U.S. v. Pena Ontiveros

• Decision Date: 18 April 2008
• Docket Number: No. 07 Cr. 804 (RJS).,07 Cr. 804 (RJS).
• Citation: 547 F.Supp.2d 323
• Parties: UNITED STATES of America, v. Carlos PEÑA ONTIVEROS, and Silvestre Rico Beltran, Defendants.
• Court: U.S. District Court — Southern District of New York

547 F.Supp.2d 323

UNITED STATES of America, v. Carlos PEÑA ONTIVEROS, and Silvestre Rico Beltran, Defendants.

No. 07 Cr. 804 (RJS).

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

April 18, 2008.

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Brendan McGuire, Esq. and Michael English, Esq., Assistant United States Attorneys, United States Attorney's Office, New York, NY. for The United States of America.

Cristobal Miguel Galindo, Esq., Galindo P.C, Houston, TX, for Defendant Carlos Perm Ontiveros.

Carlos A. Garcia, Esq., The Law Office of Carlos A. Garcia, Mission, TX, for Defendant Silvestre Rico Beltran.

AMENDED MEMORANDUM AND ORDER¹

RICHARD J.SULLIVAN, District, Judge:

Defendants Carlos Peña Ontiveros and Silvestre Rico Beltran move for the suppression of (1) statements made by defendants at the scene of their arrest and while in custody on or about July 23, 2007; and (2) physical evidence recovered from the residence in which defendants were arrested and from the truck parked outside the residence. For the reasons stated below, defendants' motions are granted in part and denied in part.

I. BACKGROUND

The indictment in this case charges defendants with conspiracy to distribute narcotics pursuant to 21 U.S.C. § 846, arising out of activity that occurred "in or about July 2007." (Indict. ¶ 1.) Specifically, the indictment alleges that, in furtherance of the conspiracy, defendants participated in transporting approximately seven kilograms of cocaine to the Bronx on or about July 22, 2007. (Indict. ¶ 3(a).)

On November 2, 2007, defendants filed motions to suppress physical evidence and statements made by each of the defendants on or about July 23, 2007. Specifically, Peña Ontiveros moves to suppress (1) approximately seven kilograms of cocaine found in a truck outside 516 Pugsley Avenue in the Bronx, the residence in which the defendants were arrested (the "residence"); (2) statements made to the Immigration and Customs Enforcement ("ICE") agents regarding cocaine trafficking between Texas and New York; and (3) approximately $96,000 in U.S. currency and two kilograms of cocaine found inside a hidden compartment in a closet at the residence. (Peña Ontiveros Motion at 1.) Rico Beltran moves to suppress (1) all written and oral statements made at or subsequent to his arrest on July 23, 2007; (2) any and all "tangible things" seized from him; and (3) "testimony of any law enforcement officers, agents, and all other persons working in connection with such officers and agents, and all persons present at or near the location of the arrest" of Rico Beltran. (Rico Beltran Motion at 4.)

On December 3, 2007, the Court held an evidentiary hearing on defendants' motions. The government called five witnesses: ICE Special Agents Mildred Marin, Stephen Lee, Eric Stowers, and Brian Herbert, as well as Detective Robert Martinez, a member of the ICE Task Force. Defendants called one witness, ICE Special Agent Richard Johnson. Certain other agents were present at the scene of the arrests and/or the ICE office in Manhattan (the "ICE Office"), including Special Agents Michael Alfonso, Carl DeFilippo, Dan Herbst, and Christopher McClellan, but they did not testify. Neither defendant testified at the hearing.

The parties were given until January 4, 2008 to file any supplemental briefs. Both defendants submitted supplemental materials, and the government filed its supplemental opposition papers on January 21, 2008. The Court held oral argument on the motions on February 7, 2008.

II. DISCUSSION

A. Suppression of Physical Evidence

1. Standing

As a threshold matter, the government argues that, with respect to the items found in the residence, defendants have not demonstrated the legitimate reasonable expectation of privacy required to make a suppression motion under the Fourth Amendment. (See Gov't Supp. Mem. at 5-7.) Defendants respond that they have established the requisite privacy interest in the premises because they were overnight guests. (See Peña Ontiveros Aff. at 1; Rico Beltran Aff. at 1.)

"The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and welldelineated exceptions." Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (internal citations and quotation marks omitted); see United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir.1999). However, "a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure." United States v. Padilla, 508 U.S. 77, 81, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993) (emphasis in original); see also United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). As such, an individual challenging the constitutionality of a search bears the burden of demonstrating a legitimate expectation of privacy in the particular area searched in order to proceed in challenging evidence recovered in a search. See Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 133-39, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Watson, 404 F.3d 163, 166 (2d Cir.2005). A person asserting a legitimate expectation of privacy in the object of a search or seizure must establish two elements: (1) a subjective expectation of privacy in the object, and (2) a willingness on the part of society to recognize that expectation as legitimate. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).

Where it has been shown that an individual was an overnight guest in a home, that fact alone is enough to demonstrate that the individual had a legitimate expectation of privacy in the premises. Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); see United States v. Snype, 441 F.3d 119, 130 (2d Cir.2006); Czernicki v. United States, 270 F.Supp.2d 391, 394 (S.D.N.Y.2003). However, "that expectation will not always extend to the entire premises." United States v. Osorio, 949 F.2d 38, 41 (2d Cir. 1991). "A guest can not have even a subjective expectation of privacy in those areas of the host's home that are off limits to the guest or of which the guest has no knowledge." Id. (citing Olson, 495 U.S. at 99, 110 S.Ct. 1684). Put another way, a defendant cannot deny knowledge or ownership of items on one hand, and claim a privacy interest in them on the other. See Gudema v. Nassau County, 163 F.3d 717, 722 (2d Cir.1998) (citing United States v. Torres, 949 F.2d 606, 608 (2d Cir.1991) and United States v. Lee, 916 F.2d 814, 818 (2d Cir.1990)); United States v. Rahme, 813 F.2d 31, 34 (2d Cir.1987) (citing Rawlings, 448 U.S. at 105, 100 S.Ct. 2556); United States v. Cody, 434 F.Supp.2d 157, 167 (S.D.N.Y.2006); see also United States v. Cruz, 475 F.Supp.2d 250, 258 (W.D.N.Y. 2007) ("[The defendant] cannot distance himself from any connection to the locked refrigerator while simultaneously arguing that he had a reasonable expectation of privacy in its contents.").

Here, the evidence establishes that defendants were overnight guests in the residence. Both have claimed that they were guests of the owner in their affidavits, and Rico Beltran expressly asserts that he was an overnight guest. (Peña Ontiveros Aff. at 1; Rico Beltran Aff. at 1.) The agents entered the residence and the arrests were made in the early morning hours of July 23, 2007, a time when most people are asleep. (See Transcript of December 3, 2007 Hearing ("Tr.") at 142-43; 274-75, 332.) One of the defendants was found in bed, and only partially dressed. (Id. at 289, 306.) One of the defendants was seen bringing a duffel bag into the residence, and a duffel bag belonging to Rico Beltran was found in the bedroom where he was found. (Id. at 20, 66-67, 101, 234-35.) Furthermore, one of the defendants possessed a key to the residence, which he gave to the agents so that they could lock up the residence when they left. (Id. at 338, 342); see also United States v. Fields, 113 F.3d 313, 320 (2d Cir.1997). These facts demonstrate that defendants were overnight guests in the residence and thus had a legitimate expectation of privacy in the residence.

In addition, the Court finds that because defendants were overnight guests, defendants' expectation of privacy extended to all of the rooms of the residence, including those in which the agents found some of the challenged evidence — namely, the money counting machine, the plastic baggies, and the scale. (See Gov't Mem. at 2-3; see Tr. at 294-96); cf. Olson, 495 U.S. at 99, 110 S.Ct. 1684 ("It is unlikely that the guest will be confined to a restricted area of the house; and when the host is away or asleep, the guest will have a measure of control over the premises."). As such, defendants have demonstrated a legitimate expectation of privacy sufficient to make a suppression motion with respect to those items.

However, neither defendant has claimed ownership of the items found in the trap, nor made any showing that they knew of the existence of the trap or its contents. Consequently, defendants have not demonstrated a legitimate expectation of privacy in the items found in the hallway trap. See Cody, 434 F.Supp.2d at 167 (holding that refusal to claim ownership of an item or place results in a lack of standing to object to a search of that item or place); see also Torres, 949 F.2d at 608 ("Neither possession nor ownership of property established a legitimate expectation of privacy unless the party vigilantly protects the right to exclude others."); cf. Gudema, 163 F.3d at 722 ...