U.S. v. Pena

• Decision Date: 07 April 1992
• Docket Number: No. 114,D,114
• Citation: 961 F.2d 333
• Parties: UNITED STATES of America, Appellee, v. Miguel PENA, a/k/a Bernardo Pena, Defendant-Appellant. ocket 90-1715.
• Court: U.S. Court of Appeals — Second Circuit

Page 333

961 F.2d 333

UNITED STATES of America, Appellee, v. Miguel PENA, a/k/a Bernardo Pena, Defendant-Appellant.

No. 114, Docket 90-1715.

United States Court of Appeals Second Circuit.

Argued Sept. 20, 1991.

Decided April 7, 1992.

Mark B. Gombiner, New York City (The Legal Aid Soc., Federal Defender Services Appeals Unit, of counsel), for defendant-appellant.

Patrick J. Fitzgerald, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., James B. Comey, Asst. U.S. Atty., S.D.N.Y.), for appellee.

Before: VAN GRAAFEILAND, MESKILL, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Miguel Pena appeals from a judgment of the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge, entered November 30, 1990. Pena was convicted of possessing approximately two kilograms of cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (1988). The district court refused Pena's request for a hearing on the legality of the search that resulted in discovery of the cocaine in question, and arguably prompted subsequent incriminatory statements.

We remand for a suppression hearing.

Background

The government alleges that on or about May 16, 1989, the Drug Enforcement Agency ("DEA") received a tip from a confidential informant that an automobile with Rhode Island license plates would be driven to a building located at 2625 Sedgwick Avenue, Bronx, New York, where the occupants of the car would purchase cocaine. The government's complaint asserted that the confidential informant "is highly reliable and has provided information in the past leading to the arrest of narcotics traffickers and the seizure of contraband," and that a three-building complex of which 2625 Sedgwick Avenue is a component "is known to the DEA as a place where narcotics trafficking takes place."

The DEA established surveillance at the address. At approximately 7:00 p.m. that evening, a black 1978 Chevrolet bearing Rhode Island license plates double-parked in front of the building. Two Hispanic males, Miguel Pena and Francisco Vasquez Santana, emerged from the car and entered the building. One hour later, Pena and Santana returned to the car. Pena was carrying a large white bag with black lettering that appeared to contain objects of significant weight. Santana entered the passenger seat of the automobile, while Pena entered the back seat. The DEA agents observed Pena "working in the back seat" for about ten minutes before returning to the driver's seat and pulling away. In the next block, the agents stopped the car. They observed that the white bag was now empty, and that a screwdriver was lying on the floor of the car where Pena had been working. The agent removed the panel covering the rear door near where Pena had been working, and found two packages of cocaine.

Pena was arrested, either immediately before or immediately after the car was searched, and given Miranda warnings at the scene. When Pena was brought to DEA headquarters in Manhattan, he was given another set of Miranda warnings. Waiving his right to remain silent, Pena told the agents that the seized cocaine belonged to him, that he had purchased it at the building, and that Santana was not involved in the transaction.

In an indictment filed June 1, 1989, Miguel Pena was charged with one count of conspiracy to possess with intent to distribute approximately two kilograms of cocaine, in violation of 21 U.S.C. § 846 (1988), and one count of possession with intent to distribute approximately two kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (1988). Santana was not indicted.

Prior to trial, Pena moved to suppress the statements he had made to DEA agents following his arrest, claiming that he had not received Miranda warnings. After a hearing, the district court denied the motion in a memorandum opinion and order, finding that Pena had been properly warned and that his statements were voluntary. This ruling is not appealed.

Pena also moved to suppress, as the fruit of an illegal search, both his postarrest statements and the cocaine that was seized from the automobile, contending that the government had failed to establish probable cause to arrest him. His motion was accompanied by an affidavit that stated, inter alia: "At the time of my arrest I was in a car. It was not my car." In a memorandum opinion and order, the district court denied the motion, finding that "[t]he facts alleged in the complaint clearly establish the requisite probable cause." Furthermore, the district court considered Pena's affidavit in support of the motion to be "conclusory and bereft of factual detail," thus obviating the need for a hearing. Finally, the district court held that Pena lacked standing to assert a Fourth Amendment violation because "defendant could not have had an objectively reasonable expectation of privacy in the rear door of a car that was not his."

Soon thereafter, Pena filed a new affidavit and moved for reconsideration. The affidavit related Pena's version of events:

4. On the day of my arrest, May 16, 1989[,] I left work at approximately 5:00 P.M. I then went with my friend Francisco Vasquez Santana to the home of Danilo Perez, his cousin at 2645 [sic] Sedwick [sic] Avenue, Apt. 3B for the purpose of buying a 1978 Chevrolet, owned by Francisco's brother Jose Vasquez. The price for the vehicle was between $1,000.00 and $1,500.00. My intent was to purchase the vehicle at the lowest possible price and ship it to Santo Domingo, where I could have it resold for up to $30,000.00 Dominican pesos.

5. I drove the car around for approximately an hour and I returned at approximately 7:30 p.m. Since[ ] it was heavily raining that day, Danilo told me I could borrow the car and drive home and to bring the entire purchase price of $1,000.00 dollars the next morning.

6. Francisco exited the building with an umbrella and I exited the building with Francisco's chihuahua wrapped in a plastic bag.

7. It was raining heavily with very low visibility and I drove slowly for four blocks, when out of nowhere approximately eight unidentified vehicles blocked my path.

8. Individuals later identified as DEA agents ordered both me and Francisco out of the car while pointing guns at us. They then proceeded to search the car. No contraband, weapons or beepers were in plain view. The only thing they recovered initially was the dog.

9. They then proceeded to rip the car apart. I did not see what they recovered. The car was never impounded.

* 1 I note I had the $500.00 deposit in my pocket at the time of my arrest. I would further note I would from time to time buy and sell vehicles to supplement my modest income.

* 2 The dog was later returned.

The district court denied the motion in a memorandum opinion and order, reaffirming its rulings with respect to probable cause and standing.

At a jury trial conducted June 11-13, 1990, Pena was convicted on both counts of the indictment. On June 22, 1990, the district court sua sponte ordered a judgment of acquittal on the conspiracy count, citing insufficient evidence of an agreement. On November 27, 1990, the district court sentenced Pena to seventy months in prison, followed by four years supervised release, and imposed a $5,000 fine and a $50 special assessment.

This appeal followed.

Discussion

The sole issue on appeal is whether the district court erred in admitting the cocaine seized during the search of Pena's car, and the subsequent statements made by Pena. In contesting the admission of this evidence, Pena contends that:

(1) Having taken permanent possession of the car just before the search, Pena has "standing" to challenge the legality of the search.

(2) Given the absence of probable cause either to arrest Pena or search the car, the search of the car was illegal, and both the cocaine and Pena's statements are illegally-obtained fruits of that search.

A. "Standing".

Although Pena presents his argument in terms of "standing," " 'the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.' " United States v. Paulino, 850 F.2d 93, 96 (2d Cir.1988) (quoting Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978)), cert. denied, 490 U.S. 1052, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989); see also United States v. Osorio, 949 F.2d 38, 40 (2d Cir.1991). The outcome is likely to be the same under either theory, but this approach promotes analytical clarity. See Rakas, 439 U.S. at 138-39, 99 S.Ct. at 427-28. The defendant seeking suppression bears the burden upon this issue. See Osorio, 949 F.2d at 40 (citing Rakas, 439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1; United States v. Davis, 932 F.2d 752 (9th Cir.1991)); United States v. Ponce, 947 F.2d 646, 649 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1492, 117 L.Ed.2d 633 (1992); Paulino, 850 F.2d at 96. But see United States v. Garcia, 897 F.2d 1413, 1418 (7th Cir.1990) (defendant asserted Fourth Amendment interest as borrower of vehicle; "[t]he burden is on the government to prove by a preponderance that property is not used with the permission of the owner").

"We review the question of whether a defendant's Fourth Amendment rights were violated by a governmental action de novo, although we review the district court's determination of underlying facts for clear error." Osorio, 949 F.2d at 40 (citing Davis, 932 F.2d at 756). The guiding legal standard is well settled:

First, the person challenging the search must demonstrate a subjective desire to keep his or her effects private; and, second, the individual's subjective expectation must be one that society accepts as reasonable.

Paulino, 850 F.2d at 97 (citing California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100...