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United States v. Cruz

April 23, 2010

UNITED STATES
v.
KENNETH CRUZ



The opinion of the court was delivered by: Juan R. Sánchez, J.

MEMORANDUM

On May 27, 2008, Defendant Kenneth Cruz was charged with seven counts of distribution of heroin,*fn1 two counts of possession with intent to distribute heroin,*fn2 one count of possession with intent to distribute cocaine base (crack),*fn3 one count of simple possession of cocaine,*fn4 one count of possessing a firearm in furtherance of a drug trafficking crime,*fn5 and two counts of possessing a firearm while a convicted felon.*fn6

Cruz asks this Court to suppress the drug and gun evidence recovered from a search of his suitcase and jacket. Cruz argues the warrantless seizure of his suitcase and jacket was unconstitutional because (1) a third party, Peggy Espada, had no authority to consent to the items' seizure; (2) any consent by Espada was involuntary; and (3) no exigent circumstances existed to justify a warrantless seizure. The Government argues (1) Cruz does not have standing to challenge the search that resulted in the seizure of his suitcase and jacket; (2) Espada had actual and apparent authority to consent to the seizure of Cruz's items; (3) the warrantless seizure of Cruz's items was justified by exigent circumstances at the time of the search; and (4) Cruz abandoned the items and therefore no longer had a reasonable expectation of privacy in them. The Court finds Espada had actual authority to consent to the seizure of Cruz's jacket and suitcase and further concludes her consent was voluntary. Thus, officers were permitted to seize Cruz's items. Cruz's motion to suppress will be denied.

FACTS

1. On eight separate occasions between January 2007 and June 2007, Cruz sold heroin to an undercover Berks County Police Department Detective, Edwin Santiago. In June 2007, Cruz also sold Santiago a Stevens Arms.22 caliber rifle.

2. On September 26, 2007, Berks County Detective Leon Domsic obtained a warrant for Cruz's arrest. Santiago called Cruz to arrange a meeting.

3. Cruz was arrested after leaving a residence at 1063 Patton Avenue, Philadelphia, Pennsylvania. Officers searched Cruz and found 21 packets of heroin and a key to the 1063 Patton Avenue residence.

4. Berks County officers had observed Cruz leave the 1063 Patton Avenue residence immediately before several of the controlled drug buys, but officers did not procure a warrant to search the property prior to Cruz's arrest.

5. Officers requested Cruz's permission to search the residence. Cruz told officers he did not live there and therefore could not consent to the search.

6. Officers knocked on the door and Peggy Espada opened it. Berks County Detective Scott Errington told Espada that police officers had just arrested Cruz and recovered heroin from his pocket. Errington also informed Espada that police previously made several purchases of heroin from Cruz, and, immediately prior to several of those purchases, Cruz had come from the 1063 Patton Avenue residence. Errington told Espada he suspected there was heroin in her residence and asked for her consent to search the premises.

7. Espada refused to give police officers consent to search. She told the officers that Cruz did not live at the 1063 Patton Avenue residence, but that he visited on occasion to see his children and had stayed there the night before.

8. Officers explained they would stay at the residence while they attempted to procure a search warrant. After talking with the officers, Espada eventually agreed to consent to a search of her residence. Domsic produced a written consent form. The form stated, in all capital letters, that the signatory has the right to refuse to consent to search. The form also stated that the signatory agrees police officers made no threats or promises in connection with the signatory's consent to search. Domsic explained the form to Espada. Espada signed the consent form, thereby authorizing police to search her home.

9. Espada told officers Cruz kept a suitcase containing his belongings in her bedroom and that she would identify his belongings. Immediately after signing the consent form, Espada led officers to her bedroom, where she identified a suitcase and jacket as Cruz's property.

10. The suitcase and jacket were located in a closet in Espada's bedroom. The jacket was a man's jacket, sized double-extra large. The ...


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