United States v. Martinez

992 F.Supp.2d 322

UNITED STATES

v.Kelvin MARTINEZ, Defendant.

No. 13 Cr. 699(PAE).

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

Jan. 16, 2014.

A. Damian Williams, Brendan Francis Quigley, U.S. Attorney's Office, New York, NY, for United States.

Glenn Andrew Garber, Glenn A. Garber, P.C., John Jacob Rieck, Jr., Doar, Rieck, Kaley & Mack, New York, NY, for Defendant.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

On a tip from an alleged co-conspirator, agents of the Drug Enforcement Agency (“DEA”) arrested defendant Kelvin Martinez on May 15, 2013, at the site of a previously arranged drug transaction. Following his arrest, the DEA searched Martinez's car and found, among other things, a kilogram of cocaine. Martinez also made several statements to agents regarding his involvement in narcotics trafficking. Martinez was later indicted and charged with distribution and possession with intent to distribute 500 grams and more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

Martinez now moves to suppress both the physical evidence seized from his vehicle and the statements made to the agents following his arrest. As to the physical evidence, Martinez claims that it was seized in violation of the Fourth Amendment. Specifically, Martinez argues that the tip to the DEA was not sufficiently reliable to support a finding of probable cause for his arrest, and that the ensuing search of his vehicle that yielded the physical evidence was therefore unlawful. As to the post-arrest statements, Martinez claims that the agents failed to adequately advise him of his Miranda rights.

On January 8, 2014, the Court held a suppression hearing on the motion to suppress Martinez's post-arrest statements, and heard argument on that motion and the motion to suppress the physical evidence seized from Martinez's car. For the following reasons, Martinez's motions to suppress the drugs seized from his car following his arrest and to suppress his post-arrest statements are denied.

I. Background

On May 15, 2013, DEA agents arrested an individual, hereinafter referred to as CC–1, on suspicion of narcotics trafficking. Following his arrest, CC–1 informed the agents that he had previously arranged to pick up one kilogram of cocaine later that evening from an individual known to him as “Kelvin Chapli,” whom CC–1 identified as Martinez, and that Martinez would be driving a white Range Rover when they met. The agents then monitored two telephone calls between CC–1 and Martinez, in which the two discussed the logistics of their upcoming meeting. In the first call, Martinez confirmed the plan to meet CC–1 shortly thereafter, on 199th Street and the Grand Concourse in the Bronx. In the second call, Martinez confirmed that he was almost at the meeting point, and that he would be driving a white vehicle.

After the agents observed Martinez arrive at the appointed location at the appointed time, driving the car described by CC–1, they arrested him. The agents then transported Martinez and his car to a nearby area, at the intersection of 205th Street & Paul Avenue in the Bronx. At that location, several agents questioned Martinez regarding the kilogram of cocaine they believed to be in his car. Martinez told the agents that he had been on his way to deliver pills to a buyer with whom he had just had a phone conversation. He also told them that the car he had been driving was registered to his father. At the same location, the agents also searched the car. That search yielded a kilogram of cocaine, as well as a quantity of pills.

On May 16, 2013, Special Agent Moises Walters of the DEA swore out a Complaint attesting to the basis for Martinez's arrest, and Magistrate Judge Frank Maas found there to be probable cause to arrest Martinez, based on the Complaint.¹See Dkt. 1, 16, Ex. 1 (“Complaint”). Martinez was released from custody, on conditions of bail.²

On September 11, 2013, a grand jury returned a one-count indictment against Martinez, charging him with distribution and possession with intent to distribute 500 grams and more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

On November 27, 2013, Martinez moved to suppress the physical evidence and the postarrest statements. Dkt. 12. In support, he filed an affidavit, Dkt. 13 (“Martinez Aff.”), and a memorandum of law, Dkt. 14 (“Def. Br.”). On December 18, 2013, the government filed a memorandum in opposition. Dkt. 16 (“Govt. Br.”). On December 23, 2013, the Court issued an order informing the parties that it would hold a suppression hearing on January 8, 2014 with respect to the motion to suppress Martinez's post-arrest statements only; the Court explained that it would resolve the motion to suppress the physical evidence on the papers. Dkt. 17. On December 26, 2013, Martinez filed a reply. Dkt. 18 (“Def. Reply Br.”).

II. Need for an Evidentiary Hearing

A defendant is not entitled to an evidentiary hearing in connection with a motion to suppress unless he can show that there are “contested issues of fact going to the validity of the search.” United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992). The defendant's moving papers must be “sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” Id. “A defendant seeking a hearing on a suppression motion bears the burden of showing the existence of disputed issues of material fact.” United States v. Washington, No. 12 Crim. 146(JPO), 2012 WL 5438909, at *8 (S.D.N.Y. Nov. 7, 2012). “In order to make the requisite showing in sufficient detail, the defendant must submit an affidavit by someone with personal knowledge that disputed facts exist.” United States v. Noble, No. 07 Crim. 284(RJS), 2008 WL 140966, at *1 (S.D.N.Y. Jan. 11, 2008). “In the absence of such an affidavit, or when the allegations contained in such an affidavit are general and conclusory, an evidentiary hearing is unnecessary.” United States v. Dewar, 489 F.Supp.2d 351, 359 (S.D.N.Y.2007); see also United States v. Barrios, 210 F.3d 355 (2d Cir.2000) (no evidentiary hearing required on motion to suppress in the absence of “an affidavit of someone alleging personal knowledge of the relevant facts”); United States v. Del Rosario, No. 12 Crim. 81(KBF), 2012 WL 1710923, at *2 (S.D.N.Y. May 11, 2012) (“[C]ourts have repeatedly stated that defendants must present a sworn affidavit from a person with knowledge of the underlying facts—and that in the absence of such an affidavit an[ ] evidentiary hearing is unnecessary.”) (collecting cases).

A. Physical Evidence

With respect to the motion to suppress the physical evidence, Martinez's submissions fail to establish an issue of material fact. Regarding his arrest and the subsequent search of his car, Martinez's affidavit is silent; that document relates solely to his post-arrest statements. Martinez has supplied nothing more than the single-sentence statement in his attorney's brief that “[a] hearing may reveal the totality of what the agents knew.” Def. Br. 3. But “[s]tatements submitted by an attorney in motion papers before a district court ‘cannot by themselves create a factual issue.’ ” Washington, 2012 WL 5438909, at *9 (quoting U.S. v. Mottley, 130 Fed.Appx. 508, 509–10 (2d Cir.2005)). And Martinez's counsel's conclusory statement does not contradict the facts recited in the Complaint. Indeed, Martinez and the government appear to be in agreement as to the facts; they instead disagree whether those facts supplied probable cause for an arrest. Thus, there is no basis for an evidentiary hearing. See Washington, 2012 WL 5438909, at *9 (denying evidentiary hearing on motion to suppress evidence seized following arrest, although defendant contested the existence of probable cause, because “Defendant and the Government [did not] offer divergent accounts that can only be resolved through credibility assessments and other evidentiary determinations”); United States v. Tavarez, 518 F.Supp.2d 600, 607 (S.D.N.Y.2007) (evidentiary hearing not warranted because defendant's declaration did not establish a disputed issue of material fact; “[n]othing submitted by [the defendant] contradicts the assertions in the Complaint concerning the [informant's] discussions with [defendants], or the observations made by law enforcement officers”).

In so holding, the Court does not suggest that a factual hearing may never be warranted except where a defendant can challenge, on the basis of the attestation of a percipient witness, the asserted basis for probable cause. In limited circumstances, such a hearing may be merited where the decisive facts are known only to the Government. For example, where the existence of probable cause to arrest a defendant turned on an uncorroborated tip from an informant whom an agent subjectively attests has historically proven reliable, there may be a basis to permit the defense to test, at an evidentiary hearing, the agent's claim of such historical reliability, even though the defense may lack a percipient witness into the reliability of the informant's prior tips. See, e.g., United States v. Shamsideen, No. 03 Crim. 1313(SCR), 2004 WL 1179305, at *9–*10 (S.D.N.Y. Mar. 31, 2004) (evidentiary hearing warranted in the absence of concrete factual dispute where the government had provided only vague and conclusory statements regarding the reliability of its confidential informants); accord Washington, 2012 WL 5438909, at *9.

Such, however, is not the case here. Martinez does not argue that the agents relied on CC–1's past reliability in assessing probable cause. See Def. Br. 3 (“The information did not come from someone who had established himself as reliable in the past.”); Def. Reply Br. 2 (agents relied on “source ... without any history of providing reliable information in the past”). Nor could he: Agent Walters' Complaint did not claim any historical relationship or...