22-1549-cr

United States v. Cruz

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 6th day of November, two thousand twenty-three.

PRESENT: RAYMOND J. LOHIER, JR.,

BETH ROBINSON,

ALISON J. NATHAN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

v. No. 22-1549-cr

JORLY CRUZ,

Defendant-Appellant.

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FOR APPELLANT: Darrell Fields, Federal 

Defenders of New York, Inc., 

New York, NY

FOR APPELLEE: Bradley T. King (Susan 

Corkery, on the brief), for Breon 

Peace, United States Attorney 

for the Eastern District of New 

York, Brooklyn, NY

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Gary R. Brown, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant Jorly Cruz appeals from a July 13, 2022 judgment of the District 

Court (Brown, J.) convicting him after a jury trial of possessing with intent to 

distribute cocaine, cocaine base, and heroin in violation of 21 U.S.C. §§ 841(a)(1) 

and 841(b)(1)(C). Cruz challenges the District Court’s denial, after a suppression 

hearing, of his motion to suppress evidence of drugs and a firearm seized during 

a warrantless search of his bedroom, as well as his pre- and post-arrest 

statements to the police. Cruz also challenges the District Court’s denial of his 

post-trial motion to reopen the suppression hearing based on newly discovered

evidence. We assume the parties’ familiarity with the underlying facts and the 
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record of prior proceedings, to which we refer only as necessary to explain our 

decision to affirm.

“On appeal from a motion to suppress, we review a district court’s 

conclusions of law de novo and its conclusions of fact for clear error.” United 

States v. McKenzie, 13 F.4th 223, 231 (2d Cir. 2021). When, as here, we review the 

denial of a motion to suppress, “we view the evidence in the light most favorable 

to the government, and we give special deference to findings that are based on 

determinations of witness credibility.” United States v. Delva, 858 F.3d 135, 148

(2d Cir. 2017) (cleaned up). Accordingly, when a district court’s factual finding

“is based on [its] decision to credit the testimony of one of two or more 

witnesses, each of whom has told a coherent and facially plausible story that is 

not contradicted by extrinsic evidence, that finding, if not internally inconsistent, 

can virtually never be clear error.” Anderson v. City of Bessemer City, 470 U.S. 564, 

575 (1985); see United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001); United 

States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990).

Understanding that “a search authorized by consent is wholly valid,” 

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), Cruz first challenges the

District Court’s finding that he voluntarily consented to the warrantless search of 
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his home. The Government has “the burden of proving that [Cruz’s] consent 

was, in fact, freely and voluntarily given.” United States v. O’Brien, 926 F.3d 57, 

75–76 (2d Cir. 2019) (quotation marks omitted). The District Court determined 

that the credible testimony of law enforcement officers, combined with 

contemporaneous written statements from the officers and Cruz adduced at the 

hearing, established that Cruz had voluntarily consented to the search of his 

bedroom. United States v. Cruz, No. 20-cr-321 (GRB) (SIL), 2021 WL 4482658, at 

*9–10 (E.D.N.Y. Aug. 13, 2021), adopted, 2021 WL 4480667 (E.D.N.Y. Sept. 30, 

2021). 

Applying clear error review, we see no basis to disturb the District Court’s 

finding that Cruz voluntarily consented to the search. At the suppression 

hearing, Officers Thomas Corso and Michael Filippazzo testified that they and

several other officers came to Cruz’s residence to search for a fugitive for whom 

they had an arrest warrant. App’x 106–07 (Corso), 190–97 (Filippazzo). Corso 

and Filippazzo testified that Cruz voluntarily gave permission for the officers to 

enter and search his residence. App’x 107–12 (Corso), 202–03 (Filippazzo). Their

testimony was corroborated by a signed statement from Cruz confirming that he 

had informed the police “to go inside and to check the house for [the fugitive]”
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and signed a form giving the officers permission to conduct a more thorough 

search of his room. App’x 88–90. Multiple officers also testified that Cruz was 

cooperative throughout the search, consistent with his initial voluntary consent. 

App’x 202–03, 337–39. 

Urging a contrary conclusion, Cruz points to suppression hearing 

testimony from two of his co-tenants that the officers entered the residence 

without first obtaining anyone’s consent and with their guns drawn. App’x 418–

20, 449–50. Based on that testimony and the fact that the same officers were 

searching for a “high risk” fugitive, carrying guns, and wearing tactical gear,

Cruz contends that the District Court should not have credited the officers’ 

testimony that they obtained consent before searching the residence. 

We disagree. The Magistrate Judge who presided over the suppression 

hearing was able to observe each witness and was entitled to find Cruz’s cotenants not credible. Cruz, 2021 WL 4482658, at *3. The Magistrate Judge also 

found that Cruz’s consent was uncoerced after pointing out that, among other 

things, Cruz was not handcuffed, threatened, or forced out of his residence at 

gunpoint. Id. at *9–10. This factual finding is not clearly erroneous. See United 

States v. Ansaldi, 372 F.3d 118, 129 (2d Cir. 2004), abrogated on other grounds by 
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McFadden v. United States, 576 U.S. 186 (2015). We accordingly affirm the District 

Court’s denial of the suppression motion based on the finding that Cruz 

voluntarily consented to the search.1

Cruz also challenges the District Court’s denial of his post-trial motion to 

reopen the suppression hearing based on the Government’s disclosure, after the 

hearing but before trial, that fingerprints found on a bag of cocaine seized from

Cruz’s room belonged to an officer not present during the initial search. We 

review a district court’s decision of whether or not to reopen a suppression 

hearing for abuse of discretion. See United States v. Bayless, 201 F.3d 116, 131 (2d 

Cir. 2000). Cruz argues that he would have used the fact that the fingerprints

belonged to the officer to impeach law enforcement witnesses who testified that 

they secured the room immediately after their initial search. The District Court 

denied the motion after concluding that the evidence was not material to the 

matters established at the suppression hearing. App’x 17. 

We agree with the District Court that the fingerprint evidence Cruz 

identified did not bear on the core finding that Cruz voluntarily consented to the 

search of his room. See United States v. Oliver, 626 F.2d 254, 260 (2d Cir. 1980) 

1 We need not and do not reach the District Court’s alternative conclusion that the 

search was a lawful protective sweep incident to the arrest warrant for the fugitive. 
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(affirming the denial of a motion to reopen where “[n]o new evidence of material 

significance was offered in support of the motion to reopen”). Accordingly, we 

conclude that the District Court did not abuse its discretion in denying Cruz’s 

motion to reopen. See id.; United States v. Tzakis, 736 F.2d 867, 872 (2d Cir. 1984). 

We have considered Cruz’s remaining arguments and conclude that they 

are without merit. For the foregoing reasons, the judgment of the District Court 

is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court