United States v. Ospina

• Decision Date: 01 August 1985
• Docket Number: No. CR-85-61.,CR-85-61.
• Citation: 618 F. Supp. 1486
• Parties: UNITED STATES of America, v. Juan Carlos OSPINA and Diego Zuluaga, Defendants.
• Court: U.S. District Court — Eastern District of New York

618 F. Supp. 1486

UNITED STATES of America, v. Juan Carlos OSPINA and Diego Zuluaga, Defendants.

No. CR-85-61.

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

July 2, 1985.

On Motion to Reconsider August 1, 1985.

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Raymond J. Dearie, U.S. Atty., E.D.N.Y. by Ephraim Savitt, Brooklyn, N.Y., for the United States.

Patten and GaNun by John Patten, New York City, Murray Cutler by Murray Cutler, Noah Lippman, of counsel, Brooklyn, N.Y., for defendants.

MEMORANDUM OF DECISION AND ORDER

COSTANTINO, District Judge.

Defendants Juan Carlos Ospina ("Ospina") and Diego Zuluaga ("Zuluaga") move pursuant to the Fourth Amendment to the United States Constitution contending that they have been subject to illegal searches and arrests. An evidentiary hearing was held in this court from March 8 to March 19, 1985. Memoranda of law were submitted by counsel for defendants Ospina and Zuluaga on March 28 and April 1, 1985, respectively. The United States Attorney filed his memorandum of law on April 26, 1985. A reply memorandum by counsel for defendant Ospina was filed on May 7, 1985.

The defendants contend that agents assigned to New York Task Force Group 3 of the Drug Enforcement Agency ("DEA") utilized an arrest warrant to illegally enter a condominium apartment of which they were subtenants; that the information derived by the agents in the apartment was illegally obtained; that the defendants were illegally arrested; and, that the search warrant signed by Magistrate Chrein was based upon deliberate misrepresentations as well as illegally obtained evidence.

The government contends that the condominium was entered pursuant to a valid arrest warrant; that the observations made therein formed the basis for probable cause to search; that, in any event, there was consent to search; and, that the agents were acting in objective good faith reliance on a validly issued warrant based on probable cause.

I. THE TESTIMONY

A. The Identification of Jorge Rodriguez-Orjuelo

Special Agent Christopher Giovino ("Giovino") of the DEA was the first witness called by the government. He testified that since September 1984 his group has been holding an arrest warrant for Jorge Rodriguez-Orjuelo ("Rodriguez") on charges of conspiracy to distribute cocaine. (Tr. 7). Giovino further testified that he was present at a raid upon Rodriguez' residence located at 37th Avenue in Queens, New York at which time $350,000 in cash, a pistol, drug ledgers and other indicia of the drug trade were found. The money, Giovino noted, was found in a black steamer trunk in the master bedroom. (Tr. 8-9).

Thereafter, the agents spent "about two or three days a week of almost every week going from neighborhood to neighborhood in Queens looking for Rodriguez." (Tr. 9).

On January 9, 1985, Giovino was called to the Bay Club Condominium. (Tr. 10). He described the Bay Club as "two towers joined in the middle by a physical education complex," (Tr. 10), occupied by "thousands of people." (Tr. 61).

Giovino's group was advised that detectives visited the security office of the Bay Club and had made a positive identification of Rodriguez. In making the identification, the detectives used photographs seized from the 37th Avenue apartment. (Tr. 11).

Giovino, on direct examination, testified that, he too, showed photographs of Rodriguez to members of the security force. (Tr. 11). The only member of the security force to whom photographs were shown whose name Giovino remembered was Mr. Bosio. (Tr. 12, 58). Giovino could not recall the names of the security staff he spoke to, nor of the maintenance staff. (Tr. 12). Giovino does remember speaking to a lieutenant who was a black man (later identified as Fulton). (Tr. 58). Giovino attributes his faulty memory to being "incredibly busy that day." (Tr. 64).

Giovino also testified on direct examination that these security personnel identified the person appearing in the photographs as having been "seen" in apartment penthouse-L ("PH-L"). (Tr. 12). He further testified "that they had a name for that gentlemen of Oscar Seraline ... that he was the person renting that apartment on paper, that is the name that they had." (Tr. 12-13).

Giovino "guessed" that Bosio told him that "Seraline resided there with other persons, whose names the security office and the maintenance office and the rental office did not have." (Tr. 13).

On cross-examination, Giovino testified that he showed a photograph of Rodriguez to Bosio and to Fulton, (Tr. 59), and that they gave a "positive response ... to the identification of that being their Mr. Seraline." (Tr. 59). Giovino further testified to asking Bosio and Fulton, "Is that the person who lives here? If he does live here, what apartment?" The response of either Bosio or Fulton, he wasn't sure who, was "`EPHL' or East Penthouse L." (Tr. 60).

Giovino testified that the maintenance staff, referred to as "they" in the testimony, identified the photographs as the person in PH-L. (Tr. 65). Giovino was also advised by these people that there was "a constant flow of visitors to PH-L;" (Tr. 14) "that the master bedroom closet door had been removed and replaced with the Medeco lock." (Tr. 14). Giovino also testified to being told that on January 10, 1985 (the next day) the maintenance staff was "to go up there and start to repair the seams in the walls." (Tr. 15).

On cross-examination, Giovino was pressed to answer the following question:

Q—You wanted to be certain, did you not, before you went into someone's apartment that you were going to be going into an apartment where Rodriguez, in fact, was? (Tr. 57)

After substantial colloquy between counsel and the court, Giovino responded:

A—In real terms I guess would be to ascertain whether or not we were going to try and enter a third party location. In fact, we were trying to find out whether or not that was the residence of our alleged Mr. Rodriguez or their Mr. Seraline. (Tr. 57).

Special Agent Michael Connors ("Connors") of the DEA was also asked about the basis of the agents knowledge that Rodriguez resided in PH-L. He testified that, "We are informed by numerous persons at that building that that was in fact the person renting the apartment." (Tr. 166). Connors was unable, however, to identify those people who made the identification other than to describe them as "persons" on the maintenance and security staffs. (Tr. 166).

Q—Officer, is it a fair statement then rather than them saying to you that this man who lives in this apartment, you came to them as a group and said to them, we believe that the person living in this apartment is this man?

A—We never approached them as a group. Initially, there were two of us who got the identification from that photograph and then we proceeded to fill out the strategy and our plans. (Tr. 166).

Connors further testified that the sole basis for his belief that Rodriguez was in PH-L was the alleged identification made by the security and maintenance staff of the Bay Club. (Tr. 169).

Under cross-examination by Zuluaga's attorney, Connors testified that the reason he arrived at the Bay Club was because two detectives with the New York City Police Department, Queens Task Force, "had information that a fugitive we were looking for named Orjuelo-Rodriguez was at the Bay Club located in Bayside, Queens and they proceeded to tell us the apartment they thought that he was in." (Tr. 173, 189).

On redirect, Connors testified that "security people" were shown a photograph of Rodriguez by detective Roy Pena and that these security people made a positive identification of the photograph. (Tr. 198).

When asked who, in fact, had seen the fugitive at the premises, Connors responded that the Chief of Security at the Bay Club had been advised by a member of his staff that Rodriguez "had been seen there a frequent number of times," and that, "according to our information," Rodriguez resides at the Bay Club. (Tr. 176; see also Tr. 196-197).

Connors, at first, testified that he and Giovino confirmed the detectives identification. (Tr. 166). Later, Connors testified that detective Roy Pena was present when he spoke to the security people. (Tr. 193).

Agent William Dolinsky ("Dolinsky") of the DEA also "received information that other members of my group found out that Mr. Rodriguez was residing in a penthouse apartment at the Bay Club." (Tr. 236). Dolinsky testified that he had never personally seen Rodriguez, but that "Giovino indicated that Rodriguez may be in the apartment." (Tr. 261). Dolinsky also testified that there was a resemblance between Rodriguez and Ospina, (Tr. 262-63), but that he knew Ospina was not Rodriguez. (Tr. 266).

At the hearing, the court permitted witnesses to be heard "out of turn." Accordingly, the next two witnesses were called by the defense.

Joseph Bosio ("Bosio"), security director at the Bay Club Condominium Complex, who is a retired detective after 21 years in the police department, (Tr. 289), testified that on January 10, 1985 he had occasion to meet Giovino. Bosio further testified that Giovino, who was present in the courtroom, had not shown him any photographs but that Healy and Pena had shown him photographs. (Tr. 287). Bosio testified that he did not identify the photographs at any time. (Tr. 287-88).

Bosio implied that he had been shown photographs on two occasions. On one of those occasions Fulton was present.

Q—When Fulton was with you were the pictures on a table and both of you were looking at them?

A—The detective was holding the picture.

Q—But the focus of everyone's attention was to look at the pictures to see if there could be an identification made?

A—Correct.

Q—Did Lieutenant Fulton make an identification of the pictures?

A—Not in my presence while I was there to my knowledge.

Q—What did he say while you were there?

A—He had recognized one individual as being on the complex but he didn't know who he was or what his name was. (Tr.

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