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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA :

- v. - :

07 Cr. 366 (JSR)

ROBERTO ORTIZ :

Defendant. :

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ROBERTO ORTIZ’S

MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS

LEONARD F. JOY, ESQ.

Federal Defenders of New York

Attorney for Defendant

 Roberto Ortiz

52 Duane Street - 10 Floor th

New York, New York 10007

Tel.: (212) 417-8760

ROBERT M. BAUM, ESQ.

 Of Counsel

TO: MICHAEL J. GARCIA, ESQ.

United States Attorney

Southern District of New York

One St. Andrew’s Plaza

New York, New York 10007

Attn: MARSHALL A. CAMP, ESQ.

 Assistant United States Attorney

Case 1:07-cr-00366-JSR Document 7 Filed 06/11/2007 Page 1 of 9
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA :

- v.- :

07 Cr. 366 (JSR)

ROBERTO ORTIZ :

 

Defendant. :

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT

ROBERTO ORTIZ’S MOTION TO SUPPRESS 

PHYSICAL EVIDENCE AND STATEMENTS

PRELIMINARY STATEMENT

Defendant Roberto Ortiz, by undersigned counsel,

respectfully submits this Memorandum of Law in support of his

Motion to Suppress physical evidence and statements. 

Mr. Otiz is charged in a two-count indictment with a

violation of Title 21 U.S.C. §841(b)(1)(b), charging him with

conspiracy to violate the narcotics laws and possession of

cocaine with intent to distribute. He seeks an order suppressing

physical evidence and statements as having been obtained in

violation of his constitutional rights pursuant to the Fourth and

Fifth Amendments.

STATEMENT OF FACTS

As set forth in the attached Affirmations of Roberto Ortiz

and defense counsel, Mr. Ortiz was arrested on April 15, 2007, on

a public street in Bronx County. See Ortiz Affirmation

(hereinafter “Ortiz Aff.”), at ¶ 9. He was under observation by a

Case 1:07-cr-00366-JSR Document 7 Filed 06/11/2007 Page 2 of 9
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team of DEA agents and first observed in the lobby of a motel

where he was seen speaking with other males. Compl. ¶ 4.

Approximately one hour later, two males left the motel and were

observed placing a piece of luggage into a black Volvo with Rhode

Island license plates. Compl. ¶ 4.

The black Volvo drove to a location in the Bronx and parked.

Approximately 25 minutes later, Roberto Ortiz was observed

removing a piece of luggage from the Volvo. Compl. ¶ 6-7. When he

began to enter a building at 1065 Boston Road, he was ordered to

“stop” by a DEA agent who identified himself as a police officer

and displayed his shield. Compl. ¶ 7. Mr. Ortiz initially

submitted to his authority and stopped. He then left the luggage

and ran. Ortiz Affirm. ¶ 8. He was soon caught by the agent and

placed under arrest. At the same time, another agent secured the

luggage and searched it, finding approximately 15 kilograms of

cocaine. Compl. ¶ 8. 

When Mr. Ortiz was stopped and subsequently arrested, he had

not been observed to be engaged in any activity which would cause

an objective observer to have reasonable suspicion to believe

that criminal activity might be afoot. His subsequent flight from

the scene did not in itself provide probable cause to engage in a

subsequent arrest. All statements made after his detention and

arrest are a result of the initial illegality. In addition, all

physical evidence seized as a result of the initial unlawful stop

Case 1:07-cr-00366-JSR Document 7 Filed 06/11/2007 Page 3 of 9
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is similarly a result of initial illegality.

ARGUMENT

THE WARRANTLESS STOP AND SEIZURE OF 

ROBERTO ORTIZ ON THE STREET AND THE 

SUBSEQUENT SEIZURE FOLLOWING HIS FLIGHT 

WERE WITHOUT REASONABLE SUSPICION OR 

PROBABLE CAUSE AND ALL EVIDENCE AND

STATEMENTS OBTAINED AS A DIRECT RESULT

OF THIS ILLEGALITY MUST BE SUPPRESSED 

UNDER THE FOURTH AND FIFTH AMENDMENTS 

AS “FRUIT OF THE POISONOUS TREE”

The Fourth Amendment proscribes that “[T]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated ... .” It is well established that warrantless searches

and seizures are per se unreasonable under the Fourth Amendment

unless they fall within one of several recognized exceptions.

Katz v. United States, 389 U.S. 347, 357 (1967). An investigatory

detention, in other words, a brief seizure by police based upon

“a reasonable suspicion supported by articulable facts” that

criminal activity ‘may be afoot,’” is a narrowly drawn exception

to the probable cause requirement of the Fourth Amendment. United

States v. Sokolow, 490 U.S.1, 7 (1989)(quoting Terry v. Ohio, 392

U.S. 1, 30 (1968). 

In the instant case, the evidence must be suppressed because

the federal agents initially did not have a reasonable,

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articulable basis to believe that Roberto Ortiz had committed or

was about to commit a crime. Even if the federal agent’s command

to “stop” accompanied by identifying himself as a police officer

was with the intent to engage in a Terry stop, there had been no

basis for such police action. “Reasonable suspicion” that Mr.

Ortiz had committed or was about to commit a crime requires that

a police officer ”must be able to articulate something more than

inchoate and unparticularized suspicion or ‘hunch.’” United

States v. Sokolow, 490 U.S. at 7, citing Terry v. Ohio, 392 U.S.

at 27. When the DEA agent approached Mr. Ortiz the cumulative

result of over one hour of surveillance had revealed nothing but

innocent behavior. 

The Government will undoubtedly argue that the initial

encounter with a DEA agent and his order to “stop” was nothing

more than a Terry stop. As a brief detention for questioning, it

would otherwise constitute an exception to the warrant

requirement of the Fourth Amendment. However, there still must be

specific articulable facts that reasonably warrant suspicion of

criminal activity. Even then, the Fourth Amendment requires some

minimal level of objective justification for making the stop. INS

v. Delgado, 466 U.S. 210, 216-217 (1984). None exists.

In fact, the directive to stop, accompanied by identifying

oneself as a police officer, and the blocking of the defendant’s

ability to enter the building, constitutes not a less-invasive

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Terry stop, but rather a seizure, which requires probable cause.

An individual can be said to have been seized by the police if in

all the surrounding circumstances, a reasonable person would have

believed that he was not free to leave. Michigan v. Chesternut,

486 U.S. 567, 573 (1988)(quoting United States v. Mendenhall, 446

U.S. 544, 554 (1980) (opinion of Stewart, J.). This inquiry

requires an objective assessment of the overall coercive effect

of the police conduct. Id. at 573-74. Examples of circumstances

which may indicate a seizure include “the threatening presence of

several officers, the display of a weapon by an officer, ... or

the use of language or tone of voice indicating that compliance

with the officer’s request might be compelled.” See Mendenhall,

446 U.S. at 554; United States v. Perea, 986 F.2d 633, 645 (2nd

Cir. 1993) United States v. Moreno, 897 F.2d 26, 30, (2nd Cir.),

cert. denied 497 U.S. 1009 (1990); United States v. Sugrim, 732

F.2d 25, 28 (2nd Cir. 1984); United States v. Lee , 916 F.2d 814,

819 (2nd Cir. 1990).

Mr. Ortiz’s subsequent flight from the scene under certain

circumstances may provide reasonable suspicion to warrant a Terry

stop, (see Illinois v. Wardlow 528 U.S. 119, 124-125 [2000]),

but when Mr. Ortiz was subsequently stopped a few blocks from the

location where he was initially stopped, he was not subjected to

a Terry stop, he was taken into custody and placed under arrest.

(“[W]henever a police officer accosts an individual and restrains

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his freedom to walk away, he has ‘seized’ that person.”)(Terry v.

Ohio 392 U.S. at 16.). 

The exclusionary rule “prohibits the introduction of

derivative evidence, both tangible and testimonial, that is the

product of the primary evidence, or that is otherwise acquired as

an indirect result of the unlawful search ...” Murray v. United

States, 487 U.S. 533, 536-537 (1988).

It is also axiomatic that the fruit of the poisonous tree,

the initial illegality, is subject to the exclusionary rule. Wong

Sun v. United States, 371 U.S. 471 (1963). As a result, the

subsequent search of the luggage and the cocaine discovered as

well as the subsequent statements made by Mr. Ortiz, must be

suppressed.

THE SEIZURE OF THE LUGGAGE

AND SUBSEQUENT DISCOVERY OF

DRUGS MUST BE SUPPRESSED AS

FRUIT OF THE INITIAL ILLEGALITY

AND NOT VIEWED AS ABANDONED PROPERTY

Abandoned property is not covered by the Fourth Amendment. 

Abel v. United States, 362 U.S. 217, 241 (1960). However, if the

abandonment is the product of unlawful police activity, the

property itself, or a search of the property, is tainted by the

illegality, and is inadmissible. Wong Sun v. United States, 371

at 488; United States v. King, 990 F.2d 1552, 1563 (10th Cir.

1993); United States v. Wood, 981 F.2d 536 (D.C.Cir. 1992)

(suppressing gun that defendant dropped after being illegally

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stopped); United States v. Wilson, 953 F.2d 116 (4th Cir.

1991)(abandonment during flight from illegal stop). Here, Mr.

Ortiz’s abandonment of his bag was the product of an unlawful

stop or seizure and thus the fruits of any search of that bag are

inadmissible against him at trial.

In United States v. Arenas, 37 F.Supp. 2d 322 (S.D.N.Y.

1999), Judge Chin suppressed evidence under similar

circumstances. The defendant and two other males were observed

for a substantial period of time engaging in innocent behavior.

The police were nevertheless suspicious and stopped the defendant

and two others by yelling “stop,” displaying their shields, and

identifying themselves as police officers. Id. at 325. The

defendant then dropped his jacket to the ground. It was recovered

by the police who found a weapon in the pocket. The District

Court found no basis for a Terry stop, no abandonment, and

suppressed the physical evidence. 

In this case, Mr. Ortiz left his bag after he was ordered to

“stop.” Leaving the bag was occasioned by this illegal stop, and

was thus illegally obtained. Since it is clear that the agent

did not have probable cause to search the bag, and would not have

been able to do so absent the “abandonment,” the search itself

was illegal and the physical evidence recovered during that

search must be suppressed. Cf. United States v. Jackson, 544

F.2d 407, 410-11 (9th Cir. 1976). 

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CONCLUSION

For the foregoing reasons, Roberto Ortiz respectfully

requests that the Court issue an order suppressing the physical

evidence and statements illegally obtained in violation of his

Fourth Amendment rights, as a direct result of an arrest and

seizure made without probable cause, and for such other and

further relief as the Court deems just and proper, including the

filing of post-hearing memoranda if deemed necessary.

Dated: New York, New York

 June 11, 2007

Respectfully submitted,

LEONARD F. JOY, ESQ.

Federal Defenders of New York

By: ____________________________

ROBERT M. BAUM, ESQ.

Assistant Federal Defender

Attorney for Defendant

ROBERTO ORTIZ

52 Duane Street - 10 Floor th

New York, New York 10007

TO: MICHAEL J. GARCIA, ESQ.

United States Attorney

Southern District of New York

One St. Andrew’s Plaza

New York, New York 10007

ATTN: MARSHALL A. CAMP, Esq.

Assistant United States Attorney

 

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