U.S. v. Soto-Teran

• Decision Date: 23 September 1996
• Docket Number: No. 95 CR 0705(SJ).,95 CR 0705(SJ).
• Citation: 44 F.Supp.2d 185
• Parties: UNITED STATES of America, Plaintiff, v. Nelson SOTO-TERAN, and Martha Lindo de Diaz, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 185

44 F.Supp.2d 185

UNITED STATES of America, Plaintiff, v. Nelson SOTO-TERAN, and Martha Lindo de Diaz, Defendants.

No. 95 CR 0705(SJ).

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

September 23, 1996.

COPYRIGHT MATERIAL OMITTED

Zachary W. Carter, United States Attorney, Brooklyn, New York City by David Hennessy, Assistant United States Attorney, for U.S.

Edward Jenks, Mineola, NY, Ephraim Savitt, New York City, for Nelson Soto-Teran.

David W. McAndrews, Mineola, NY, Denis P. McAllister, Zornberg and Hirsch, Williston Park, NY, for defendant.

ORDER

JOHNSON, District Judge.

Upon consideration of the Report and Recommendation of Magistrate Judge Marilyn D. Go, dated August 5, 1996, and the limited objections thereto filed by defendant Martha Lindo de Diaz ("Lindo"), this Court determines that the Report and Recommendation will be affirmed and adopted.

Defendant Lindo objects to the admissibility of the letter found in Soto's briefcase during the border search. This Court agrees with Magistrate Go's reasoning and reading of the cases regarding this issue, and also notes the particular circumstance in this case that the letter, initially perused and eventually photocopied by U.S. Customs Service Inspector McNamara, was in fact addressed to the U.S. Customs Service. Tr. 73.

It is hereby

ORDERED that (1) that the motions to suppress the letter found in Soto's briefcase during the border search be DENIED; (2) that the motion to suppress the contents of Soto's briefcase seized during the consent search of Londono's apartment be DENIED; (3) that the motion to extend the hearing and for issuance of a subpoena directing Fannie Londono to testify be DENIED; and (4) that the motion to suppress Soto's post-arrest statements be DENIED.

SO ORDERED.

REPORT AND RECOMMENDATION

GO, United State Magistrate Judge.

Defendants in this action have been indicted for conspiracy and substantive charges relating to the importation and distribution of cocaine. The Honorable Sterling Johnson, Jr., by order dated January 26, 1996, has referred defendants' suppression motions to me to report and recommend. Defendants Nelson Soto-Teran ("Soto") and Martha Lindo Dediaz ("Lindo") have both moved to suppress physical evidence seized from Soto during a border search, and defendant Soto has moved to suppress physical evidence seized from his briefcase during a warrantless search of an apartment where he was staying as a guest, as well as certain post-arrest statements. During the hearing of the suppression motions on June 10, 1996, Soto moved to extend the hearing and for issuance of a subpoena directing Fannie Londono, a witness, to testify.

For the following reasons, I respectfully recommend that all the motions be denied.

PRIOR PROCEEDINGS

At a pretrial conference on November 14, 1995, Judge Johnson directed that defendants submit motions by December 15, 1995 and the Government serve its opposing papers by December 29, 1995. He later extended defendant Lindo's time to serve her motion papers and the Government's time to reply.

I scheduled a suppression hearing for March 14, 1996. Because the defendants, who were in custody, were not produced for the hearing, I heard brief oral argument that day. At the conclusion of that hearing, I gave counsel an opportunity to supplement their papers, but none made any additional submissions.

The hearing was not held until June 10, 1996 due to a change in counsel for Lindo. On May 1, 1996, I granted the application of Lawrence Berger, Esq. to be relieved as counsel for Lindo due to a potential conflict arising from prior representation of a witness. Denis McCallister, Esq. then appeared as newly retained counsel for Lindo.

FINDINGS OF FACT

An evidentiary hearing was held to determine the lawfulness of a border search conducted at Miami International Airport, of a search conducted at Fanny Londono's apartment, and of statements obtained by agents in questioning Soto. The Government called Special Agent Dominick Lopez, Special Agent Stephen Delcasino, and Inspector Jay R. McNamara of the United States Customs Service to testify on the events leading to the procurement of the evidence in question. I found the witnesses generally to be credible and have based my findings of fact on their testimonies with one exception. Soto and Lindo did not present any witnesses.

In addition, the Government called Special Agent Patrick Ahearne to testify about the origins of the investigation in order to rebut Lindo's argument that the initial unlawful search and seizure of a document upon Soto's border entry tainted the subsequent evidence seized in this action. Because I need not reach the question of whether the subsequent evidence is "fruit of the poisonous tree," Ahearne's testimony will not be discussed.

Soto's Entry

On June 29, 1995, Soto arrived at Miami International Airport aboard American Airlines flight 960 from Cali, Colombia. Because Colombia is considered a source country for narcotics, the Miami Customs Services assigns a "Rover Team," customs inspectors in plain clothes, to meet this flight daily. Transcript ("Tr.") at 49-50. Prior to landing, an announcement is made on the plane to the passengers to have their passports open to the picture page for inspection. Tr. 51. Inspector Jay R. McNamara (McNamara), who is fluent in Spanish, met passengers deboarding flight 960 at the jetway to inspect their passports. Id.

McNamara stopped Soto for initial questioning in Spanish because Soto appeared nervous. When Soto handed his passport to McNamara, McNamara observed that Soto's hands were shaking, sweat appeared on his brow, and he would not make eye contact with McNamara. Tr. 52. Upon further questioning regarding the nature of Soto's trip, McNamara observed that Soto became increasingly nervous and gave evasive and inconsistent answers. Tr. 54. When asked about his profession, Soto first responded that he drove a taxi, but then stated that he was a salesperson. Id. Soto first explained that the purpose of his trip was business, but then said it was business and pleasure. Tr. 55. McNamara also ascertained that Soto's ticket was bought in cash a day or two before the flight's departure. Tr. 53. Based on Soto's suspicious behavior, the inspector decided to conduct a further investigation of Soto at a secondary questioning room. Tr. 55.

McNamara accompanied Soto to an area secluded from the general public view on the first floor where Senior Inspector Jamie Cordero ("Cordero") joined them. Tr. 56. McNamara asked Soto if everything within Soto's briefcase and bag belonged to him and Soto replied affirmatively. Tr. 57.

During an inspection of Soto's briefcase, McNamara found a sealed envelope.¹ Tr. 58. McNamara opened the envelope and found a letter written in English addressed to the United States Customs Service and Tampa Airlines. Tr. 59. Without stopping to ask for Soto's consent, McNamara proceeded to read the letter, which described a shipment of paper and identified Soto as the new consignee. Id.; see Government Exhibit 5. In response to McNamara's questions regarding the letter, Soto informed McNamara that the letter was to be delivered to Lindo. Tr. 82. McNamara read the letter to Soto in Spanish, and asked Soto if he was the consignee of the shipment. Soto denied knowledge of the contents of the letter. Tr. 60. Throughout the questioning, McNamara observed that Soto was extremely nervous, very evasive and began to sweat profusely. Tr. 61.

When Soto refused to answer questions to McNamara's satisfaction, McNamara ripped up the letter in anger and threw the pieces in a garbage can. Id. McNamara observed that Soto appeared to be relieved. Tr. 62. Cordero immediately told McNamara that he should not have destroyed the letter. The agents then retrieved the torn pieces of paper and taped them back together. After photocopying the patched letter, they returned it to Soto. Id. They also examined the contents of Soto's wallet and telephone book and photocopied various pieces of paper, documents and business cards contained therein. See Government Exhibit 11. After the inspection, McNamara allowed Soto to enter the country.

Soto's and Lindo's Arrest

On July 8, 1995, the Government obtained an oral warrant to enter a warehouse identified as 747 Intercargo Services in Queens and to search for three rolls of paper and packaging material. Tr. 5; see Government Exhibit 12. The customs agents had previously searched the shipment of paper on July 5, 1995 and found several lead boxes containing cocaine inside one of the three rolls of paper bearing a red and white label. See Government Exhibit 12 at 4. On July 10, 1995, agents of the Customs Service entered the warehouse to execute the warrant and arrested Soto there. Agents later arrested Lindo at her home. See Government's Memorandum of Law in Opposition to Defendant Soto's Pretrial Motions at 6.

Soto's Post-Arrest Questioning

At the time of Soto's arrest, Special Agent Dominick Lopez ("Lopez") questioned Soto. Tr. 113. As discussed in greater detail on the record in my findings of fact at the conclusion of the hearing, I found that Lopez properly gave Soto Miranda warnings in Spanish after Soto's arrest, and that Soto answered questions by Lopez and Ahearne after knowingly and voluntarily waiving his Miranda rights.

The Search of Londono's Apartment

In the course of executing the warrant at the warehouse, Special Agent Stephen Delcasino ("Delcasino") questioned Fannie Londono ("Londono"), a secretary for 747 Intercargo Services. She advised that she resided in apartment 2D at 147-44 73rd Avenue in Flushing and that Soto was staying with her as a guest. Tr. 24; see Government's Memorandum of Law in Opposition to Defendant Soto's Pretrial Motions at 5. Delcasino asked in English if Londono would consent to a search of her premises and she agreed. At his request, she also signed a written consent to search form in Spanish. Tr. 25; see...