United States v. Serrano

937 F. Supp. 2d 366, 2013 U.S. Dist. LEXIS 50996, 2013 WL 1427212
CourtDistrict Court, E.D. New York
DecidedApril 9, 2013
DocketNo. 11-cr-805 (WFK)
StatusPublished
Cited by2 cases

This text of 937 F. Supp. 2d 366 (United States v. Serrano) is published on Counsel Stack Legal Research, covering District Court, E.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. Serrano, 937 F. Supp. 2d 366, 2013 U.S. Dist. LEXIS 50996, 2013 WL 1427212 (E.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

WILLIAM F. KUNTZ II, District Judge.

By indictment filed December 1, 2011, Isfrain Jose Serrano (“Defendant”) is charged with conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine and heroin, in violation of 21 U.S.C. § 841(a)(1). Defendant moves this Court pursuant to Federal Rules of Criminal Procedure 12(b)(3) and (41)(h) to suppress evidence recovered from his residence and statements made by him after his arrest. For the reasons that follow, the motion is denied.

BACKGROUND AND FINDINGS OF FACT

This Court held a suppression hearing on October 18, 2012 and November 14, 2012 (the “Hearing”). At the Hearing, the Government presented seven witnesses: New York City Police Department (“NYPD”) Lieutenant Jerry Caicedo, NYPD Detectives Jose Morales and Joshua Rosenbaum, Suffolk County Police Department (“SCPD”) Detective Patrick Walsh (retired), SCPD Deputy Sheriff Sergeant Jeffrey Bolettieri, Drug Enforce[369]*369ment Administration (“DEA”) Agent David Campbell, and Village of Hempstead Police Department Detective Michael Bornstein. Defendant did not present any witnesses.

Upon consideration of the motion, Hearing evidence, and post-Hearing briefing, the Court finds the following facts to be true.

Early Investigation of Defendant

In September 2011, Officer Bolettieri and Agent Campbell met with a cooperating witness (“CW”). Hearing Tr. at 367:2-370:22; Sealed Aff. by Jeffrey Bolettieri in Supp. of App. for Arrest Warrant and Search Warrant (“Bolettieri Aff.”), at ¶ 3. At the debriefing, the CW identified Defendant as having participated in a narcotics transaction in March 2011. Hearing Tr. at 287:2-24, 369:1-11. Law enforcement agents, who had already been investigating the CW at that time and had conducted surveillance of the March 2011 transaction, confirmed that Defendant was the same person they had seen at the transaction. Hearing Tr. 287:2-24, 367:2-372:1, 425:23^27:5, 511:11-16.

The CW advised law enforcement officers that he had regularly purchased cocaine and heroin from Defendant at the Defendant’s residence since 2008. Id. at 369:12-370:22; Bolettieri Aff. at ¶ 3. The CW also stated that he had personally observed narcotics, firearms, a kilogram press, and large quantities of cash in either Defendant’s residence or the basement of the same building. Hearing Tr. at 369:12-370:22; Bolettieri Aff. at ¶ 3. Based on the CW’s purchases of narcotics from Defendant and his' personal observations of narcotics deliveries and sales while ‘present in the Defendant’s residence, the CW estimated Defendant sold about four or five kilograms of cocaine per week. Hearing Tr. at 428:21-429:4; Bolettieri Aff. at ¶ 3. In October and November 2011, law enforcement agents recorded conversations between the CW and Defendant in which the CW expressed interest in purchasing coeainé, heroin, and firearms, and Defendant indicated that he could obtain and sell the requested narcotics to the CW.1 Hearing Ex. 9A at 29:26-33, 31:00-20, 33:13-34:1; Bolettieri Aff. at ¶ 6.

The Warrant Application

On November 3, 2011, Officer Bolettieri filed an application with this Court seeking an arrest warrant for Defendant, as well as a search warrant to search Defendant’s first floor apartment in Brooklyn and the basement of the premises, located at 144 Kingsland Avenue. Dkt. No. ll-mj-1090, ECF No. 1. According to Officer Bolettieri’s supporting affidavit, the DEA had probable cause to believe Defendant was “involved in the distribution of kilogram-quantities of cocaine and other controlled substances” and had used his residence “as his base of operations for narcotics-reláted activities,” such as by “storing] cocaine ... for short periods of time before distributing cocaine to other co-conspirators.” Bolettieri Aff. at ¶ 2.

[370]*370Officer Bolettieri’s affidavit relied on three pieces of evidence to establish probable cause. First; the affidavit relied on information provided by the CW regarding Defendant’s drug trafficking activities, as detailed above. Bolettieri Aff. at ¶ 3. The affidavit admitted that the CW had recently been charged with conspiracy to distribute cocaine and was cooperating with the government with the hope of receiving a reduced sentence. Id. The affidavit also stated that information provided by the CW had proven to be reliable in the past and had been corroborated in this case by independent evidence, including recorded conversations between the CW and Defendant. Id.

Second, Bolettieri’s affidavit relied on a recorded in-person conversation between Defendant and the CW, which occurred on October 13, 2011. Id. at ¶ 5. In that conversation, according to the affidavit, Defendant confirmed that he could obtain and sell cocaine and heroin to the CW at $32,000 and $65,000 per kilogram, respectively. Id. The CW attempted to purchase $200 of heroin on the spot, but Defendant stated that he was not “keeping nothing” in his residence because he was concerned he was being watched by law enforcement. Id. The CW also expressed interest in purchasing pistols, but Defendant indicated he did not have any. Id. The CW then inquired about Defendant’s own gun, but the response was inaudible on the recording. Id. In his debriefing, however, the CW revealed that Defendant had replied that he had a firearm on the premises. Id.

Third, Bolettieri’s affidavit relied on a recorded telephone conversation, which took place between Defendant and the CW on November 2, 2011. Id. at ¶ 6. During that conversation, according to the affidavit, the CW placed an order for a kilogram of cocaine and indicated that he would come by Defendant’s residence early the next day to pick it up. Id. Later that day or sometime the next day, Defendant confirmed that the drugs would be delivered on November 3, 2011. Id.

The Approved Warrants

On November 3, 2011, Magistrate Judge Victor Pohorelsky issued an arrest warrant for Defendant and a search warrant for Defendant’s first floor apartment and the basement in the same building. Dkt. No. ll-mj-1090, ECF Nos. 2 and 3. The warrant authorized law enforcement officers to seize:

narcotics, firearms, scales, cutting agents, other drug paraphernalia, wrapping materials, including plastic bags and rubber bands, discarded wrappers and other materials used to conceal and transport narcotics, money counters, machines used to package narcotics, surveillance equipment, telephones, SIM cards, currency, financial records, including rental agreements, utility bills, telephone bills and gas bills, car ownership récords, safes, drug records and money laundering records, including ledgers, papers, computer records and other documents reflecting information such as names, telephone numbers, addresses and financial records of individuals involved in trafficking in narcotics, books and records showing cash transactions and prices and/or quantities of narcotics purchased and payments received, correspondence, facsimiles, memoranda, canceled checks, drafts, wire transfer receipts, money orders, notes and notebooks.

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Cite This Page — Counsel Stack

Bluebook (online)
937 F. Supp. 2d 366, 2013 U.S. Dist. LEXIS 50996, 2013 WL 1427212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-serrano-nyed-2013.