U.S. v. Navas, 08 Cr. 1144(WHP).
| Decision Date | 19 March 2009 |
| Docket Number | No. 08 Cr. 1144(WHP).,08 Cr. 1144(WHP). |
| Parties | UNITED STATES of America, v. Jose NAVAS et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Telemachus P. Kasulis, Esq., United States Attorney SDNY, New York, NY, for the Government.
Patrick James Joyce, Esq., New York, NY, for Jose Navas.
Lawrence D. Gerzog, Esq., Law Office of Lawrence D. Gerzog, New York, NY, for Jose Alvarez.
Susan Kellman, Esq., New York, NY, for Arturo Morel.
Barry Ross Goldberg, Esq., Goldberg & Kaplan, LLP, New York, NY, for Fausto Velez.
Avraham Chaim Moskowitz, Esq., Moskowitz, Book & Walsh LLP, New York, NY, for Fernando Delgado.
Jeremy Schneider, Esq., Rothman, Schneider, Soloway & Stern, LLP, New York, NY, for Pedro Ventura.
Lisa Scolari, Esq., Law Office of Lisa Scolari, New York, NY, for Antonio Morel.
Milton H. Florez, Esq., Milton H. Florez, P.C., Elmhurst, NY, for Euris Velez.
Defendants Jose Navas ("Navas"), Arturo Morel ("Morel"), and Jose Alvarez ("Alvarez") move to suppress evidence seized on November 4, 2008, as well as certain post-arrest statements. On February 24, 2009, this Court held an evidentiary hearing. For the following reasons, their motions to suppress are granted in part, and denied in part.
On August 19, 2008, law enforcement personnel assigned to Drug Enforcement Administration ("DEA") Task Force T-21, arrested a cooperating witness (the "CW") at a warehouse in Newark, New Jersey. (Suppression Hearing Transcript dated Feb. 24, 2009 ("Tr.") at 5.) At that time, Government agents also seized a tractor-trailer containing 30 kilograms of heroin. (Tr. at 5.) Following his arrest, the CW provided information concerning the movement of large quantities of narcotics from California to the New York metropolitan area. (Tr. at 6-7.) The CW explained that tractor-trailers carrying legitimate goods transported the narcotics in concealed compartments. (Tr. at 7.) When they arrived in New York, the legitimate goods were off-loaded at various markets. Then, the empty trailers were driven to warehouses where the narcotics were removed from concealed compartments and replaced with currency for transport back to California. (Tr. at 110.) Tractor-trailer drivers were responsible for parking the trailers at warehouses, where other individuals would later off-load the narcotics and distribute them in the New York metropolitan area. (Tr. at 87.)
At the time the CW was arrested, government agents seized heroin from a concealed compartment in the tractor cab. (Tr. at 109.) Several weeks later, the CW directed law enforcement to another concealed compartment in the truck, where government agents found $2 million that they missed in their initial search. (Tr. at 8, 109.)
According to the CW, Navas drove tractor-trailers for the drug trafficking organization and communicated with other members of that organization by cell phone (the "Navas Cell Phone"). (Tr. at 8, 109-11.) Investigators learned that Stephanie Solomon, a relative of Navas, was the Navas Cell Phone's subscriber. (Tr. at 110-11.) Law enforcement obtained a photograph of Navas from his commercial trucking license. (Tr. at 112.) The CW identified Navas as the individual depicted in the photograph. (Tr. at 112.)
On October 27, 2008, a magistrate judge in this district issued an Order, pursuant to 18 U.S.C. §§ 3121-26 and 2703(d), authorizing the use of certain "cell site" information to track the location of the Navas Cell Phone (the "Cell Site Order"). (Tr. at 113.) Cell site information revealed that Navas was traveling across the United States. (Tr. at 10.) On November 4, 2008, as the Navas Cell Phone approached the New York metropolitan area, T-21 set up surveillance in northern Manhattan and the Bronx. (Tr. at 11.) After triangulating the Navas Cell Phone in the Hunts Point area of the Bronx, between twelve and fifteen law enforcement officers canvassed the Hunts Point Market looking for Navas and an out-of-state tractor-trailer. (Tr. at 11-12.) Later that day, a vigilant agent spotted Navas unloading the tractor-trailer at the Hunts Point Market with another individual later identified as Alvarez. (Tr. at 12, 115-16.) Several hours later, Navas drove the tractor-trailer from the Hunts Point Market to a warehouse at 528 Drake Street in the Bronx. (Tr. at 13-14, 77-78, 116.)
There, government agents observed the garage door open, and Navas back the tractor-trailer into the warehouse. Agents also watched as Navas and Alvarez unhitched the cab from the trailer, and dropped the trailer. (Tr. at 14, 40.) Navas and Alvarez then drove out of the warehouse in the tractor cab and the garage door closed automatically behind them. (Tr. at 14.) While Navas and Alvarez were dropping the trailer, government agents observed a black Lincoln bearing Ohio license plates in the vicinity.1 (Tr. at 15.)
Several government agents remained outside the Drake Street warehouse while another group of agents followed the tractor cab to a nearby McDonald's restaurant, where it parked on the street. (Tr. at 16, 79.) From approximately half a block away, officers observed a Hispanic male, later identified as Defendant Fernando Delgado ("Delgado"), walk over to the tractor cab, enter it for a brief period, then walk across the street to McDonald's, and return to the tractor cab carrying McDonald's fare. (Tr. at 79.) The officers also noticed the black Lincoln with Ohio plates parked nearby. (Tr. at 80.) Delgado then exited the tractor cab again and began speaking with the Lincoln's driver and passenger. (Tr. at 80.) After a brief conversation, Delgado got into the Lincoln, which then pulled into the McDonald's lot and parked. (Tr. at 80.) The tractor cab moved down the street and parked adjacent to the McDonald's lot. (Tr. at 81.) Then, Delgado got out of the Lincoln, spoke with the tractor cab's driver, and entered a silver Honda Odyssey, which had parked next to the Lincoln. (Tr. at 81.) Approximately five or six individuals emerged from the Honda and removed a number of black duffel bags, which the officers believed contained either drugs or money. (Tr. at 82.)
At that point, the officers arrested the individuals who had arrived at McDonald's in the Lincoln, and the Honda, as well as Navas and Alvarez. (Tr. at 82.) All three vehicles were searched briefly and the Defendants were patted down. (Tr. at 84.) While the black duffel bags were empty, other bags in the Honda contained gloves, drills, and drill bits. (Tr. at 84.)
After their arrest, the agents took all the Defendants to the Drake Street warehouse where they were patted down a second time and read their Miranda rights. (Tr. at 85, 17, 118.) Navas then admitted that he was a driver for drug traffickers, that the trailer was being delivered to a member of the trafficking organization, and that narcotics were stowed in a secret rooftop compartment of the trailer. (Tr. at 118.)
When agents parted down the Defendants outside the warehouse, Senior Investigator Hector Fernandez noticed a large box-like object in Morel's right front pocket. (Tr. at 85.) When questioned about the bulge in his pocket, Morel replied that it was a garage door opener to his house. (Tr. at 85.) Senior Investigator Fernandez "touch[ed] the box," in Morel's pocket, and activated the warehouse garage door. (Tr. at 85.) On cross-examination, Fernandez testified that he was not trying to remove the door opener, but rather he "pushed the button inadvertently when [he] patted [Morel's] pant pocket." (Tr. at 102.)2
Special Agent Mariow Luna then asked Morel, in Spanish, whether law enforcement could search "inside 528 Drake Street and anything that was in there." (Tr. at 155.) Morel consented. (Tr. at 155, 119.) A few minutes after giving his verbal consent, Morel signed a Spanish version of a consent form (the "Consent Form"). (GX2: Consent Form dated Nov. 4, 2008.) The Consent Form contains a space for law enforcement to "[d]escribe the person, places or things to be searched," but Special Agent Luna left that space blank. (GX3: English Version of the Consent Form ¶ 1; Tr. at 122.) Morel asked Luna what he was consenting to, and Luna testified that he "explain[ed] it to him," but offered no details of what he said. (Tr. at 123.)
Law enforcement entered the warehouse, where they found the tractor-trailer, a van, a tool box and tools, and a ladder. (Tr. at 23.) Based on information from the CW, government agents proceeded to the roof of the trailer in search of a concealed compartment. (Tr. at 23.) They discovered physical alterations to the roof, such as fresh flashing and rivets, ripped off the sheet metal roof, including the flashing, and discovered 230 kilograms of cocaine. (Tr. at 23.) Throughout the search, Morel stood beside the trailer. (Tr. at 24.)
Defendants raise three primary arguments in their motions to suppress. First, Defendants argue that law enforcement lacked probable cause to arrest them, in violation of the Fourth Amendment, and thus any post-arrest statements and evidence must be suppressed.3 Second, Defendants contend that law enforcement's search of the trailer violated the Fourth Amendment. Finally, Defendants argue that all the evidence seized by law enforcement was illegally obtained through its use of the Cell Site Order because: (1) the statutory authority provided in 18 U.S.C. §§ 2701-2712 does not authorize such monitoring; and (2) monitoring Navas's location in this way violates the Fourth Amendment. The Court turns first to Defendants' final argument concerning the Cell Site Order, since the Cell Site Order provided significant assistance to law enforcement's efforts in this case.
The Electronic Communications Privacy Act of 1986 ("ECPA"), Pub.L. No. 99-508, 100 Stat. 1848 (1986), consists of...
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