UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA :

 AFFIRMATION

- V - :

07 Cr. 366 (JSR)

ROBERTO ORTIZ :

Defendant. :

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I, Robert M. Baum, hereby affirm under penalties of perjury,

pursuant to 28 U.S.C. § 1746, as follows:

1. I am an assistant Federal Defender with the Federal 

Defenders of New York and was previously assigned to represent

defendant Roberto Ortiz in this case.

2. I make this declaration in support of Roberto Ortiz’s

motion to suppress physical evidence and statements.

3. All statements herein are made upon information and

belief unless otherwise indicated. 

4. I have reviewed documents and records provided by the

Government and conducted independent investigation into the facts

and circumstances surrounding this case.

5. Roberto Ortiz is charged in the instant indictment with

one count of conspiracy to violate the narcotics laws of the

United States and one count of possession with intent to

distribute cocaine. See Indictment, Defense Exhibit A.

6. On April 15, 2007, Roberto Ortiz was in the vicinity of

1065 Boston Road in the Bronx, New York. Ortiz Affirmation

(“Aff.”) at ¶ 3.

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7. Mr. Ortiz left a building at that location in order to

remove a piece of luggage from a black Volvo with Rhode Island

plates that was parked nearby. Aff. ¶ 3-4.

8 Mr. Ortiz removed the luggage from the car and began

walking toward the building with the luggage in his possession.

Aff. ¶ 5.

9. He was stopped by a law enforcement officer who 

displayed his shield and ordered him to “stop.” Aff. ¶ 6.

10. He initially submitted to the authority of the officer

but then began to run, leaving the luggage behind at the location

of the stop. Aff. ¶ 8, and ¶ 10.

11. He was soon apprehended by law enforcement officers who

took him into custody and placed him under arrest. Prior to his

arrest he was not asked any questions. Aff. ¶ 9.

12. The law enforcement agents who arrested Mr. Ortiz were

federal DEA agents. See Complaint (“Compl.”) Exhibit B, ¶ 3.

13. When Mr. Ortiz ran from the federal agents, he was just

about to enter a building when stopped by the agent who announced

he was a police officer. Compl. ¶ 7. 

14. Another agent immediately secured the luggage which Mr.

Ortiz had left and opened it finding that inside was

approximately 15 kilograms of cocaine. Compl. ¶ 8.

14. Prior to the ordered stop of Mr. Ortiz, agents had

observed him in the lobby of a motel standing with other males.

After approximately one hour of surveillance, one male loaded a

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piece of luggage into the black Volvo which then left the area.

Compl. ¶ 4.

15. The agents followed Mr. Ortiz and other males to the

location in the Bronx, and stopped him after he retrieved the

luggage with cocaine from a parked car. No other observations

were made. 

16. The subsequent stop of Mr. Ortiz and his arrest were

conducted without reasonable suspicion or probable cause. The

innocent behavior observed by agents prior to the stop of Mr.

Ortiz did not provide any reasonable suspicion of criminal

activity. 

17. The recovery of narcotics found in the luggage that was

possessed by Mr. Ortiz and his subsequent statements, were a

direct result of the initial illegal stop and subsequent seizure

without probable cause.

WHEREFORE, and on the grounds set forth in the attached

Memorandum of Law, it is respectfully requested that this Court

enter an Order suppressing physical evidence obtained in

violation of the Fourth Amendment and Fifth Amendments to the

United States Constitution, or in the alternative, grant a

hearing on the issues raised, and any further relief as the Court

deems just and proper. 

Dated: New York, New York

June 11, 2007

_________________________

 ROBERT M. BAUM, ESQ.

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