United States District Court, D. New Jersey
OPINION & ORDER
MCNULTY UNITED STATES DISTRICT JUDGE
Yasmil Minaya filed an omnibus set of motions. (DE 84) Most I
decided by a prior order, entered after full briefing,
multiple supplemental submissions, and oral argument. (Order,
DE 101, entered April 1, 2019) I reserved decision, however, as
to two motions:
(1) Defendant's motion to suppress a false driver's
license allegedly seized from his person during an automobile
(2) Defendant's motion for discovery and an evidentiary
hearing to determine whether certain wiretap intercepts in
the Dominican Republic should be suppressed.
oral argument on April 1, 2019, the government submitted an
additional letter brief (DE 106), and defense counsel
submitted a supplemental reply (DE 107). On April 10, 2019, I
convened an evidentiary hearing on the two reserved motions.
(See DE 110.) This opinion and order constitute my resolution
of those motions.
MOTION TO SUPPRESS FAKE DRIVER'S LICENSE
to State police reports and exhibits attached to the
government's papers (DE 90), the background of this
motion is as follows.
January 5, 2015, the New Jersey State Police had Minaya under
surveillance. Minaya switched a single set of dealer license
plates between automobiles, eventually placing them on a
black Honda Civic. He then drove the Civic in a manner that
suggested he was attempting to evade surveillance. After a
stop at a New Jersey dealer, he drove off in an Acura TL,
bearing the same dealer plates that had been on the Civic.
Stopping at a pizzeria, he made a cellphone call. His car was
approached by four individuals who, in the officers'
estimation, spotted the surveillance car and abruptly walked
away. Minaya entered and later exited from the pizzeria and
got into the parked Acura, at which point the NJSP officers
identified himself as "Freddie" and displayed a
Pennsylvania photo driver's license in the name of
"Freddie Garcia Ramos." He consented to a search of
the car. The car was temporarily impounded so it could be
searched; despite Minaya's consent, the officers obtained
a search warrant the following day. The car was returned to
Minaya on January 8, 2015.
premise of Minaya's motion to suppress-understandably,
given the manner in which the government had presented the
facts-was that the fake driver's license had been taken
from him during the encounter outside the pizzeria. His
motion focused on the voluntariness, or not, of that
encounter. The government's responding papers, too,
focused on that issue. The defendant's motion presented
very little to suggest a triable evidentiary dispute as to
the officers' possession of reasonable suspicion,
assuming that was necessary. I nevertheless ordered an
evidentiary hearing to establish the facts about the
encounter between the NJSP and Minaya on January 5, 2015.
April 5, 2019, however (Le., after oral argument, but several
days before the scheduled evidentiary hearing), the
government filed a supplemental letter suggesting that the
entire premise of the motion and their opposition to it had
been incorrect. (DE 106) The government acknowledged that it
intended to introduce in evidence a copy of the fake
driver's license, and that the officers had seen it
during the encounter on January 5, 2015. The license,
however, had not been seized or copied during the police
encounter on January 5, 2015.
the police had obtained a copy of the license three days
later, on January 8, 2015. The government submitted copies of
the paperwork by which Minaya recovered the impounded vehicle
from the State police precinct on January 8, 2015. (Ex. A to
letter, later introduced as Exhibits Gl and G2 at the
evidentiary hearing.) The Vehicle Release Form states that
the car was "Released to Freddie Garcia 1/8/2015."
Attached to the Vehicle Release Form is a photocopy of the
fake driver's license in the name of "Freddy
Garcia." The photo on the license is readily
identifiable as that of defendant Minaya. That, said the
government, was the source of the photocopied driver's
license that is now in its possession.
follows, the government argued, that there had been no
relevant seizure of the defendant or his driver's
license. The license was not taken from the defendant during
the police encounter on January 5. He voluntarily presented
the license as identification on January 8, so that he could
recover the impounded vehicle. So, even assuming for purposes
of argument that the earlier police encounter had constituted
an illegal seizure of Minaya, it would make no difference.
evidentiary hearing, I heard briefly from the
government's witness on this issue, NJSP Det. Sgt.
Vittorio Flora. Flora confirmed the government's
description of the events. In particular, he testified that
he did not seize the driver's license on January 5, 2015.
(Tr. 86) He confirmed that Mr. Minaya came to the State
police barracks to pick up the seized vehicle on January 8,
2015. It was then that Minaya filled out the Vehicle Release
Form and identified himself with the fake "Freddie
Garcia" driver's license, which the police then
photocopied. This photocopy, Flora testified, was the one now
in the government's possession. (Tr. 87-89; Exs. Gl, G2)
about police procedures, Det. Sgt. Flora testified that the
person picking up the car did not need to be Mr. Minaya:
Q. When [Minaya] provided you the license and signed that
form, did he do so voluntarily?
A. Yes, sir.
Q. Was it possible for someone else other than Mr. Minaya to
pick up the car that day at the state police barracks?
A. Yes, sir.
Q. Okay. Who else could have picked up that car?
A. Usually it's the owner or a representative of the
owner with a document stating that they're releasing that
vehicle to that person.
For example, in this case, if it's a dealership or
whatever, it would be a representative from that dealership,
if it's the insurance company.
In this case it's - it was a dealer plate on the vehicle,
so it would be a representative of the dealership - . . . -
who had proof of ownership.
decision to appear and present the fake license, then, was
Q. Okay. So when Mr. Minaya provided that - made the decision
to come and provide you his license, that was not by any
compulsion by you?
A. No, sir.
close of this direct examination, I obtained a firm
representation from the government that it did not seek to
introduce evidence that Minaya displayed the fake ID during
the January 5, 2015 police encounter. Instead, the government
would content itself with offering evidence that Minaya had
presented the fake ID to recover the car from the police on
January 8, 2015. (Tr. 90)
the suppression issue thus narrowed, defense counsel
cross-examined briefly regarding the circumstances of the
January 5 encounter. But the issue, as defense counsel
acknowledged (Tr. 92-93), had evolved into one of (at most)
taint: whether, assuming arguendo that the January 5
encounter violated the Fourth Amendment, the fake ID
presented three days later should be suppressed as a
"fruit of the poisonous tree." As to that, defense
counsel was content to "leave the evidence as it is and
let the Court make its decision." (Tr. 93) Although the
government objected, in light of its shift of theories, I did
permit the defense to argue that the January 5 encounter
tainted the January 8 evidence.
Under the Court's precedents, the exclusionary rule
encompasses both the "primary evidence obtained as a
direct result of an illegal search or seizure" and,
relevant here, "evidence later discovered and found to
be derivative of an illegality," the so-called"
'fruit of the poisonous tree.'" Segura v.
United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82
L.Ed.2d 599 (1984). But the significant costs of this rule
have led us to deem it "applicable only ... where its
deterrence benefits outweigh its substantial social
costs." Hudson v. Michigan, 547 U.S. 586, 591,
126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (internal quotation
marks omitted). "Suppression of evidence ... has always
been our last resort, not our first impulse."
Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016).
"The penalties visited upon the Government, and in turn
upon the public, because its officers have violated the law
must bear some relation to the purposes which the law is to
serve." United States v. Ceccolini, 435 U.S.
268, 279 (1978). So even where a search has been
unreasonable, the scope of the exclusionary rule has been
confined to contexts where its deterrent effect justifies the
systemic costs of excluding relevant evidence.
pertinent here is the attenuation doctrine: "Evidence is
admissible when the connection between unconstitutional
police conduct and die evidence is remote or has been
interrupted by some intervening circumstance, so that
'the interest protected by the constitutional guarantee
that has been violated would not be served by suppression of
the evidence obtained.™ Utah v. Strieff, 136
S.Ct. at 2061 (quoting Hudson, 547 U.S. at 593). The
attenuation doctrine is concerned with the closeness, or not,
of the causal connection between the alleged Fourth Amendment
violation and the items to be offered in evidence. Where the
constitutional violation consists in the seizure of the very
items later offered in evidence, the exclusionary rule's
efficacy as a deterrent is clear; the government, deprived of
the very evidence it seized, forfeits the benefit of its
unconstitutional conduct. Where, however, other acts and
events intervene between the violation and the later,
indirect development of evidence, the efficacy of the
exclusionary sanction is less clear; the deterrent game may
not be worth the exclusionary candle. In short, the
attenuation inquiry embodies a balance of the costs and
benefits of exclusion, and therefore "[n]o single fact
is dispositive." Brown v. Illinois, 422 U.S.
590, 603, 95 S.Ct. 2254 (1975).
therefore will not be ordered merely because a Fourth
Amendment violation is a "but-for" link in the
chain that led to the discovery of the evidence. United
States v. Mendez, 885 F.3d 899, 909 (5th Cir. 2018)
(citing Hudson v. Michigan, 547 U.S. 586, 592, 126
S.Ct. 2159, 2164 (2006); Wong Sun v. United States,
371 U.S. 471, 487-88, 83 S.Ct. 407 (1963)). The key question
is whether the evidence "has been come at by
exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint." Brown, 422 U.S. at 599, 95 S.Ct. at 2259
(emphasis added; citations omitted).
court's determination of whether intervening events are
sufficient to "purge the primary taint" is governed
by three factors:
1. The "temporal proximity" of the unconstitutional
conduct and the discovery of the evidence.
2. The "presence of intervening circumstances."
3. The "purpose and flagrancy of the official
Brown v. Illinois, 422 U.S. at 603-04, 95 S.Ct. at