U.S. v. Sanchez

• Decision Date: 09 September 1980
• Docket Number: Nos. 838,s. 838
• Citation: 635 F.2d 47
• Parties: UNITED STATES of America, Appellee, v. Luis SANCHEZ, Luz Alvarez, Luis Torres Maldonado, Carlos Delgado and Juana Dominguez, Defendants-Appellants. to 841 and 1003, Dockets 79-1236, 79-1237, 79-1246, 79-1271 and 79- 7788.
• Court: U.S. Court of Appeals — Second Circuit

Page 47

635 F.2d 47

UNITED STATES of America, Appellee, v. Luis SANCHEZ, Luz Alvarez, Luis Torres Maldonado, Carlos

Delgado and Juana Dominguez, Defendants-Appellants.

Nos. 838 to 841 and 1003, Dockets 79-1236, 79-1237, 79-1246,

79-1271 and 79- 7788.

United States Court of Appeals,

Second Circuit.

Argued March 6, 1980.

Decided Sept. 9, 1980.

Ira Leitel, New York City (Carol Mellor, New York City, on briefs), for defendants-appellants Sanchez and Maldonado.

Bruce Provda, New York City, for defendant-appellant Alvarez.

Mel A. Sachs, New York City (Steven G. Eckhaus, New York City, on brief), for defendant-appellant Delgado.

Harold L. Levy, Brooklyn, N. Y. (Flamhaft, Levy, Kamins & Hirsch, Brooklyn, N. Y., on brief), for defendant-appellant Dominguez.

Vivian Shevitz, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty. for the Eastern District of New York, and Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., on brief), for appellee.

Before NEWMAN and KEARSE, Circuit Judges, and SIFTON, District Judge. ^*

KEARSE, Circuit Judge:

These are appeals from judgments of conviction entered in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge. Appellants Luis Sanchez, Juana Dominguez and Luz Alvarez were convicted of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1976). Sanchez and Dominguez, along with appellants Luis Torres Maldonado, and Carlos Delgado, were convicted of conspiring to distribute cocaine and to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. In addition, Dominguez and Delgado were convicted of being illegal aliens in unlawful possession of firearms, in violation of 18 U.S.C. App. § 1202(a)(5) (1976).

On their appeals from the convictions, appellants contend principally that certain searches and seizures violated their rights under the Fourth Amendment and that evidence derived therefrom should have been suppressed. They complain also of the government's failure to preserve certain reports relating to the testimony of one Olga Perdomo, an important government witness. In addition, Maldonado contends that he was illegally detained by immigration agents and that statements and documents derived from the detention should have been suppressed.

For the reasons set forth below, we find no error in the district court's rulings with respect to Maldonado, Delgado and Dominguez, and we affirm their convictions. As to Sanchez and Alvarez, we conclude that the district court did not apply a correct standard in determining whether Sanchez voluntarily consented to the search of the apartment where he and Alvarez were staying. Consequently we vacate the convictions of Sanchez and Alvarez and remand for further proceedings.

I

The case arises out of events which came to a head on the evening of January 16, 1979. On that evening agents of various law enforcement agencies, including the United States Immigration & Naturalization Service ("INS"), the federal Drug Enforcement Administration ("DEA"), and narcotics and homicide task forces of the New York Police Department ("NYPD"), entered and searched three apartments in various sections of Queens, New York, which were the residences of certain of the appellants. At each apartment incriminating items were seized. The first apartment was that shared by Dominguez with one Lucy Garcia. After placing Dominguez and Garcia under arrest for illegal possession of weapons and narcotics, ¹ the agents proceeded to the apartment of Delgado. There they questioned the persons present, who included Delgado, Maldonado, Alvarez and Sanchez, and seized various items from these persons and certain items found in the apartment. Delgado and Alvarez were arrested on charges of being illegal aliens; Maldonado was "detained" until his alien status could be determined, and was later charged with conspiracy to possess and distribute narcotics. Some of the officers then took Sanchez to a third apartment in Queens, where he and Alvarez resided. In Sanchez's presence, the officers conducted a thorough search of the apartment and seized various items including a large quantity of cocaine and some $234,000 in cash.

A. The Suppression Hearing

The five appellants and Garcia moved to suppress the items seized during the evening of January 16 and the statements made by them during the course of the evening. The district court conducted a hearing on the motions to suppress on March 12-14, 1979. Four witnesses testified for the government: INS criminal investigators Sebastian Ortega and Victor Rita, NYPD officer Jose Flores, who was assigned to the federal Drug Enforcement Task Force; and DEA agent Richard Crawford. Garcia and Sanchez testified in support of the suppression motions. ²

A background picture, leading up to the events of January 16, emerged as follows. In October, 1978, NYPD detective Thomas Healy, assigned to a homicide task force, was investigating a homicide believed to be narcotics-related. An address book found on the victim listed, inter alia, the address 39-11 65th Place, apartment 2F, which was the apartment occupied by Dominguez and Garcia. In early January 1979, in connection with a narcotics investigation, Crawford was conducting a surveillance of Sanchez, then known to law enforcement officials as "John Burgos," and had observed Sanchez leaving an apartment he was believed to occupy at 61-20 Grand Central Parkway, and followed Sanchez first to the apartment of Dominguez and Garcia, and later to the apartment occupied by Delgado. Except as otherwise indicated, the following account of the events of January 16 is drawn from the testimony of the government witnesses, which was accepted by the district court on all disputed points.

1. The Dominguez-Garcia Apartment

Flores testified that at about 8:00 p. m. on January 16, he and Healy went to 39-11 Meanwhile, Mockler and a Detective Robinson spoke with the man and woman who had remained in the car downstairs. The woman gave her name but denied living in the building. Mockler and Robinson brought them up to 2F, where Mockler told Flores that this woman's name was Juana Dominguez and Flores told him that Garcia had said that was her roommate's name. In Spanish, Flores asked Dominguez her name, where she lived, and where she was from. ³ Dominguez told him her name and stated that she lived in the apartment and was from Puerto Rico. Flores asked her a few questions about Puerto Rico, such as the location of the airport and what town Dominguez was from. When Dominguez was unable to answer these questions, Flores, a native of Puerto Rico, told her he did not believe that she was Puerto Rican, and read Dominguez her constitutional rights. In response to continued questions, Dominguez denied that there were any narcotics in the apartment, but admitted that there were two guns. She pointed them out to Flores, and Flores seized them.

65th Place, to ask questions relating to the homicide. When they arrived at that address they commenced to interview other residents of the building about the occupants of apartment 2F. While they were so engaged, they were joined by DEA agent William Mockler, who informed them that a car had just pulled up to the building, carrying two women and a man, and that one woman had left the car and that he had seen lights go on in a second-floor apartment. While Mockler went back outside, Flores and Healy went up to the second-floor apartment, 2F, identified themselves as police officers to the woman who answered the door, and stated that they wished to ask her some questions about a homicide. The woman, later identified as Garcia, admitted them to the apartment. Garcia told them that she was from Puerto Rico and lived in the apartment with her roommate Juana Dominguez, also from Puerto Rico. Healy informed Garcia of her constitutional rights and Garcia said that she understood.

In the meantime, Flores had told Mockler his suspicion that Dominguez was an illegal alien, and Mockler had relayed this suspicion to INS. Ortega and Rita, responding to Mockler's call, arrived at the apartment about half an hour after Flores' seizure of the guns. Ortega, also speaking Spanish, took over the questioning of Dominguez, who gave what Ortega considered vague answers to questions as to when she had left Puerto Rico, where she had gone to school in Puerto Rico, and where she had boarded a plane to come to New York. Dominguez showed Ortega a Puerto Rican birth certificate and a New York voter's registration card in her name. When Ortega asked if she had any other documents, Dominguez handed him a wallet. In the wallet Ortega found a driver's license, a picture of a child inscribed in Spanish "To Paulina," and two medical prescriptions, one for a Margarita Burgos and the other for a Paulina Pison. Dominguez explained that she was holding the prescriptions and photograph for two friends. On the basis of his interview with Dominguez and the accent of her Spanish, Ortega came to the conclusion that she was not from Puerto Rico, but from somewhere in South America.

Ortega told Dominguez that he did not believe that she was Puerto Rican and asked for her permission to search for documents which would show whether or not she was Puerto Rican, such as a passport or national identification card. According to Ortega's testimony, Dominguez, who appeared "very relaxed" and "(v)ery calm", said "Go ahead and look wherever you want." Ortega then asked Garcia for the same permission, and Garcia, who was also "very calm," replied, "Go ahead and look, but Juana is Puerto Rican." At this point Ortega considered that Garcia whom he had questioned and believed was Puerto Rican, was free to leave the apartment, but that At the hearing Garcia gave a different version of the events. She testified that she had gone out to dinner with Dominguez and Montoya. When they returned, she had come up to the...