US v. Orejuela-Guevara

• Decision Date: 08 May 1987
• Docket Number: No. CR-86-00744.,CR-86-00744.
• Citation: 659 F. Supp. 882
• Parties: UNITED STATES of America v. Maria OREJUELA-GUEVARA, Louis Alvaro Betancourt-Sarria, Miguel Escobar-Montalvo and Patricia Munoz-Toxqui, Defendants.
• Court: U.S. District Court — Eastern District of New York

659 F. Supp. 882

UNITED STATES of America v. Maria OREJUELA-GUEVARA, Louis Alvaro Betancourt-Sarria, Miguel Escobar-Montalvo and Patricia Munoz-Toxqui, Defendants.

No. CR-86-00744.

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

May 8, 1987.

Cheryl Pollak, Asst. U.S. Atty., U.S. Dist. Court, Eastern Dist., Brooklyn, N.Y. for U.S.

Ray Rodriguez, Coral Gables, Fla., for defendants.

MEMORANDUM AND ORDER

DEARIE, District Judge.

In this case, defendants Maria Orejuela-Guevara ("Orejuela"), Miguel Escobar-Montalvo ("Escobar") and Louis Alvaro Betancourt-Sarria ("Betancourt") have moved to suppress quantities of cocaine and other evidence seized from their bedrooms in an apartment located at 142-38 Franklin Avenue, Queens, New York.¹ These seizures occurred after a written Consent to Search was executed by Hector Gallo-Moreno ("Gallo"), who occupied a separate bedroom in the same apartment. Gallo has not been charged. On February 13, 1987, an evidentiary hearing was held on defendants' motions to suppress and related applications.² For the reasons stated below, this Court has concluded that the motion of defendants Orejuela and Escobar to suppress the evidence found in their bedroom closet must be denied and that the motion of defendant Betancourt to suppress the evidence found in his bedroom closet must be granted.

In addition to the evidence discovered in the bedroom closets, a telephone book and a business card book were found on top of the bureau in Betancourt's bedroom. These items were admitted into evidence at the hearing and Betancourt's motion to suppress does not specifically challenge their introduction at trial. The suppression motions focus on the evidence seized from containers in the defendants' bedroom closets. To supplement and clarify the Court's oral findings and conclusions rendered at the hearing, this Memorandum Decision will address the issues presented by these applications, particularly the defendant Betancourt's attack on the third party consent.

FINDINGS OF FACT

On the basis of the evidence presented, including the testimony of Special Agent Santiago and Detective Healey, which the Court credits, the Court makes the following findings of fact:

In the Fall of 1986, a homicide investigation was initiated following the murder of Hugo Rubio whose body was discovered in his car on a Queens Street. The circumstances surrounding the murder, including the presence of cocaine in the vehicle, suggested that the slaying was narcotics related. As a result, New York City detectives and federal agents collaborated in the investigation as part of Operation Redrum, an ongoing, joint investigative effort directed at the high number of drug-related homicides in certain Columbian communities in Queens County. The investigation into Rubio's death focused in part on a telephone number written on a scrap of paper found in the victim's vehicle. A check with telephone security revealed that the phone number was listed to a female customer, with an Hispanic name, at the apartment located on the second floor of 142-38 Franklin Avenue, Queens, New York.

Pursuing this lead, Redrum investigators established a brief surveillance on the house on the afternoon of November 6, 1986. At approximately 4:20 in the afternoon, a man later identified as Hector Gallo-Moreno entered the building. Minutes later, the five man investigative team followed, proceeding upstairs to the door of the second floor apartment where they listened momentarily before knocking. The door was eventually opened by defendant Maria Orejuela. Upon seeing the investigators, Orejuela turned toward Gallo who was seated at the dining room table. When Gallo came to the door, the men identified themselves and explained that they were investigating a homicide and wanted to show him some photographs and ask a few questions.

Without hesitation, Gallo motioned for the men to enter, and he directed them to the living room. Orejuela returned to the dining room where she rejoined approximately six adults and children, all of whom were guests, at the table. In the living room, just a short distance from the dining room, Special Agent Santiago acted as interpreter as Detective Healey showed Gallo a series of photographs. Gallo identified a picture of the murder victim, Rubio, commenting that he knew Rubio had been killed and that he believed Rubio had had some enemies — "`possibly from narcotics.'" Gallo explained that Rubio had been a customer in a restaurant where Gallo had worked and that Rubio had once invited him to invest in a Hilton Hotel in Columbia.

As Detective Healey concluded his brief interview of Gallo, Agent Santiago asked Gallo for identification. Gallo admitted immediately that he and others in the apartment were illegal aliens. He explained that he occupied one of the three bedrooms and that Maria Orejuela and her husband, who was not home at the time, shared a second, larger bedroom with the couple's small children.

Special Agent Santiago asked Gallo if there were any weapons or narcotics in the apartment. After Gallo assured the agents there was no contraband, Agent Santiago requested Gallo's consent to search the apartment. Gallo agreed. Agent Santiago produced a standard DEA Consent to Search form, written in Spanish, which he handed to Gallo. As Gallo took the form, Maria Orejuela entered the living room, sat down on the couch next to Gallo and appeared to look at the form as Agent Santiago explained it to Gallo. She said nothing.

Gallo signed the consent form. Before the search, Agent Santiago asked Orejuela where she slept, and she pointed out who lived in each room, including her own bedroom. The entire apartment was searched, including the three bedrooms. The doors to all three bedrooms were opened and unlocked. No contraband or incriminating evidence was found in the common areas of the apartment or in Gallo's bedroom.

The search of the two other bedrooms was more revealing. In Orejuela's bedroom, Detective LaSalla examined a walk-in closet and discovered an aluminum foil bag which was found to contain approximately one kilogram of cocaine. Orejuela denied knowing anything about the drugs. In Betancourt's bedroom, the detective, after finding the telephone and business card books discussed previously, searched a closet where he discovered a briefcase and a brown paper bag on a shelf. The unlocked briefcase was opened and found to contain a box of bullets and Betancourt's passport. The paper bag contained a clear plastic bag which itself contained a kilogram of cocaine. Defendants Betancourt and Escobar arrived home a short time later and were immediately placed under arrest. In the meantime, defendant Patricia Munoz-Toxqui was arrested when she entered the apartment carrying a handbag filled with approximately one kilogram of cocaine.

The facts, in and of themselves, are not seriously disputed. Rather, the defendants argue that an objective characterization of the facts vitiates the voluntariness of Gallo's consent and Gallo's authority to consent to the search of the defendants' bedroom closets.

DISCUSSION AND CONCLUSIONS

The government may not intrude upon an individual's legitimate expectation of privacy without a warrant, unless the search falls within one of the narrowly drawn exceptions to the warrant requirement of the Fourth Amendment. See Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). Here, the government relies on the consent of a co-tenant, Hector Gallo-Moreno, to validate the warrantless search of the apartment. The government must prove, by a preponderance of the evidence, that the consent was freely and voluntarily given, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973), and that the consenting party "possessed common authority over" or had "other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 126, 70 L.Ed.2d 107 (1981).

The voluntariness of Gallo's consent is readily apparent. Based on all the facts established at the suppression hearing, there is "no evidence ... of coercion or other circumstances that would render the consent invalid." United States v. Candella, 469 F.2d 173, 175 (2d Cir.1972). Gallo invited the officers and agents into the apartment; he spoke with Agent Santiago in Spanish; the atmosphere in the apartment was relaxed and cooperative; those inside the apartment were permitted to move about freely; Gallo signed a consent to search form without hesitation or objection. No reluctance to cooperate with the investigation was displayed by Gallo at any time.

The focus of this Court's inquiry is whether Gallo had the requisite authority to consent to a search that extended to the closed containers that were found on shelves in Betancourt's and Orejuela's bedroom closets. Before examining the scope of Gallo's authority to consent to the search of the entire apartment, some preliminary issues must be addressed. Defense counsel have to some extent invited the Court's disapproval of the practice of the Redrum investigators to request consents to search on a relatively routine basis even when, as here, there was no basis for the agents to suspect criminal activity in the apartment by the residents or guests. Those aggrieved by the search assail this stab-in-the-dark methodology as inherently coercive and suspect. The point is troublesome and not easily rejected.

It has also been suggested that the Court reject the third party consent justification for the search of the Orejuela bedroom and impose on the agents under the facts of this case the affirmative obligation to secure Maria Orejuela's consent before searching her bedroom. As noted above, Maria was not only present in the apartment, she responded...