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United States v. Perez

May 21, 2009

UNITED STATES OF AMERICA,
v.
FRANCISCO D. PEREZ, DEFENDANT



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane)

MEMORANDUM

I. INTRODUCTION

Pending before the Court is Defendant Francisco Perez's motion to suppress evidence seized from his home in Reading, Pennsylvania, following his warrantless, in-home arrest. (Doc. No. 32.)*fn1 The Court heard evidence and argument on the motion over the course of two hearings, held on August 28, 2008, and November 4, 2008. For the reasons that follow, the Court finds that the motion must be denied because Perez's wife consented voluntarily to law enforcement officers' request for permission to search the house, and the search was therefore lawful.

II. FACTUAL BACKGROUND*fn2

On April 20, 2008, a Missouri State Trooper stopped a tractor trailer traveling eastbound on Interstate 70. The truck's driver consented to the trooper's request to search the trailer and the subsequent search revealed between 350 and 400 pounds of marijuana.*fn3 (Transcript 6) (hereafter "T. __".) The driver agreed to cooperate with law enforcement officers and to serve as a confidential source of information regarding the destination of the drugs. (T. 6.)

The confidential source informed investigators that he intended to deliver between 350 and 400 pounds of the marijuana to two individuals in Reading, Pennsylvania, whom he identified only as "Frank" and "Timo." (T. 6-7.) DEA agents showed the confidential source a photograph of a target from the Reading area known as "Timo," and the source confirmed that this was one of the two men to whom he was delivering the drugs. (T. 7.) Investigators later determined that "Timo" was the nickname of Defendant Cauhtemoc Remingio-Martinez. (T. 7-8.) The confidential source also told investigators that "Frank" lived in the area of 510 Minor Street in Reading, Pennsylvania. (T. 9.) Investigators subsequently consulted computer databases and determined that a Francisco Perez had vehicles registered to him at the 510 Minor Street address. (T. 11.) The confidential source advised investigators that Perez recruited him to become involved in drug trafficking and that the confidential source lived three houses from 510 Minor Street. (T. 11.)

Members of a DEA investigative team arranged for a controlled delivery of the drugs to Perez and Remingio-Martinez in Pennsylvania. On April 20, 2008, the confidential source participated in monitored telephone calls with Messrs. Perez and Remingio-Martinez concerning arrangements for the delivery of the marijuana to take place the following day. (T. 12.)

On April 21,2008, the date on which the controlled delivery to Perez and Remingio- Martinez was to take place, Corporal Todd Harris of the Pennsylvania State Police conducted surveillance on Mr. Perez, including following him as he drove in the city of Reading. (T. 15-16.) At some point, officers observed Mr. Perez driving in a manner that suggested counter-surveillance and Corporal Harris suspended his surveillance efforts. (T. 16.) Also on April 21, Mr. Remingio-Martinez drove a car registered to Perez to Richland, Pennsylvania, where he met with the confidential source and accepted delivery of one box of marijuana, which he placed in Perez's car. (T. 16-17, 89.) The transaction was monitored on videotape. (T. 19.) Mr. Remingio-Martinez was thereafter arrested at the scene and taken to a neutral location. (T. 17.) Mr. Perez never appeared at the Richland location where the drug sale took place.

Following this transaction, Mr. Remingio-Martinez's cell phone received several calls from Perez and some of these calls may have been recorded and monitored by law enforcement officers.*fn4 (T. 17.) Agent Mihalopoulos attested that during other calls with the confidential source, Mr. Perez appeared to be nervous at his inability to reach Mr. Remingio-Martinez and gave some indication that he might leave the Reading area and travel to New Jersey. (T. 19.) Upon consideration of the communications from Mr. Perez to Mr. Remingio-Martinez and the confidential source, and the circumstances of the investigation, including the difficulty of conducting surveillance in the area of 510 Minor Street and the concern that Mr. Perez may flee to New Jersey, Agent Mihalopoulos believed that there was sufficient probable cause and exigent circumstances to arrest Mr. Perez without first securing a warrant. (T. 19-20.)

Having received information from others involved in the investigation that Mr. Perez was believed to be home, at around 7:00 p.m. on April 21, 2008, Corporal Harris, Detective Pasquale Leporace of the Reading Police Department, and five other law enforcement officers arrived at 510 Minor Street intending to place Mr. Perez under arrest. (T. 91, 114, 124.) The attending officers were not uniformed but were wearing raid vests or other attire clearly showing them to be law enforcement officers. (T. 92, 126.) The front door of the residence was open and Corporal Harris knocked on the screen door. (T. 92, 125-26.) Shortly thereafter, a woman later determined to be Francisco Perez's wife, Judy, opened the door and engaged in a brief conversation with Corporal Harris.*fn5 (T. 93, 126.) Soon after making contact with Mrs. Perez, officers observed Francisco Perez and another man, later identified as Hector Quiles, seated on couches in the living room. Corporal Harris testified that he saw Mr. Quiles place his hand between cushions or pillows on the couch, which suggested that he may have been either retrieving a hidden object or discarding an unknown item. (T. 114.) Upon witnessing Mr. Quiles reaching into the couch, Corporal Harris made a forced entry into the house, drew his weapon, instructed the accompanying officers to watch the men's hands, and placed both men under arrest. (T. 127-28.) After officers conducted a cursory search of the couch, they discovered a bag containing a substance that appeared to be marijuana. (T. 128.)

After Messrs. Perez and Quiles were arrested, Corporal Harris asked Judy Perez to talk with him in the kitchen. During this conversation, Corporal Harris's weapon was holstered and there was only one other officer present. (T. 129.) Corporal Harris explained to Mrs. Perez why the officers had arrived at the home, the nature of the investigation that DEA was conducting, and the fact that her husband was being detained as a suspect in a drug trafficking conspiracy.

(T. 129.) Corporal Harris further explained that Mrs. Perez was not suspected of any wrongdoing and was not under investigation. (T. 130.) He did ask whether Mrs. Harris had any knowledge of her husband being involved in drug trafficking; she replied that she did not. (T. 130.) At this point, Corporal Harris requested permission to search the home and read Mrs. Perez the State Police's standard consent form which, among other things, advises parties that they are not required to give their consent. (T. 130.) Following this discussion, Mrs. Perez verbally consented to Corporal Harris's request and also signed the consent form provided, as did Corporal Harris and Trooper Paul Gauntlett, ...


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