United States v. Ortiz-Ortiz
| Decision Date | 01 February 2022 |
| Docket Number | 1:20-CR-00161-JLS-MJR |
| Parties | UNITED STATES OF AMERICA v. EDDIE ORTIZ-ORTIZ, Defendant. |
| Court | U.S. District Court — Western District of New York |
REPORT, RECOMMENDATION AND ORDER
This case was referred by the presiding judge, the Honorable John L. Sinatra, Jr., to this Court, pursuant to 28 U.S.C §636(b)(1), to handle non-dispositive discovery motions and to make a recommendation as to all suppression motions. Before the Court are omnibus motions by defendant Eddie Ortiz-Ortiz ("defendant"), including motions to suppress evidence and various discovery demands. (Dkt. No 22). For the following reasons, it is recommended that defendant's motions to suppress be denied. The Court's decisions as to defendant's various discovery demands are also set forth in detail below.
On October 14, 2020, a grand jury returned a single-count Indictment charging defendant Eddie Ortiz-Ortiz with possession with intent to distribute 500 grams or more of a mixture and substance containing cocaine, in violation of Sections 841(a)(1) and 841(b)(1)(B) of Title 21 of the United States Code. (Dkt. No. 13).
Defendant has filed omnibus motions seeking, inter alia, suppression of physical evidence seized from a vehicle pursuant to a search warrant, suppression of custodial statements, suppression of evidence gained from defendant's warrantless arrest, and suppression of derivative evidence. (Dkt. No. 22). The Government filed a response to defendant's motions. (Dkt. No. 25). An evidentiary hearing was held before the Court on May 4, 2021 which included the testimony of Special Agent David Walters of the Drug Enforcement Administration and Deputy Joseph Yerpe of the Cattaraugus County Sheriffs Department. (Dkt. No. 109). The hearing was continued to May 11, 2021, at which time defense counsel advised the Court that it rested. (Dkt. No. 31).
The Government and defendant filed post-hearing briefs. (Dkt. Nos. 40; 41). Oral argument was held before this Court on January 7, 2022, wherein each party rested on their papers. At that time, the Court considered the matter submitted for decision.
During the hearing on May 5, 2021, the Court heard testimony from Special Agent David Walters of the Drug Enforcement Administration ("DEA") and Deputy Joseph Yerpe of the Cattaraugus County Sheriffs Office ("CGSO"). (Dkt. No. 33). Their testimony related to events that occurred on January 31, 2021; more specifically: (1) the delivery of a suspicious package to an address in Salamanca New York; (2) the stop and search of a vehicle that defendant was driving; and (3.) the post-arrest interviews of defendant. (Id.).
On January 29, 2020, Agent Walters received information from Inspector Josh Burch at the United States Postal Inspection Service ("USPIS") regarding a suspicious package arriving from Puerto Rico and addressed to "90 River St., Salamanca, NY 14779." (Tr. 7; Ex. 1).[1] The package had an anticipated delivery date of January 31, 2020. (Tr. 8). USPIS conducts investigation into illegal contraband and narcotics that are being transported through the postal system. (Tr. 8). USPIS regularly works with DEA in handling investigations of crimes under Title 21 of the United States Code. (Tr. 8, 56). When Inspector Burch contacted Agent Walters about this package, he noted that the sender's name on the package ("Luis Delgado") and the writing on the label were consistent with previous packages that had been seized and found to contain cocaine. (Tr. 8, 59-60). Despite being identified as suspicious, law enforcement did not open the package prior to its delivery. (Tr. 32). Instead, law enforcement decided to set up surveillance at the 90 River Street address and wait for the package to arrive via postal delivery as originally scheduled so that they could track who received the package. (Tr. 9-10). Agent Walters testified that, in his experience; suspicious packages are "always going to a secondary residence" after arriving at a delivery address. (Id.). Commonly, the person who initially receives the package is compensated for collecting it, and then the package is sent off to a secondary location. (Id.). Agent Walters anticipated that someone would come and pick up the package after it was delivered. (Tr. 10). DEA agents worked with USPIS and Cattaraugus County Sheriff s Office to monitor the delivery and conduct surveillance. (Tr. 10-11).
On January 31, 2020, at approximately 9:12 a.m., the package was delivered to 90 River Street and left on the front porch of the residence. (Tr. 11). Soon thereafter, an individual exited the home and retrieved the package. (Id.). At approximately 9:52 a.m., that same individual was observed exiting the residence, carrying a white item, and entering the passenger compartment of gray SUV, later identified as a 2019 Nissan Rogue, which was parked in the driveway. (Tr. 11-12). That individual stayed in the vehicle a very short time, after which he exited and returned to the residence without the white item he carried into the vehicle, (Id.). The Nissan Rogue then departed the area. (Id.).
Law enforcement personnel began following the Nissan Rogue after it left 90 River Street in Salamanca. (Tr. 12, 64). Deputy Yerpe testified that he was asked by CCSO Investigator Corey Higgins to assist in the investigation. (Tr. 63). He began following the Nissan Rogue in the Town of Salamanca as it entered Interstate 86 ("I-86") heading westbound. (Tr. 63, 69-70, 83). Investigator Higgins had already relayed to Deputy Yerpe that the vehicle was failing to maintain its lane. (Tr. 64). Deputy Yerpe got behind the vehicle, verified that it was indeed the vehicle agents were following, and he followed it for some time. (Id.). During that time, he personally observed that it was "driving erratically [...] back and forth inside the driving lane of I-86." (Id.). There were lane markings on I-86, including a solid fog line, a dotted line between the two driving lanes, and a yellow line on the passing lane. (Id.). The vehicle was "veer[ing] over, sometimes just touching and sometimes actually crossing over one the white solid line." (Id.). Deputy Yerpe observed the vehicle crossing the lines at least three times. (Id.). From his observations, he believed the driver of the vehicle had committed a violation of state vehicle and traffic law, namely, failure to maintain lane. (Tr. 64-65).
Based upon his observations and the observations relayed to him by other officers, Deputy Yerpe initiated a traffic stop of the Nissan Rogue vehicle on I-86 westbound in the Town of Randolph. (Tr. 65, 82; Ex. 6). Deputy Yerpe's interaction with the driver of the vehicle was recorded with his body camera and a copy of the recording was admitted into evidence. (Tr. 66; Ex. 12-C). There was one occupant in the vehicle, identified as defendant Eddie Ortiz-Ortiz. (Ex. 65; Ex. 12-C). When Deputy Yerpe approached the vehicle, he explained why he had pulled defendant over and asked defendant why he was "hitting the lines" while driving. (Ex. 12-C). Defendant did not dispute that he was drifting or swerving. (Id.). Instead, he offered an explanation, appearing to indicate that he was trying to operate the speed control, lane sensor, or another driver-assist system in the vehicle. (Tr. 104-05, Ex. 12-C). Defendant stated that the vehicle was rented by his mother and did not belong to him.[2] (Ex. 12-C).
Deputy Yerpe also observed the odor of burnt marijuana coming from the vehicle and defendant admitted to having smoked marijuana within about an hour. (Tr. 65-66; Ex. 12-C). Defendant held up an ashtray from the cupholder of the vehicle and admitted there was a little bit of marijuana in the ashtray. (Ex. 12-C). Based on defendant's admission of recently using marijuana, Deputy Yerpe asked defendant to step out of the car so that he could conduct standard field sobriety tests. (Tr. 71, 107; Ex. 12-D). While the sobriety tests were performed, a K-9 drug-detection dog was brought to the scene to check for narcotics other than marijuana in the vehicle. (Tr. 72). The K-9 alerted to the presence of narcotics in a white board game box labeled "Sequence" located on the back seat of the vehicle.[3] (Dkt. No. 42).
Deputy Yerpe testified that defendant was not yet under arrest, but defendant was advised he was being detained and taken from the scene of the stop. (Tr. 92). Deputy Yerpe transported defendant to the Cattaraugus County Sheriffs Office in Little Valley, New York and defendant's vehicle was towed to the same location. (Tr. 13, 92-93). Defendant was issued a traffic ticket pursuant to New York Vehicle and Traffic Law § 1123(a) for moving unsafely from a lane. (Ex. 6). Deputy Yerpe's allegations about this incident were recorded at the time in a supporting deposition. (Ex. 9).
At approximately 12:01 p.m., defendant was questioned by Agent Walters and other officers at the Sheriffs Office. (Tr 13-16). The interview was videorecorded and admitted into evidence. (Ex. 12-A). Agent Walters testified that, prior to speaking with defendant, he read defendant his Miranda rights from a DEA-13 form which the agent had in his wallet (Tr. 13; Exs. 3, 12-A). After Agent Walters advised defendant of his Miranda rights, he asked him "okay?" and the defendant nodded. (Tr. 13-14, 17; Ex. 12-A). Agent Walters understood defendant's nod to mean that defendant understood those rights. (Id:). He would not have continued the interview if defendant had indicated "no." (Tr. 56). At no time during this interview did the defendant invoke his right to counsel. (Tr. 1.8, 56). Defendant spoke English during the interview. (Tr. 56). Agent Walters was aware that defendant was born in Puerto Rico. (Tr. 47). ...
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