US v. Alba, Crim. No. H-89-79(PCD).

• Decision Date: 15 March 1990
• Docket Number: Crim. No. H-89-79(PCD).
• Parties: UNITED STATES of America v. Didier ALBA, John Gonzalez, Marizol Vasquez.
• Court: U.S. District Court — District of Connecticut

732 F. Supp. 306

UNITED STATES of America v. Didier ALBA, John Gonzalez, Marizol Vasquez.

Crim. No. H-89-79(PCD).

United States District Court, D. Connecticut.

March 15, 1990.

Hubert Santos, M. Donald Cardwell, Hartford, Conn., for defendants.

RULING ON PENDING MOTIONS

DORSEY, District Judge.

Pending are motions of defendants:

(1) Alba, joined by Vasquez, to suppress tangible evidence.

(2) Gonzalez to suppress tangible evidence and statements. After a hearing and consideration of the briefs filed, this will constitute the findings and determination of each motion.

Defendants are charged with attempted possession with intent to distribute and distribution of cocaine, Count Two, and conspiracy for the same purpose, Count One.

These charges arise from a reverse sting whereby a confidential informant, after a series of discussions, arranged to sell ten kilograms of cocaine to Alba, who lived in Lebanon. It came to be agreed that the two would meet at the Sheraton Hotel in Windsor Locks to complete the sale on September 21, 1989. On that day, agents commenced a surveillance of Alba and followed him. He was observed to meet Gonzalez and in separate cars the two drove to the Sheraton. Gonzalez remained in his car in the parking garage while Alba met the informant, who was accompanied by Sgt. Lavin of the Connecticut State Police, in the hotel lobby. Alba took the informant and Lavin to Gonzalez' car to show the money, which was in a cereal box which was originally in a bag on the rear seat. Gonzalez joined Alba in showing the money, represented as $60,000. Lavin, and the money, then remained with Gonzalez. The two merely sat in the car while the informant and Alba returned to the lobby. Gonzalez told Lavin to stay calm when Lavin asserted nervousness over the conduct of the transaction. Gonzalez noted the plan was that he would take the cocaine from the Sheraton to his home. Gonzalez was then under no actual or observable restraint or suggestion thereof. There was nothing done or said by Lavin, who continued his pose as associated with the seller, did not disclose his police office, and conducted himself solely as if the sale was to be accomplished, to suggest that Gonzalez was in any manner restrained or other than at complete liberty to go or come as he chose. Lavin expressed, and had no view that Gonzalez could not leave.

In the lobby, the informant called Agent Giandana, playing the role of guardian of the cocaine. She brought a package, purportedly containing the cocaine to be given to Alba. As the three exited the lobby, headed toward the garage, Alba was arrested by another agent. In the meantime, Gonzalez was arrested in the garage. He appeared to have spotted the surveillance team and reached, within the car, as if for a gun. The vehicle was searched and the cereal box with the money, but no gun, was found.

Gonzalez was informed of his Miranda rights promptly after his arrest. See Exhibits B and C. He was not asked to, nor did he, sign a form acknowledging and waiving his rights. He was told he had the right to remain silent and that anything he said could be used against him. He was told he had the right to counsel. He was not specifically told that he could stop answering questions. He was asked if he understood his rights as given. He said he understood. He made no request for an attorney. He never requested that the agents stop asking questions. He was taken to Hartford and en route he was also informed of his rights. Though he is Hispanic, Gonzalez speaks and understands English without difficulty. At the DEA office, when asked, he said he understood the rights of which he had been properly advised.

When Alba was arrested, he was carrying a box. He was not immediately advised of his Miranda rights. He spontaneously said something when advised of his arrest, but not in response to a question. He was put in a state police cruiser, then transferred to an agency vehicle for transport to Hartford. In the vehicle he was advised of his rights. He said he understood English and his rights. He was not then questioned, but he asked why he was arrested as he had nothing on him. He was told the agents knew of his purpose of purchasing cocaine. He noted Gonzalez was present to carry the money to protect against a rip-off. At the DEA office he signed an FBI waiver form, Exhibit 1. He read it and said he understood it.

Alba testified that he spoke English. He claimed he was not informed of his rights. He claimed not to be able to read English and signed Exhibit 1 without understanding it. His testimony in this respect is not credited. He never told his attorney he could not read English. He also told a story of his involvement in the deal in question that defies logic. He asserted Gonzalez' lack of knowledge of the deal and that Gonzalez was to get nothing. This is contrary to Gonzalez' version.

Discussion

Alba

Although at the hearing there was some assertion of a non-voluntary statement by Alba, he has now waived any such claim. He also questioned the validity of the search of his residence based on his claim that he received no copy of the warrant and Fed.R.Crim.P. 41(d) was not complied with. He has, by letter of counsel filed in court, withdrawn that claim and asserts no involuntary consent to any procedure by the agents.

Alba's claim of a search of 79 South Ridge Avenue, Willimantic, without a warrant is not substantiated. Likewise his claims as to the form of the warrant, its acquisition, and its execution have not been substantiated. To the extent it has not been waived and as a proper warrant has been demonstrated, the motion to suppress tangible evidence is denied.

Alba's claim as to any statements made is likewise unfounded. Anything he said before he was placed in a car for transport to Hartford was spontaneous on his part and not the result of custodial interrogation. He was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in that car and at the DEA office. See Exhibit 1. Accordingly, there is no legal basis shown to warrant exclusion of anything he said thereafter.

Vasquez

This defendant has made no showing beyond that of her co-defendant, Alba, whose motions she has adopted and joined. Absent a showing of violation of any rights personal to her and for the reasons for denying Alba's motions, all motions she may be deemed to have made are denied.

Gonzalez

To the extent he has challenged the availability of evidence seized pursuant to the search, as he has made no claim nor showing beyond that of Alba, his motion to suppress the fruits of a search of his home, authorized by a warrant, which is not shown to be infirm, is denied. He claims in his brief that probable cause was not shown on the application for the warrant. It is true that Alba was the principal target of the investigation and the information developed prior to issuance of the warrant focused on him. Nonetheless, Gonzalez was described as driving separately, but with Alba, to a point where the drug transaction was to be consummated by Alba. The money was in Gonzalez' car. Alba got the money from the car. The transaction and the money were discussed in Gonzalez' presence without protest or disavowal by him. He sat with the money and Sgt. Lavin while Alba went to see and receive the cocaine with a reasonably inferable, if not clear, understanding that the money, kept in his car, under his cognizance, if not custody and control, would be turned over when the cocaine delivery was complete. His conversation with Sgt. Lavin confirmed his knowledge of the deal in process and his further role with the cocaine after it was delivered in bringing it to 79 South Ridge Drive, Willimantic. Gonzalez was not merely the driver of a car. As a player in the distribution of drugs, thus established, probable cause for the search of his residence, seeking evidence confirming that role, was established. The proposed sale of nine to ten kilograms of cocaine on September 21 established a substantial drug distribution propensity and capability in Alba and anyone associated with him. Gonzalez was shortly to be so involved and likely to be thereafter involved. One involved in such a magnitude of drug dealing is likely to have been previously so engaged giving rise to the reasonable prospect of finding evidence confirming same at his home. That Gonzalez was known to be involved with Alba only from what happened on September 21 is not preclusive of his having a role in the substantial drug distribution with which Alba was involved and with which he had associated himself. In short, he was shown to have known a large amount of money, with which he was entrusted, was brought to the Sheraton to buy a large amount of cocaine, which thereafter would involve substantial activity to distribute, an undertaking which he joined by word and deed. The recitation in the affidavit was sufficient to permit the magistrate to find, as he did, that there was a substantial basis to conclude that Gonzalez' home would contain items confirming and likely to be present for use in the distribution in which he embarked, if he had not long prior been involved. Further, there is nothing to suggest that the officers' submission to the magistrate was in any way deficient as to bar their objectively reasonable reliance on the magistrate's finding of probable cause and issuance of the warrant. The motion to suppress the fruits of that search is denied.

Gonzalez further moves to suppress statements made after his arrest on September 21 for incompleteness of the warnings given and a non-waiver, presumably of the rights of which the warning was inadequate. Specifically, Gonzalez claims that he was not informed of his right to cut off questioning. As to any statements made by Gonzalez in his car to Sgt. Lavin, they were not the result of a custodial interrogation. As noted above, he was not then in custody. There was no basis...