United States v. Ortiz

• Decision Date: 09 May 2013
• Docket Number: No. 12 Cr. 791 (RJS).,12 Cr. 791 (RJS).
• Citation: 943 F.Supp.2d 447
• Parties: UNITED STATES of America v. Sixto ORTIZ, Defendant.
• Court: U.S. District Court — Southern District of New York

943 F.Supp.2d 447

UNITED STATES of America

v.Sixto ORTIZ, Defendant.

No. 12 Cr. 791 (RJS).

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

May 9, 2013.

Joshua A. Naftalis, Assistant United States Attorney, United States Attorney's Office, New York, NY, for United States of America.

Annalisa Mirón and Julia L. Gatto of the Federal Defenders of New York, Inc., New York, NY, for Sixto Ortiz.

Memorandum and Order

RICHARD J. SULLIVAN, District Judge:

Defendant Sixto Ortiz (“Defendant”) is charged in a one-count indictment (the “Indictment”) with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Now before the Court is Defendant's motion to suppress (1) physical evidence seized during a warrantless search of his mother's apartment; (2) statements Defendant made to New York City Police Department (“NYPD”) officers at the apartment after the search; (3) statements Defendant made to NYPD officers at the police station following his arrest; and (4) statements Defendant made to an agent of the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) following his arrest on a federal warrant. For the reasons set forth below, the Court grants Defendant's motion as to his statements in the apartment and denies the motion as to the remaining evidence.

I. Procedural History

Defendant was arrested pursuant to a federal warrant on September 17, 2012. On October 17, 2012, a grand jury returned the Indictment, charging Defendant with violating 18 U.S.C. § 922(g) by being a felon in possession of a firearm. (Doc. No. 9.) Defendant filed the instant motion on December 21, 2012 (Doc. No. 13), together with a Memorandum of Law in Support of the Motion (“Def. Mem.”) (Doc. No. 15). On January 7, 2013, the government filed its Memorandum in Opposition to the Motion (“Gov't Opp'n”) (Doc. No. 16), and Defendant filed his Reply on January 14, 2013 (“Def. Reply”) (Doc. No. 17). Because Defendant's motion turned on several contested factual issues, the Court held an evidentiary hearing on January 24, 2013, at which the government called four witnesses—NYPD Sergeant Janette Cruz (“Cruz”), NYPD Officer Isaias Martinez (“Martinez”), NYPD Detective Johnnie Rosario (“Rosario”), and ATF Special Agent Veronica Morales (“Agent Morales”)—and Defendant called one—Rosa Montañez, Defendant's mother (“Montañez”). Defendant and the government each cross-examined one another's witnesses. On February 8, 2013, the parties submitted supplemental memoranda regarding Defendant's motion (“Def. Supp. Mem.” and “Gov't Supp. Mem.”) (Doc. Nos. 20, 21), and the Court held oral argument on February 26, 2013.

II. Findings of Fact ¹

On July 24, 2012, Cruz, a sergeant in the NYPD Criminal Intelligence Section, received a tip that an illegal handgun was located at 380 East 143rd Street, Apartment 12F, Bronx, New York (the “Apartment”). (Tr. at 13:14–14:19.) Upon receiving the tip, Cruz ascertained that the Apartment had two residents: Montañez, the leaseholder, and Defendant. ( Id. at 14:24–15:8.) Cruz also determined that Defendant had two outstanding bench warrants for failing to respond to summonses related to dog-walking and alcohol consumption. ( Id. at 17:15–24.) Around 5:00 p.m. that day, Cruz, together with three other NYPD officers—Martinez, Detective Jaquan Morales (“Detective Morales”), and Officer David Montañez (“Officer Montañez”)—went to the Apartment. ( Id. at 15:9–16.) The four officers were dressed in plainclothes but were wearing bulletproof vests and had their shields visible around their necks. ( Id. at 15:18–19.) In addition, they were carrying police radios, guns, and handcuffs. ( Id. at 56:13–16.) Although the purpose of their visit was to investigate the tip concerning the firearm, Cruz also intended to arrest Defendant on the outstanding bench warrants. ( Id. at 43:10–25.)

The NYPD officers were able to obtain entry to 380 East 143rd Street without being buzzed in and went up to the 12th Floor, where they knocked on the Apartment's front door. ( Id. at 15:20–22, 44:1–5.) Montañez answered. ( Id. at 15:23–24, 55:23–56:1.) The parties dispute whether the officers identified themselves as police. The Court, however, finds that Cruz and Martinez both testified credibly that the officers identified themselves as such when Montañez answered the door. ( Id. at 15:25–16:4, 56:10–12.)

By contrast, the version of events Montañez offered strains belief. Montañez testified that the officers did not identify themselves. Rather, she stated that when she came to the door and looked through the peephole, she believed the officers were Jehovah's Witnesses. (Tr. at 126:1–2.) She then opened the door, she explained, because she sometimes engaged Jehovah's Witnesses in conversation in order to convert them to Catholicism, her faith. ( Id. at 126:4–9.) Montañez testified that when the officers then asked if Defendant was present in the apartment, she concluded that they were not Jehovah's Witnesses and instead assumed that they were Defendant's friends. ( Id. at 126:12–15.) She testified that she admitted them into the apartment on that basis and proceeded to speak with Cruz for several minutes while continuing to believe that the officers were Defendant's friends. ( Id. at 126:17–128:18.) The other officers did not accept her invitation to sit down in the living room. ( Id. at 126:21–25.) It was only when the officers began searching the closets, Montañez testified, that she realized they were police. ( Id. at 128:16–18.)

Montañez's version of events is not credible for several reasons. First, her affidavit dated December 19, 2012 stated only that “[o]n July 24, 2012, four officers arrived at my door dressed in civilian clothes.” (Decl. of Julia Gatto, dated Dec. 21, 2012, Doc. No. 14 (“Gatto Decl.”), Ex. A (“Montañez Aff.”) ¶ 4.) The affidavit makes no reference to having admitted the officers based on the belief that they were her son's friends—an account she first offered only at the January 24, 2013 evidentiary hearing. Second, Montañez's uncorroborated testimony flatly contradicts the accounts offered by Cruz and Martinez, veteran officers with twenty and eleven years of experience, respectively, both of whom testified that the officers not only identified themselves as police when Montañez came to the door but were outfitted in a manner that made their identity as law enforcement officers unmistakable. ( See, e.g., Tr. at 15:18–19 (indicating that the officers had their shields visible).) Finally, Montañez's claim that she realized the four officers were police only when they began to search the closets is simply incredible, even under the terms of her own testimony. In the time between the officers' entrance into the apartment and the beginning of their search, according to Montañez, the officers said nothing to reinforce her belief that they were Defendant's friends and behaved in a manner highly inconsistent with a social call, spreading out over the apartment and ignoring her invitation to sit down in the living room. (Tr. at 126:24–128:2.)

In any event, Montañez voluntarily admitted the officers to the Apartment, which was, at the time, occupied by three individuals: Montañez, Defendant, and Montañez's elderly sister. ( Id. at 57:1–7, 125:11–13.) It is undisputed that after Montañez admitted the officers to the Apartment, Cruz and Montañez engaged in conversation in Spanish ( id. at 16:7–8, 56:2–5, 127:9–10), which Cruz and Martinez speak fluently ( id. at 14:9, 55:10–13). Once again, however, the parties offer different versions of what transpired. Specifically, Cruz testified that upon entering the Apartment, she went with Montañez to the kitchen. ( Id. at 19:6–8.) There, she told Montañez that the NYPD had received information that there was a gun in one of the closets by the front door of the Apartment. ( Id. at 18:18–19:5.) When Montañez responded that there was no gun there, Cruz explicitly asked her if the officers could search those closets to make sure, and Montañez consented to the search. ( Id. at 19:29–20:2, 21:3–22.) From Cruz's account, it was clear to Montañez that Cruz was asking permission to search the closets by the front door. ( Id. at 21:5–22:13.) Cruz then asked Montañez to sign a written consent-to-search form. Because the form was written in English, Cruz explained its contents “in sum and substance” to Montañez in Spanish—a practice Cruz had employed on previous occasions. ( Id. at 23:18–24:4.) Montañez then filled in her name, address, and date of birth and signed the form. ( Id. at 25:17–26:14.) After Montañez signed the document, and only after she signed the document, Cruz told the other officers that they could begin the search.² ( Id. at 27:11–12.)

Montañez remembers the events differently. She also recalls talking with Cruz for several minutes, but she testified that they spoke in the living room and that Cruz talked only of “silly things that I wasn't interested in.” ( Id. at 127:17–18.) She also testified that Cruz did not request her consent, either orally or in writing, before the officers initiated the search. ( Id. at 128:19–22.) Rather, she said the officers “took [her] by surprise” and simply began searching the closets. ( Id. at 128:22.) According to Montañez, Cruz obtained her signature on the consent form only after the search was complete and the officers and Defendant had moved into the hallway outside the apartment. ( Id. at 130:10–16.) Montañez further testified that Cruz never translated the form into Spanish. ( Id. at 131:7–10.) She also testified that she merely signed the form and that the remaining handwriting on the form is not hers. ( Id. at 129:13–24.) Finally, she testified that the birthdate on the form is incorrect. ( Id. at 129:20–130:2.)

Several features of the testimony at the January 24 hearing make the officers' version of events more credible than Montañez's. First, as noted above, Montañez's claim that she did not realize the four...