression hearing3, stated he is thirty five (35) years of age, has a sixth grade education and does not know how to read nor write. Gómez-Vega is the owner of a Lincoln Navigator vehicle which he bought from Raúl Alvárez who was a friend of his. Alvárez sold the vehicle to Gómez-Vega at the end of the year 2002/ 2003 for $20,000.00 of which Gómez-Vega paid him $9,000.00 and was going to pay him the rest "little by little." Gómez-Vega used the vehicle daily and he had clothing, shoes and personal documents inside said vehicle. On December 13, 2004, defendant Gómez-Vega was the owner of the vehicle.

Exhibit A is a photograph of the Lincoln Navigator which belongs to Gómez-Vega. Gómez-Vega recognized the vehicle by its license plate, to wit: 687-771.

Exhibit B is a photograph of the interior of the Lincoln Navigator which shows the broken interior parts and the console.

Exhibit C is a photograph of the interior of the Lincoln Navigator which shows the dash panel downward.

Exhibit D is a photograph of the interior of the Lincoln Navigator which shows the right part and bottom part of the broken dashboard.

Exhibit E is a photograph of the interior of the Lincoln Navigator which shows the broken air bag and the console.

Exhibit F is a photograph of the interior of the Lincoln Navigator which shows the center console broken.

Exhibit G is a photograph of the rear part of the Lincoln Navigator.

519 F.Supp.2d 246

Gómez-Vega testified Exhibits A-G does not depict how the Lincoln Navigator was on December 13, 2004. The difference is that the vehicle is vandalized. The vehicle was in good condition and not with its interior parts broken.

On December 13, 2004, defendant Gómez-Vega was driving the Lincoln Navigator in the Juana Matos Public Housing Project. Gómez-Vega parked the vehicle at said housing project, closed and locked the same.

Gómez-Vega explained the Lincoln Navigator was not registered under his name because the person from whom he bought it (Raul Alvarez) died and he was going to do the transfer of owner of the vehicle with him. Gómez-Vega knows Alvarez died because he laid him to rest at the family's pantheon. Gómez-Vega stated he did not know who Miguel Zambrana Villanueva was and he did not know how Alvarez acquired the vehicle.

On cross-examination, Gómez-Vega testified Alvarez died between March and April, 2003. Gómez-Vega had bought the Lincoln Navigator from Alvarez before his death, for which reason Gómez-Vega never finished paying the vehicle to Alvarez. Gómez-Vega did not make any further payments after Alvarez died. When asked how Gómez-Vega was able to renew the vehicle's registration, even though the vehicle was not under his name, Gómez-Vega stated there are people who do that for a living upon payment of a fee. Gómez-Vega did not renew the vehicle's sticker ("marbete") after the death of Alvarez.

Joint Exhibit I is a photograph of the inspection sticker and renewal of the sticker in the Lincoln Navigator. Joint Exhibit I shows the registration was renewed on June 2004 which is after the death of Alvarez, Gómez-Vega explained there are people to whom you pay a fee and they get you the license, the registration and the vehicle's tag. Gómez-Vega did not have the registration documents at hand when the sticker was renewed in June 2004. Gómez-Vega paid someone to do it. Gómez-Vega did not get any registration documents from Alvarez. Gómez-Vega paid Alvarez in cash, thus, he has no evidence of payment.

MERITS:

Testimony of PRPO Carlos Piazza:

The government presented the testimony of PRPO Carlos Piazza ("PRPO Piazza") which may be summarized as follows:

PRPO Piazza has worked for the Puerto Rico Police Department ("PRPD") as an agent for eight (8) years. On December 13, 2004, he was working in that capacity in the Special Operations Division in which he wears a black uniform different from regular police officers. On December 13, 2004 at around 11:20-11:30 at night, he was with two (2) fellow agents conducting a preventive patrol in the area of the Juana Matos Housing Project. A call was received via the patrol's car radio informing them that, at the Juana Matos Housing Project near the checkpoint No. 2, next to the drug point known to operate there, was a black Lincoln Navigator SUV which was parked. The call mentioned five (5) individuals had been seen inside the Lincoln Navigator and that, among them, there was a fugitive from the law and supposedly they were heavily armed. Therefore, the PRPOs made a call for reinforcement on the radio. Then, the PRPOs proceeded to enter the Juana Matos Housing Project through the entrance they had been told, namely, the second entrance of the housing project. When the PRPOs entered, they observed the mentioned vehicle parked on the street in the entrance to the drug point in an exit position. The officers drove by the Lincoln

519 F.Supp.2d 247

Navigator trying to observe the occupants and saw five (5) individuals inside the Lincoln Navigator. There was a person standing next to the vehicle on the sidewalk talking with someone inside the vehicle. The officers drove passed the Lincoln Navigator about five (5) to seven (7) feet away. PRPO Piazza testified that, when passing by the Lincoln Navigator, he saw defendant Gómez-Vega.

PRPO Piazza was in the patrol vehicle along with fellow PRPOs Edilberto Mojica, who was driving, and another officer. PRPO Piazza was sitting in the front passenger seat.

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3 practice notes
  • United States v. Hernandez-Mieses, Crim. No. 16-746(PG).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • June 30, 2017
    ...further heightened the officers' suspicion that the ... men had run in order to avoid police detection." United States v. Gomez–Vega, 519 F.Supp.2d 241, 259 (D.P.R. 2007). "Our cases have ... recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion......
  • Feliciano-Rodriguez v. United States, No. Civil 11–1655CCC.
    • United States
    • U.S. District Court — District of Puerto Rico
    • May 29, 2015
    ...561 (1974) (citing Costello v. United States, 350 U.S. 359, 36[3], 76 S.Ct. 406, 100 L.Ed. 397 (1956) ); United States v. Gómez–Vega, 519 F.Supp.2d 241, 266 (D.P.R.2007) ; United States v. Muñoz Franco, 123 F.Supp.2d at 53 ; cf. United States v. Maceo, 873 F.2d 1 (1st Cir.1989). A defense a......
  • United States v. Lemay, No. 12-CR-56 ML
    • United States
    • U.S. District Court — District of Rhode Island
    • April 17, 2013
    ...of proving a legitimate expectation of privacy as a prerequisite to challenge unlawful police conduct." United States v. Gomez-Vega, 519 F. Supp. 2d 241, 255 (D.P.R. 2007); see also United States v. Romain, 393 F.3d 63, 68 (1st Cir. 2004) (the "Fourth Amendment does not protect privacy in a......
3 cases
  • United States v. Hernandez-Mieses, Crim. No. 16-746(PG).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • June 30, 2017
    ...further heightened the officers' suspicion that the ... men had run in order to avoid police detection." United States v. Gomez–Vega, 519 F.Supp.2d 241, 259 (D.P.R. 2007). "Our cases have ... recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion......
  • Feliciano-Rodriguez v. United States, No. Civil 11–1655CCC.
    • United States
    • U.S. District Court — District of Puerto Rico
    • May 29, 2015
    ...561 (1974) (citing Costello v. United States, 350 U.S. 359, 36[3], 76 S.Ct. 406, 100 L.Ed. 397 (1956) ); United States v. Gómez–Vega, 519 F.Supp.2d 241, 266 (D.P.R.2007) ; United States v. Muñoz Franco, 123 F.Supp.2d at 53 ; cf. United States v. Maceo, 873 F.2d 1 (1st Cir.1989). A defense a......
  • United States v. Lemay, No. 12-CR-56 ML
    • United States
    • U.S. District Court — District of Rhode Island
    • April 17, 2013
    ...of proving a legitimate expectation of privacy as a prerequisite to challenge unlawful police conduct." United States v. Gomez-Vega, 519 F. Supp. 2d 241, 255 (D.P.R. 2007); see also United States v. Romain, 393 F.3d 63, 68 (1st Cir. 2004) (the "Fourth Amendment does not protect privacy in a......

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