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United States of America v. Janette Perez

August 5, 2011

UNITED STATES OF AMERICA
v.
JANETTE PEREZ, ET AL.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

A superseding indictment charges Janette Perez with conspiracy, theft of mail, and presenting false claims against the government via fraudulent tax refund checks. Perez seeks to suppress evidence that federal agents obtained from her Toyota 4Runner during a search of her home. She has also moved to prevent the Government from introducing mailboxes the agents discovered in her basement. The Court conducted hearings on Perez's motion to suppress on July 8 and 14, 2011. For the reasons stated below, the Court will deny Perez's motions.

I. BACKGROUND

On March 23, 2011, the U.S. Postal Inspection Service obtained a warrant to search Perez's home at 3005 Hellerman Street in Philadelphia. (Gov't's Opp'n to Def.'s Mot. to Suppress Ex. A [Search Warrant].) The warrant authorized the agents to seize "documents and other items concerning or reflecting social security numbers," among other documents and records relevant to tax fraud. (Id.) It described the area to be searched as "the property or premises known as 3005 Hellerman Street, Philadelphia, Pennsylvania, 19149, a two-story brick and stone row home located three doors from the corner of Battersby and Hellerman Streets." (Id.) An attachment to the warrant provided two pictures of the front of the home and also referenced a gazebo on the property. (Id.)

Postal Inspector Mary Fitzpatrick prepared the search warrant application. (July 8, 2011 Hr'g Tr. 16.) Earlier in her investigation, she had identified a mail route that appeared to service a number of non-existent addresses. (Id. at 20.) Postal inspectors "seeded the mail" with decoy checks and observed that the mail carrier assigned to that route did not return the decoy checks. (Id. at 20-21.) During a subsequent interview with law enforcement, the mail carrier admitted to working with a man named Jose, who had asked her to steal checks from the mail. (Id. at 21.) Fitzpatrick identified this man as Jose Rivera. (Id.)

Rivera worked as Perez's handyman and had a key to her home. (Id. at 21, 43.) He implicated Perez in the mail theft scheme and provided his key to Fitzpatrick and her colleagues. (Id. at 21.) The agents executed the warrant on March 24, 2011, entering Perez's home with the key they had obtained from Rivera. Perez and her boyfriend were present in the home when the agents entered. (Id. at 24-25.)

During his conversations with law enforcement prior to the search, Rivera informed the agents that Perez owned vehicles including a "brand new white Toyota 4Runner." (Id. at 28, 47.) Fitzpatrick testified that she did not request specific authorization to search the vehicle because it did not "dawn on [her] to put it in the warrant." (Id. at 50.) Nevertheless, the agents saw the vehicle in Perez's driveway when they arrived at her home. (See, e.g., July 14, 2011 Hr'g Tr. 17, 51.)

Leo Hughes, an agent assigned to the Internal Revenue Service's Criminal Investigation Division ("IRS CID"), waited at the rear of Perez's home to ensure that no one left through the back door while the other agents executed the search warrant. (Id. at 49-51.) He then saw the 4Runner, parked "immediately adjacent to the rear entrance of the home." (Id. at 51.) Fitzpatrick eventually went outside and walked around the vehicle with Hughes and another IRS CID agent, Jeffrey Brown.

(July 8, 2011 H'rg Tr. 29-30.) She saw two boxes in the 4Runner's cargo compartment, but could discern only computer equipment and file folders in one box whose lid was ajar. (See id. at 30.) Brown suggested that Fitzpatrick take a closer look. (Id.; see also July 14, 2011 Hr'g Tr. 27.) Peering through the 4Runner's tinted rear windows, Fitzpatrick then noticed Hispanic names and Puerto Rican social security numbers on the file folders' labels in the open box. (July 8, 2011 Hr'g Tr. 30.) Fitzpatrick explained that tax refund schemes often involve the use of social security numbers issued to citizens of Puerto Rico. Puerto Rican citizens are generally not required to file federal tax returns; thus, using their social security numbers reduces the risk of duplicate returns that might alert the IRS to the existence of a tax fraud scheme. (See id. at 19.) These social security numbers begin with the numbers 580 through 584, among others. (Id. at 20.)

The agents, including Brown, Hughes and Fitzpatrick, agreed that the names and numbers on the file folders indicated that there might be evidence of tax fraud in the 4Runner. (July 14, 2011 Hr'g Tr. 28.) However, Fitzpatrick believed that their search warrant did not give them authority to search the 4Runner. (July 8, 2011 Hr'g Tr. at 32-33.) They discussed obtaining another warrant, but ultimately decided to call Assistant United States Attorney Richard Zack regarding their authority to search the vehicle. (July 14, 2011 Hr'g Tr. at 28-29.) Zack, the Deputy Chief of the U.S. Attorney's Office's Economic Crimes Division, was involved in the underlying investigation and warrant application. (See July 8, 2011 Hr'g Tr. 69-70.)

Zack advised the agents that they had probable cause to search the 4Runner without a warrant. (Id. at 77-78.) He also testified at the suppression hearing that, in his view, the search was lawful "even before they saw the box in the car because the car was in - was on the premises and they had probable cause to search the premises." (Id. at 78.) Zack clarified that he felt the 4Runner was within the scope of the warrant the agents already had because it was on the premises. (Id. at 85.)

After the agents' conversation with Zack, Hughes spoke with Perez and asked her for the keys to the 4Runner. (Id. at 57). He informed her that the agents "had a valid federal search warrant for the premises. The vehicle was parked on the premises, and therefore we were covered under the warrant to search the vehicle." (Id.) Perez then turned over the keys and the agents searched the car. (See, e.g., id.)

II. STANDARD OF REVIEW

The movant bears the burden of proving, by a preponderance of the evidence, that the evidence in question should be suppressed. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) (citing United States v. Acosta, 965 F.2d 1248, 1256 n.9 (3d Cir. 1992)). "However, once the defendant has established a basis for his motion, i.e., the search or seizure was conducted without a warrant, the burden ...


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