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United States v. Ortiz

September 14, 2010

UNITED STATES OF AMERICA
v.
JOSE M. ORTIZ, JR.



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Presently before the court is a motion (Doc. 17) to suppress evidence, filed by defendant Jose M. Ortiz, Jr. ("Ortiz"). The court held an evidentiary hearing on Ortiz's motion on July 1, 2010.*fn1 For the reasons that follow, the motion will be denied.

I. Findings of Fact*fn2

On March 10, 2010, around 1:10 p.m., various members of the York County Drug Task Force were conducting a drug investigation into the distribution of heroin in the city of York, York County, Pennsylvania. (Hr'g Tr. at 2). Trooper Wolf, a member of the Pennsylvania State Police Troop H Vice and Narcotics Unit and the York County Drug Task Force,*fn3 was working with a confidential informant ("CI") who indicated he/she could purchase a quantity of heroin from an individual he/she knew as "Junior." (Id.) From a photograph the CI identified the individual known as "Junior" as the defendant, Jose M. Ortiz, Jr. ("Ortiz"). (Id. at 3). The CI placed a call to the individual he/she knew as Junior and arranged a meeting location for the drug buy-a garage at 100 Church Avenue, York, Pennsylvania, owned by Ortiz. (Id.) Prior to the meeting, the CI was searched for contraband. (Id. at 4). No contraband was found. (Id.)

The CI was provided with $1100 for the transaction, after which Detective Fenstermacher, supervisor of the York County Drug Task Force, transported the CI to the arranged location. (Id.) Officers observed the CI approach the garage, the garage door roll up, the CI enter, and the garage door roll back down. (Id. at 32-33). A few minutes later the CI exited the garage, (id. at 31), and returned to the vehicle of Detective Fenstermacher, where the CI turned over 15 bundles (or 150 bags) of heroin. (Id. at 5).

After the deal, another task force member, Detective Nadzom, observed Ortiz exiting his garage and entering a gravel lot in a fenced area of the property. (Id. at 30.) A six to seven foot tall fence with a gate surrounded much of the property, and a four to five foot brick or cinder block wall surrounded another portion of the property. (Id. at 14-16, 43, 49). Detective Nadzom observed Oritiz standing next to the four to five foot brick or concrete wall speaking with a neighbor. (Id. at 17, 39).

As soon as the drugs were in Detective Fenstermacher's possession, the arrest signal was given by Detective Nazdom. (Id. at 31-32). Officers entered the property to execute the arrest, some jumping over the fence, others entering through a gate.*fn4 (Id. at 14). Ortiz was placed in custody and then escorted back towards his garage where he was handcuffed, informed of his Miranda rights, and told why he was being arrested. (Id. at 6). Officers had neither an arrest warrant nor a search warrant at the time of Ortiz's arrest. (Id. at 20). During the search of Ortiz incident to his arrest, Ortiz was found to be in possession of the $1,100 used for the buy, $160 in his wallet, $76 in his left front pocket, and a cellular telephone with a phone number that matched the number dialed by the CI to arrange the transaction. (Id. at 11).

Trooper Wolf, who had escorted Ortiz into his garage, proceeded to engage Mr. Ortiz in conversation. (Id. at 6-7). Corporal Hassinger was also present while two other troopers with the Pennsylvania State Police remained in the area, but not within the garage. (Id.) No weapons were drawn. (Id. at 7). Trooper Wolf asked Ortiz if there was anything illegal in the garage and orally requested permission to search the garage. (Id.). Ortiz consented to a search of the garage indicating there was nothing illegal present. (Id. at 52).

Trooper Wolf continued the conversation, asking Ortiz about his residence. Ortiz eventually related that he had 30-40 grams of heroin, approximately $8,000 cash, and a handgun at his residence located at 106 East College Avenue, York, Pennsylvania. (Id. at 7-8). Ortiz orally consented to a search of the College Avenue address while in the garage.*fn5 (Id. at 26, 40). Trooper Wolf then escorted Ortiz to the front passenger seat of his vehicle and drove Ortiz to the 106 College Avenue residence. (Id. at 16). Trooper Wolf pulled his vehicle inside the attached garage at the rear of that residence. (Id.) Officers were already present inside the home.*fn6 (Id. at 25). Ortiz requested to use the restroom and was permitted to use the one in his garage. (Id.)

Trooper Wolf continued to converse with Ortiz in the residence garage and presented him with a consent-to-search form. (Id. at 9). Trooper Wolf read the entire consent form aloud for the benefit of Mr. Ortiz. (Id.) Trooper Wolf escorted Ortiz into the kitchen, and Ortiz was permitted to make a cup of coffee. (Id. at 10). Trooper Wolf went over the consent form again. (Id.) Ortiz was cooperative, indicated that he was familiar with the system, and repeatedly stated that he had no questions about what was going on. (Id. at 23). While sitting at the kitchen table, in the presence of Trooper Wolf and Corporal Hassinger, Ortiz signed the consent form to search the house and attached garage at 106 College Avenue and the garage and vehicles at 100 Church Avenue. (Id. at 23-24; Gov't Exhibit 1). The consent form was signed at 1:45 p.m., (Gov't Exhibit 1), after which officers commenced the search.

On April 21, 2010, Ortiz was indicted by a grand jury for offenses related to his alleged drug trafficking activities and for being a felon in possession of a firearm. He pled not guilty to the charges on May 4, 2010. In the instant motion to suppress, Ortiz seeks to exclude the evidence found on his person after the arrest and the evidence discovered in the search of his residence and garages. This motion has been fully briefed and is ripe for disposition.

II. Discussion

A. The ...


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