502 F. App'x 75
2d Cir.2012Background
- Pascual was convicted at her second trial of conspiracy to import and distribute cocaine and sentenced to ten years’ imprisonment.
- Pascual challenges the car search conducted after her arrest, including a later search at JFK Airport, contending the searches were unlawful.
- The district court initially found valid consent for a search, then reconsidered after trial due to inconsistent testimony, and eventually denied suppression based on probable cause and the automobile exception.
- Key facts: an informant linked Pascual to a prior drug delivery; Pascual was found in a car matching the description near the drug transaction; the car contained multiple cell phones and purses, including a money envelope.
- The government argued the automobile exception permitted a search of the car and containers; the timing was argued to be permissible despite several hours’ delay.
- Pascual argued for a missing witness instruction due to the government not calling arresting officer Fernandez; the district court declined to give the instruction, which the court upheld on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the automobile exception justified the car search | Pascual contends no probable cause or improper scope/timing | Government asserts probable cause and proper scope within the automobile exception | Yes; probable cause supported search, scope and timing within automobile exception |
| Whether the district court abused its discretion by not giving a missing witness instruction | Pascual sought an adverse inference against the government for not calling Fernandez | District court properly exercised discretion; no prejudice shown | No reversible error; district court did not abuse discretion |
| Whether cell-site location records admitted without warrant or probable cause were reversible error | Argues records require warrant/probable cause and exclusion | Not plain error; post-trial case law does not require suppression in this context | Not plain error; admission affirmed |
Key Cases Cited
- United States v. Gaskin, 364 F.3d 438 (2d Cir. 2004) (missing witness instruction analysis and prejudice standard)
- California v. Acevedo, 500 U.S. 565 (U.S. 1991) (scope of automobile search includes entire vehicle where probable cause exists)
- United States v. Ross, 456 U.S. 798 (U.S. 1982) (probable cause justifies search of vehicle and its contents)
- Arizona v. Gant, 556 U.S. 332 (U.S. 2009) (limits on searches following arrest when probable cause to search is present)
- Gagnon v. United States, 373 F.3d 230 (2d Cir. 2004) (probable cause and search justification in related contexts)
- Terrell v. United States, 442 U.S. 735 (U.S. 1979) (privacy expectations and third-party information (related principle))