United States v. Peralta

361 F. Supp. 3d 313
CourtDistrict Court, N.D. New York
DecidedFebruary 26, 2019
Docket5:18-CR-215-1
StatusPublished

This text of 361 F. Supp. 3d 313 (United States v. Peralta) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Peralta, 361 F. Supp. 3d 313 (N.D.N.Y. 2019).

Opinion

DAVID N. HURD, United States District Judge

I. INTRODUCTION

Acting on information from another drug investigation, an alphabet soup of state and federal law enforcement agencies spent the better part of the 2017 calendar year exploring whether defendant Abner Peralta ("Peralta" or "defendant") might be an additional conduit through which cocaine flowed into the Utica area.

In October of that year, Drug Enforcement Agency ("DEA") Special Agent Ryan Phelan ("Agent Phelan") swore out an affidavit detailing how this joint state-federal task force had used physical and electronic surveillance to catalogue Peralta's movements and scrutinize his associates' behavior. Backed up with controlled buys from confidential sources, Agent Phelan described how he and his fellow agents unearthed an incriminating pattern of activity in which defendant played a central role.

The strength of Agent Phelan's thirty-seven page affidavit convinced U.S. Magistrate Judge David E. Peebles to issue a warrant authorizing a search of Peralta's home, his vehicle, and another property frequented by him. When agents executed the warrant, they discovered evidence consistent with drug trafficking activity.

*316Thereafter, a federal grand jury indicted defendant as a co-conspirator in a cocaine distribution ring, and with possession of cocaine base and of a firearm in furtherance of that criminal enterprise.

Peralta contends the evidence against him must be suppressed because Agent Phelan's affidavit contains material inaccuracies and omissions that were either knowingly false or made with reckless disregard for the truth. The United States of America (the "Government") opposes the motion, which has been fully briefed. Oral argument was heard on December 20, 2018 in Utica, New York.1 Decision was reserved.

II. BACKGROUND 2

In December of 2015, the DEA opened an investigation into a cocaine trafficking organization run out of the Utica area by a man named Julian Lucia-Cedano, better known by the alias "Gilbert Rosa Sanchez." Aff. ¶ 15. Over the next six months, federal agents wiretapped cell phones used by the Rosa-Sanchez organization and, by October of 2016, state and federal agents managed to arrest and charge ten of its members. Id. After several of these defendants agreed to exchange information for more favorable treatment, they identified Peralta as the head of another cocaine trafficking ring operating in the Utica area. See id. ¶¶ 15-16 & n.2.

In January of 2017, law enforcement used this new information to open an investigation into Peralta. Aff. ¶¶ 17-18. Agents soon learned that defendant lives at 314 Richardson Avenue in Utica, a two-story multi-dwelling house with a detached garage in the back. Id. ¶¶ 9, 18-20. Surveillance at that address established that defendant owns a 2012 white Mercedes-Benz SUV and a 2016 white Honda Accord bearing New York license plate HCX-7741. Id. ¶ 21.

On May 30, 2017, at about 9:08 p.m., agents watched Peralta leave his house, get into the Mercedes-Benz SUV parked in the driveway, and drive to an address on Thomas Street in Utica to meet a man referred to by agents as "Individual 2." Aff. ¶¶ 9, 23-24. Agents observed defendant leave a few minutes later. Id. ¶ 24. According to Agent Phelan's affidavit, this is an instance in which defendant delivered a quantity of cocaine to Individual 2. Id.

This conclusion is based, at least in part, on the fact that other cocaine sales executed by other parties are connected to Individual 2 and the Thomas Street location. Aff. ¶ 24. For instance, in June of 2017 agents used a confidential source ("CS # 2") to make two controlled purchases of cocaine from "Individual 1," another suspect in the ongoing investigation. Id. On both occasions, Individual 1 entered the Thomas Street building just before making each drug sale. Id. ¶¶ 38-42 (detailing a June 9 sale); id. ¶¶ 43-44 (detailing a June 30 sale).

The affidavit also alleged Peralta has delivered cocaine to Luis Colon ("Colon"), a co-defendant charged in the indictment in this case. Aff. ¶¶ 28-29. Among other things, the affidavit explained that agents had previously intercepted evidence that Colon obtained cocaine from members of the Rosa-Sanchez organization. Id. ¶ 28. Just as with the two Thomas Street sales connected to Individual 1, the affidavit established *317defendant's alleged criminal relationship with Colon through a series of intermediate steps. See id. ¶¶ 25, 28-29.

First, on June 9, 2017, at about 2:30 p.m., Agent Phelan followed Colon as he left the Black Cat Bar & Grill, took a call on his cell phone, and then drove to Peralta's house. Aff. ¶¶ 25-26. From there, Colon waited about four minutes until defendant showed up in his white Honda Accord. Id. ¶ 27.

Agent Phelan then watched as Peralta got out of his own car, walked toward the detached garage located in the back of the house, returned a few minutes later, and "walked toward the passenger side door" of Colon's car. Aff. ¶ 27. After about two minutes, defendant walked away from Colon's car and Colon drove away. Id.

Second, later that week agents used another confidential source ("CS # 1") to make a controlled buy of cocaine from Colon. Aff. ¶ 29. On that occasion, agents followed Colon to Peralta's house and, "immediately" after Colon left the residence, Colon returned to his own house and sold the cocaine to CS # 1. Id.

That same week, on July 12 and 13, agents watched Peralta pull into the driveway of the Thomas Street address in his white Honda Accord, stay for a few minutes, and then leave. Aff. ¶¶ 30-32, 46-47. The affidavit alleged these were two examples of defendant delivering drugs to Colon and Individual 2, who in turn sold the product to other end users. Id.

On August 18, 2017, at about 2:54 p.m., agents covering Peralta's house watched him greet and shake hands with a co-worker of Employee 1, an employee at "Carbone Auto Group" known to law enforcement as a person who "frequently sen[t] other employees of [Carbone] to pick up cocaine" from Rosa-Sanchez group members. Aff. ¶¶ 33-35.

On September 12, 2017, at about 10:50 a.m., real-time tracking data indicated that Peralta's white Honda Accord was near 1316/1318 Catherine Street, a three-story multi-dwelling residence in Utica.3 Aff. ¶¶ 9, 54. At about 11:00 a.m., agents saw defendant's car parked in the Catherine Street building's driveway with its trunk open. Id. ¶ 54. At that time, an unknown white male was standing next to the car "holding a book bag around his shoulder." Id.

On September 15, 2017, at about 12:05 p.m. the tracking data indicated Peralta's white Honda Accord had returned to the Catherine Street building. Aff. ¶ 56. Three minutes later, the vehicle drove straight to the Thomas Street address, where agents picked up visual surveillance. Id. The white Honda Accord drove away a few minutes later. Id. Agent Phelan alleged defendant delivered cocaine to Individual 2 at the Thomas Street address at this time. Id.

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Bluebook (online)
361 F. Supp. 3d 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-peralta-nynd-2019.