U.S. v. Ortiz

• Decision Date: 22 May 2007
• Docket Number: No. 06-CR-532(DLI).,06-CR-532(DLI).
• Citation: 499 F.Supp.2d 224
• Parties: UNITED STATES of America, v. Eric ORTIZ, Defendant.
• Court: U.S. District Court — Eastern District of New York

499 F.Supp.2d 224

UNITED STATES of America, v. Eric ORTIZ, Defendant.

No. 06-CR-532(DLI).

United States District Court, E.D. New York.

May 22, 2007.

COPYRIGHT MATERIAL OMITTED

Jacqueline L. Spratt, United States Attorneys Office, Edny, Brooklyn, NY, for USA.

MEMORANDUM & ORDER

IRIZARRY, District Judge.

Defendant Eric Ortiz stands accused of being a felon in possession of a firearm, in violation of 19 U.S.C. §§ 922(g)(1), 924(a)(2), as well as drug possession, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c), and possession of a firearm in furtherance of a drug crime, 18 U.S.C. § 924(c)(1)(A)(I). The drugs and the weapons were discovered during a search of his home on April 5, 2006. Ortiz now moves the court to suppress the drugs and weapons as the fruit of an illegal search on the ground that the warrant issued by the Honorable John H. Wilson, Acting New York State Supreme Court Justice, Kings County, was not issued on probable cause. Ortiz also argues that the good faith exception to the Fourth Amendment is inapplicable because the police and a confidential informant made misrepresentations in the warrant application. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Also before the court is Ortiz's motion to suppress a written confession allegedly obtained in violation of his Fifth Amendment rights. For the reasons set forth below, the motion is denied in its entirety.

THE SEARCH WARRANT

Based upon the court's in camera review of the unredacted search warrant application and the unredacted transcript of Justice Wilson's hearing, the court finds sufficient probable cause for the issuance of the search warrant. Moreover, as noted below, Ortiz failed to make sufficient sworn allegations of fact justifying a Franks hearing. Based upon this finding, the court does not need to reach the issue of whether the "good faith" exception to the Fourth Amendment warrant requirement applies. However, the court finds that, even assuming that the warrant was defective, the good faith exception would apply.

Findings of Fact

On March 30, 2006, New York City police officers sought and were issued a warrant authorizing the search of the residence of Eric Ortiz, located at 59 Troutman Street, Apartment 3L, Brooklyn, New York (referred to as the "Subject Premises"). The warrant was issued by Acting New York State Supreme Court Justice John H. Wilson of Kings County. The confidential informant and Police Officer Ruben Duque ("Duque") testified at the hearing in support of the warrant. In addition to receiving testimony, before issuing the warrant, Justice Wilson reviewed Duque's affidavit in support of the application and questioned the confidential informant and Duque under oath.¹ The court has reviewed the unredacted affidavits of Duque and the minutes of the proceedings before Justice Wilson and has made the following factual determinations:

1) The confidential informant did not have a record of reliability because he had not provided information in the past. However, the confidential informant testified, under oath, and was able to demonstrate his reliability.

2) The confidential informant testified regarding his relationship to Ortiz, his knowledge of the Subject Premises, what he saw when he visited the Subject Premises and his reason for coming forward (to make the neighborhood safer).

3) Duque testified that he had arrested the confidential informant for marijuana possession, for which the informant had been issued a summons.

4) In addition to his testimony, Officer Duque submitted an attesting that stated that the confidential informant had informed him that the informant had seen various weapons at the Subject Premeise and when observations were made. Duque Aff. ¶¶ 2, 4, 5.

5) Duque's affidavit also attested to his experience as a police officer and to the results of his own investigation, which independently corroborated some of the information provided by the informant. Id at ¶¶ 1, 3. For example, Duque confirmed that Ortiz received gas service and electric service in his name at the Subject Premises, and that Ortiz's car was registered to him at that address. Id. at ¶¶ 2, 4, 5.

The warrant was executed on April 5, 2006. The Inventory from the search indicates that drugs, guns, bullets, drug paraphernalia and currency were seized during the search, including an M18 smoke canister and several 9 millimeter hand guns.

Discussion: Probable Cause Existed for the Search

Ortiz asserts that the evidence obtained as a result of the search of his apartment must be suppressed because the warrant was issued without probable cause. Ortiz's assertion is without merit. First, a search warrant issued by an impartial magistrate is presumptively valid. United States v. Smith, 9 F.3d 1007, 1012 (2d Cir.1993) ("[a] magistrate's `determination of probable cause should be paid great deference by reviewing courts.'") (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The Supreme Court has held that "where [the] circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause ... the resolution of doubtful or marginal cases ... should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); see also U.S. v. Morales, 280 F.Supp.2d 262, 268 (S.D.N.Y.2003) (denying a motion to suppress based, in part, on the presumption of validity that attaches to a warrant).

Here, the warrant issued by Justice Wilson is detailed. The warrant states that the court had probable cause to believe that certain property related to firearms and firearms trafficking would be found at Ortiz's residence based upon the personal observations of a confidential informant present before the court. See Exhibit B to the Gov't Opp. The warrant also provides a detailed description of the Subject Premises. With respect to Justice Wilson's reason for crediting the information given, he noted that Duque provided an affidavit and that he took testimony from a witness. Id.

Neither Justice Wilson's reliance on Duque's affidavit, nor his reliance on the testimony of the confidential informant, gives the court any reason to question whether the warrant was issued on probable cause. With respect to the affidavit, there is "a presumption of validity." Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Ortiz has not provided any reason for the court to dispense with the presumption that Duque's affidavit was valid.

In order to establish probable cause based on information provided by a confidential informant, the information must be demonstratively reliable based on the "totality of the circumstances." See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ("reasonable suspicion, like probable cause, is dependent upon both the content of information possessed ... and its degree of reliability. Both factors — quantity and quality — are considered in the totality of the circumstances — the whole picture that must be taken into account when evaluating whether there is reasonable suspicion."); U.S. v. Smith, 9 F.3d 1007 (2d Cir.1993) (applying the "totality of the circumstances test" to probable cause determinations for search warrants). The veracity and reliability of an informant are fact sensitive determinations dependant on the totality of the circumstances including "whether the information an informant has provided is corroborated by independent investigation, because an informant who is right about some facts is more likely to be right about others."' Phaneuf v. Fraikin, 448 F.3d 591, 598 (2d Cir.2006). Other factors that can be taken into account are the reasons why the informant came forward, and what recourse the police have if the information turns out to be inaccurate. See United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir.1991) (expressing a preference for face-to-face informants).

Several factors demonstrate the reliability of the informant in this case. First, the hearing transcript of the proceedings before the issuing judge demonstrate that the informant was made available to the issuing judge and was questioned under oath by him. Second, the informant's basis of knowledge was his own observations inside Ortiz's apartment. Third, the informant had known Ortiz from the neighborhood for at least two years. Fourth, the informant provided the information out of altruistic motives, namely to make his community safer. See Exhibit B to the Gov't Opp. Fifth, the informant predicted the presence of numerous weapons, which were, in fact, recovered. Huntley v. Superintendent, Supt. of Southport Corr. Facility, 00 CV 191, 2007 WL 319846, *20 (N.D.N.Y. Jan.30, 2007) (finding that information provided by a confidential informant was reliable and had veracity since the events occurred as the informant had predicted). Accordingly, there are no grounds for the court to find that the warrant was issued on less than probable cause.

There are factors beyond the informant's testimony that also provided reliability to his tip. First, the police independently corroborated that the defendant lived in the Subject Premises. See U.S. v. Gagnon, 373 F.3d 230, 236 (2d Cir.2004) (finding that statements about a suspect's innocent activities, if independently corroborated, added to the finding that the informant's testimony established probable cause for a search). Second, the police had arrested the informant on a minor drug charge, indicating that the informant was known to the police and could be found if the information provided turned out to be false. U.S. v. Redick, 05 CR 168, 2006 WL 908153 (D.Conn. April 6, 2006) (finding that the informant was reliable, in part, because he could be held accountable if he ever knowingly provided false information). In sum, the court finds that sufficient probable...