US v. Pena

• Decision Date: 29 April 1996
• Docket Number: Criminal No. 95-10254.
• Citation: 924 F. Supp. 1239
• Parties: UNITED STATES of America, v. Juan PENA, a/k/a Jose Rafael Allende Navarro, Defendant.
• Court: U.S. District Court — District of Massachusetts

924 F. Supp. 1239

UNITED STATES of America, v. Juan PENA, a/k/a Jose Rafael Allende Navarro, Defendant.

Criminal No. 95-10254.

United States District Court, D. Massachusetts.

April 29, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas M. Sobol, Brown, Rudnick, Freed & Gesmer, Boston, MA, for Edwin Ojeda, Defendant.

Henry F. Owens, III, Lane, Altman & Owens, Boston, MA, Ronald Ian Segal, Lynn, MA, for Juan Pena.

Michael D. Ricciuti, U.S. Attorney's Office, Boston, MA, Allison D. Burroughs, United States Attorneys Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. Introduction

Defendant, Juan Pena, has moved to suppress evidence on the ground that the police conducted an illegal warrantless search of his apartment. The government contends that the initial entry was a valid protective sweep, Pena voluntarily consented to the search, and, in any event, the search was valid under the "independent source" doctrine, pursuant to a subsequently obtained search warrant. After conducting two evidentiary hearings, the Court concludes that the protective sweep was unlawful and the verbal consent was involuntary. However, Defendant's motion to suppress must be DENIED under the "independent source" doctrine.

II. Factual Background

A. Second Floor Search

On August 14, 1995, federal and state law enforcement officers executed a "no-knock" search warrant for an apartment on the second floor of 114A-114B Ames Street, a three-floor apartment building in Lawrence, Massachusetts. The warrant was based upon information supplied by a confidential informant who made a controlled purchase of cocaine at that location from a hispanic male later identified as Edwin Ojeda. The informant had also told the police that this target had a gun, which triggered the no knock request.

Seven officers were involved in the operation: Drug Enforcement Administration ("DEA") Special Agents Pamela Mersky, Robert Kew and Edward Mastrocola; Massachusetts State Troopers Brian O'Neil and William Canty; and Lawrence Police Detectives Dana Difiore and Anthony Lorenzo. Trooper O'Neil and Agent Mersky coordinated the other officers' activities.

Prior to the search, Trooper O'Neil also heard from his confidential informant that a person living on the third floor delivered drugs to the second floor during the controlled buy. The informant came to the conclusion that the "big guy" lived on the third floor because the occupant of the second floor made a phone call during the transaction and asked the person on the other end of the line to "come down" with additional drugs. He appeared moments later, thus giving rise to the inference that he was on the third floor.

In addition, prior to the raid, O'Neil received a tip from a Lawrence police detective, Michael Laird, that the second and third floors were involved in a joint drug distribution operation.¹ Indeed, the Lawrence Police had stopped Pena on July 28, 1995, for interrogation because he was leaving a "drug house." Trooper O'Neil did not attempt to secure a search warrant for the third floor, however, because he did not believe that the information provided by the confidential informant and the Lawrence police was sufficient to establish probable cause.

When the officers executed the "no-knock" warrant for the second floor, several persons, including Ojeda, a second hispanic male, a woman, and one or more small children, fled the apartment through a back door and down a flight of stairs where other officers intercepted them. Trooper O'Neil caught a glimpse of another male exiting the apartment and fleeing upstairs. In the commotion he did not get a clear look at him, nor did he pursue him immediately.

The officers returned the second floor occupants to the apartment and conducted a search that yielded a one-kilogram package of cocaine, wrapped in gray duct tape and sealed in wax, packages containing a total of more than 50 grams of cocaine base ("crack" cocaine), and drug paraphernalia, all of which was hidden in a compartment under the kitchen sink. This is where the confidential informant said the drugs were stored. No guns or other weapons were discovered. Ojeda and the other male were then placed under arrest and handcuffed.²

B. Third Floor Searches

1. The First Search of the Third Floor

Approximately fifteen minutes after securing the second floor apartment and discovering the drugs, Troopers O'Neil and Canty proceeded to the third floor. The troopers knocked and identified themselves, and an hispanic male, later identified as Pena, answered the door. O'Neil could not recognize him as the man he had seen flee the second floor. Without requesting consent to enter, Trooper O'Neil pushed past Pena and conducted a brief "protective sweep" of the premises for safety reasons to discover whether anyone else was present. Trooper Canty remained with Pena just straddling the apartment threshold.

Immediately following the protective sweep, Trooper O'Neil returned to the apartment entrance, where he noticed wrapping material made of duct tape and sealing wax, in plain view on top of a waste basket. This waste basket was located near the apartment's front door, which opened on the kitchen. Trooper O'Neil called Pena's attention to the wrapping in response to which Pena shrugged his shoulders.

At this point, Trooper O'Neil asked Pena in English whether he could search the apartment. O'Neil immediately learned, however, that Pena's knowledge of English was extremely limited. Pena answered Trooper O'Neil with words to the effect of "look, look, no problemo, no destructo." Trooper O'Neil took Pena's response to mean that he had consent to search the apartment as long as he was not destructive. However, because of concern about the language barrier, O'Neil decided to wait for another police officer or agent who could speak Spanish. While not in custody, Pena was not free to leave.

While waiting, Trooper O'Neil escorted Pena, without handcuffs, to the second floor apartment where he was presented to Ojeda and the other male being held there in handcuffs. Pena denied knowing them and vice versa. Troopers O'Neil and Canty then escorted Pena back to the third floor. Ojeda was not informed that the wrapping had been discovered during the protective sweep.

After Pena was escorted back upstairs, O'Neil returned to the second floor. At some point soon afterwards, Ojeda informed the officers that he had cooperated in the past with the Lowell Police Department. He said he did not own the drugs that were found in his apartment but was instead simply guarding them for the "guy upstairs." Ojeda also told the officers that Pena had additional drugs hidden in his apartment. Ojeda initially volunteered this information on his own initiative, not in response to police questioning. He had not been given Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At this point, Agent Mersky decided that she had sufficient probable cause based on Ojeda's statements, the discovery of the drugs, and the corroborative informant information, to seek a warrant for the third floor. She called a conference of the other officers, including O'Neil, to consult about securing a warrant. However, the other officers did not agree with her, believing instead, based on the initial discussion with Pena, that they could obtain Pena's consent and thereby obviate the delay and effort involved in preparing an affidavit for the warrant. The apparent consensus was to attempt first to get Pena's consent and, failing that, apply for a warrant if necessary.

O'Neil then returned to the third floor joined by Agent Mastrocola, who has limited training and proficiency in Spanish. In the presence of the troopers, Mastrocola asked in Spanish whether they could search his apartment, and Pena gave an answer that Mastrocola roughly translated as "go ahead." Agent Mastrocola's own Spanish was not fluent; when later listening to Pena converse in Spanish, he could understand only every seventh or eighth word.

Because of the officers' continued concern about the validity of Pena's consent, they summoned Officer Helder Peixoto of the Lawrence police department to the scene. Although Officer Peixoto had no involvement with the investigation and search until this point, he speaks Spanish fluently and was called in to communicate with Pena.

At some point after Peixoto's arrival, the officers provided Pena with a printed "consent to search form" for him to review and sign. The pre-printed form states that an undersigned person has been informed of his or her right to refuse to consent to a warrantless search of his or her living quarters, automobile, or other property and voluntarily consents to the search without threats or promises of any kind. Blank spaces are provided for filling in information particular to the person whose property is to be searched. This form was presented to Pena printed in English with the requisite blanks filled in by Officer Peixoto stating that Pena had authorized Trooper O'Neil and the other officers to search his apartment.³

Although Officer Peixoto advised Pena of his Miranda rights in both Spanish and English, he did not verbally translate the English consent form into Spanish nor did he otherwise verbally inform Pena of his right to withhold consent. Instead, Officer Peixoto simply asked Pena if he would consent to a search of the apartment, and Pena answered, "Go ahead, just don't tear anything up." Pena refused, however, to sign the consent form. Officer Peixoto indicated on the consent form that Pena had verbally consented to the search of the apartment. Officer Peixoto, Troopers O'Neil and Kew, and Agent Mastrocola signed the form as witnesses.

2. The Second Search

The officers then conducted a thorough search of the third floor apartment. During the search, Pena sat in his living room and watched a baseball game...