ORDER
The above entitled action is presently before the Court on the Magistrate Judge’s Report and Recommendation [638] recommending denying defendant Jorge Anaya-Medina’s Motion to Suppresa Statements [301] and Motion to Suppress Evidence [302]; recommending denying defendant Alejandro De La Cruz-Plancarte’s Motion to Suppress Evidence [322]; recommending denying defendant Otha Barnes’ Motion to Suppress Evidence [315]; recommending granting defendant Gerald Durrance’s Motions to Suppress evidence [304, 455]; recommending granting in part and denying in part defendant Martina Flores’ Motion to Suppress Evidence [349]; recommending denying defendant Noe Aguilar-Camudio’s Motions to Suppress [331, 332, 334]; recommending denying defendants Jorge Anaya-Medina’s, Luis Haces-Delgado’s, and Martina Flores’ Motions to Suppress Wiretaps [328, 342, 351]; recommending denying defendant Luis Haces-Delgado’s Motions to Suppress Evidence and Statements [340, 341]; recommending denying Otha Barnes’, Andres Bautista-Gallegos’, Noe Aguilar-Camudio’s, and Luis Haces-Delgado’s Motions for Severance [306, 329, 333, 381]. Defendants Martina Flores, Noe Aguilar-Camudio, Jorge Anaya-Medina, and Luis Haces-Delgado filed Objections [658, 659, 660, 661] to the Report and Recommendation [638] on January 28, 2011.
Upon review, the Court ADOPTS the Magistrate Judge’s Report and Recommendation [638] DENYING defendant Jorge Anaya-Medina’s Motion to Suppress Statements [301] and Motion to Suppress Evidence [302]; DENYING defendant Alejandro De La Cruz-Plancarte’s Motion to Suppress Evidence [322]; DENYING defendant Otha Barnes’ Motion to Suppress Evidence [315]; GRANTING defendant Gerald Durrance’s Motions to Suppress evidence [304, 455]; GRANTING IN PART and DENYING IN PART defendant Martina Flores’ Motion to Suppress Evidence [349]; DENYING defendant Noe Aguilar-Camudio’s Motions to Suppress [331, 332, 334]; DENYING defendants Jorge Anaya-Medina’s, Luis HacesDelgado’s, and Martina Flores’ Motions to Suppress Wiretaps [328, 342, 351]; DENYING defendant Luis Haces-Delgado’s Motions to Suppress Evidence and Statements [340, 341]; DENYING defendants Otha Barnes’, Andres Bautista-Gallegos’, Noe Aguilar-Camudio’s, and Luis HacesDelgado’s Motions for Severance [306, 329, 333, 381].
This case is now ready to be set for trial. Given the number of defendants and therefore the anticipated difficulty in setting a trial date, attorneys should advise by July 1, 2011 of any scheduling conflicts that they are aware of through the end of 2011.
Excludable time is allowed to commence as of June 13, 2011 through July 1, 2011, pursuant to 18 U.S.C. § 3161(h)(7)(B)(iv) (to give counsel for the defendant or attorney for the Government reasonable time necessary for effective preparation) and (h)(6) (a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted). Accordingly, the Court concludes that the ends of justice served by a continuance outweigh the best interest of the public and defendants in a speedy trial.
ORDER AND REPORT AND RECOMMENDATION
Pending before the court are the following motions:
Defendant Jorge Anaya-Medina’s motion [Doc. 301] to suppress voice exemplars and statements obtained on April 29, 2009, and motion [Doc. 302] to suppress evidence seized pursuant to a warrantless search on April 29, 2009; Defendant Alejandro De La Cruz-Plancarte’s motion [Doc. 322] to suppress evidence obtained during the same warrantless search; and Defendant Javier De La Cruz-Loya’s motion [Doc. 297] to suppress the voice exemplars taken for purpose of identification on April 29, 2009, and his post-Miranda statements obtained on April 29, 2009, and the evidence seized during the same warrantless search; Defendant Otha Barnes’ motion [Doc. 315] to suppress evidence seized based on a warrantless search on December 10, 2008, and the voice exemplars obtained that date; Defendant Gerald Durrance’s motions [Doc. 304 and 455] to suppress evidence seized pursuant to a warrantless search on April 29, 2009; Defendant Martina Flores’ motion [Doc. 349] to suppress evidence seized on April 29, 2009, seized pursuant to federal search warrants for the residences located at 604 and 608 Sandyhills Avenue, McAllen, Texas; Defendant Noe Aguilar-Camudio’s motions [Docs. 331, 332, and 334] to suppress evidence seized based on a warrantless search and statements obtained on April 29, 2009; Defendants Jorge Anaya-Medina’s motion [Doc. 328], Defendant Luis Haces-Delgado’s motion [Doc. 342] and Defendant Martina Flores’ motion [Doc. 351] to suppress the evidence obtained from the wiretap orders; Defendant Luis Haces-Delgado’s motions [Docs. 340 and 341] to suppress evidence seized pursuant to a warrantless search and statements obtained on April 29, 2009; Defendants Otha Barnes’, Andres Bautista-Gallegos’, Noe Aguilar-Camudio’s, and Luis HacesDelgado’s motions [Docs. 306, 329, 333 and 381] for severance; Defendant Jorge Ana-ya-Medina’s request [Doc. 487] for a hearing on his wire tap motion; Defendant Martina Flores’ request [Doc. 575] for a Franks hearing in connection with her wire tap motion; Defendants Otha Barnes’ and Luis Haces-Delgado’s motions [Docs. 306 and 381] in limine; Defendant Noe Aguilar-Camudio’s request [Doc. 333] for an evidentiary hearing in connection with his motion for severance; Defendants Alfonso Rios’ and Noe Aguilar-Camudio’s motions [Docs. 335 and 338] for a bill of particulars; and Defendants Otha Barnes’, Noe Aguilar-Camudio’s and Luis HacesDelgado’s motions [Docs. 309, 330, 382] to disclose confidential informant.
After consideration of the facts established at the various evidentiary held on the motions to suppress, of the arguments and briefs of the Defendants and the Government, and of the binding and persuasive legal authority, the court makes the following recommendations and enters the following orders resolving the pending motions.
Defendants Anaya-Medina’s, CruzPlancarte’s and Cruz-Loya’s Motions to Suppress Evidence and Statements
Pending before the court are Defendant Jorge-Alejandro Anaya-Medina’s (“Cokis”) motion [Doc. 301] to suppress statements
1
obtained on April 29, 2009, and
The Government responds to the motions to suppress evidence contending that Defendant Valda-Ceja’s consent was voluntary and gave the agents authority to search all common areas of the residence and all bedrooms with the exception of the bedroom of Defendant Loza-Cruz; therefore, excepting evidence seized from that bedroom, the Government intends to offer at trial all other items seized at the residenee against all three Defendants. [Doc. 466 at 8-10]. As to the motions to suppress the voice exemplars, the Government acknowledges that Defendants Cokis and Loza-Cruz were not advised of their Miranda rights prior to the voice exemplars being taken; however, the Government contends Defendants were not in custody at the time the voice exemplars were taken. Therefore, the Government argues that taking the voice exemplars did not violate Defendants’ rights. [Id. at 10-12]. And the Government has advised the court and counsel for Defendants that the voice exemplars will only be used for the purpose of identification.
I. Facts
On April 29, 2009, members of one of the Strike Force (“SF”) Groups were assisting another group within the SF, made up of Federal Bureau of Investigation (“FBI”) Special Agents, with the arrest of an individual known as Cokis for whom a federal arrest warrant had been issued. (Tr. at 7-8, 54-55, 73, 85). Based on information provided to the SF identifying the residence where Cokis was believed to be residing, the agents went to 2265 Ranch Trial in Norcross, Georgia. (Tr. at 8-9, 54-55). The agents, numbering eleven to thirteen, attired in tactical gear
4
arrived at the residence at approximately 8:00 a.m. Some of the agents established a perimeter around the house. (Tr. at 9, 38, 56). Agents Bowen, Cromer and Barnes went to the front door and knocked. (Tr. at 9-10, 56). No one answered; however, the agents heard noise from inside the residence and observed someone looking out of one of the front windows. The agents
Agent Bowen, who is proficient in Spanish, after identifying the agents as police, asked Loza-Cruz who else was inside and if the occupants could come outside. (Tr. at 11-12, 57-58). When Loza-Cruz responded that others were in the residence, the agent stated that she needed to see them. Loza-Cruz called to the others in the residence, and when they came to the door, Agent Bowen asked them to step outside. (Tr. at 11, 57-58). Loza-Cruz asked if the agents had a warrant. Agent Bowen responded, no, and Loza-Cruz told the agents that they could not come into the residence, and as he exited, he closed the door to the residence behind him. (Tr. at 11, 58, 78). Four individuals exited the residence. Along with Loza-Cruz, a juvenile and two males subsequently identified as Cokis and Valda-Ceja exited. (Tr. at 11-12, 58). No weapons had been drawn by the agents. (Tr. at 14). Agent Bowen stated that until Cokis was identified, none of the men were free to leave. (Tr. at 85).
As the four men exited the residence, the agents separated the men by a few feet to prevent them from whispering to one another; however, all of the men remained within eye-sight of each other and in the area of the walk-way to the front door. (Tr. at 13, 37-38, 58-59). Agent Bowen was not sure how many of the agents were in Defendants’ view. (Tr. at 38, 42, 59). The agents began trying to identify the four men by asking for names and any identification and obtaining biographical information for DEA forms. (Tr. at 13, 43, 59-60, 76, 81-82). Agent Bowen did not recall seeing any of the men handcuffed while she was outside and did not recall seeing any of the men pushed to or lying on the ground. (Tr. at 60-61). She stated that while she was outside no one was pushed to the ground. 5 (Tr. at 61-62).
When Valda-Ceja appeared cooperative, Agents Bowen and Cromer walked him away from the others to speak with him. (Tr. at 13, 76). Although Agent Bowen began speaking to him in Spanish, Valda-Ceja responded in English. Except for Agent Bowen explaining some things in Spanish, the conversation was conducted in English. (Tr. at 13-14, 63). The agents asked Valda-Ceja about the residence and his association with the residence and about how he knew the other men. He identified one of the men as Cokis. (Tr. at 14, 63). The agents also asked him about the vehicle parked in the driveway, and Valda-Ceja responded that the vehicle was his and that he had registration for the vehicle in his name inside in his room. (Tr. at 14-15, 64).
The agents asked Valda-Ceja if they could see the registration, and he responded, yes. (Tr. at 15, 64). They asked if Valda-Ceja would allow them to go with him into the residence to see the paperwork, and he responded, yes. (Tr. at 64-65). As the agents and Valda-Ceja were about to enter the residence, approximately ten to fifteen minutes after the men had exited, Loza-Cruz stated in Spanish, “you know, I don’t want them in the house.” Valda-Ceja responded in Spanish that he did not have anything in the house and that the agents could come inside if they wanted. (Tr. at 15-16, 44, 64, 80). As they entered, the agents asked Valda-Ceja if other agents could come inside to check
In the bedroom, Valda-Ceja, who was not handcuffed, sat on the bed and produced the registration for the agents to examine. 7 As the agents discussed the registration and asked Valda-Ceja about Cokis, Agent Bowen stated that Valda-Ceja appeared nervous, fidgeting on the bed, therefore, making the agents nervous. (Tr. at 16, 44-47, 67-68). Agent Cromer asked him if there was anything in the room that the agents needed to know about, including guns, and Valda-Ceja responded, no. (Tr. at 16, 47). Agent Cromer asked if they could quickly search for the agents and his safety. He responded, that’s fine. (Tr. at 16, 47, 68). A few feet from the bed was an open closet, about an arm’s length from Valda-Ceja. (Tr. at 16, 48). In the closet, on top of some plastic containers and partially under some clothing, Agent Cromer located a handgun. (Tr. at 16, 49, 68-69). Valda-Ceja denied knowledge of the handgun. (Tr. at 17, 49, 70). The agents also found a very small quantity of cocaine in a trash can in the bedroom. (Tr. at 17, 70). The agents did not handcuff Valda-Ceja. (Tr. at 70).
The agents then asked Valda-Ceja if there were any other guns in the residence, and he responded, no. (Tr. at 17, 49). They asked him if they could search the residence for guns, drugs or large amounts of currency. (Tr. at 17, 49-50, 71). Valda-Ceja responded that he thought the agents had already searched the residence. Agent Bowen explained that the agents had not searched the residence only conducted a security sweep looking for people. (Tr. at 17, 50, 71). At approximately 8:36 a.m., Valda-Ceja agreed to the search, and Agent Bowen gave him a written consent to search form in Spanish for him to read. (Tr. at 17-18, 50, 71; Gov’t Ex. 1). Defendant still was not handcuffed. (Tr. at 50). The form stated, as translated by Agent Bowen:
Consent to Search
1. I’ve been asked to authorize agents of the Drug Enforcement Administration to search. (Describe the person, place or thing to search) 2265 Ranch Trail, Norcross.
2. I haven’t been threatened or forced in any manner.
3. I have consented freely to this search.
(Tr. at 18-19; Gov’t Ex. 1 (italics handwritten)). Then Agent Bowen observed Valda-Ceja sign the form, which she and Agent Barnes also signed. (Tr. at 19). After a few minutes, the agents and Valda-Ceja returned outside. (Tr. at 51). Agent Bowen, who did not recall exactly when Defendants were handcuffed, stated that Defendants were not handcuffed at this time. (Tr. at 41-42, 50). And at some point, Defendants were relocated to sit in the area in front of the garage door. (Tr. at 39).
The agents conducted a search of the residence seizing various firearms, controlled substances, packaging materials, cell phones, documents and other items. (Tr. at 21-30; Gov’t Exs. 2, 4). Before Defendants were advised of their
Miranda
What is your name? Alberto Zuniga
Do you have any other names or nicknames? No, well just Cokis.
What is your DOB? 01/09/87
How old are you? 21
Where are you from? San Luis Potosi, Mexico
Where do you live now? Here. I just moved so I don’t know the address.
How long ago did you move? 1 month ago
There at the location you are now? Yes Do you have a phone? Yes but I don’t know it.
Is it a cell phone? Yes
How long have you had the phone? About 3 months
Do you work? No — sometimes yes sometimes no as I work in landscaping.
Do you work for a company? No I just work for cash.
Is there a phone you call to look for work? No — I don’t know the number.
Are you married? No
[Doc. 438 at 5]. 8
Agent Bowen subsequently, at 9:36 a.m. for Valda-Ceja, at 9:52 a.m. for Cokis, and at 10:17 a.m. for Loza-Cruz, advised each Defendant of his Miranda rights using a DEA 13A card, reading from the Spanish side. (Tr. at 31-32; Gov’t Ex. 5). Each Defendant was advised:
Before we ask you any questions, you must understand:
— You have the right to remain silent.
— Anything you say can be used against you in court.
— You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning.
— If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
Do you understand?
Are you willing to answer some questions?
(Gov’t Ex. 5). 9 As she began to the read the card, she asked each Defendant to advise her if he did not understand something she said in order for her to explain, and after each bullet point, she asked if each Defendant understood. Finally, as she finished, she asked each Defendant if he understood. (Tr. at 32). Each Defendant appeared to understand the advice of rights. (Tr. at 32). She also gave each Defendant the opportunity to read the card. (Tr. at 32). No agent had his or her firearm drawn on Defendants. (Tr. at 33). Agent Bowen did not recall if Defendants were handcuffed when advised of their rights or when they made statements. (Tr. at 52-53). Although Defendants Loza-Cruz and Valda-Ceja were non-responsive to some questions asked, no Defendant stated that he did not want to make a statement or answer questions and no Defendant asked for a lawyer. 10 (Tr. at 34-36).
Defendants Anaya-Medina/Cokis and Cruz-Plancarte/Valda-Ceja testified at the evidentiary hearing on the motions to suppress. (Tr. at 92-119). The court does not find the testimony of Valda-Ceja credible based on the court’s observation of the witness, the inconsistencies within his story and with other witnesses, and the lack of plausibility in the testimony. Therefore, the court will not rely on this testimony in resolving the motions to suppress. However, except as noted infra, having observed and considered the testimony of Cokis, the court finds his testimony credible.
Cokis testified that as of April 29, 2009, he had been living at the residence for about one month with the other Defendants and a juvenile with the rent due at the end of the month in the amount of $100. (Tr. at 93-94). He and Valda-Ceja stayed in the second bedroom. (Tr. at 94). He recalled that at 8:00 a.m., the agents knocked on the door. He did not recall who opened the door but did recall that the agents asked if they could come outside. (Tr. at 95-96). He recalled four officers being around them and a bunch of questions being asked to which he responded that he did not know the answers. (Tr. at 96). He did not hear anyone consent to the agents going into the residence, but he did hear “Pedro,” that is, LozaCruz, state that the agents could not enter. (Tr. at 98). According to Cokis, after Loza-Cruz made this statement, the agents took him out front and threw him face front onto the grass. 12 (Tr. at 98). Cokis also said that he was handcuffed and told there was a warrant for him about fifteen minutes after exiting the residence. (Tr. at 97-98, 100-01). He was told the others would be let go but not him because of the warrant for his arrest. (Tr. at 100-01). However, Cokis said that he could not remember if he was advised of the warrant for his arrest before or after he answered the questions on the telephone. (Tr. at 101-02).
At some point, while outside, Valda-Ceja agreed that the agents asked about the car parked on the driveway and that he responded that it was his and that the registration for it was in his room inside. (Tr. at 108). He said he asked to go in to get the registration, and the agents followed him. Valda-Ceja stated that the agents did not ask to follow him into the residence. (Tr. at 108, 115). He stated that as they started inside, Loza-Cruz wanted to close the door but that agents took him away towards the garage and threw him on the ground while saying bad words.
14
(Tr. at 108-09, 115). On cross-examination, when specifically asked, he said Loza-Cruz called out that the agents did not have a warrant and not to let them inside. (Tr. at 115-16). He also stated that the agents did not ask permission to check the house for other people. (Tr. at 110). Given Agent Bowen’s straight-forward accounting of Loza-Cruz’s refusal to allow the agents into the residence and his subsequent statements to Valda-Ceja not to allow the agents inside, the court finds no reason to disbelieve her testimony that Valda-Ceja did consent to the agents’ en
Once in the bedroom, Valda-Ceja said that he sat on the bed to look for the registration but that the agents found it, although he does not explain how or where, and that they searched the room, finding the gun in the closet, without asking his permission to search. (Tr. at 110-II). When the gun was found, Valda-Ceja stated, “And he [the male agent] said, You said was no guns, that there was nothing here.” (Tr. at 111). The court notes that this statement attributed to Agent Cromer by Valda-Ceja makes no sense unless as testified by Agent Bowen the agents did not search the room until after Valda-Ceja started fidgeting and they asked him about weapons being in the room which he denied. (Tr. at 16-17). Valda-Ceja did state that he denied knowing about the gun after the agents found the weapon. Then, according to him, the agents came very close to him and asked permission to search. They were intimidating. (Tr. at III). They told him if he cooperated, nothing would happen to him, but if not, they would call immigration. (Tr. at 111). After an hour, Valda-Ceja said that he gave verbal permission to search but that he did not sign the form until later when the agents told him to sign it. (Tr. at 111— 12, 116, 118). The court has already noted that the amount of time that Valda-Ceja claims the agents spent with him in the bedroom to obtain consent simply is inconsistent with all of the other testimony and events on April 29, 2009. In fact, he asserts that it was another hour later when he eventually signed the consent to search form. Agent Bowen testified that the form was signed at approximately 8:36 a.m. (Tr. at 71, 112). Valda-Ceja’s recounting of the events on April 29, 2009, is simply not believable. And, as noted, the court will not consider his testimony in analyzing Defendants’ motions to suppress.
Additional facts will be set forth as necessary during the discussion of Defendants’ claims.
II. Discussion
a. Search of Residence
Defendants Anaya-Medina/Cokis [Docs. 302 and 437] and Cruz-Plancarte/ Valda-Ceja [Docs. 322 and 439] contend that the warrantless search of the residence violates their Fourth Amendment rights because Valda-Ceja’s consent to search the residence was involuntary. Defendant Cruz-Loya/Loza-Cruz [Docs. 297 and 442], citing the Supreme Court decision in
Georgia v. Randolph,
The Government relies on the consent to enter the residence and subsequently to search the residence obtained from Valda-Ceja to justify the warrantless search. [Doc. 466 at 8], “It has been long recognized that police officers, possessing neither reasonable suspicion nor probable cause, may nonetheless search [a residence] without a warrant so long as they first obtain the voluntary consent [for the
However, “the government need not establish [defendant’s] knowledge of the right to refuse consent ‘as the
sine qua non
of effective consent.’ ”
United States v. Zapata,
And, as the Seventh Circuit Court of Appeals stated, “A third party with common authority over the premises [or effects] sought to be searched may provide such consent.... Common authority is based upon mutual use of property by persons generally having joint access or control.”
United States v. Aghedo,
On April 29, 2009, at approximately 8:00 a.m., federal agents arrived at 2265 Ranch Trail, Norcross, seeking to execute an arrest warrant for a person known to them as Cokis. (Tr. at 7-9, 54-55, 73). Eleven to thirteen agents surrounded the residence, and three of those agents, two with weapons holstered and the third with a long gun on strap pointing towards the ground, knocked at the front door. (Tr. at 9-10, 14, 38-39, 56). When the door was eventually answered at approximately 8:30 a.m., by Loza-Cruz, Agent Bowen, in Spanish, identified herself and asked Loza-Cruz if there was anyone else in the residence. (Tr. at 10-11, 41, 57, 77-78). When Loza-Cruz responded, yes, she asked that the others come to the door, and then she asked that the four men exit the residence. (Tr. at 11-12, 57-58). As the men exited, no weapons were drawn and no one was handcuffed. (Tr. at 14, 51, 58). The agents tried to identify each man and asked for identification. (Tr. at 13, 43, 59-60, 76).
When Agent Bowen determined that one of the men, Valda-Ceja, appeared cooperative, she asked to speak with him away from the other men. (Tr. at 13, 76). She and Agent Cromer spoke with Valda-Ceja, who conversed with them for the most part in English. (Tr. at 13-14, 63). Valda-Ceja identified the other men and claimed ownership of the ear parked on the driveway. (Tr. at 14-15, 63-64). The agents asked to see the registration which Valda-Ceja stated was in his bedroom in the house. (Tr. at 15, 64). Valda-Ceja agreed to show the registration to the agents and to allow them to accompany him into the residence to obtain the paperwork. (Tr. at 15, 64-65). Over the objection of LozaCruz, who did not want the agents in the residence, Valda-Ceja stated that the agents could come inside because he did not have anything to hide. (Tr. at 15, 80). As they entered, Agent Bowen also asked if other agents could look through the
Nothing about the circumstances of the initial interaction between the agents and Defendants, especially Valda-Ceja, establish that his consent to allow the agents into the residence or to conduct the protective sweep was coerced. The fact that Valda-Ceja and the other men were being detained for the purpose of identifying Cokis to execute the arrest warrant (Tr. at 85) does not alter this finding. Factual situations involving a much greater show of force and restraints on suspects have not been found sufficiently coercive to invalidate consents to enter residences or to search.
See, e.g., United States v. Kimoana,
Likewise, nothing about the events that occurred once the agents and Valda-Ceja entered the residence and went to his bedroom establishes that the consent to search the residence was involuntary. After Valda-Ceja found the registration form, as the agents were discussing the form with him and continuing to ask him about the other occupants, he began fidgeting and moving on the bed. (Tr. at 16, 46-47, 67-68). The agents were concerned about his actions, and Agent Cromer asked him if there was anything, such as guns, in the room that the agents needed to know about. (Tr. at 16, 47). When Valda-Ceja responded, no, the agent asked if they could search the room for his and their safety. He responded, yes. (Tr. at 16, 47-48, 68). That search revealed a handgun in the open closet a few feet from Valda-Ceja’s location on the bed. He denied knowledge of the firearm. (Tr. at lb-17, 48-49, 68-70). Valda-Ceja denied knowing of any other guns in the residence. (Tr. at 17, 49). The agents then
Contrasted with the facts in other cases which courts have found did not invalidate the voluntariness of a consent to search, nothing in the events surrounding Valda-Ceja’s consent to search was sufficiently coercive to result in a finding that his consent was involuntary. In
United States v. Strickland,
The facts establish that Valda-Ceja was cooperative with the agents from the initial encounter and throughout the time spent at the residence. No credible evidence establishes that the agents threatened Val
However, the same result does not apply to Defendant Cruz-Loya/LozaCruz. In
Randolph,
On these facts, and specifically not undercutting the rulings in
Matlock,
When Agent Bowen asked the four men to exit the residence, Loza-Cruz asked her if she had a warrant. (Tr. at 11, 58, 78). After the agent responded, no, he stated that the agents could not come into the residence. And as he exited the residence,
And Valda-Ceja’s consent to the entry and search, which was disputed by LozaCruz, “without more, [gave the agents] no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.”
18
Randolph,
For these reasons, the court RECOMMENDS that Defendant Anaya-Medina/Cokis’ motion [Doc. 302] and Defendant Cruz-Plancarte/Valda-Ceja’s motion [Doc. 322] to suppress evidence be DENIED and that Defendant Cruz-Loya/Loza-Cruz’s motion [Doc. 297]to suppress evidence be GRANTED.
b. Statements
Defendants Anaya-Medina/Cokis and Cruz-Loya/Loza-Cruz also argue that the voice exemplars taken on April 29, 2009, prior to their being advised of their
Miranda
rights violated their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel. [Docs. 297 and 301]. Neither Defendant specifically addresses the statements made after being advised of their
Miranda
rights.
19
And,
1. Fruit of the Poisonous Tree
Although left unaddressed by either Defendant Cruz-Loya/Loza-Cruz or the Government, the court believes that the issue of whether the voice exemplar and/or the post-Miranda statement given by Defendant should be suppressed as fruits of the unlawful search of the residence deserves the attention of the court. Loza-Cruz’s Fourth Amendment right to be free from a warrantless search of his residence was undisputedly violated by the agents’ entry into and search of the residence over his clearly stated and repeated objection. In both the case of the voice exemplar and Defendant’s Miranda waiver and statement, the question for this court is whether:
“[Granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ... [This court is] obliged to determine whether the [statement and] consent [were] “sufficiently an act of free will to purge the primary taint of the unlawful invasion,” or, alternatively, whether the causal connection had “become so attenuated as to dissipate the taint.”
United States v. Delaney,
The Supreme Court, as well as the Eleventh Circuit Court of Appeals, has generally applied three factors to determine whether a prior illegality has become sufficiently attenuated from the evidence sought to be introduced: “ ‘[t]he temporal proximity of the [illegal search] and the confession [or consent], the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct.’ ”
Taylor v. Alabama,
With respect to the voice exemplar, these factors need not be addressed in detail because the court finds that the voice exemplar, taken for the purpose of assisting in the identification of the men who exited the residence, particularly to identify Cokis for whom an arrest warrant had been issued, was not obtained “ ‘by exploitation of ” the illegal search of the residence but “ ‘by means sufficiently distinguishable to be purged of the primary taint.’ ”
Delancy,
With respect to his
post-Miranda
statements, the court reaches a contrary conclusion. In the case of a statement following an illegal arrest, the Supreme Court in
Taylor
noted it was “firmly established that the fact that the confession may be ‘voluntary’ for purposes of the Fifth Amendment, in the sense that
Miranda
warnings were given and understood, is not by itself sufficient to purge the taint of the illegal arrest [or search].”
Taylor,
First, as the Eleventh Circuit Court of Appeals has acknowledged, “there is no hard-and-fast rule for determining how much time must have passed before the link between an unlawful [search] and a confession can be considered sufficiently attenuated.”
Lopez-Garcia,
Likewise, the second factor, the presence — or absence — of intervening circumstances, supports exclusion of the evidence. The very same agents who entered the residence over Loza-Cruz’s objection and obtained the consent to search participated
Finally, the purpose and flagrancy factor also supports finding the waiver and statement were tainted by the arrest. Although Loza-Cruz explicitly stated to the agents that they could not enter the residence without a warrant and firmly closed the door behind him as he exited, the agents still entered the residence and conducted a search — granted with the consent of another resident. (Tr. at 11, 14-20, 58, 64-71, 78, 80). And, although Agent Bowen indicated that she did not honor LozaCruz’s refusal to allow agents into the residence because she did not know if he rented the house or who had authority to give consent (Tr. at 78), she could have easily determined, before going into the residence, that Loza-Cruz had just as much right to exclude the agents as Valda-Ceja had to allow them inside and that, therefore, the agents should have honored Loza-Cruz’s refusal. The facts before the court indicate that the agents simply ignored Loza-Cruz’s assertion of his Fourth Amendment rights in hopes of securing, as they did, the consent of another of the tenants to gain entry and the opportunity to search.
For these reasons, the court finds that Loza-Cruz’s waiver of rights and post-Miranda statements constitute fruits of the illegal search of the residence and the violation of his Fourth Amendment rights and that the Government cannot use the statements at trial against him.
2. Voice Exemplars
Defendants Anaya-Medina/Cokis and Cruz-Loya/Loza-Cruz contend that taking the voice exemplars while they were allegedly in custody violated their Fifth Amendment right to remain silent and Sixth Amendment right to counsel. Before addressing the substance of these claims, the court notes that Loza-Cruz’s Sixth Amendment right to counsel had not attached at the time of his statements, either before or after being advised of
Miranda
rights, on April 29, 2009. He had not been charged in any manner, not even by criminal complaint, with any criminal activity.
See United States v. Alvarado,
In
Fellers v. United States,
Cokis and Loza-Cruz contend that obtaining the voice exemplars while they were in custody constituted interrogation and, because they were not advised of their rights before the exemplars were obtained, that the exemplars must be suppressed. [Docs. 438 and 442]. As noted, the Government intends to only use the voice exemplars for purposes of identification at trial. Based on this representation, the court finds that the taking of the voice exemplars, whether or not either Defendant was in “custody” and had been advised of his rights, does not violate Cokis’ Fifth or Sixth Amendment rights and does not violate Loza-Cruz’ Fifth Amendment rights.
The facts establish that sometime shortly after Defendants and the juvenile exited the residence at approximately 8:30 a.m., but before 9:00 a.m., each of the men was asked to answer questions in Spanish, such as name, residence, length of stay, citizenship, over a telephone. (Tr. at 30-31, 51). The voice exemplar for Cokis, which occurred at 8:46 a.m. (Tr. at 90), involved the following questions and answers:
What is your name? Alberto Zuniga
Do you have any other names or nicknames? No, well just Cokis.
What is your DOB? 01/09/87
How old are you? 21
Where are you from? San Luis Potosi, Mexico
Where do you live now? Here. I just moved so I don’t know the address.
How long ago did you move? 1 month ago
There at the location you are now? Yes
Do you have a phone? Yes but I don’t know it.
Is it a cell phone? Yes
How long have you had the phone? About 8 months
Do you work? No — sometimes yes sometimes no as I work in landscaping.
Do you work for a company? No I just work for cash.
Is there a phone you call to look for work? No — I don’t know the number.
Are you married? No
[Doc. 438 at 5].
As the Former Fifth Circuit Court of Appeals held in rejecting a defen
For these reasons, the court finds that obtaining the voice exemplars solely for the purpose of identification at trial did not violate Defendants’ rights and may be used at trial.
3. Post -Miranda Statements
Although not addressed by Cokis in his post-hearing brief, the court will briefly address Defendant’s waiver of his Miranda rights and the admissibility of his subsequent statement. For the purpose of resolving the motion to suppress, the court will assume that Defendant was in custody at the time of the advice of rights. After considering the totality of the circumstances, the court finds that Cokis voluntarily, knowingly, and intelligently waived his rights. 21
“Miranda
“warnings are required before any statement may be admitted into evidence at trial which was elicited from a person in custody through interrogation.’ ”
22
United States v. Adams,
At 9:52 a.m., Agent Bowen advised Cokis of his Miranda rights using a DEA 13A card, reading from the Spanish side. (Tr. at 31-32; Gov’t Ex. 5). Defendant was advised:
Before we ask you any questions, you must understand:
— You have the right to remain silent.
— Anything you say can be used against you in court.
— You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning.
— If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
Do you understand?
Are you willing to answer some questions?
(Gov’t Ex. 5). Cokis was advised of his rights.
Having found that Cokis was advised of his
Miranda
rights, the court must next determine whether Defendant voluntarily, knowingly and intelligently waived those rights.
23
See Barbour,
“First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.”
Id.
(quoting
Moran v. Burbine,
Agent Bowen testified that as she began to read the Miranda rights, she asked Cokis to advise her if he did not understand something she said in order for her to explain and, after each bullet point, that she asked if Cokis understood. Finally, as she finished, she asked Cokis if he understood. (Tr. at 32). Cokis appeared to understand the advice of rights. (Tr. at 32). She also gave Cokis the opportunity to read the card. (Tr. at 32). No agent had his or her firearm drawn on Cokis. (Tr. at 33). Agent Bowen did not recall if Cokis was handcuffed when advised of his rights or when he made a statement. (Tr. at 52-53). Cokis did not state that he did not want to make a statement or answer questions, and Cokis did not ask for a lawyer. (Tr. at 34-36). Nothing about the circumstances of Cokis’ detention or arrest on April 29, 2009, indicates that he was coerced into waiving his rights or making a statement; therefore, his waiver was voluntary. And the facts establish that he understood his rights and that he knowingly and intelligently waived his rights.
Finally, to the extent that Cokis’ Sixth Amendment right to counsel had at
For these reasons, the court RECOMMENDS that Defendant Anaya-Medina/Cokis’ motion [Doe. 302] to suppress statements be DENIED and that Defendant Cruz-Loya/Loza-Cruz’s motion [Doc. 297] to suppress statements be GRANTED IN PART and DENIED IN PART.
III. Conclusion
For the foregoing reasons and cited authority, the court RECOMMENDS that Defendant Anaya-Medina/Cokis’ motion [Doc. 301] to suppress voice exemplars and statements obtained on April 29, 2009, and motion [Doc. 302] to suppress evidence seized pursuant to a warrantless search on April 29, 2009, at 2265 Ranch Trial, Nor-cross, Georgia, be DENIED; that Defendant Cruz-Planearte/Valda-Ceja’s motion [Doc. 322] to suppress evidence obtained during the same warrantless search be DENIED; and that Defendant CruzLoya/Loza-Cruz’s motion [Doc. 297] to suppress be GRANTED IN PART and DENIED IN PART, denied as to the voice exemplars taken for purpose of identification on April 29, 2009, and granted as to the post -Miranda statements obtained on April 29, 2009, and as to the evidence seized during the same warrantless search.
Defendant Otha Barnes’ Motion to Suppress
Defendant Otha Barnes filed a motion [Doc. 315] to suppress evidence and statements. In the motion, Defendant sought to suppress evidence obtained during a warrantless detention and search of the tractor-trailer he was operating on December 10, 2008. He also sought in the motion to suppress voice exemplars obtained by the Government on the date of his arrest, April 29, 2009, on the federal indictment in this case.
[Id.].
An evidentiary hearing was held on the motion on March 18, 2010.
24
[Doc. 464]. In his post-hearing brief filed in support of the motion to suppress, Defendant only addresses the warrantless detention and search occurring in December 2008.
25
[Doc. 497]. He seeks suppression of the evidence obtained from the search, cocaine and methamphetamine, on the grounds that the detention
I. Facts
A day or two prior to December 10, 2008, Sergeant Black Swicord, Georgia State Patrol (“GSP”), supervisor of the Criminal Interdiction Unit, 27 was contacted by agents with the Federal Bureau of Investigation (“FBI”) and advised that, as part of a drug trafficking organization under investigation, a possible of load of narcotics was coming into the Atlanta area in a tractor-trailer. (Tr. at 4-6). The FBI agents advised that they would follow the tractor-trailer into Georgia and point it out to Sgt. Swicord, who was asked to conduct a traffic stop of the vehicle if he had probable cause and, then, to determine if narcotics were in the tractor-trailer. 28 (Tr. at 5-6). As a part of Sgt. Swieord’s training and experience, he had attended the Department of Transportation (“DOT”) inspection school and was certified to detain and inspect commercial motor vehicles. (Tr. at 9). His training and experience included examining commercial motor vehicle paperwork, such as logbooks. (Tr. at 9-10). Based on the thousands of prior traffic stops and numerous seizures of contraband in commercial motor vehicles, he was knowledgeable of the trucking industry. (Tr. at 10). Sgt. Swicord is an instructor at the Drug Interdiction Association Program (“DIAP”) 29 at which he teaches other law enforcement officers about the paperwork associated with the trucking industry and the significance of the information contained in or missing from that paperwork as it relates to criminal activity. (Tr. at 10-11).
On December 10, 2008, Sgt. Swicord was on patrol on 1-20 West, in Carroll County, in uniform and in a marked vehicle, when the suspect tractor-trailer was pointed out to him by the FBI. (Tr. at 6). He followed
The officer exited his police vehicle and walked up to the driver door of the tractor and spoke to the white male driver, identified as Defendant Barnes. Sgt. Swicord advised Defendant why he was stopped and asked for his identification and driver’s license. (Tr. at 8, 35). The officer noticed that Defendant’s driver’s license was issued in Tennessee. (Tr. at 8). Due to the fact that it was raining, Sgt. Swicord asked Defendant to drive up to the next over-pass and park. (Tr. at 8, 35). Defendant did so, and Sgt. Swicord followed, keeping Defendant’s driver’s license. (Tr. at 8, 35). Sgt. Swicord exited his vehicle and again approached Defendant, this time requesting that Defendant produce all the paperwork that he was required to maintain, that is, the logbook, bill of lading, and medical card. (Tr. at 8, 35-36).
The officer then examined the paperwork, which requires several minutes based on the requirements limiting an operator’s time driving and determining whether the tractor-trailer was permitted to operate in Georgia. (Tr. at 10-12, 36). In examining the bill of lading, 30 Sgt. Swicord observed several items that were not commonly missing on the numerous bills of lading he observed on a daily basis. (Tr. at 11-12, 37). Unlike most such documents, there was not much information on the bill of lading. The paperwork was vague in regards to contact information for the source of the load or the destination, which is unusual because the commodity has value. The only information on the source was McAllen, Texas, near the Mexican border, and Defendant was able to provide no information about the owner of the tractor-trailer or the load, which was also unusual based on the officer’s experience. With small companies and independent operators, such as this load, the drivers usually know the owners. And the only destination for the twenty-four pallets of jumbo cabbage was the Atlanta Farmer’s Market, a large place. No contact information was provided for delivery. (Tr. at 11-15, 30).
Sgt. Swicord was also suspicious about why a driver from Tennessee was operating a Texas tractor-trailer. (Tr. at 12). He asked Defendant about how he obtained the load. Defendant advised that he flew from Knoxville, Tennessee, to the Texas border to pick up the load. (Tr. at 12). Based on the officer’s experience and knowing that each load must be cost-effective, Sgt. Swicord stated that flying a driver from Tennessee to pick up a load of cabbage, one of the least cost-effective loads, was suspicious. He was aware based on his interaction with drivers transporting loads from that area of Texas that there were numerous drivers available in the area and that there was no need to pay the expense to fly a driver in to pick up a load of cabbage.
31
(Tr. at 12-14, 21-22).
Sgt. Swicord had also observed that the trailer doors, although padlocked, were not sealed as is usually true with loads from the border area. (Tr. at 15, 26-27). If the trailer is not sealed, then the load can be tampered with; the seal on the trailer confirms that the load matches the bill of lading. (Tr. at 15). This fact was of interest to the officer. (Tr. at 27). Adding further to the officer’s suspicions was Defendant’s statement that he did not see the trailer being loaded which, according to the officer, was very inconsistent with most drivers who observe the trailer being loaded, as they are responsible for the commodity on the trailer. The drivers want to be sure the commodity loaded matches the bill of lading. (Tr. at 14). And Defendant lacked knowledge about how he was being paid, providing conflicting answers, which is inconsistent with most drivers who know all of the costs of the transportation and the cost-effectiveness of the load. (Tr. at 31-32).
After Sgt. Swicord examined the paperwork and questioned Defendant about the owner of the tractor-trailer and the commodity, the load’s destination, and Defendant’s authority to operate the motor vehicle, he wrote out a warning citation and returned to Defendant all of the paperwork and identification documents. (Tr. at 28, 33-34, 37-38). He issued Defendant a warning for speeding. (Tr. at 28, 37). This was approximately three to four minutes into the stop. (Tr. at 28). The officer then discussed with Defendant the reasons he was suspicious about whether the tractor-trailer’s load was legitimate and asked Defendant if he would consent to a search of the tractor-trailer. 32 (Tr. at 16, 38-39). After Defendant verbally consented to the search, Sgt. Swicord obtained a consent to search form which he filled in and asked Defendant to sign. (Tr. at 16). The form stated:
GEORGIA STATE PATROL CONSENT TO SEARCH
I, Otha Barms hereby grant my consent to Sgt. Swicord, TFC Malone Troopers of the Georgia State Patrol to search the following described vehicle including luggage, containers, and contents of all. This includes the removal of any suspicious paneling or other vehicle components and the least intrusive access to any constructed compartment used for the purposes of concealing contraband.
Red 1999 Freight Tractor RB7L20 Color Year Make Body Style License Number
I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form. I further state that no promises,threats, force, physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.
My consent is freely and voluntarily given.
Date 12-10-08 Time 0805
Otha Barnes
Signature
(Tr. at 16; Gov’t Ex. 3 (handwritten information in italics)).
After Defendant signed the consent to search form, Sgt. Swicord asked Defendant if he had a key for the padlock on the trailer, and Defendant responded, yes. He then asked Defendant to unlock the padlock, and Defendant complied. (Tr. at 17). Once the trailer doors were opened, Sgt. Swicord stated that he could smell the “stench of rotten fruit.” (Tr. at 17). He climbed onto the top of the pallets which were soft and slimy and not in good condition; the condition of the load added to his suspicions. (Tr. at 17). The officer made his way to the front of the trailer and noticed that the pallets had been disturbed. (Tr. at 17). After he exited the trailer, he advised Defendant that the cabbage was rotten, and he asked his partner, who was present as back-up, to deploy his K-9 around the trailer. (Tr. at 17-18). The second officer advised Sgt. Swicord that the K-9 alerted to the undercarriage of the trailer which is consistent with controlled substances being in the trailer and the odor escaping through drainage holes in the floor of the trailer. (Tr. at 18).
Due to the weather conditions and being on the side of the interstate, Sgt. Swicord decided to relocate the trailer to a nearby business for off-loading. (Tr. at 18). He asked Defendant to follow him to the next exit and to back the trailer up to a loading dock, and Defendant complied. (Tr. at 18). As the seventh pallet was off-loaded, once the pallet was probed, Sgt. Swicord observed what he believed based on his experience to be cocaine. (Tr. at 19). He then showed the contraband to Defendant and placed him under arrest. Defendant appeared agitated and fearful and, when advised of his Miranda rights, asked to speak with an attorney. (Tr. at 19).
Sgt. Swicord contacted the FBI. After they arrived, twenty-eight bundles of controlled substances removed from the trailer were turned over to the FBI. Defendant was then booked into the Carroll County Jail on cocaine and methamphetamine trafficking charges. (Tr. at 19-20). Defendant was subsequently indicted by a federal grand jury, and a warrant was issued for his arrest, which was served at Defendant’s residence in Dandridge, Tennessee, on April 29, 2009, by Special Agents with the FBI. (Tr. at 40-42).
At approximately 6:00 a.m., agents arrived at the residence, also having with them a federal search warrant, and knocked on the door. (Tr. at 41-42). When Defendant answered the door, he was placed under arrest and advised that there was an arrest warrant from Georgia. (Tr. at 42-43, 50). After the residence was secured, Defendant was advised of his Miranda rights and executed a waiver of rights form agreeing to speak with the agents. (Tr. at 43, 48-49; Gov’t Ex. 4). The agents did not have their weapons drawn. They made Defendant no promises and did not threaten him. Defendant sat on the couch and was uncuffed during the interview. He was cooperative. (Tr. at 43-45).
At some point, although the FBI agent does not remember if before or after Defendant was advised of his rights, Defendant was handed a phone and answered questions over the phone about his residence, phone number, employment, date of birth, and similar background type of questions. (Tr. at 45-46, 50-51). The agent did not recall making any statement
Additional facts will be set forth as necessary during discussion of Defendant’s claims.
II. Discussion
a. Detention and Search
As noted, Defendant contends that the evidence, a quantity of cocaine and methamphetamine, seized from the trailer during the stop on December 10, 2008, should be suppressed because the GSP Trooper lacked probable cause to conduct the traffic stop and lacked a reasonable suspicion to detain him to investigate other criminal activity. 33 [Doc. 497]. Although not clear from Defendant’s brief, the court will assume that Defendant is also contesting the consent to search. [Id.]. The Government opposes the motion to suppress arguing that Sgt. Swicord had probable cause to conduct the traffic stop, the duration of which was reasonable, and that the officer had a reasonable suspicion to detain Defendant to investigate whether he was engaged in other criminal activity, and that Defendant’s consent to search the trailer was voluntary.
“A traffic stop, which ‘is a seizure within the meaning of the Fourth Amendment,’ ... ‘is constitutional if it is either based upon probable cause to believe a traffic violation has occurred or justified by reasonable suspicion in accordance with
Terry
[,
Sgt. Swicord had probable cause to stop Defendant’s tractor-trailer for the traffic infraction of speeding. The Georgia Code section relevant to the traffic stop provides in pertinent part:
(a) The limits specified in this Code section or established as authorized in this article shall be the maximum lawful vehicle speeds....
(b) Consistent with the provision of engineering and traffic investigations regarding maximum speed limit as provided in Code Section 40-6-182, no person shall drive a vehicle at a speed in excess of the following maximum limits: ...
(2) Seventy miles per hour on a highway on the federal interstate system ... provided that such speed limit is designated by appropriate signs.
O.C.G.A. 40-6-181. The undisputed evidence establishes that on December 10, 2008, Sgt. Swicord was on patrol on 1-20 West, in Carroll County, in uniform and in a marked vehicle, when the suspect tractor-trailer was pointed out to him by the FBI. (Tr. at 5-6). He followed the tractor-trailer on the interstate highway and determined that it was traveling 78 miles per
The legality of traffic stops is analyzed under the test set forth in
Terry.
“[A] traffic stop ‘must last no longer than is necessary to effectuate the purpose of the stop.’ ”
United States v. Ramirez,
In
Hernandez,
The duration of a traffic stop may be prolonged to investigate, by the
The duration of the traffic stop was reasonable. After the tractor-trailer stopped, the officer exited his police vehicle and walked up to the driver door of the tractor and spoke to the white male driver, identified as Defendant Barnes. 37 Sgt. Swicord advised Defendant why he was stopped and asked for his identification and driver’s license. (Tr. at 8, 35). The officer noticed that Defendant’s driver’s license was issued in Tennessee. (Tr. at 8). Due to the fact that it was raining, Sgt. Swicord asked Defendant to drive up to the next over-pass and park. (Tr. at 8, 35). Defendant did so, and Sgt. Swicord followed, keeping Defendant’s driver’s license. (Tr. at 8, 35). Sgt. Swicord exited his vehicle and again approached Defendant, this time requesting that Defendant produce all the paperwork that he was required to maintain, that is, the logbook, bill of lading, and medical card. (Tr. at 8, 35-36).
The officer then examined the paperwork, which requires several minutes based on the requirements limiting an operator’s time driving and determining whether the tractor-trailer was permitted to operate in Georgia.
38
(Tr. at 10-12, 36). During this time, Sgt. Swicord observed the information on the bill of lading, and based on the lack of information, he ques
After Sgt. Swicord examined the paperwork and questioned Defendant about the owner of the tractor-trailer and the commodity being transported, the load’s destination, and Defendant’s authority to operate the motor vehicle, he wrote out a warning citation and returned to Defendant all of the paperwork and identification documents. (Tr. at 28, 33-34, 37-38). He issued Defendant a warning for speeding. (Tr. at 28, 37). This was approximately three to four minutes into the stop. (Tr. at 28).
None of the actions taken by Sgt. Swicord unreasonably lengthened the traffic stop, including questioning Defendant about his travel, his authority to operate the tractor-trailer, and examining the log book and bill of lading.
See, e.g., United States v. Geboyan,
Furthermore, any delay in completing the traffic stop as well as the continued detention of Defendant following the traffic stop to explain to him the officer’s suspicions and to ask for consent to search was based on a reasonable suspicion that Defendant was engaged in criminal activity and was of a reasonable duration. Because of Sgt. Swieord’s training and experience, including attending the DOT inspection school, resulting in his certification to inspect and detain commercial motor vehicles, instructing at the DIAP where he teaches other law enforcement officers about the paperwork associated with the trucking industry and the significance of the information contained in or missing from that paperwork as it relates to criminal activity, and conducting the thousands of prior traffic stops and numerous seizures of contraband in commercial motor vehicles, he was knowledgeable of the trucking industry, the paperwork associated with operating commercial motor vehicles and the patterns and conduct associated with criminal trafficking activities. (Tr. at 9-11). Based on this background and his observations on December 10, 2008, he developed a reasonable suspicion that Defendant was engaged in criminal
Sgt. Swieord outlined, based on his training and experience, the particular facts that caused him to be suspicious that the tractor-trailer was not carrying a legitimate load. First, the FBI had advised him that, as part of an investigation into a drug organization trafficking into Atlanta, they suspected a load of narcotics were coming into the Atlanta area in a tractor-trailer. (Tr. at 5-6). On December 10, 2008, the FBI pointed out the tractor-trailer being operated by Defendant as the one suspected of transporting the controlled substances. (Tr. at 6). After he stopped the vehicle for the speeding infraction, Sgt. Swieord identified the following additional specific factors as the basis for his independent suspicion that the load was illegitimate. In examining the bill of lading, Sgt. Swieord observed several items that were not commonly missing on the numerous bills of lading he observed on a daily basis. (Tr. at 11-12, 37). The paperwork was vague in regards to contact information for the source of the load, only stating McAllen, Texas, or the destination, the Atlanta Farmer’s Market, a large place, which is unusual because the commodity has value. Nor was Defendant able to provide information about the owner of the tractor-trailer or the load, also unusual based on the officer’s experience that, with small companies and independent operators, such as this load, the drivers usually know the owners. (Tr. at 11-15, 30).
Sgt. Swieord was also suspicious about why a driver from Tennessee was operating a Texas tractor-trailer. (Tr. at 12). He asked Defendant about how he obtained the load. Defendant advised that he flew from Knoxville, Tennessee, to the Texas border to pick up the load. (Tr. at 12). Based on the officer’s experience and knowing that each load must be cost-effective, Sgt. Swieord stated that flying a driver from Tennessee to pick up a load of cabbage, one of the least cost-effective loads, was suspicious. He was aware based on his interaction with drivers transporting loads from that area of Texas that there were numerous drivers available in the area and that there was no need to pay the expense to fly a driver in to pick up a load of cabbage and that this was not a situation where it was necessary to arrange for a driver with a specialized license. (Tr. at 12-14, 21-23). And drivers did not need to be flown back from deliveries to Atlanta or other locations because unlike Defendant, again suspicious, drivers make arrangements for back-loads. His suspicions about flying in a driver to transport a low cost load was heightened by the fact he believed, based on the high DOT number, “one million 700^something thousand,” that the tractor-trailer was operated by a new company and, for this reason, needed to make money on a load, not just break even. (Tr. at 29-31).
Sgt. Swieord had also observed that the trailer doors, although padlocked, were not sealed as is usually true with loads from the border area. (Tr. at 15, 26-27). If the trailer is not sealed, then the load can be tampered with; the seal on the trailer confirms that the load matches the bill of lading. (Tr. at 15). Adding further to the
All of these factors, beginning with the FBI’s alert, in light of Sgt. Swicord’s training and experience, established reasonable suspicion to continue the interview to investigate whether Defendant was engaged in other criminal conduct. Similar factors, in fact less suspicious circumstances, have been determined by other courts to establish reasonable suspicion. In
United States v. Arango-Lopez,
And, in
United States v. Flores,
The focus of Defendant’s attack on Sgt. Swicord’s explanation for his reasonable suspicion is Defendant’s contention that the officer’s opinions were speculative and unfounded and that he had not been offered or qualified as an expert in the trucking industry. [Doc. 497 at 6-9]. Defendant misconstrues the testimony, which the court did not accept as an expert opinion, but as a layperson, particularly a law enforcement officer, with extensive training and experience and based on the significance of the facts noted, if any, to the officer in his law enforcement capacity. As evidenced by the cases cited by the court
supra,
the testimony offered by Sgt. Swieord falls within the scope of the law-enforcement-based opinion evidence relied on by courts to resolve issues of reasonable suspicion in these type of cases.
See, e.g., Johnson,
Based on all of the factors set forth by Sgt. Swieord, the court finds that in the present case the continued detention of Defendant did not violate his Fourth Amendment rights. That detention was brief. After issuing the warning, the officer discussed with Defendant the reasons he was suspicious about whether the tractor-trailer’s load was legitimate and asked Defendant if he would consent to a search of the tractor-trailer. (Tr. at 16, 38-39). After Defendant verbally consented to the search, Sgt. Swieord obtained a consent to search form which he filled in and asked Defendant to sign. (Tr. at 16). Once Defendant consented to the search, the encounter became consensual and the amount of delay, because Defendant did not object to the length or scope of the search, is not considered by the court.
See United States v. Gonzalez,
Defendant, who was not being unlawfully detained, executed a form consenting to the search of the tractor-trailer. The court previously set forth the binding legal authority guiding the court’s analysis of the voluntariness of Defendant’s consent to search.
(See
Report and Recommendation, Defendants Anaya-Medina’s, et al., Motions to Suppress Evidence and Statements, II. Discussion, a. Search of Resi
GEORGIA STATE PATROL CONSENT TO SEARCH
I, Otha Barnes hereby grant my consent to Sgt Swieord, TFC Malone Troopers of the Georgia State Patrol to search the following described vehicle including luggage, containers, and contents of all. This includes the removal of any suspicious paneling or other vehicle components and the least intrusive access to any constructed compartment used for the purposes of concealing contraband.
Red 1999 Freight Tractor RB7L20 Color Year Make Body Style License Number
I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form. I further state that no promises, threats, force, physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.
My consent is freely and voluntarily given.
Date 12-10-08 Time 0805
Otha Barnes
Signature
(Tr. at 16; Gov’t Ex. 3 (handwritten information in italics)).
Defendant, being advised of his right to refuse consent and acknowledging that no coercion, threats or promises contributed to his consent and continuing to be cooperative with the officer, granted permission for Sgt. Swieord to conduct a thorough search of the trailer.
40
Blake,
For all of these reasons, the court RECOMMENDS that Defendant Barnes’ motion [Doc. 315] to suppress evidence, quantities of controlled substances seized on December 10, 2008, be DENIED.
b. Voice Exemplars
Although not discussed in the post-hearing brief, in the motion to suppress, Defendant seeks to suppress the voice exemplars taken on the date of his arrest on the federal indictment, April 29, 2009. [Doc. 315], The grounds for making that request are confusing with Defendant again seeking a Franks hearing. [Id.]. However, based on the Government’s representation that the voice exemplars will only be used at trial for the purpose of identification, Defendant cannot establish that introduction of the evidence will violate his Fourth, Fifth, or Sixth Amendment rights.
FBI agents arrived at Defendant’s residence in Dandridge, Tennessee, at approximately 6:00 a.m., on April 29, 2009, to execute a federal arrest warrant and a federal search warrant. Although Defendant was given his
Miranda
rights and, as not contested by Defendant, waived his rights and spoke with the agents, the evidence is not clear if Defendant provided the voice exemplars before or after being advised of and waiving his rights. (Tr. at 41-45, 48-49; Gov’t Ex. 4). In any event, Defendant was handed a phone and answered questions over the phone about his residence, phone number, employment, date of birth, and similar background type of questions: (Tr. at 45-46, 50-51). The agent did not recall making any statement to Defendant about providing the voice exemplar. (Tr. at 50-51). Use of the exemplars for identification purposes, based on these facts and the case law set forth
supra (see
Report and Recommendation, Defendants Anaya-Medina’s, et ah, Motions to Suppress Evidence and Statements, II. Discussion, b. Voice Exemplars), will not violate Defendant’s rights.
See, e.g., Gallo-Moreno,
For these reasons, the court RECOMMENDS that Defendant’s motion [Doc. 315] to suppress the voice exemplars be DENIED.
III. Conclusion
For the foregoing reasons and cited authority, the court RECOMMENDS that Defendant’s motion [Doc. 315] to suppress evidence and the voice exemplars be DENIED.
Defendant Gerald Durrance Motion to Suppress Evidence
Pending before the court are Defendant Durrance’s motions [Docs. 304 and 455] to suppress evidence seized as the result of a consent search of his residence located at 45 Fairway Ridge Drive, Alpharetta, Georgia, on April 29, 2009. As fruits of that search, Defendant also seeks to suppress evidence obtained as the result of a federal search warrant executed on several computers and associated hardware seized during the search.
[Id.].
An evidentiary hearing was held on the motion to suppress on February 23, 2010.
41
[Doc. 434].
I.Facts
On April 29, 2009, FBI agents along with local officers arrived at 45 Fairway Ridge Drive, in Alpharetta, to execute a federal arrest warrant for Defendant Durrance. 42 (Tr. at 6-7). A SWAT team made the initial entry into the residence and reported back to the on-scene commander, FBI Special Agent Ronald Campbell, that Defendant was not found inside the residence; however, three females and one male were located inside. (Tr. at 7-9). At Agent Campbell’s request, the four individuals were escorted outside of the residence where the agent spoke with each person. (Tr. at 9, 20).
The agent advised the four occupants of the residence that they were not under arrest and were free to leave. (Tr. at 9). The male, who was just visiting, left. (Tr. at 10, 22). The oldest female, age twenty and identified at the time as Stephanie Espinoza, advised the agent that she was in charge of the house and of her two younger sisters, aged 17 and 14, while her parents were out of town for a few days. (Tr. at 9-10, 36, 39). The agent understood that Defendant Durrance was Ms. Espinoza’s stepfather. (Tr. at 10). Agent Campbell asked Ms. Espinoza if the agents could search the residence and showed her a consent to search form on which he filled in the residence address. (Tr. at 11; Gov’t Ex. 1). The form states:
1. I have been asked by Special Agents of the Federal Bureau of Investigation to permit a complete search of: 15 Fairway Ridge Dr. Alpharetta, GA
2. I have been advised of my right to refuse consent.
3. I give this permission voluntarily.
4. I authorize these agents to take any items which they determine may be related to their investigation.
1/29/09 Stephanie Espinoza
Date Signature
Witness Ronald Campbell SA FBI Atlanta Christie Parker SA FBI Atlanta
(Gov’t Ex. 1 (handwritten information in italics)). After asking to speak with and speaking with a lawyer over the telephone, Ms. Espinoza signed the consent form. (Tr. at 11-12). The agents conducted a search of all the rooms in the residence finding various items, including documents, computers and electronic equipment, a safe, and ammunition. (Tr. at 12).
Specifically, in an office in the basement (designated on the evidence list as Room H), the agents found SunTrust bank documents, a SimpleTeck Hard Drive, a HP Pavilion Desktop, a Generic Desktop, a Royal Sovereign cash counter, and miscellaneous business and financial documents. (Tr. at 13, 23-24, 43; Gov’t Ex. 2). Agent
In the master bedroom (designated on the evidence list as Room P) and the master bath/closet (designated on the evidence list as Room Q), the agents found a Sentry Safe, several cellular telephones, an Apple MacBook (laptop), a digital recorder and various business and financial documents. (Tr. at 14, 23, 43-44; Gov’t Ex. 2). Agent Campbell did not know whether the door to the master bedroom was locked and breached by the SWAT while searching for Defendant but no one reported to him breaching that door. (Tr. at 16-17, 22). According to Agent Campbell, when Ms. Espinoza saw the laptop, which had been found under the bed in the master bedroom, she stated that the computer was hers. (Tr. at 14).
The safe found in the master bedroom was picked up by searching agents who, using a flash light, could look through what appeared to be bolt holes in the bottom of the safe. They observed a weapon, some men’s jewelry and currency. (Tr. at 14, 24). The safe, which was locked, required a key and a code to open and was seized locked at the residence. (Tr. at 24-25, 29-30, 33; Def. Ex. 4). At the FBI office, agents obtained a code for the safe from the manufacturer and opened the safe retrieving the handgun, jewelry and currency. (Tr. at 25).
The agents also found in the kitchen (designated on the evidence list as Room E) more miscellaneous business and financial documents, in the garage (designated on the evidence list as Room G) a box containing an assault rifle magazine, and in one of the daughter’s bedrooms (designated on the evidence list as Room C) miscellaneous documents and a MetroPCS cellular telephone. (Tr. at 26, 43; Gov’t Ex. 2). [Doc. 455 at 2 n. 1],
Ms. Espinoza testified at the hearing. Her testimony, as was that of Agent Campbell, was credible. Neither witness’s testimony about the events of April 29, 2009, materially differs. Ms. Espinoza stated that Defendant was her step-father. (Tr. at 28). She resides at 45 Fairway Ridge Drive with her mother, step-father and two younger sisters. (Tr. at 28). She did not pay rent or the mortgage for the residence, which was being rented by her parents. (Tr. at 28-29). With respect to the rooms in the residence, Ms. Espinoza stated that her parents shared a bedroom and that the door to the room was locked whenever they were not at home. Although the door was not locked when they were present, she stated, “But whenever they would leave to work or, you know, any place, they would lock the room.” (Tr. at 29). She did not have a key for the master bedroom which was locked on the morning of April 29, 2009, when the agents arrived, because her parents were not at home. (Tr. at 29, 34, 36, 39). She also identified photographs of the door and door frame to the master bedroom which she described as showing a hole punched in the door and the door frame ripped. (Tr. at 30-33; Def s Exs. 1, 2, and 3). The agents did not specifically ask her about searching the master bedroom. (Tr. at 30). On cross-examination, Ms. Espinoza stated that when her parents are home, she is not restricted from any part of the house and that she has been in the master bedroom. (Tr. at 36-37). Ms. Espinoza stated that her laptop was in the master bedroom because she gave it to her mother to be repaired. (Tr. at 34, 40).
Ms. Espinoza testified that the door to the office in the basement was locked on April 29, 2009, and stated that the office was Defendant’s. (Tr. at 35, 39). The office normally remains locked, and she does not have a key or any possessions in the office. (Tr. at 35). She is allowed in the office to use the computer when Defendant is home and with his permission. (Tr. at 35, 37).
Ms. Espinoza gave consent for the agents to search the entire house. (Tr. at 36). And she did not tell the agents that they could not go into any of the rooms. (Tr. at 40). She apparently had very little conversation with the agents about the various rooms in the residence or the items that they found in the residence. (Tr. at 24, 30, 40-41).
Additional facts will be set forth as necessary during the discussion of Defendant’s claims.
II. Discussion
Defendant only challenges the scope of the authority Ms. Espinoza had to consent to a search of the residence on April 29, 2009, in Defendant’s and her mother’s absence. Defendant contends that Ms. Espinoza had neither actual nor apparent authority to consent to the search of the master bedroom, the safe found therein or the office. [Doc. 455]. The search of the office and master bedroom resulted in the seizure of the laptop and desktop computers and related equipment. Defendant contends that the results of the search of those items pursuant to the federal search warrant constitute fruits of the unlawful consent search and should also be suppressed. [Id.]. The Government contends that Ms. Espinoza had actual authority to consent to the search and, if not, that the agents reasonably relied on her apparent authority to search the entire residence. [Doc. 479]. Therefore, the Government also asserts that the results of the federal search warrant should not be suppressed. [7d],
a. Consent Search
The court
supra (see
Report
&
Recommendation, Anaya-Medina’s, et al., Motions to Suppress Evidence and Statements, II. Discussion, a. Search of Residence) set out the framework for resolving the issue before the court. As stated by the Seventh Circuit Court of Appeals in
Aghedo,
“A third party with common authority over the premises [or effects] sought to be searched may provide such consent.... Common authority is based upon mutual use of property by persons generally having joint access or control.”
Based on the evidence presented at the evidentiary hearing, the court finds that Ms. Espinoza did not have actual authority to consent to the search of the master bedroom, the safe found therein, or the office. “The government presented no evidence of joint access or control at the suppression hearing.”
United States v. Jaras,
Where a third party appears to have authority over the entire premises, the police may rely on that person’s consent to search throughout the house, so long as the consent appeared to extend so far.... On the other hand, if part of a dwelling is appropriated for the exclusive use of one occupant, other inmates of the house have no right to consent to police entry of the space from which they themselves are excluded. “To the extent a person wants to ensure that his possessions will be subject to a consent search due to his oum consent, he is free to place these items in an area over which others do not share access and control, be it a private room or a locked suitcase under his bed.”
United States v. Almeida-Perez,
Ms. Espinoza was a resident of the home, living there as an adult-child, rent-free, with her step-father, Defendant Durrance, and her mother. (Tr. at 9-10, 28-29). On April 29, 2009, she was in charge of the residence and her two younger sisters. (Tr. at 9-10, 36). Based on these facts, she had authority to allow a consent search of the residence, and she did not limit the scope of the search that she granted. (Tr. at 11, 36; Gov’t Ex. 1). However, two rooms in that residence, the master bedroom shared by her parents and the office used by Defendant, were locked and were only entered by the agents using force. (Tr. at 13, 29-33; Def's Exs. 1, 2, and 3). Ms. Espinoza did not have a key to either room, did not have access to either room unless her parents were home, and as to the office, in fact,
In
Moore v. Andreno,
A recent decision of the Eleventh Circuit Court of Appeals does not support a finding to the contrary. In
United States v. Camp,
Even if Ms. Espinoza had authority to allow a search of the master bedroom, that authority did not extend to the locked safe found in the bedroom. A consent to search a place of residence does not generally extend to personal belongings of other occupants, especially locked containers, located in the residence.
See United States v. Salinas-Cano,
In
United States v. Waller,
For these reasons, the court finds that Ms. Espinoza did not have actual authority to consent to a search of either locked room or the locked safe. As noted, the Government also relies on apparent authority to justify the search of these areas. Apparent authority to consent depends on a “ ‘reasonable mistake of fact, as distinguished from a mistake of law.’ ”
Salinas-Cano,
In Waller, the Sixth Circuit Court of Appeals summarized the law this court finds applicable to analysis of the issue of Ms. Espinoza’s apparent authority to consent in this case:
Whether the facts presented at the time of the search could “warrant a man of reasonable caution” to believe the third party has common authority over the property depends upon all of the circumstances .... The government cannot establish that its agents reasonably relied upon a third party’s apparent authority “if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry. If the agents do not learn enough, if the cireumstances make it unclear whether the property about to be searched is subject to ‘mutual use’ by the person giving consent, ‘then warrantless entry is unlawful without further inquiry.’ ” Where the circumstances presented would cause a person of reasonable caution to question whether the third party has mutual use of the property, “warrantless entry without further inquiry is unlawful[.]” Rodriguez, 497 U.S. at 188-89 , 110 S.Ct. [at 2801] (noting that “the surrounding circumstances could conceivably be such that a reasonable person would doubt [the apparent consent] and not act upon it without further inquiry[ ]”).
The agents, when confronted with the locked bedroom and office, as well as the locked safe, did very little to determine whether Ms. Espinoza’s authority extended to a valid consent to search those areas. Although the agents knew that the office was locked, the room having been forcibly entered during the search for Defendant, the only piece of information that the agents obtained, at some point during the search but not clear if before the room was searched or after, was Ms. Espinoza’s statement that she and her sisters used one of the computers in the office. (Tr. at 13). However, the agents apparently did not ask Ms. Espinoza a few simple questions to clarify her right to access that locked room, such as,' whether she had a key to the locked door, did she have permission to enter the room in her parent’s absence, or did she have belongings in the room. And, if those questions would have been asked, Ms. Espinoza’s answers that she did not have a key, did not have authority to enter the office or use the computer without Defendant’s permission and unless he was present, and did not have belongings in the room (Tr. at 35, 37) would have demonstrated her lack of legal authority to validly consent to a search of that space. The same is true of the locked master bedroom and the safe found in that room. The only information that the agents obtained about Ms. Espinoza’s relationship to that room was obtained after the search of the room and the seizure of the laptop found therein. Ms. Espinoza offered, not in response to being asked, that the laptop was hers. (Tr. at 14). However, if questioned further, she would have explained that her mother had the laptop for the purpose of having it repaired. (Tr. at 34, 37, 40). And Ms. Espinosa would have also advised that her parents locked the bedroom when they were not present, that she did not have a key to the room, and that she did not have other belongings in the room. (Tr. at 29,
And Ms. Espinoza’s relationship with Defendant and her mother and to the residence did not, in this case, “give rise to the presumption that [she] has authority to consent to search of the other’s property.”
Id.
Although, “[tjypically, all family members have common authority over all of the rooms in the family residence[,]”
Pratt v. United States,
For these reasons, the court finds that Ms. Espinoza did not have actual or apparent authority to consent to a search of the locked office and the locked master bedroom or the locked safe found in the master bedroom. The court RECOMMENDS that Defendant’s motions [Docs. 304 and 455] to suppress evidence obtained from those rooms and the safe be GRANTED.
b. Search Warrant for Computer and Related Equipment
Out of those rooms, the agents seized computers and related electronic
For these reasons, the court RECOMMENDS that Defendant’s motions [Docs. 304 and 455] to suppress the information and other results of the execution of the warrant for the computers and electronic equipment seized from the master bedroom and office be GRANTED.
III. Conclusion
For the foregoing reasons and cited authority, the court RECOMMENDS that Defendant’s motions [Doc. 304 and 455] to suppress evidence be GRANTED.
Defendant Martina Casas Flores’ Motion to Suppress Evidence
Pending before the court is Defendant Flores’ motion [Doc. 349] to suppress evidence seized pursuant to the execution of two federal search warrants on April 29, 2009, one for 604 Sandyhills Avenue, McAllen, Texas [Doc. 456, Ex. 1] and one for 608 Sandyhills Avenue, McAllen, Texas
[Id.,
Ex. 2; Doc. 578].
44
In the brief filed in support of the motion to suppress, Defendant contends that the affidavit for the search warrants fails to establish probable cause to believe that Defendant was involved in drug trafficking activity, that evidence of those crimes would be found at either residence, and that the residences were linked to Defendant. [Doc. 456 at 8-13]. Defendant further contends that, if the affidavits for the warrants do not establish probable cause, the
Leon
exception to the exclusionary rule is not applicable in this case because, as to both warrants, the affidavit in support contained false information, because the affidavits were facially deficient in establishing probable cause, and because the magistrate judge abandoned his detached and neutral role.
[Id.
at 21-27], And, as to the warrant for 604 Sandyhills Avenue, Defendant also argues that the good faith exception does not apply because the affidavit relied on information obtained in violation of Defendant’s Sixth Amendment right to counsel.
[Id.
at 16-20]. The Government opposes the motion to suppress the search warrants arguing that the affidavit for the search warrants establishes probable cause to search each residence and that, nonetheless, the good faith exception to the exclusionary rule is applicable to each search warrant; therefore, evidence seized pursuant to the warrants is admissible in evidence. [Doc.
I. Background
On April 29, 2009, the Government presented a search warrant to a federal magistrate judge seeking authorization to search the residence at 608 Sandyhills Avenue, McAllen, Texas, for evidence related to violations of 18 U.S.C. § 1956, money laundering, and 21 U.S.C. §§ 841 and 846, a drug trafficking conspiracy. [Doc. 578]. In the affidavit in support of the warrant, the affiant, Serena Peterson, a Special Agent with the FBI, assigned to the McAllen Resident Agency, San Antonio Division, first provided information concerning her training and experience as a federal agent for approximately five years, including a substantial background in working on drug trafficking and money laundering organizations. [Doc. 578, Affidavit ¶ 1]. She further described the sources of the information for the affidavit, including (1) her personal involvement in the investigation and review of the transcripts and summaries of the court-authorized wire intercepts, specifically the intercepts of a telephone utilized by Defendant, and discussions with Spanish speaking agents and/or monitors regarding the wire interceptions; (2) her review of reports of seizures of drugs and drug proceeds; and (3) discussions with other agents' concerning the investigation. [Id., ¶ 8]. The affiant then stated that based on her training and experience, in addition to the training and experience of other agents with whom she communicated, she knew “that individuals that commit these types of offenses[, i.e., drug trafficking and money laundering organizations,] keep and maintain the ... type of records and related evidence and contraband [set forth in the search warrant and affidavit] in order to carry on their illegal activities, particularly” as relates to the crimes of drug trafficking and money laundering. [Id., ¶ 4]. Based on her training and experience, her knowledge of the instant investigation and her discussions with other agents, the affiant specifically outlined the type of documents, contraband and related materials and equipment, assets, and records that are commonly retained by and commonly stored and maintained in secure, easily accessible locations, such ás residences, businesses, offices and the like, by individuals involved in illegal drug trafficking and money laundering activity. [Id., ¶¶ 4-8].
The affidavit provided a detailed physical description and a statement regarding Defendant Flores’ association with the location to be searched. For the 608 Sandyhills Avenue residence, the affidavit specified: “Agents confirmed through surveillance on April 29, 2009[,] that [t]his residence is utilized by Martina Casas Flores, and has listed this as her address on her Texas driver’s license; and her son Marcos Antonio Flores II resides at this location.” [Id., ¶ 2.B.].
The affiant then provided a general background of the investigation which began in Atlanta in February 2008 and which had as a result of the investigation identified “Ojos” as a member of the Gulf Cartel which operates in Mexico and the Rio Grande Valley. That drug cartel is responsible for distribution of multi-kilogram quantities of controlled substances and for the laundering of the resulting proceeds of the distribution of the controlled substances. The affiant stated, “Through debriefings of various reliable cooperating witnesses, review of docu
With respect to specific information about Defendant, the affiant discussed Defendant having previously stored evidence of drug trafficking activities in a residence associated with her. The affiant describes a August 2006 seizure (which was based on an anonymous tip) of $1,500,000 from a safe located in the former residence of Defendant. The affidavit states that Defendant made a voluntary statement to officers that the currency was given to her by a narcotics trafficker on behalf of her late husband. [Id., ¶ 10].
The affidavit then outlines evidence of Defendant’s involvement in the organization under investigation. 45 That information, as stated in the affidavit, is obtained from the court-authorized wire intercepts commencing in February 2008 on twenty-four telephones, one of which was “subscribed to Grupo De Asecsoria en Reynosa en Comercilizacion, Nuevo Leon 441 Co. Rodriguez, CP 88630, and used by Martina Casas FLORES, aka MOM.” [Id., ¶ 11]. Those intercepts relate to drug and monetary seizures by law enforcement officers. The affiant summarized calls in November 2008 involving Defendant and another co-conspirator, Belisario Mendoza-Gil, which occurred following the law enforcement seizure of over $2,000,000 from a tractor-trailer which had just departed a warehouse in Atlanta. That seizure was the result of interception of conversations about the load between Mendoza-Gil and other co-conspirators. Defendant and Mendoza-Gil discussed the monetary seizure, and she instructed Mendoza-Gil to obtain police reports regarding the seizure. [Id., ¶¶ 12, 13].
Also, the affiant outlined another series of wire intercepts between Defendant and co-conspirators later in November 2008 discussing the transportation of kilogram quantities of cocaine to Chicago with Defendant “acting as a conduit between Mendoza[-Gil] and OJOS to facilitate the shipment, as she obtained details of the shipment from Mendoza[-Gil] for relay to OJOS and requested Mendoza[-Gil] to maintain contact with OJOS.” [Id., ¶ 14]. The affidavit set out summaries of wire intercepts in December 2008 and February 2009 involving Defendant and other co-conspirators, again following the seizures of loads of controlled substances resulting from the wire interceptions, which were being transported as part of the drug trafficking organization. Defendant and other co-conspirators discussed the seizures and the amounts of drugs seized. [Id., ¶¶ 15-17],
The search warrant signed on April 29, 2009, was filed in the United States District Court, Southern District of Texas on April 29, 2009. [Doc. 578]. The return executed on May 18, 2009, providing a list of items seized, was also filed on May 18, 2009.
[Id.].
The affidavit, and attachments
Additional facts will be set forth as necessary during discussion of Defendant’s claims.
II. Discussion
Defendant’s attack on the search warrant focuses on the alleged lack of probable cause in the affidavit for the warrant, specifically contending that the affidavit does not establish probable cause to believe Defendant was involved in the drug trafficking and money laundering organization and that the affidavit does not establish a nexus between Defendant’s alleged illegal conduct and the residence tou be searched and the items to be seized. [Doc. 456 at 8-13].
In deciding whether to sign a search warrant, the issuing judge is “ ‘simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and the ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ”
United States v. Jiminez,
Specifically, when the challenge raised is a lack of nexus between the place searched and the items being sought and involves the residence of a defendant, the Eleventh Circuit Court of Appeals recently stated that “the affidavit must supply the authorizing magistrate with a reasonable basis for concluding that Defendant might keep evidence of his crimes at his home, i.e., a ‘safe yet accessible place.’ ”
United States v. Kapordelis,
“The justification for allowing a search of a person’s residence when that person is suspected of criminal activity is the common-sense realization that one tends to conceal fruits and instrumentalities of a crime in a place to which easy access may be had and in which privacy is nevertheless maintained. In normal situations, few places are more convenientthan one’s residence for use in planning and hiding fruits of a crime.”
Id.
(quoting
United States v. Green,
In
United States v. Meryl,
In fact, those circuit courts that have evaluated warrants which
primarily
relied on an agent’s opinions based on his training and experience to establish a nexus between illegal drug activity and the items to be seized and/or which are based on the issuing judge’s common-sense finding as to the probable location where such evidence will be stored have found that the affidavits for the warrants establish probable cause.
48
See, e.g., United States v. Biglow,
Likewise, in this case, the affidavit in support of the search warrant for the residence associated with Defendant Flores provides sufficient information to allow the issuing Magistrate Judge to make a common-sense determination that the evidence being sought in connection with Defendant’s involvement with the drug trafficking and money laundering organization will be found in the residence. This conclusion is supported by the affiant’s opinion, based on her training and experience, that Defendant is probably in possession of the items sought and has stored those items in the residence. First, the affiant provided evidence that Defendant was associated with and an active participant in the organization under investigation. The investigation, which included a number of authorized wire intercepts of the various co-conspirators, including a telephone stated to have been used by Defendant, relied on intercepted conversations between Defendant and other co-conspirators and established her role and involvement in the illegal activities. [Doc. 578, Affidavit ¶¶ 11-17]. Contrary to Defendant’s arguments [Doc. 456 at 9-10], the lack of details about identifying Defendant as a participant on the wire intercepts, which the Magistrate Judge could reasonably infer had been determined by the District Judges issuing the court-authorized wire intercepts based on sworn affidavits of investigating agents, 49 and the failure to quote verbatim from the wire intercepts do not negate the probable cause finding by the Magistrate Judge.
The Eleventh Circuit Court of Appeals rejected a similar challenge to a search warrant affidavit in
Jiminez,
This affidavit, at worst, summarizes the evidence gained through the wiretap. While it would perhaps have been preferable for the affidavit to have detailed some particular phone conversations, the affidavit states that those phone conversations “indicate that” various drug activities were taking place; this is an objective presentation of the information gained by the investigating officers. Nor does the affidavit fail to specify the source of the information, as in the Aguilar [ 50 ] example: the affidavitclearly states that the wiretap was the source of the information, and this circuit has recently noted that “[t]he fact that a wiretap was the basis for gaining confidential information” lends reassurance as to the veracity of the information.
Id. at 1248-49 (citation omitted).
Second, the affiant established in the affidavit that the residence was closely associated with Defendant. She was observed at and her driver’s license listed as her residence the house at 608 Sandyhills Avenue. [Doc. 578, Affidavit ¶ 2], Defendant argues that the information handwritten on the affidavit, that is, that she was observed at 608 Sandyhills Avenue, should be not considered by the court because the Magistrate Judge did not initial those additions to the affidavit. For this reason, Defendant in effect argues, based on pure speculation, that the Government committed a fraud on the Magistrate Judge by adding that information after he signed the warrant and affidavit. [Doc. 456 at 10-11]. This spurious claim deserves little attention, but the court notes that the affidavit was signed by the Magistrate Judge on April 29, 2009, and that the affidavit was filed that same date in the Clerk’s Office. [Doc. 578]. Absent a factual showing to the contrary by Defendant, this court simply will not assume that the affidavit filed with the Clerk is not the affidavit relied on and signed by the Magistrate Judge. 51 That information was properly before the Magistrate Judge and considered by him in determining that the residence was sufficiently associated with Defendant to support a probable cause finding.
Thirdly, in addition to the common-sense inferences to be drawn from the evidence, the affidavit sets forth in detail the training and experience of the affiant upon which she based her opinion that evidence of Defendant Flores’ association and participation in the drug trafficking and money laundering organization would be found in the residence. With respect to the affiant’s training and experience, including almost five years with the FBI, the affidavit stated that she participated in investigations involving various controlled substances and involving money laundering. The affidavit further stated that the affiant had participated in numerous prosecutions of individuals and the execution of search warrants, physical surveillance, wire intercepts, debriefings and review of documents. Based on her and other agents’ involvement in investigations and executing warrants on locations associated with these illegal enterprises, she knew that individuals involved in these illegal activities maintained in secure and easily accessible locations controlled substances, drug paraphernalia, records reflecting transactions involving controlled substances, names, addresses and telephone numbers of associates, contraband and equipment used to further the illegal conduct, and expenditures of monies, currency, banking records, and valuable assets. [Doc. 578, Affidavit ¶¶ 1, 8, 5-8]. In addition, the affiant provided an instance in which this Defendant’s conduct fit this pattern and practice, that is, the August 2006 seizure of drug proceeds from the then residence of Defendant. [Id., ¶ 10].
All of the information in the affidavit results in a finding by this court that the Magistrate Judge had a “substantial basis” for concluding that probable cause existed to uphold the warrant.
See Gates,
To mandate a Franks evidentiary hearing,
the [defendant’s] attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any nongovernmental Informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.
Franks,
First, the court does not find the two statements to be obviously mutually exclusive as required to support a finding of knowing or deliberate disregard for the truth. The. affidavits for the wiretaps distinguished between witnesses and confidential informants. The affiant therein did not address whether or not there were specific witnesses available to provide information about any .of the targets but merely provided an example why such witnesses will not provide the necessary investigative information. [Doc. 456, Ex. 3 at 85-86 and Ex. 4 at 69-70]. The affiant then discussed the potential for use of confidential informants and indicated that to date only one such individual had been used in the investigation. [Doc. 456, Ex. 3 at 86-88 and Ex. 4 at 70-72]. The affiant for the search warrant made reference to cooperating witnesses and individuals— which the court also notes was prepared some two months after the last affidavit submitted by the affiant in Atlanta — not to confidential informants. The statements by the two affiants, if even charged with equal knowledge, are not in conflict.
Second, the court finds that Defendant has failed to show that “inclusion of the untrue information^ if any,] was either
Thirdly, and most importantly, the test in
Franks
requires Defendant to establish that “the untrue information was an
essential element
of the probable cause showing relied upon by the judicial officer in issuing the search warrant.”
O’Ferrell,
Finally, even if the court found that the affidavit for the search warrants failed to establish probable cause, the court agrees with the Government that the good faith exception to the exclusionary rule should be applied to this case. In
United States v. Leon,
Defendant, however, contends that the exception does not apply in this case because the warrant is based on an affidavit “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable[,]’ ” and because “the issuing magistrate wholly abandoned his judicial role.” [Doc. 456 at 24-27 (citations omitted) ]. Defendant’s arguments attacking the warrant focus on the alleged lack of probable cause. 53
Defendant’s attack lacks merit. First, the court notes that the affidavit supporting the search warrant was not a “ ‘bare-bone’ statement of nothing more than con
III. Conclusion
For these reasons, the court RECOMMENDS that Defendant Flores’ motion [Doc. 349] to suppress evidence seized on April 29, 2009, be DENIED as to the warrant for the residence located at 608 Sandyhills Avenue, McAllen, Texas, but GRANTED as unopposed by the Government for the residence located at 604 Sandyhills Avenue, McAllen, Texas.
Defendant Noe Aguilar-Camudio’s Motions to Suppress Statements and Evidence
Pending before the court is Defendant Aguilar-Camudio’s motion [Doc. 334] to suppress evidence seized from 2386 Cruse Road, Lawrenceville, Georgia, on April 29, 2009, pursuant to execution of a federal search warrant for that location. Defendant contends that the affidavit for the warrant is based on stale information and in the residence.
54
[Docs. 334 and 354]. The Government opposes the motion to suppress contending that the affidavit for the warrant establishes probable does not establish probable cause to believe evidence of criminal activity will be found cause and that, in any event, the good faith exception to the exclusionary rule applies to the facts of this case. [Doc. 596]. Also pending before the court is Defendant’s motions [Docs. 331 and 332] to suppress evidence obtained from his person
55
dur
I. Federal Search Warrant
As noted, Defendant contends that the affidavit for the federal search warrant for 2386 Cruse Road is based upon stale information that does not establish probable cause for the search. Defendant focuses his challenge on an alleged lack of nexus between any illegal activity and the residence. [Doc. 354]. The Government opposes the motion to suppress asserting that the affidavit for the warrant establishes probable cause for the search of the residence and that, if not, the good faith exception to the exclusionary rule applies. [Doc. 596],
a. Facts
On April 27, 2009, this Magistrate Judge signed a search warrant, for 2386 Cruse Road, Lawreneeville, Georgia 30044, authorizing a search of the residence for cocaine, methamphetamine, marijuana and other controlled substances and cutting agents; for U.S. currency; for telephones, pagers and other electronic devices and their contents; firearms and ammunition; money counting machines, rubber bands, plastic bags and heat sealers; indicia of occupancy of the residence; drug ledgers and other documents reflecting drug transactions, identification of associates and information for those associates, and photographs of associates; and other contraband, all of which are evidence of the violations of 18 U.S.C. § 1956 and 21 U.S.C. §§ 841 and 846. [Doc. 596-1, Warrant].
In support of the warrant, the Government presented the affidavit of Brian Jacobs, FBI Special Agent, which began by outlining the affiant’s training and experience, especially with investigating drug trafficking and money laundering organizations.
[Id.,
Affidavit, ¶¶ 1-4], Based on that training and experience, the affiant stated that he had reason to believe that various items, evidence and contraband would be found in locations, such as, residences or “places of business,” that is, “stash houses,” associated with the members of the organization under investigation, those items including large amounts of U.S. currency and assets necessary to maintain and finance operations or obtained from the illegal activities; records, ledgers, and related paperwork, including travel documents and receipts, documenting distribution of controlled substances
The affiant then set out the background facts regarding the investigation of the drug trafficking and money laundering organization, which resulted in the return of an indictment naming a number of individuals, including Belisario Gil Mendoza a/k/a Cachoritto (“Cachoritto”) and Juan Manuel Mendoza a/k/a Ramon Aguilar Torres a/k/a Jose (“Jose”), for violations of 18 U.S.C. § 1956 and 21 U.S.C. §§ 841 and 846. [Id., ¶¶ 10-19]. Based on court-authorized wire intercepts, the affiant stated that the organization under investigation was “a large scale cocaine, methamphetamine, and marijuana trafficking network operating in Atlanta, Georgia[,]” with participants coordinating the shipments of drugs into the Atlanta area and then collecting proceeds from the sale of the drugs. [Id., ¶¶ 10-11]. Cachoritto was identified as a transport manager for the organization. [Id., ¶ 11]. Following intercepted conversations between members of the organization, specifically Cachoritto, law enforcement authorities conducted a series of enforcement activities outlined in the affidavit. In November 2008, a search of a residence associated with the organization resulted in the seizure of over a million dollars in U.S. currency, a money counter, heat sealer, drug ledgers, a semiautomatic handgun, and cellular telephone, and a search of a tractor-trailer associated with the organization, which had left a warehouse in Atlanta traveling to Texas, resulted in the seizure of over two-million dollars in U.S. currency. [Id., ¶¶ 13-14]. In December 2008, another tractor-trailer associated with the organization and destined for Atlanta was searched resulting in the seizure of over 300 kilograms of cocaine and over 150 pounds of methamphetamine. [Id., ¶ 15]. In January 2009 and in February 2009, in Texas, two more tractor-trailers associated with the organization were searched resulting in the seizure of over 70 pounds of methamphetamine and over 150 kilograms of cocaine. [Id., ¶¶ 16-17].
Noting that despite these seizures and others, the organization was still in operation and utilizing a number of locations, including the residence at 2386 Cruse Road, all of which the affiant believed, based on his training, experience and participation in the investigation, contained evidence of the drug trafficking and money laundering crimes charged in the indictment.
[Id.,
¶¶ 19, 21-25]. Specifically with respect to the residence at 2386 Cruse Road, Lawrenceville, Georgia, the affiant described the residence, known as the “blue house,” which was a light blue, wooden single-family home and which, based on physical surveillance, the affiant believed was the residence for Jose.
[Id.,
¶¶ 21-22], The affiant then summarized a series of intercepted conversations involving Cachoritto and/or Jose beginning in November 2008 and continuing to mid-February 2009. During a conversation on November 14, 2008, Cachoritto and Jose discussed collection of drug proceeds and preparations for delivery of the proceeds to a warehouse associated with the organization. Jose indicated that he was in “la azul,” which is Spanish for “the blue,” and that he had just received some of the drug proceeds from another participant at that location and that he had collected 25% of the funds owed for the drugs. The men discussed that it was taking longer than the usual one-day turn-around time to collect proceeds from the sale of the drugs.
Another conversation on November 15, 2008, indicates that, after dropping off drug proceeds at the warehouse, Jose returned to 2386 Cruse Road, “home.” [Id., ¶ 24]. And on February 19, 2009, conversations between Cachoritto and other conspirators indicated that a cocaine transaction was planned and that the drugs were at the residence at 2386 Cruse Road. [Id., ¶ 25]. The affiant concluded, “Overall, these calls suggest that Cruse Road is used as a stash location for drugs prior to their delivery to customers” at another location. [M].
Among other items seized during execution of the warrant, fifteen firearms were found throughout the residence, including pistols, rifles and a shotgun. [Doc. 596 at 11-12]. According the information provided by the entry team, FBI SWAT, one of those firearms, a .22 caliber Beretta pistol, was found under the mattress of the bed on which Defendant apparently had been sleeping. [Doc. 596 at 11, citing Tr. at 42-43].
Additional facts will be set forth as necessary during discussion of Defendant’s claims.
b. Discussion
In the preceding discussion addressing Defendant Flores’ motion to suppress evidence obtained as a the result of the execution of a federal search warrant, the court fully set forth the guiding principles and case law governing challenges to a finding of probable cause. See Defendant Flores’ Motion to Suppress Evidence, II. Discussion. Specifically, with respect to Defendant Aguilar-Camudio’s challenge to probable cause due to a lack of nexus between the crimes under investigation and the residence being searched, the court noted:
“The justification for allowing a search of a person’s residence when that person is suspected of criminal activity is the common-sense realization that one tends to conceal fruits and instrumentalities of a crime in a place to which easy access may be had and in which privacy is nevertheless maintained. In normal situations, few places are more convenient than one’s residence for use in planning and hiding fruits of a crime.”
Kapordelis,
Defendant’s argument that this information is stale and does not support a finding that there is probable cause to believe drugs, proceeds or other evidence of the organization is in the residence in April 2009 is unpersuasive. The “staleness doctrine in the context of probable cause ... requires that the information supporting the government’s application for a warrant must show that probable cause exists at the time the warrant issues.”
United States v. Bervaldi,
Specifically, in
Bastida v. Henderson,
And, in
Johnson,
the court found that the district court’s reliance on the nature of the offense, “an ongoing drug operation,” and on the “semi-permanent” location, an apartment, to be searched to determine that the operation would not relocate in the time between the events set forth in the affidavit and the date the warrant was issued was proper.
For these reasons, the court finds that the affidavit for the search warrant established probable cause to believe that the items listed in the warrant would be found in the place to be searched. However, even if the court determined that probable cause was not established, the evidence obtained during execution of the warrant should not be suppressed. The good faith exception applies to the facts of this case.
See
Defendant Flores’ Motion to Suppress Evidence, II. Discussion. Defendant has not presented any reasons for finding that the exception does not apply in this case. [Docs. 334 and 354]. The only potential basis for denying applicability of the exception, given Defendant’s challenge to probable cause, would be a finding that the warrant was “based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable!.]’ ”
Leon,
c. Conclusion
For the foregoing reasons and cited authority, the court RECOMMENDS that Defendant’s motion [Doc. 334] to suppress evidence obtained during execution of the search warrant at 2386 Cruse Road on April 29, 2009, be DENIED.
II. Motion to Suppress Search of Defendant’s Person and Statements
Defendant also contends that any evidence found on his person on April 29, 2009, and any statements made by him on that date should be suppressed as fruits of
a. Background Facts
On April 29, 2009, in the early morning, FBI agents assisted by other federal agents and local officers arrived in the area of 2386 Cruse Road, Lawrenceville, Georgia, to execute a federal search warrant and two federal arrest warrants. 59 (Tr. at 4-5, 27-29; Doc. 498-2). The location “was where a majority of the ... drugs that were being delivered would come to that residence as well as we knew that subjects ... under investigation would frequent this location.... ” (Tr. at 28). The initial entry into the residence was made by members of the FBI SWAT who were tasked with securing the occupants and making the residence safe for the remaining agents and officers to enter to execute the arrest warrants and the search warrant. This process took approximately fifteen to twenty minutes. (Tr. at 5-6, 29-30, 38-39). The on-scene commander, FBI Special Agent Delaney Alexander, instructed the SWAT members to keep each person found in the residence in the room in which they were found at the time of entry. (Tr. at 7, 22, 30).
Once advised that the residence was secure, Agent Alexander along with Task Force Officer (“TFO”) Julio Echevarria, who was present to act as the Spanish interpreter, entered the residence to conduct an initial walk-through and to observe where each occupant was located. Any weapons found in the residence, which had been secured, were also pointed out by the SWAT commander to Agent Alexander. (Tr. at 6-7, 30-31, 40-42). Due to the weapons found throughout the residence, each occupant was handcuffed, and two SWAT members remained with each person. 60 (Tr. at 7,17).
In the second bedroom on the left, Agent Alexander observed Defendant Aguilar-Camudio, who was lying face-down on the floor and handcuffed behind his back. (Tr. at 20, 35, 40-41; Gov’t Ex. 3, Room I). Defendant was then placed seated on the floor with his back against the wall, remaining handcuffed. (Tr. at 20, 35, 41). The SWAT commander advised that Defendant had been found on the bed in the room, and he pointed out to Agent Alexander the handgun which had been found under the mattress of that bed. (Tr. at 34, 42-44). In other rooms in the residence, three other individuals were found and detained in handcuffs. (Tr. at 18-19, 36).
While each occupant remained where initially found, TFO Echevarria, in Spanish, asked each person for his name, date of birth and identification, and whether he was in the United States legally. [Tr. at 15, 19-20]. When Defendant was asked these questions, he stated that he did not have any identification and that he was in the country illegally. (Tr. at 15, 19-20). A wallet, which was either on his person or nearby, had various items inside but apparently no identification. (Tr. at 47-49). Agent Alexander decided to move the four men to the kitchen area of the residence “because [there were] just entirely too
TFO Echevarria then read in Spanish to all four men their Miranda rights. (Tr. at 10). He advised:
Before we ask you any questions you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.
(Tr. at 11-12). He asked each man individually if he understood the rights. And each man, including Defendant, stated that he did understand. (Tr. at 10, 12). Each man was next asked to provide a voice exemplar which was conducted over the telephone in Spanish, with each man answering questions about his name, date of birth and country of birth. 61 (Tr. at 10). TFO Echevarria questioned Defendant for approximately five minutes, and Defendant, who claimed to have just arrived, basically denied knowledge about anything, including the firearm found under the mattress in his bedroom. 62 (Tr. at 13-15, 25).
The four men were then transported from the residence. The agents remained to finish executing the search warrant. (Tr. at 11, 37, 46).
Additional facts will be set forth as necessary during discussion of Defendant’s claims.
b. Discussion
Defendant and the Government, in addressing the issue of Defendant’s detention and whether that detention constituted an arrest requiring probable cause, fail to discuss the Supreme Court’s decisions in
Michigan v. Summers,
In
Michigan v. Summers,
the Supreme Court stated that “for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”
In
Muehler v. Mena,
the Supreme Court, relying on the decision in
Summers,
found that a three hour detention, in handcuffs, under guard, of the occupants of a residence, which was being searched pursuant to a warrant seeking firearms and gang paraphernalia, did not violate the occupants’ Fourth Amendment rights. Members of a SWAT team initially entered the house, thought to be the home of a violent gang member, searching for and taking into custody, at gunpoint, the occupants. The subsequent execution of the search warrant resulted in the seizure of several firearms along with other items.
The location of the search, 2386 Cruse Road, was believed to be a stash house for a large, multi-state drug trafficking and money laundering organization, and the warrant authorized the seizure of drugs, currency, weapons and related items. (Tr. at 28-29; Doc. 498-2). At least two members of that organization were believed to be inside the residence. (Tr. at 29). Even prior to entry into the residence, these circumstances posed a threat to law enforcement.
See Summers,
Horne argues that that the statement was unlawfully obtained because he was unlawfully detained, but a person may be detained during a search of a residence conducted pursuant to a warrant based on probable cause. ... Because the search warrant was valid, Horne was lawfully detained during the search and his statement provided probable cause to arrest him.
Id.
Likewise, Defendant was lawfully detained in this case, and his statement that he was in the United States illegally provided probable cause to arrest him, even without consideration of the other circumstances in which he was found on the morning of April 29, 2009.
63
See Lindsey,
The conclusion that his statements are admissible is supported by the Supreme Court’s reasoning in
Muehler,
which was discussed
supra. See also
Defendant Otha Barnes’ Motion to Suppress, II. Discussion, a. Detention and Search, footnote 35. While Mena, one of the residence occupants in that case, was being detained during execution of the warrant, officers questioned her about her immigration status.
Muehler,
The initial questioning of Defendant, therefore, was lawful, and Defendant’s statements are admissible. Once Defendant admitted being in the United States illegally, as noted, the agents had probable cause to place him under arrest. The search of his person and the seizure of any items on his person, such as his wallet and the contents of the wallet,
64
are admissible as a search incident to arrest.
See United States v. Robinson,
Any items taken off of Defendant’s person or in his possession are, thus, admissible in evidence. And, finally, Defendant’s statements after he was advised of his
Miranda
rights are admissible. As pointed out, Defendant only seeks to suppress those statements as fruits of his allegedly unlawful arrest. [Doc. 472], Defendant was not unlawfully detained or arrested. And, based on the facts presented at the evidentiary hearing, the court finds that Defendant was advised of his rights and voluntarily, intelligently and knowingly waived those rights.
See Barbour,
After all of the men were relocated into the kitchen area of the residence, TFO Echevarria advised the men, including Defendant, in Spanish of their rights. He stated:
Before we ask you any questions you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to alawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.
(Tr. at 11-12). He then asked each man individually if he understood the rights. And each man, including Defendant, stated that he did understand. (Tr. at 10, 12). Nothing in the record before the court indicates that Defendant was threatened, made promises, or otherwise coerced to waive his rights. Defendant appeared to understand the TFO. (Tr. at 9). Defendant only spoke to the TFO for approximately five minutes denying knowledge of any illegal activity. (Tr. at 13, 25). Defendant’s statements after waiving his Miranda, rights are admissible.
c. Conclusion
For these reasons, the court RECOMMENDS that Defendant’s motions [Docs. 331 and 332] to suppress be denied.
III. Conclusion
Based on the foregoing legal authority and for the stated reasons, the court RECOMMENDS that Defendant’s motions [Docs. 331, 332, and 334] to suppress be DENIED.
Motions to Suppress Title III Intercepts
Pending before the court are Defendants Martina Casas Flores’ motion [Doc. 351], Jorge Alejandro Anaya-Medina’s motion [Doc. 328], and Defendant Luis Manuel Haces-Delgado’s motion [Doc. 342] to suppress evidence obtained during various court-authorized wire intercepts. The Government opposes [Docs. 585 and 587] the motions to suppress.
The Government [Doc. 366] initially contested each Defendant’s standing to challenge the various wire intercept orders. Finding that Defendants had not met their burden under 18 U.S.C. § 2510(11), the court issued several orders directing Defendants to supplement their motions. [Docs. 353, 383, and 395]. In the last of those orders, the court found [Doc. 395] that Defendants Flores and Anaya-Medina had satisfied § 2510(11) by their submissions [Docs. 392 and 388] to the court. Accordingly, Defendant Flores is an “aggrieved person” pursuant to § 2510(11) as to the wire intercepts on Target Telephones (“TT”) 14, 18, 21, 22, 23 and 25, a finding apparently no longer contested by the Government [Doc. 585]. And Defendant Anaya-Medina is an “aggrieved person” pursuant to § 2510(11) as to the wire intercepts on TT 13, 14, 16, 17, 18, and 19, although the Government appears to challenge that conclusion [Doc. 585 at 7].
65
The court found that Defendant Haces-Delgado’s submissions did not satisfy § 2510(11) or establish grounds for granting a hearing but allowed Defendant another opportunity to make the required showing. [Doc. 395]. Defendant submitted additional facts seeking a hearing to establish his right to challenge the wire intercepts [Doc. 421], and the court found that Defendant made a sufficient showing and granted De
On March 24, 2010, the court issued an order directing Defendants Flores, AnayaMedina, and Haces-Delgado to supplement their motions to suppress the wire intercepts. The motions were based on vague and conclusory claims that: (1) the affidavits did not establish probable cause for each intercept order; (2) the affidavits did not establish necessity for each wire intercept; (3) there was insufficient authorization for each intercept request; (4) the intercepts were not properly sealed; and (5) the Act is unconstitutional. 66 [Doc. 449]. And the court specifically found that none of the motions to suppress the wire intercepts established grounds for suppression. The court allowed Defendants until April 30, 2010, to file particularized briefs in support of each ground raised in the motions to suppress, as to each wiretap challenged. [Id. at 3-6]. Defendants were specifically admonished that failure to supplement the motions as directed by the court would be deemed an abandonment of those grounds challenging the wire intercepts. [Id. at 5].
Defendant Flores, after being granted additional time through June 23, 2010, filed a supplemental brief [Doc. 575] on the issue of necessity for the wire intercept orders on TT 22 and 23, but she did not otherwise supplement her motion [Doc. 351], The court finds that Defendant therefore abandoned her motion to suppress on all grounds as to TT 14, 18, 21, 22, 23 and 25 "with the exception of necessity for the interception of TT 22 and 23. And Defendant’s motion [Doc. 351] to sup
Defendant Anaya-Medina filed a document titled a second brief in support of motion to suppress [Doc. 487] which failed to offer any particularized grounds, discussion, or legal authority in support of any of the claims raised in the motion to suppress stating that he could not particularize the motion at this time and seeking a hearing on his motion. The court first notes that Defendant initially filed the motion to suppress on October 1, 2009, after three months of discovery in this case. [Doc. 328]. Since that filing, Defendant had another seven months to review the discovery materials, including the wire intercept orders, applications, affidavits and related documents as well as the wire intercepts, but still was unable to particularize the motion to suppress on April 30, 2010.
Defendant Anaya-Medina is not entitled to a hearing on his motion to suppress. It is well settled that “ ‘[a] motion to suppress must in every critical respect be sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented.... A court need not act upon general or conclusory assertions
United States v. Cooper,
Defendant Haces-Delgado did not file any supplement to his motion to suppress as ordered by the court. Accordingly, the court finds that he abandoned his challenge to the wire intercepts on TT 13, 17, and 20 on all grounds raised in the motion to suppress. The motion [Doc. 342] should therefore be denied.
The court has reviewed each wire intercept application, affidavit, and order for TT 13, 14, 16, 17, 18, 19, 20, 21, 22, 23 and 25, as well as all extensions of those wire intercepts, and the sealing orders in order to determine (1) if each application was properly authorized by the Department of
I. Defendant Flores’ Challenge to TT 22 and 23
Defendant Flores, as allowed by the court, supplemented her motion to suppress the wire intercepts on TT 22 and 23 contending that the affidavit presented in support of each wire intercept order failed to comply with 18 U.S.C. § 2518(1)(c). [Doc. 575], Defendant challenges these two intercept orders contending that the affidavits failed to provide a full and complete statement of the investigative procedures that have been tried, focusing on her alleged cooperation which was not set forth in the affidavits and on the failure to fully identify her in the affidavit for TT 23, and arguing that necessity was not established because no independent investigation of her, separate from her co-conspirators, was attempted prior to obtaining either wire intercept order. [Id. at 5-24], Defendant also contends that the Government knowingly and intentionally omitted information from the affidavit regarding her identity and the cooperating witnesses or informants such that the court should grant her a Franks hearing. [Id. at 27-30]. Finally, Defendant asserts that the good faith exception to the exclusionary rule does not apply to orders issued under the Act. [Id. at 25-26]. The Government opposes Defendant’s claims asserting that each affidavit establishes necessity for the wire intercept orders, that Defendant has not demonstrated that a Franks hearing is required, and that the good faith exception is applicable. [Doc. 585].
On January 14, 2009, District Judge William S. Duffey, Jr., entered an order authorizing a wire intercept of FNU LNU a/k/a “Mom” the suspected user of a cellular telephone, UFMI 62*65501*40, subscribed to by Crupo De Asesoría en Reynosa en Comercilizacion, Nuevo Leon 441 Col. Rodriquez, CP 88630. [Doc. 585, Ex. B, TT 22]. And on February 18, 2009, District Judge Richard W. Story entered an order authorizing a wire intercept of FNU LNU a/k/a “Mom” a/k/a “Tina” the suspected user of a cellular telephone, Mexican UFMI 72*704181 *4, subscribed to by Alberto Valenzuela Moreno, Ejercito Nacional # 523 Poinete, Colonia Oscar Russo Voguel, Ciudad Obregon, Sonora, Mexico C.P. 85197. [Doc. 585, Ex. C, TT 23]. In the order, application and affidavit, the individual “Mom” a/k/a “Tina” is fully identified as Martina Flores a/k/a “Tina Flores” a/k/a “Mom.” [Id., Order, ¶¶ A and C; Application, ¶¶ 2 and 4b; Affidavit, ¶¶ 6 and 7].
b. Discussion
1. Necessity
An application for interception must contain a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. 18 U.S.C. § 2518(1)(c);
United, States v. Carrazana,
The affidavit need not, however, show a comprehensive exhaustion of all possible techniques but must simply explain the retroactive or prospective failure of several investigative techniques that reasonably suggest themselves.
Nixon,
As noted, Defendant Flores has the burden of overcoming the presumption of validity that attaches to the District Judges’ findings that the necessity provisions have been satisfied.
Mitchell, III,
Accordingly, the effectiveness of traditional investigative techniques must be judged in light of the goals of the investigation and not based on whether one or more of the conspiracy participants can be successfully prosecuted.
See United States v. Reed,
The affidavit for TT 22, the cellular telephone believed to be used by Defendant Flores, although not subscribed to by her and apparently a cellular telephone issued in Mexico not the United States, first identified the numerous known, partially identified and unknown participants in the multi-district, international drug trafficking and money laundering organization, with strong ties to Mexico, and set forth the objectives of the investigation. At this time, Defendant Flores was partially identified as “Mom.” [Doc. 351, Ex. B, Affidavit, ¶¶ 6,14 and 16-18].
The affidavit then outlined the information obtained from the wire intercepts authorized on target subjects of the investigation which identified the connections to
It is my belief that the interception of wire communications over Target Telephones 21 and 22 will assist law enforcement in determining not only the scope of ROMERO, CACHORRITO, COKIS, MOM and OJOS’ illicit drug operations, but will further aid in identifying significant members of this drug organization. We further anticipate that TARGET TELEPHONES 21 and 22, as [they are] being utilized by members of this organization, will give law enforcement more significant information pertaining to the member’s whereabouts, their activities as well as direct information about the drug trafficking operations. Thus, aiding the FBI in more fully achieving the goals and objectives of this investigation.
[Id., ¶ 45].
The affiant next detailed some of the TT 22 conversations intercepted over other court-authorized intercepts during the investigation of the organization. Those intercepts indicated that the cellular telephone is utilized in both the United States and Mexico.
[Id.,
¶ 56-60]. In a conversation with Cachorrito in November 2008, Defendant Flores discussed with him a body (found by Mexican authorities) of an individual who had been involved in the drug trafficking organization and whom Defendant, Cachorrito, and Ojos all knew but who apparently had been killed as a result of his involvement in illegal activity. Defendant and Cachorrito also discussed how to prevent an individual wanted by Mexican and American authorities from being apprehended, which the affiant concluded indicated that Defendant Flores was “harboring a family member in Mexico, a member of the drug trafficking organization, from law enforcement in Mexico and the U.S.”
[Id.,
¶ 57]. In December 2008, Defendant and Cachorrito engaged in additional conversations about transporting a quantity of drugs from Mexico, including the price of the drugs, which Defendant agreed to negotiate for Cachorrito with Ojos, about another delivery to Atlanta that was encountering transportation problems, and also about the seizure of drugs by law enforcement on December 10, 2008, in Georgia.
68
The conversations about the drug seizure included discussions about how to verify that the drug shipment was intercepted and not stolen
The affiant then outlined the toll record analysis of TT 22 over the period of December 24, 2008, through January 12, 2009, which indicated that Defendant Flores utilized TT 22 to contact at least eight cellular telephones that are based in Mexico, including the cellular telephone associated with Ojos, the “boss and main source of supply in Mexico.” [Id., ¶¶ 62-63]. The numerous contacts with Mexican “direct connects” indicated that Defendant Flores was maintaining regular contact with Mexican participants in the organization. The affiant stated:
Past training and experience with members of these types of drug organizations has shown that when there is contact (direct connect radio contact especially) with Mexican direct connect numbers that the individuals are significant members of the narcotics organization, usually within the transportation cell or within the leadership of the drug organization. These contacts indicate that [Defendant Flores] holds direct ties to OJOS and other Mexican counterparts of this organization and thus to sources of supply.
[Id., ¶ 65], The toll analysis also established links with another unidentified drug associate who is involved in coordinating the transportation and delivery of drugs and the movement of drug proceeds. [Id., ¶ 64].
With this background on the drug trafficking and money laundering organization, on Defendant Flores’ role in the organization, and on the means by which TT 22 was utilized to further the criminal activity being investigated, the affiant set forth the reasons that the wire intercept order on TT 22 was necessary. The affiant identified the goals of the investigation as:
(a) discovering the identities of all of the individuals involved in this narcotics trafficking organization, including identifying all of the significant sources of supply; (b) identifying the exact roles of the various individuals involved in the conspiracy; (c) revealing the methods of operation of the persons who provide narcotics to this organization; (d) identifying the locations where members of the organization store their narcotics; (e) discovering the methods by which the members of the organization transport and distribute their narcotics, and (f) determining the methods by which the organization’s members launder, distribute or conceal the assets acquired as a result of their narcotics trafficking ac- ' tivities.
[Id., ¶ 67]. The affiant then outlined the normal investigative procedures which had been utilized in the course of the investigation of the drug trafficking and money laundering organization and/or the reasons why such techniques were unlikely to succeed or were too dangerous as of the time this wire intercept order was being sought. 69
And, finally, the affiant noted that, because it is common for leaders to never directly touch narcotics, instead directing others to do the work “so that they are insulated from detection and proseeution[,]” interception over TT 22 will assist in linking the leadership of the organization to the drug trafficking conduct. [Id., ¶ 74]. The court notes that this problem with linking leadership to the drugs without the assistance of wire interception appears to fit Defendant’s role in the organization, as the facilitator of the movement of drugs into the United States and the return of proceeds to Mexico and as a conduit for information among various members of the organization. Based on the intercepted conversations recounted, Defendant Flores conducts a lot of business over her cellular telephone by giving direction and coordinating activities apparently involving little personal contact with other participants or the contraband. This conclusion also negatively impacts the potential that surveillance of Defendant Flores would assist in the investigation.
And as she points out, there was no separate physical surveillance of Defendant Flores prior to the wire intercept order being issued set forth in the affidavit. However, the affiant outlined in detail the attempts at surveillance during the course of the investigation of a number of Defendant’s co-conspirators and the reasons why surveillance of conspirators in positions such as that held by Defendant would not be likely to succeed in achieving the goals of the investigation. The attempts .to conduct surveillance of Beto’s meetings with a cooperating witness as well as of stash houses believed to be operated by Beto were unsuccessful, were detected thus jeopardizing the safety of the cooperating witness and agents, and caused Beto to “drop” the cellular telephone he was using.
[Id.,
¶¶ 75-76]. Other attempts at surveillance of coconspirator Romero were described, including Romero’s counter-surveillance and “heat runs” to detect law enforcement.
[Id.,
¶¶ 77-78]. Another un-identified coconspirator also used counter-surveillance measures when physical surveillance was attempted.
[Id.,
¶ 80]. The affiant then outlined surveillance conducted in Georgia from October 2008 through December 2008 of various co-conspirators based on conversations intercepted due to previous wire intercept orders, which demonstrated the
Additionally, as this court has already alluded to, the affiant stated that supervisors of the organization, such as Defendant Flores, “would not often touch or transport narcotics themselves!,]” therefore, surveillance of these individuals, including Defendant, “would not necessarily identify instances when they are actually distributing drugs. In short, physical surveillance, even if possible, would not be particularly valuable without further wire surveillance.” [Id.]. The affiant described how, as evidenced by the conduct of other members of the organization, narcotic traffickers at the level of the target subjects are “extremely surveillance-conscious” and that increased surveillance would potentially alert them to the investigation. [Id., ¶¶ 91-93]. Finally, and significant to the wire intercept of TT 22, with the significant number of contacts to Mexican-based participants, surveillance simply cannot be performed by agents without the assistance of foreign authorities; therefore, “[w]ire interception is the only feasible means of learning about the illegal activities of these Mexican-based targets, and about the Mexican operations of the TARGET SUBJECTS.” [Id., ¶ 94], The affiant sufficiently explained the prior surveillance and why, without the wire intercept sought in this case, further attempts at surveillance would not be successful in dismantling the organization.
The affidavit then described the limited usefulness of obtaining telephone toll records, of a grand jury investigation (which was especially limited by the substantial connections of the targets to Mexico), and of search warrants and arrests (referencing experiences during the investigation when stash houses were identified and then moved and when Beto and other participants were arrested which hampered instead of assisting the investigation), and of trash collection. [Id., ¶¶ 95, 96, 101-103]. The affiant also provided information about the use of witness interviews, including the attempt to interview Beto after his arrest, and reasons why this technique would not be successful, and about the use of a confidential informant, who had contact with Beto but none of the high-echelon targets, such as Defendant Flores, currently under investigation. [Id., ¶¶ 97-98]. Referencing the use of the confidential informant against Beto, the affiant noted that he could not infiltrate the organization despite being introduced by Beto’s father as a case specific reason why use of informants would be of doubtful success. [Id., ¶¶ 98-99], The affidavit also set forth the reasons why undercover officers would not be a successful technique in this investigation. [Id., ¶ 100].
Defendant, however, contends that the affidavit did not provide a “full and complete statement” of the other potential investigative techniques because the affiant failed to include information about Defendant Flores’ extensive cooperation with authorities in Texas, the disclosure of which
As the Government notes, Defendant approached law enforcement in October 2006 using a false name claiming to be seeking payback for the death of her estranged husband in the late 1990’s. Defendant primarily provided historical information about incidents already within the Government’s knowledge until apparently April 2007. In her discussions with authorities, Defendant must have just forgotten to mention that in August 2006 she had over one-million dollars in United States currency stashed in a safe, along with several firearms, in her then residence which had been seized by local law enforcement authorities. [Doc. 351, Exs. 1-6]. And by 2008, based on the intercepts of her conversations, Defendant obviously had gotten over her anger and ill-will directed at the members of the organization, as she appeared to be involved with Ojos and was a high-echelon member of the organization. [Doc. 585, Ex. B, Affidavit, ¶¶ 41-44, 56-60; Ex. C, Affidavit, ¶¶23, 32-35]. This conclusion is confirmed by Defendant’s overwhelming silence during the fall of 2008 and winter of 2009 when she was engaged in significant illegal activity, including discussing harboring a fugitive, the discovery of bodies of organization members and the identities of potential informants, as evidenced over two telephones used by but not subscribed to by her. She did not provide any of this information to law enforcement authorities. [M]. And, as the Government notes, Defendant failed to mention that she has been indicted by the federal authorities in Texas for illegal activities occurring during the time of her alleged substantial cooperation. [Doc. 585, Ex. G]. Full disclosure of this information in the proper context, and given the Texas’ authorities conclusion that Defendant was not truthful [Doc. 585, Ex. F], may have taken up several pages in the affidavit but would not have altered the ultimate necessity determination.
Besides contending that her “cooperation” negated the need for the wire intercept orders on TT 22 and 23, Defendant also argues that the affidavit did not establish necessity to intercept Defendant’s cellular telephones, because, as noted, the Government did not first attempt other investigative techniques, such as physical surveillance, pings, and checks on Defendant personally. [Doc. 351 at 5-13,19-24], In support for her position, Defendant relies on decisions from the Ninth Circuit Court of Appeals,
United States v. Carneiro,
In fact, the court seriously doubts that the Ninth Circuit, at least in complex, multi-national drug trafficking conspiracies, in which the investigation seeks to dismantle the entire organization, adheres to the narrow approach urged by Defendant to establish necessity. In
United States v. Garcia-Villalba,
This does not mean ... that a district court must view a wiretap application in a vacuum. Although the government may not rely on the conclusion that a previous application was necessary to justify the current application, historical facts from previous applications, particularly those within the same investigation, will almost always be relevant. So will previous investigatory tactics, so long as they bear on whether the government has adequately shown necessity within the current application.... For example, the government may rely on past failed attempts to infiltrate an organization, detailed in past affidavits, as evidence that future attempts would be fruitless.... The key question will always be whether the wiretap application separately satisfies the necessity requirement.
Id. at 1231-32.
There is no evidence in this case that either Judge Duffey or Judge Story failed to make the necessity finding based solely on the wiretap affidavit before them and independent of any previous finding of necessity. The fact that the affidavits relied on the difficulties and futility of pursuing most traditional methods of investigation based on the detailed course of the instant investigation does not undermine the necessity findings to which great deference is owed on review. The affidavits outlined why those same difficulties and lack of success with these traditional investigative techniques would fair no better against the user of TT 22 and 23. See
Reed, 575
F.3d at 911-12 (“Second, the necessity requirement is directed at the objective of the investigation as a whole, and
not to any particular person.
If the Government can demonstrate that ordinary investigative techniques would not disclose information covering the scope of the drug trafficking enterprise under investigation, then it has established necessity for the wiretap....
Having thoroughly discussed the affidavit for TT 22, the court will not spend as much time addressing the necessity showing in TT 23 which Defendant attacks on the same grounds. [Doc. 575 at 21-24]. The affidavit sets forth the identified targets of the investigation, including Martina Flores a/k/a “Tina Flores” a/k/a “Mom.” [Doc. 585, Ex. C, Affidavit ¶¶ 6-7]. And identifies the suspected user of TT 23 as FNU LNU a/k/a “Mom” a/k/a “Tina.”
[Id.,
¶ 5]. The affiant then recounts the investigation into the multi-state, international drug trafficking and money laundering organization.
[Id.,
¶¶ 16-26]. Updating the information provided in the prior affidavit with intercepts during January 2009, the affiant demonstrated that TT 23 appeared to be a replacement cellular telephone being used by Defendant Flores due to concerns raised after a January 16, 2009, sei
With this background, the affidavit then set out the reasons that traditional investigative methods, when tried, had been unsuccessful or were too dangerous to be attempted at this time based on the stated objectives of the investigation and given Defendant’s role in the organization. [Id., ¶¶ 40-69]. The affidavit presented District Judge Story with a “full and complete statement” of the attempted use of traditional methods of investigation and the reasons why those methods, as well as others not tried, including against Defendant Flores, would not be successful. In addition to the claim that the affidavit did not apprise the District Judge of Defendant’s “cooperation,” Defendant also contends that the Government intentionally omitted the new information developed concerning her identity as evidenced by the identification of the user of TT 23 as FNU LNU a/k/a “Mom” a/k/a “Tina” and not as Martina Flores a/k/a “Tina Flores” a/k/a “Mom.” [Doc. 575 at 22]. This argument is specious. If the Government intended to hide the fact that the investigation had identified Defendant Flores, the AUSA and affiant did a very poor job in as much as Defendant’s full name, Martina Flores, linked to “Mom” and “Tina Flores,” was stated in the wiretap order, wiretap application, and elsewhere in the wiretap affidavit. [Doc. 585, Ex. C, Order ¶¶ A, C; Application ¶¶ 2, 4b; Affidavit ¶¶ 6, 7]. Substituting the name Martina Flores for FNU LNU or, if known, adding her address, would not have detracted from the necessity for the wire intercept any more than having identified some of the other participants and their residences removed the necessity for prior wire intercept orders. This appears to be no more that an scrivener’s error.
The wiretap affidavits for TT 22 and TT 23 establish necessity, and there are no grounds for finding that the District Judges abused their discretion by issuing the wiretap orders.
2. Franks
The court finds that Defendant has not established entitlement to a
Franks
hearing. [Doc. 585 at 28-30], A challenge to a wiretap authorization on the grounds of material and intentionally false or reckless statements in the supporting affidavit is handled the same as a similar challenge to an ordinary search warrant, pursuant to
Franks. See United States v. Wilson,
The court previously set forth the burden on a defendant seeking to obtain a Franks hearing. See Defendant Martina Casas Flores’ Motion to Suppress Evidence, II. Discussion. Defendant contends that the affiant’s failure to inform the court of the true number of confidential informants or witnesses available, specifically with information about her cooperation, and the failure to fully identify her as the user of the target telephones starting with the application for TT 23 and including the extensions of other intercept orders was material to the necessity determination. [Doc. 575 at 28-30].
The court fully addressed the issue of an alleged conflict between the affidavits presented to obtain warrants to search residences associated with Defendant Flores in McAllen, Texas, and the affidavits for the wire intercepts on TT 22 and 23.
See
Defendant Martina Casas Flores’ Motion to Suppress Evidence, II. Discussion. The statements regarding the use of’ confidential informants and/or witnesses by the two affiants, even if charged with equal knowledge, are not in conflict. And, again, Defendant has failed to show that the omission of any information or the “inclusion of the untrue information!, if any,] was either deliberate or in ‘reckless disregard for the truth.’ ”
O'Ferrell,
Defendant’s request for a Franks hearing is denied.
3. Good Faith
Finally, as the Government correctly notes [Doc. 585 at 27-28], the good faith exception to the exclusionary rule applies to wiretap applications and orders.
United States v. Malekzadeh,
Due to Defendant’s assertion that
Malekzadeh
really did not apply the good faith exception to the wiretap order being considered in that case, the court carefully reviewed the opinion. The court disagrees with Defendant and finds that the decision does hold that the good faith exception applies to wiretap orders, as do many of the court’s colleagues in this circuit.
See United States v. Russell,
Defendant sets forth no grounds supporting a finding that
Leon’s
good faith exception does not apply to this case.
See Accardo,
II. Conclusion
For the foregoing reasons and cited authority, the court RECOMMENDS that Defendants Anaya-Medina’s motion [Doc. 328], Defendant Haces-Delgado’s motion [Doc. 342] and Defendant Flores’ motion [Doc. 351] to suppress the evidence obtained from the wiretap orders be DENIED and ORDERS that Defendant Anaya-Medina’s request [Doc. 487] for a hearing on his motion and Defendant Flores’ request [Doc. 575] for a Franks hearing be DENIED.
Defendant Luis Manuel HacesDelgado’s Motions to Suppress
Defendant Haces-Delgado filed a motion [Doc. 340] to suppress evidence seized on April 29, 2009, from 3538 Buford Highway, Apartment 7, Atlanta, Georgia, contending the warrantless entry to effect an arrest warrant for “FNU LNU # 3 a/k/a ‘Sancudiri, a/k/a ‘UM1820’ ” violated his Fourth Amendment rights and that all evidence seized as a result of the search of that apartment should be suppressed. [Doc. 340]. Defendant also contests the warrantless search of a red Mustang and of his cellular telephone on the same date.
[Id.].
And Defendant filed a motion [Doc. 341] to suppress statements, including voice exemplars, he made that day in part as fruits of an allegedly warrantless arrest and the warrantless entry into the apartment and on the ground that the statements were taken in violation of his Fourth, Fifth and Sixth Amendment rights. [Doc. 341]. A hearing on the motions to suppress was initially held on March 19, 2010 [Doc. 492]
72
and continued
In the post-hearing brief, Defendant asserted that the warrantless entry to effect the arrest warrant did not satisfy the test set forth in
Payton v. New York,
The Government opposed the motions to suppress contending that the evidence presented at the hearing satisfied Payton by citing to the testimony of Special Agent Scott Stephan, therefore allowing the entry into the residence to arrest “Sancudin.” [Doc. 577 at 7-10]. The Government also argued that the search of the apartment, of a cell phone belonging to Defendant, and of the red Mustang were based on valid consents to search and that Defendant does not have a legitimate expectation of privacy in the vehicle to challenge that search. [Id. at 10-13]. Defendant having failed to address the admissibility of the statements and voice exemplars, the Government did not address those statements. 75 [Doc. 577].
After consideration of the evidence presented at the March and April 2010 evidentiary hearings, the court concluded that the conclusory, non-fact specific testimony by Special Agent Stephan probably did not satisfy the Government’s burden pursuant to
Payton.
Agent Stephan’s testimony provided no facts to be objectively assessed by the court as to why the agents believed “Sancudin” resided in the apartment or why the red Mustang parked near the apartment was associated with “Sancudin” or why he would be in the residence at the time of entry.
76
(3/19/10 Tr. at 49, 60). When the court questioned Agent Stephan to determine what facts he had been told about why the agents believed the location was “Sancudin’s” residence, he responded, “I believe I was told that was where he had been residing and maybe not residing, at least been seen there on one or more occasion.” (3/19/10 Tr. at 88). And no additional facts were provided when the court asked Agent Stephan if he had any other basis to believe “Sancudin” was in the residence. He responded, “No. I had been told prior in the briefing.” (3/19/10 Tr. at 89). When the court advised counsel for Defendant and the Government of the court’s preliminary findings, the Government requested an opportunity to supplement the record. Defendant objected. The court granted the Government’s re
In the Government’s supplemental brief following the September hearing, the Government again argued that the evidence presented satisfied the Payton test for entry into the apartment and that, even if the evidence was insufficient, none of the evidence seized or statements made should be suppressed as fruits of the unlawful entry. [Doc. 624], The Defendant’s argument focused on whether the agents had probable cause to arrest Defendant on the “Sancudin” warrant. 78 [Id. at 2-7]. And Defendant contends that all of the evidence seized should be suppressed as fruits. [Id. at 7-9].
After consideration of the totality of the circumstances surrounding the entry into the apartment on the “Sancudin” arrest warrant, the decision to arrest Defendant on the warrant, and the basis for the search of the apartment, Defendant’s cell phone and the red Mustang, the court finds that the Defendant’s motion to suppress evidence should be denied. And, although not argued by Defendant, the court likewise finds that the motion to suppress statements should be denied.
I. Facts
FBI Special Agent Thomas Smith, who was assigned to the Strike Force investigating the drug trafficking organization resulting in the indictment in this case, testified that in September 2008 an individual by the name of “Sancudin” came to the agents’ attention based on the wire intercepts being conducted. (9/28/10 Tr. at 6-8, 25). Specifically, on September 23, 2008, based on the interception of conversations between Martin Romero and “Sancudin,” agents established surveillance of a meeting involving a drug transaction at the Santa Fe Mall, located on the South side of Pleasant Hill Road, just off of I-85. 79 (9/28/10 Tr. at 8-9). Pursuant to the wire intercepts, the agents expected “Sancudin” to arrive in a red Mustang, and the agents observed a red Mustang arrive with two individuals occupying the vehicle. Romero arrived in a separate vehicle. (9/28/10 Tr. at 9). The men exited the vehicles and met and then reentered their respective vehicles and left the area. (9/28/10 Tr. at 9-10). None of the surveillance agents were able to positively identify the individual believed to be “Sancudin” based on this meeting. (9/28/10 Tr. at 10). The agents obtained the tag on the red Mustang which, when checked, indicated that the registered owner was Estevan Flores Mora, at the address 1391 N. Cliff Valley Way, Apartment G, in Atlanta, with a date of birth of August 16, 1979. 80 (9/28/10 Tr. at 15, 26-27).
The next opportunity to conduct surveillance of a meeting involving “Sancudin” occurred on November 7, 2008. Again, based on the wire intercepts involving con
Additional intercepts of conversations between the drug trafficking participants, specifically Romero and an unidentified person, “UM4,” indicated that a drug transaction was to take place on January 12, 2009, at a Carnicería, Tres Hermanos, located on Cruz Road in Lawrenceville. (9/28/09 Tr. at 12-14). The intercepted conversations indicated that “Sancudin,” on behalf of “UM4,” would be delivering a sample of drugs to Romero and that Romero was sending an individual named Pedroza to collect the sample. [9/28/10 Tr. at 12-13]. Agent Smith, who was part of the surveillance team, testified that the events observed exactly followed the intercepted conversations. (9/28/10 Tr. at 13). The agents observed Pedroza arrive in a dark colored Audi. During this time, “Sancudin” was intercepted talking to Romero concerning his anticipated arrival at the location. Romero asked if “Sancudin” would be in the “red one?” “Sancudin” responded, “No, Pm in the maroon one.... ” (9/28/10 Tr. at 14). When Romero asked “which?”, “Sancudin” responded, “The Cadillac, the truck like the one you used to own.” (Id.). At that time, a maroon colored Cadillac Escalade arrived, and Romero, as intercepted, called Pedroza to inform him that “Sancudin” was there. After some discussion, Pedroza advised Romero to have the drugs put in the Audi. (Id.). Romero was then intercepted informing “Sancudin” to place the drugs in the Audi, and the agent observed the maroon Cadillac park next to the Audi, “Sancudin” exit the Cadillac, and open the door of the Audi and place the sample inside. (Id.). “Sancudin” then entered the Cadillac and left. 81 (9/28/10 Tr. at 14-15).
Agent Smith testified that he was able to get a good look at “Sancudin,” observing his physical characteristics, and that he was able to take a photograph of the individual, whom he identified as Defendant Haces-Delgado in court. (9/28/10 Tr. at 15, 33-35; Def. Ex. 1). The tag on the maroon Cadillac was checked, and the tag came back to the same non-existent address and with the same registered owner as the red Mustang. (9/28/10 Tr. at 16, 34).
Agent Smith stated that in late March 2009, he checked the tags on the red Mustang and the maroon Cadillac. Although the registered owner for both vehicles remained Estevan Flores Mora, the address for both vehicles was the Tempo 2000 apartments located at 3538 Buford Highway N.E., Apartment 7, in Atlanta. (9/28/10 Tr. at 15-16, 36). To determine whether this address existed, on April 13, 2009, Agent Smith drove by the location
After “Sancudin” exited the vehicle, “Sancudin” went in to an apartment in building 3538, but from the agent’s location, he could not see which apartment. Agent Smith therefore moved his surveillance vehicle to be able to see the breezeway with the door to apartment number 7. (9/28/10 Tr. at 18-19). About thirty minutes after the red Mustang arrived, Agent Smith observed “Sancudin” exit the door of apartment number 7, reenter the red Mustang, and leave the apartment complex. (9/28/10 Tr. at 19-21, 42). As “Sancudin” left the apartment to reenter the red Mustang, Agent Smith took a photograph of “Sancudin.” 83 (9/28/10 Tr. at 20-21, 39; Gov’t Ex. 1).
In late April 2009, FBI Special Agents Joseph Ladd and Scott Stephan were asked to participate in an operation to arrest an individual with an unknown first and last name but with a nickname “Saneudin” believed to be located at 3538 Buford Highway, Apartment 7.
84
(3/19/10 Tr. at 4-7, 49). Agent Ladd recalled being advised that several individuals may be in the apartment, including a husband, wife, several children and some other males. He understood that there was an arrest warrant
85
for “Saneudin” and that the individual was in the apartment. (3/19/10 Tr. at 6-7, 40). He also stated that he understood that “Saneudin” had been observed driving a red Mustang during the investigation. (3/19/10 Tr. at 39-40). Agent Stephan testified that at a briefing before the scheduled arrest on April 29, 2009, he was instructed to arrest FNU LNU with the nickname “Saneudin” who was located in the identified apartment and that he was given a surveillance photograph of “Saneudin” and a copy of the arrest warrant.
86
(3/19/10 Tr. at 49-50, 88). When asked specifics about the information provided, Agent Stephan stated, “I believe I was told that was where he had been observed residing and maybe not re
At approximately 6:00 a.m., 87 on April 29, 2009, FBI agents, one or two immigration agents and Georgia Bureau of Investigation (“GBI”) Agents, as well as the DeKalb SWAT, numbering in total approximately twenty agents and officers, were at 3538 Buford Highway to attempt to execute the arrest warrant for “Sancudin.” (3/19/10 Tr. at 7-8, 27, 51-52, 69-70). All of the agents and officers were in tactical gear, including vests with identification as police, and all agents and officers were armed. (3/19/10 Tr. at 7-8, 27-28, 51-52, 70). The SWAT, who numbered approximately six officers and who were making the initial entry into the residence, were assumed to have their weapons drawn at the time of entry. (3/19/10 Tr. at 7-8, 28, 52, 69-70).
Agents Stephan and Ladd, as well as all other officers and agents present, remained downstairs from the breeze-way for apartment 7 as SWAT made the entry. (3/19/10 Tr. at 7-8, 28-30, 52, 68). Agent Stephan stated that he heard the SWAT officers knocking and announcing their presence and that, when no one answered the door, SWAT breeched the door, forcing entry into the apartment. (3/19/10 Tr. at 68). Once SWAT secured the occupants of the residence, within approximately ten minutes, Agents Stephan and Ladd and a third agent initially entered the residence. (3/19/10 Tr. at 9, 30, 52). The agents observed three Hispanic males, who were handcuffed, two Hispanic females, and three children seated on a sofa in the living room area. 88 (3/19/10 Tr. at 9, 30, 44, 52; Def. Ex. 3). The agents also observed three firearms, which had been found by SWAT in the entry-way closet and rendered safe, and ammunition lying on the dining table. (3/19/10 Tr. at 25, 47, 62). Using the photograph provided of “Sancudin” and being aware from the debriefing that he was looking for a younger, Hispanic male, Agent Stephan quickly eliminated the older, heavy-set male as being “Sancudin.” The two younger males had similar characteristics. (3/19/10 Tr. at 52, 71, 73, 92-93).
Upon entry, using Agent Ladd as an interpreter, after advising everyone why the agents were there, that is, to execute an arrest warrant for “Sancudin,” and that they were being detained for everyone’s safety, Agent Stephan requested identification from each adult. The agents also asked who was “Sancudin,” and no one responded or pointed out anyone else as “Sancudin.” (3/19/10 Tr. at 9-11, 12-13, 31-34, 73-75). Agent Stephan then asked
At approximately 6:30 a.m., voice exemplars were taken from the three Hispanic males, including the individual determined to be “Sancudin.” 90 (3/19/10 Tr. at 10-11, 83; Gov’t Ex. 18). Miranda rights were not given to anyone prior to the taking of the exemplars. Agent Ladd simply explained to each male that he would be asked to answer some questions about biographical information during a telephone conversation with a Spanish speaking individual. (3/19/10 Tr. at 10, 12-13, 40). After taking the voice exemplars, each individual was separately interviewed.
Agent Stephan recalled that one of the females present, Maricruz Haces, who advised that she was the leasee for the apartment and who presented the agents with bills in her name, was escorted to a bedroom and asked for consent to search the apartment. (3/19/10 Tr. at 20-22, 55-56, 58). Using a consent to search form in Spanish, with the location handwritten on the form in English, Agent Ladd presented the form to Ms. Haces, which stated:
This is a consent to search. Item 1. Agents of Federal Bureau of Investigation have asked many [sic] to permit a search, complete search.... [Describe the person, place, things or objects that are going to be searched.] ... [3538 Buford Highway Apartment # 7 Tempo 2000 Apartments Atlanta, Georgia 30329].... Item 2.1 have been informed that I have the right to refuse a search. Item 3. I make this declaration voluntarily. Item 4. I authorize the below signed agent to take whatever item which in their judgment is related to this investigation.
(3/19/10 Tr. at 19-21; Gov’t Ex. 4). Ms. Haces executed the consent form as witnessed by the agents. (3/19/10 Tr. at 21). While speaking with Ms. Haces, the agents did not have any weapons drawn, and it does not appear that she was handcuffed. 91 (3/19/10 Tr. at 9, 22). The apartment was searched. 92 (3/19/10 Tr. at 22).
The agents, specifically Stephan, Ladd and Reid, next spoke with Defendant Haces-Delgado in one of the bedrooms. Defendant was advised at this time that he was under arrest and of his
Miranda
rights. (3/19/10 Tr. at 14, 55-57, 91). Us
Before we ask you any questions, you have the right to — you should know your rights. You have the right to remain silent. Anything that you say may be used against you in a court of law. You have the right to consult an attorney so that he can counsel you before we ask you any questions. You also have the right to have an attorney present during any questioning. If you cannot pay the cost for an attorney, one will be assigned to you before beginning of the interview if you so desire. If you answer the questions now without the presence of an attorney, you still have the right to not answer any questions at any moment. You also have the right to stop answering questions at any moment.
I have read this declaration of my rights and I understand what they are. I am — I agree to make this declaration and answer any questions without the presence of an attorney.
(3/19/10 Tr. at 18-19; Gov’t Ex. 2). Defendant signed the form at approximately 7:50 a.m. as witnessed by the agents. (3/19/10 Tr. at 15). Defendant appeared to understand Agent Ladd and seemed cooperative. The agents did not have weapons drawn during this time. Defendant did not ask that the interview be stopped. The agents and Defendant were seated during the interview. (3/19/10 Tr. at 14-15, 56-57). Although Defendant answered the agents’ questions, Agent Stephan was not sure he was truthful. 93 (3/19/10 Tr. at 57).
The agents also asked Defendant for consent to search the cellular telephone found near him when SWAT entered the apartment. (3/19/10 Tr. at 16-17). Using the same Spanish consent to search form, Agent Ladd filled in the item to be searched as “cellular ... telephone Sony Erickson — silver/white 404-394-0066” on the form and presented the form to Defendant. (3/19/10 Tr. at 16-18, 19; Gov’t Ex. 3). Defendant executed the form as witnessed by the agents. 94 (3/19/10 Tr. at 17).
The agents also spoke with Estevan Flores Mora. He advised the agents that the red Mustang was his, although Defendant Haces-Delgado primarily drove the vehicle. Mr. Mora stated that he drove the red Mustang a few times but not within the last two months. (3/19/10 Tr. at 23, 35, 37-38, 60, 76-77). Using the same Spanish consent tó search form, filled in as follows: “RED MUSTANG Georgia Tag WI77QJ VIN # IFAFP45X7WF265187,” Agent Ladd read and explained the form to Mr. Mora. Mr. Mora signed the form. (3/19/10 Tr. at 20, 23, 35, 60, 77; Gov’t Ex. 5).
At some point that morning, Sergeant (“Sgt.”) Robert J. Brink, DeKalb County Police Department, supervisor of the K-9 unit, arrived at the apartment complex. (4/21/10 Tr. at 13, 16-17, 30-31). The agents asked him to “K-9 a vehicle” and pointed out a red Mustang. (4/21/10 Tr. at 17). Before doing so, Sgt. Brink asked to speak with the vehicle’s owner, and he entered the apartment to do so. (4/21/10 Tr. at 17). As he was beginning to identify himself to the person he believed to be the owner and explain what he wanted to do, the sergeant was handed a consent to
Sgt. Brink returned outside and retrieved his K-9 from his vehicle. 95 The sergeant first walked around the vehicle to ensure there were no hazards and then commanded Junior to conduct a “free air sniff’ of the exterior of the vehicle. (4/21/10 Tr. at 17). Junior, who is a fast working dog, initially circled the vehicle at a quick pace, and then the second time around the vehicle, Junior slowed and gave an indication or alert to the presence of the odor of controlled substances from the interior of the vehicle by slowing and then sitting and staring at the driver’s side door of the vehicle. (4/21/10 Tr. at 17, 24). Once Junior alerted to the odor of controlled substances in the vehicle, Sgt. Brink opened the door and placed Junior inside the vehicle, closing the door behind the K-9. Junior alerted staring and placing his nose to the center console of the vehicle and sitting. (4/21/10 Tr. at'17, 23, 25-26). After removing Junior from the vehicle, Sgt. Brink searched the center console and popped out the cup holders finding a bag containing a white powder substance. (3/19/10 Tr. at 24-25, 61-62, 80-81; 4/21/10 Tr. at 18).
Additional facts will be set forth as necessary during discussion of Defendant’s claims.
II. Discussion
a. Entry of Apartment to Arrest “Sancudin”
The first issue before the court is whether the Government established that there was a “reasonable belief’ that 3538 Buford Highway, Apartment 7, in Atlanta, was the residence of “Sancudin” and that there was “reason to believe” that “Sancudin” was in that apartment at the time of entry.
Magluta,
“The Supreme Court set the standard for entry into residences based upon an arrest warrant in
Payton
[ ], where the Court stated: ‘[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it
The first Payton prong is satisfied in this case. As outlined by Agent Smith, the individual identified on the wire intercepts as “Sancudin” was reasonably believed to be involved in two drug transactions with another known co-conspirator, Martin Romero, on September 23, 2008, and November 7, 2008. (9/28/10 Tr. at 8-12, 25, 29-31). Although agents were not “sure” that the individual in the red Mustang, the vehicle at both transactions, was the same person and were not able to “positively” identify “Sancudin,” a reasonable belief, which does not even require probable cause, is not based on being sure or positive. The facts presented, that “Sancudin” was intercepted on the wire taps discussing meeting Romero for the drug transactions and that the transactions occurred at the location and time planned, establish a reasonable belief that the occupant of the red Mustang on both occasions was “Sancudin.” This belief was supported by the events surrounding the third transaction in January 2009 when “Sancudin” was sent by a third party to deliver a sample of drugs to Romero, who also sent a third party to the meeting. (9/28/10 Tr. at 12-15, 31-34).
The interceptions of conversations between Romero and an unidentified person, “UM4,” indicated that a drug transaction was to take place on January 12, 2009, at a Carnicería, Tres Hermanos, located on Cruz Road in Lawrenceville. (9/28/09 Tr. at 12-14). The intercepted conversations indicated that “Sancudin,” on behalf of “UM4,” would be delivering a sample of drugs to Romero and that Romero was sending an individual named Pedroza, who apparently did not know “Sancudin,” to collect the sample. [9/28/10 Tr. at 12-13]. Tracking exactly the intercepted conversations, the agents observed Pedroza arrive in a dark colored Audi. During this time, “Sancudin” was intercepted talking to Romero concerning his anticipated arrival
By the end of January 2009, the “Sancudin” involved in the drug transactions and being intercepted over the wire taps was connected to the red Mustang and the maroon Cadillac. The agents also linked “Sancudin” to the apartment at 3538 Buford Highway. As Agent Smith testified, when he re-checked the registrations on the red Mustang and the maroon Cadillac in March 2009, although both were still registered to Estevan Flores Mora, the address for both vehicles had been changed to 3538 Buford Highway, N.E., Apartment 7, in Atlanta. (9/28/10 Tr. at 16). When he attempted to locate the address on April 13, 2009, which did exist, he observed the same red Mustang parked at the building indicated on the registration. He did not observe anyone associated with the red Mustang. (9/28/10 Tr. at 16-17, 36). However, when Agent Smith conducted surveillance on April 17, 2009, at mid-day, he observed both the red Mustang and “Sancudin” at the building listed on the registration. He observed “Sancudin” arrive in the red Mustang, enter an apartment and then exit from apartment 7, before leaving in the red Mustang. (9/28/10 Tr. at 17-21; Gov’t Ex. 1).
Having associated the address on the registrations for vehicles used during the drug transactions with “Sancudin” and having observed “Sancudin” leaving from that address, the agents reasonably believed that “Sancudin” resided in the residence as of April 2009. The Government need not establish that this location was “Sancudin’s” permanent residence or that he stayed in that residence every night in order for the court to find that he resided there for the purpose of allowing entry pursuant to
Payton. See Bervaldi,
And the Government’s evidence established that the agents had “ ‘reason to believe’ ” that “Sancudin” would be in the apartment when the arrest warrant was executed.
Magluta,
Second, one of the vehicles associated with “Sancudin” and in which he had been seen arriving at and leaving from the residence was located just outside the building at the time the warrant was executed. (3/19/10 Tr. at 39-40, 60, 88-89; 9/28/10 Tr. at 16-21). As the Eleventh Circuit Court of Appeals has held, the presence at a residence of a vehicle associated with a suspect indicates that the suspect is present in the residence.
See, e.g., Bridgewater,
For these reasons, the Government’s evidence, when considering Agent Smith’s testimony, supporting the forcible entry by SWAT to execute the arrest warrant for “Sancudin” satisfied both prongs of
Payton,
and the officers and agents lawfully entered the residence on April 29, 2009. Therefore, as stated by the Court in
Magluta,
“Once the [agents] possessed this valid justification to enter the residence[,] they were entitled, pursuant to
Maryland v. Buie,
SWAT entered the apartment looking for “Sancudin” who was named as a defendant in a multi-district, multi-defendant drug trafficking and money laundering organization. [Doc. 1; Gov’t Ex. 19]. They found a person, later identified as Defendant, sleeping on the sofa in the living room, and in other areas of the residence, the officers located two more Hispanic males, two females and three children, all of whom were relocated to the sofa in the living room. (3/19/10 Tr. at 9, 13, 30, 43, 52, 62). Also SWAT found in the closet located at the entry-way of the apartment, three loaded firearms, posing a significant danger to the officers. (Tr. at 25, 47, 62). The protective sweep, including looking in the closet, a place in which a person could hide, did not exceed the proper scope of such a search.
See Bervaldi,
For these reasons, the court finds that the forcible entry into the apartment to execute the arrest warrant for “Sancudin” was lawful and that seizure of the three firearms and ammunition from the closet in the apartment did not violate Defendant’s Fourth Amendment rights. Likewise, to the extent that Defendant contends .that any further search of the apartment, his cellular telephone and the red Mustang or that his statements were fruits of the alleged unlawful entry and violate his Fourth and Fifth Amendment rights, such claims fail.
b. Arrest of Defendant on the Warrant
Defendant also contends that the agents lacked probable cause to believe that he.was “Sancudin,” the person for whom the arrest warrant was issued. [Doc. 12-13; Doc. 631 at 2-5]. The court disagrees and finds that Defendant was properly arrested on the warrant for “Sancudin.”
Defendant' did not offer any binding-or other-legal authority in support of his argument, and the Government did not directly address this issue. The court has not found a decision of the Eleventh Circuit Court of Appeals on point; however, the Third Circuit Court of Appeals has held, “To determine whether the police have probable cause to believe a particular suspect is the person named in a warrant, ‘we apply a common sense approach and consider the facts and circumstances with
As set forth
supra,
the agents had a basis for reasonably concluding that the person for whom the warrant was issued, “Sancudin,” resided in the apartment and would be in the apartment at the time SWAT entered the residence. Added to this reasonable belief that the subject of the warrant was in the apartment, the facts establish that three Hispanic males were found in the apartment, two of whom matched the description given Agent Stephan, that is, a young, Hispanic male, and resembled the photograph that the agent had of “Sancudin.” (3/19/10 Tr. at 9, 30, 52-54, 71, 73). The third, an older and chubby Hispanic male, was quickly eliminated as being the suspect. (3/19/10 Tr. at 52, 73). Agents Stephan and Ladd testified that no one identified himself as “Sancudin” and that no one in the apartment pointed out anyone else as “Sancudin.” (3/19/10 Tr. at 31-34, 73-75). Agent Stephan therefore requested the assistance of GBI Agent Reid to identify “Sancudin” because he understood that Agent Reid had “some familiarity with the individual from a ease he was working.” (3/19/10 Tr. at 52-53, 71-72). Agent Stephan elaborated during cross-examination explaining that he understood Agent Reid “was investigating the matters and had seen Mr. Luis Manuel Haces-Delgado prior to this time.... ” (3/19/10 Tr. at 72). Agent Reid pointed out Defendant Haces-Delgado, and “he gave [Agent Stephan] a yeah, that is definitely him.” (3/19/10 Tr. at 54, 71-72, 89-90). The totality of these circumstances, including the eye-witness identification of Defendant as “Sancudin” by Agent Reid, provided probable cause to arrest Defendant on the warrant.
Cf. United States v. Smith,
For these reasons, the court finds that the agents had probable cause to arrest Defendant on the “Sancudin” warrant. And, to the extent that Defendant contends that his statements were fruits of the alleged unlawful arrest, that claim fails.
c. Search of Defendant’s Cell Phone and the Apartment and Red Mustang
In his post-hearing briefs, Defendant does not raise any other grounds for suppression of any evidence seized during the searches of the apartment and the cellular telephone and of the red Mustang beyond contending that the evidence seized as a result of the searches should be suppressed as fruits of the unlawful entry and arrest. [Docs. 569 and 631]. And the court finds that the search the apartment 100 and of Defendant’s cellular telephone, as well as the search of the red Mustang (if Defendant could challenge the latter search) were lawful and did not violate Defendant’s Fourth Amendment rights.
The Government does not contest that Defendant had a legitimate expectation of privacy in the apartment such as to allow him to challenge the search which was based on the consent provided by Ms. Haces. [Docs. 577 and 624]. The legal authority guiding the court’s decision on this issue was fully set forth
supra. See
Defendants Anaya-Medina’s, Cruz-Plancarte’s & Cruz-Loya’s Motions to Suppress Evidence and Statements, II. Discussion, a. Search of Residence. Weighing the factors used in assessing voluntariness of a consent, that is, “ ‘voluntariness of defendant’s custodial status, the presence of coercive police procedure, the extent and level of the defendant’s cooperation with police, the defendant’s awareness of his right to refuse to consent to the search, the defendant’s education and intelligence, and, significantly, the defendant’s belief that no incriminating evidence will be found[,]’ ” indicates that the consent was voluntary.
Blake,
Ms. Haces was not under arrest but merely, as explained to her, being detained for the safety of the agents and the apartment’s occupants while the agents executed the arrest warrant. She was not handcuffed. (3/19/10 Tr. at 9, 11). When the agents spoke with her, they did not have their weapons drawn. (3/19/10 Tr. at 22). She appeared cooperative .with the agents, answering their questions. (3/19/10 Tr. at 21, 43). She was also provided with and signed a consent to search form, which advised her of her right to refuse to consent to the search of the apartment. (3/19/10 Tr. at 19-22; Gov’t Ex. 4). Nothing in the evidence before the court indicates that Ms. Haces was intimidated, threatened or otherwise coerced to obtain her consent, and the agents summoned medical attention for Ms. Haces, who appeared to be suffering from a serious cough and cold. (3/19/10 Tr. at 45).
Defendant also provided a voluntary consent to search his cellular tele
With respect to the search of the red Mustang, the Government does challenge Defendant’s right to contest the search. [Doc. 577 at 12-13]. And, as the Government notes, Defendant appeared to recognize that he did not have a legitimate expectation of privacy because he asserted in his brief in support of the motion to suppress evidence that, “because the consent came as a result of the invasion of Mr. Mora’s privacy in his apartment,” the evidence seized should be suppressed. [Doc. 569 at 13].
To determine whether an individual may challenge a search, the court must decide “whether the individual maintains a legitimate expectation of privacy in the object of the search.”
United States v. Hastamorir,
Defendant has not met this burden. Although the agents observed an individual that they believed to be “Sancudin,” who was subsequently identified as Defendant, driving the vehicle at two drug transactions and driving the vehicle in April 2009, and although Defendant admitted driving the vehicle “on occasion” to see his girlfriend, he did not assert any ownership interest in or control over the vehicle on April 29, 2009. Defendant, in fact, played down his association with the vehicle. (3/19/10 Tr. at 76, 84; 9/28/10 Tr. at 8-12, 17-21). The fact that the owner of the vehicle, Estevan Flores Mora, stated that he did not regularly drive the red Mustang but that Defendant used the vehicle (3/19/10 Tr. at 22-23, 35, 36-37, 76-77)
Even if Defendant established a legitimate expectation of privacy in the red Mustang, the search was lawful based on the probable cause provided by the K-9 alert or pursuant to a valid consent to search. When the agents confirmed that Estevan Flores Mora, one of the other Hispanic males found in the apartment, was the owner of the red- Mustang, they requested his consent to the search the vehicle. (3/19/10 Tr. at 22-23, 35, 37-38, 60). Mr. Mora was provided with a consent to search form which advised him of his right to refuse to consent. (3/19/10 Tr. at 19-20, 23, 35, 60, 77; Gov’t Ex. 5). Mora was not in custody, only being detained while the arrest warrant was being executed—as was explained to him. (3/19/10 Tr. at 9, 11-12). The agents speaking to him did not have weapons drawn, and nothing in the record indicates that their conduct was intimidating, coercive or threatening. And Mora appeared cooperative, answering the agents’ questions about the various vehicles. (3/19/10 T,r. at 22-23, 37-38, 41-42). The consent was voluntary and provided a lawful basis for the search of the red Mustang.
However; before the consent search was executed, at the request of the agents, Sgt. Brink conducted a “free air sniff’ of the red Mustang with his certified K-9, Junior. (3/19/10 Tr. at 25, 36, 79-82; 4/21/10 Tr; at 14-15, 17). As Junior examined the exterior of the vehicle, he alerted to the driver’s side door indicating that he detected the odor of a controlled substance, either heroin, cocaine, methamphetamine or marijuana, coming from the interior of the vehicle (4/21/10 Tr. at 17, 23-24), thus providing the necessary probable cause to enter and search the red Mustang, which resulted in the discovery of the controlled substance hidden in the cup holder in the center console of the vehicle (4/21/10 Tr. at 17-18, 25). Junior had alerted, once in the vehicle, to the center console indicating that drugs were present. (4/21/10 Tr. at 17, 25-26).
Although, as a general- rule, the Fourth Amendment requires police officers to obtain a warrant before conducting a search,
see California v. Carney,
The validity of the search turns on whether there was probable cause to believe the vehicle contained contraband or evidence of a crime.
Dyson,
For these reasons, the court finds that the searches of the apartment, the cellular telephone, and the red Mustang did not violate Defendant’s Fourth Amendment rights.
d. Statements
Defendant also filed a motion [Doc. 341] to suppress statements; however, in his post-hearing briefs, besides challenging admissibility of the statements based on the alleged unlawful entry and arrest, Defendant did not make any other argument in support of suppression of either the preMiranda voice exemplars or the post-Miranda statements. [Docs. 569 and 631]. The Government, likewise, offered no additional arguments in support of admissibility. [Docs. 577 and 624].
The voice exemplars, which will be used solely for identification purposes, see footnote 75 supra, and as has been discussed supra, see Defendants Anaya-Medina’s, Cruz-Plancarte’s & Cruz-Loya’s Motions to Suppress Evidence and Statements, II. Discussion, b. Statements, 2. Voice Exemplars, are not subject to suppression on the basis of the Fourth, Fifth or Sixth Amendments. Defendant’s statements following being advised of and waiving his rights are also admissible. 103
For these reasons, the court finds that the voice exemplars, for the purpose of identification, and Defendant’s post-arrest statements are admissible.
III. Conclusion
For the foregoing reasons and based on the cited authority, the court RECOMMENDS that Defendant Haces-Delgado’s motions [Docs. 340 and 341] to suppress evidence and statements be DENIED.
Bill of Particulars
Defendants Alfonso Rios, Jr., and Noe Aguilar-Camudio filed motions [Docs. 335 and 338] seeking a bill of particulars. Both Defendants are seeking evidentiary detail to support the Government’s allegations in the superseding indictment of the amounts of controlled substances alleged to be involved in the charged offenses and specifically attributed to each Defendant. Defendants contend that although the conspiracy count in the indictment alleges that all of the named Defendants conspired to possess with the intent to distribute at least five kilograms of cocaine, at least five-hundred grams of methamphetamine, and at least one-thousand pounds of marijuana, the evidence provided in discovery does not demonstrate that individually either Defendant possessed those amounts of drugs. [Id.]. The Government opposes the motions stating the superseding indictment fully apprises Defendants of the charges against them and that the voluminous documents, recordings, and physical evidence provided in discovery apprise Defendants of the nature of the evidence against them. [Doc. 368].
“The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.”
United States v. Warren,
The court notes that the fact discovery materials are provided to Defendants is an appropriate factor to consider in deciding whether a bill of particulars is warranted.
See Roberts,
Quite simply, Defendants are seeking evidentiary detail to which they are not entitled in a bill of particulars and which is not pertinent to the trial of this case.
See Roberts,
For these reasons, the court DENIES Defendants Rios’ and Aguilar-Camudio’s
Motions for Severance of Defendants
Defendants Otha Barnes and Luis Manuel Haces-Delgado filed motions [Docs. 306 and 381] in limine or to sever their cases. The motions focus on the reasons why certain types of evidence, such as, drug profile evidence, Fed.R.Evid. 404(b) evidence, and expert testimony, should not be allowed at trial. [M]. In the alternative, but providing no grounds for so requesting, Defendants ask to be severed from the remaining Defendants for trial. [Doc. 306 at 4; Doc. 381 at 5]. Defendants Andres Bautista-Gallegos and Noe Aguilar-Camudio filed motions [Docs. 329 and 333] to sever their trials from that of co-Defendants based on Fed.R.Crim.P. 14 alleging prejudicial spillover, the need for potential testimony of co-Defendants, potential Bruton issues, 105 and a better opportunity for a fair and impartial trial. [Id.]. Defendant Aguilar-Camudio also contends that a joint trial will violate his Sixth Amendment right to a speedy trial, and he seeks an evidentiary hearing to present “academic experts” in support of his claim of prejudicial spillover of evidence. [Doc. 333 at 5, 8-9]. The Government opposes the motions for severance. [Docs. 367 and 579].
To the extent Defendants Barnes and Haces-Delgado move in limine to exclude evidence from trial, the court defers ruling on those motions [Docs. 306 and 381] to the trial court with the Government’s response thereto [Doc. 579], Having read and considered Defendants’ motions for Rule 14 severance, the court recommends that the motions be denied.
Defendants allege that a joint trial with their co-defendants will deny them a fair trial and will unduly prejudice them. Accordingly, they seek a severance based on Fed.R.Crim.P. 14. “Rule 14(a) states,
‘If
the joinder of ... defendants in an indictment ... appears to prejudice a defendant or the government, the court may ... sever the defendants’ trials, or provide any other relief that justice requires.’ ”
United States v. Blankenship,
Defendants are charged in a conspiracy, in violation of 21 U.S.C. § 846. It is the general rule in conspiracy cases that “defendants indicted together should be tried together.”
United States v. Cassano,
Defendant Aguilar-Camudio’s motion includes a conclusory contention that the delay in preparing this multi-Defendant, multi-count case for trial may violate his Sixth Amendment right to a speedy trial. [Doc. 333 at 5]. The court, however, notes that Defendant has filed several motions requesting evidentiary hearings, including the instant motion, and that an evidentiary hearing was in fact held on Defendant’s motion to suppress evidence and that Defendant was provided with an opportunity make an in camera showing on his motion to disclose the identity of the confidential informant. Preparing these motions for submission to the court necessitated a delay in certifying the case ready for trial. Defendant’s motions seeking suppression of evidence and statements, severance, a bill of particulars, and disclosure of informants, contributed to part of the time period required to certify the case ready for trial, and he cannot show as of this date that a joint trial has violated any constitutional rights.
The second category mandating a severance, that is, preventing the jury from making a reliable judgment, applies generally to three situations. “First, severance is mandated where compelling evidence that is not admissible against one or more of the co-defendants is to be introduced against another co-defendant.”
Blankenship,
Defendant Bautista-Gallegos also contends that severance is required because Defendant may wish to call a co-Defendant and based on other general claims that the testimony of eo-Defendants are unavailable in a joint trial. [Doc. 329], To obtain a severance on this ground, Defendant “must first demonstrate: ‘(1) a bona fide need for the testimony; (2) the substance of the desired testimony; (3) the exculpatory nature and effect of the desired testimony; and (4) that the codefendant would indeed have testified at a separate trial.’ ”
Browne,
As noted, Defendant Aguilar-Camudio seeks an evidentiary hearing to present “ACADEMIC EXPERTS”
probably
in the field of cognitive psychology “who
may
testify about the inability of human beings to process or correctly maintain information, when asked to analyze the evidence and render individualized verdicts against twenty, ten or even five defendants.” [Doc. 333 at 9
&
n. 3 (emphasis added) ]. The court denies Defendant’s request. The evidence which Defendant seeks to introduce appears speculative and of little relevancy to the presentation of evidence at a trial under the careful supervision of the trial court in whom is placed the responsibility of ensuring each Defendant receives a fair trial. As stated by the Supreme Court in
Zafiro v. United States,
For these reasons and cited authority, the court RECOMMENDS that Defendants Barnes’, Bautista-Gallegos’, Aguilar-Camudio’s, and Haces-Delgado’s motions [Docs. 306, 329, 333 and 381] for severance be DENIED and that Defendants Barnes’ and Haces-Delgado’s motions [Docs. 306 and 381] in limine be DEFERRED to the trial court. The court DENIES Defendant Aguilar-Camudio’s request [Doc. 333] for an evidentiary hearing.
Motions to Compel Disclosure of Confidential Informants
Finally, pending before the court are Defendant Otha Barnes’ motion [Doc. 309] to compel disclosure of confidential informant, Defendant Aguilar-Camudio’s motion [Doc. 330] for production of name and location of confidential informant, and Defendant Haces-Delgado’s motion [Doc. 382] for production of name and location of confidential informant. Defendants Aguilar-Camudio and Haces-Delgado requested an in camera hearing in order to present reasons to the court for the necessity of the disclosure of the informant’s identity. [Doc. 330 at 3; Doc. 382 at 3]. The Government opposes the motions for disclosure stating that the confidential informant only had dealings with Obiel Pineda-Pardo (a/k/a “Beto”) and did not have any dealings with Defendants Barnes, AguilarCamudio, or Haces-Delgado. 107 [Doc. 581 at 1-3].
In order to determine whether disclosure of a confidential informant is appropriate, “a court must engage in a balancing test, taking into account the particular circumstances of each case, the crime charged, possible defenses, and the potential significance of the informant’s testimony.”
United States v. Gutierrez,
The Eleventh Circuit Court of Appeals does not require that an
in camera
hearing be held when the identity of an informant is being sought.
See United States v. Vann,
Based on the facts presented to the court, the court finds the informant’s involvement in the charged activity, as relates to Defendants Barnes, AguilarCamudio, and Haces-Delgado, is non-existent. [Doc. 581 at 1-3]. And, even if the court had found that the first factor weighed in favor of disclosure of the informant’s identity, Defendants have failed to carry their burden of demonstrating the directness of the relationship between the asserted defenses and the anticipated testimony of the informant. As noted, the burden is on Defendants to “prove that the informant’s probable testimony would bear a direct relationship on the defendant’s asserted defense.... ”
McDonald,
For these reasons, the court DENIES Defendants Barnes’, Aguilar-Camudio’s and Haces-Delgado’s motions [Docs. 309, 330, 382] to disclose confidential informant.
Conclusion
For the foregoing reasons and based on the cited authority, the court RECOMMENDS that:
(1) Defendant Jorge Anaya-Medina’s motion [Doc. 301] to suppress voice exemplars and statements obtained on April 29, 2009, and motion [Doc. 302] to suppress evidence seized pursuant to a warrantless search on April 29, 2009, at 2265 Ranch Trial, Norcross, Georgia, be DENIED; that Defendant Alejandro De La CruzPlancarte’s motion [Doc. 322] to suppress evidence obtained during the same warrantless search be DENIED; and that Defendant Javier De La Cruz-Loya’s motion [Doc. 297] to suppress be GRANTED IN PART and DENIED IN PART, denied as to the voice exemplars taken for purpose of identification on April 29, 2009, and granted as to the post-Miranda statements obtained on April 29, 2009, and as to the evidence seized during the same warrantless search;
(2) Defendant Otha Barnes’ motion [Doc. 315] to suppress evidence and the voice exemplars be DENIED;
(3) Defendant Gerald Durrance’s motions [Doc. 304 and 455] to suppress evidence be GRANTED;
(4) Defendant Martina Flores’ motion [Doc. 349] to suppress evidence seized on April 29, 2009, be GRANTED IN PART and DENIED IN PART, denied as to the warrant for the residence located at 608 Sandyhills Avenue, McAllen, Texas, and granted as unopposed by the Government for the residence located at 604 Sandyhills Avenue, McAllen, Texas;
(5) Defendant Noe Aguilar-Camudio’s motions [Docs. 331, 332, and 334] to suppress be DENIED;
(6) Defendants Jorge Anaya-Medina’s motion [Doc. 328], Defendant Luis HacesDelgado’s motion [Doc. 342] and Defendant Martina Flores’ motion [Doc. 351] to suppress the evidence obtained from the wiretap orders be DENIED;
(8) Defendants Otha Barnes’, Andres Bautista-Gallegos’, Noe Aguilar-Camudio’s, and Luis Haces-Delgado’s motions [Docs. 306, 329, 333 and 381] for severance be DENIED.
For the foregoing reasons and based on the cited authority, the court ORDERS that:
(1) Defendant Jorge Anaya-Medina’s request [Doc. 487] for a hearing on his wire tap motion be DENIED;
(2) Defendant Martina Flores’ request [Doc. 575] for a Franks hearing in connection with her wire tap motion be DENIED;
(3) Defendants Otha Barnes’ and Luis Haces-Delgado’s motions [Docs. 306 and 381] in limine be DEFERRED to the trial court;
(4) Defendant Noe Aguilar-Camudio’s request [Doc. 333] for an evidentiary hearing in connection with his motion for severance be DENIED;
(5) Defendants Alfonso Rios’ and Noe Aguilar-Camudio’s motions [Docs. 335 and 338] for a bill of particulars be DENIED; and
(6) Defendants Otha Barnes’, Noe Aguilar-Camudio’s and Luis Haces-Delgado’s motions [Docs. 309, 330, 382] to disclose confidential informant be DENIED.
There are no other pending matters before the Magistrate Judge, and the undersigned is aware of no problems relating to the scheduling of this case. 108
IT IS THEREFORE ORDERED and ADJUDGED that this action be and the same is hereby, declared Ready for Trial.
SO RECOMMENDED AND ORDERED THIS 30th DAY OF DECEMBER, 2010.
Notes
. Included therein was a motion for a Jackson Denno hearing which was granted and held on January 28, 2010. [Doc. 408].
. At the evidentiary hearing, the witnesses referred to Defendants by the names "Cokis,” "Valda-Ceja,” and "Loza-Cruz.” Therefore, to avoid confusion, the court will refer to Defendants by their "also known as” names.
. Citations to the transcript are: (Tr. at).
.That gear included bullet-proof vests with POLICE and DEA written on the front and back and holstered weapons. (Tr. at 9, 39-40). Agent Barnes had a long-gun which was hanging down on a strap. (Tr. at 39, 56).
. Later, Defendants and the juvenile were sitting on the ground. (Tr. at 61-62). Agent Bowen acknowledged that a photograph of Loza-Cruz taken at a later time showed some grass debris on his shoulder. (Tr. at 61).
. The rooms of the residence are identified in a rough diagram of the residence. (Tr. at 19; Gov’t Ex. 3).
. Another agent, Barnes, who had participated in the protective sweep, stood just outside the doorway to the bedroom as security; he was not involved in the conversation with Valda-Ceja. (Tr. at 45, 66, 70).
.The parties did not offer the transcripts of the voice exemplars or the testimony of the government agents who participated in the voice exemplars at the hearing. The Government does not dispute that the transcript offered by Defendant is the voice exemplar for Cokis.
. Agent Bowen testified that the English side of the card is an accurate translation for the Spanish side that she read to Defendants. (Tr. at 32).
. During his statement, Cokis advised that he and the three other men had lived in the residence for twenty-eight to thirty days, but
. Agent Bowen could not remember if the agents stated earlier to Defendants that they had a warrant for Cokis. (Tr. at 85-86).
. The court notes that Cokis and Valda-Ceja, who both claim that Loza-Cruz was thrown to the ground, are not consistent as to when this event allegedly occurred. Cokis claims this happened as soon as Loza-Cruz stated agents could not enter as they were exiting the residence. However, as will be recounted, Valda-Ceja contends that this did not happen until over an hour later when the agents were trying to follow him back into the residence and Loza-Cruz tried to stop them. (Tr. at 98, 108-09, 115-16). Agent Bowen testified that she never saw Loza-Cruz thrown to the ground. (Tr. at 60-61). The court concludes that Defendants, given the photograph of Loza-Cruz taken at some unknown time showing some grass debris on his shoulder, concocted the story about Loza-Cruz being thrown to the ground but failed to work out the inconsistencies in how and when this occurred.
. At some point after exiting, Valda-Ceja said that he identified the other men. (Tr. at 112).
. On cross-examination, Valda-Ceja stated that Loza-Cruz closed the door as Valda-Ceja entered and as the agents tried to enter. Then the agents took Loza-Cruz away and threw him on the ground. (Tr. at 119).
. Neither Defendant contends that Valda-Ceja lacked authority to consent to the search, and the evidence establishes that he was a co-tenant in the residence with the same authori1y to allow — or to refuse to allow — the agents into the residence as any of the tenants. (Tr. at 53, 71-72, 82-83, 93-95, 103-05).
. The defendant’s wife was advised that she was not under arrest but only handcuffed for officer safety. Id. at 382-83.
. A search warrant was obtained for a search of the house. Id.
. Since the Government ignored the controlling authority in
Randolph,
there was no argument presented that Velda-Ceja’s consent, due to some recognized hierarchy, was entitled to trump Loza-Cruz’s refusal.
Randolph,
. In fact, Cokis states in his brief that he was unaware of any post -Miranda statements attributed to him [Doc. 438 at 9], which is surprising given the testimony of Agent Bowen at the evidentiary hearing that all three Defendants made statements after being advised of and waiving their rights and because portions of the statements were offered into evidence. (Tr. at 31-36; 52-54; 71-72; 82-83). And Loza-Cruz's challenge to his statements is a one-line conclusory assertion that his statements violated his rights. [Doc. 442 at 12],
. Defendant sought to suppress all evidence "seized as incident to, as a result of, and that results from the search ... and any statements thereafter made” because of the unlawful search. [Id.].
. Having found that Loza-Cruz's waiver of rights and post-Miranda statement was tainted by the unconstitutional search and that the subsequent statement should not be admitted into evidence, the court is not addressing the admissibility of the statement further. However, the court notes that, if the District Court determines that the post-Miranda statement should not otherwise be excluded from evidence, the same analysis applies to LozaCruz’s post-Miranda statement as set forth infra for Cokis.
.
See Miranda v. Arizona,
. “It is well established that '[t]he government must prove by a preponderance of the evidence that [the defendant] made a knowing, voluntary and intelligent waiver of his
Miranda
rights.’ ”
United States v. Chirinos,
. Citations to the transcript are: (Tr. at).
. At the suppression hearing, counsel for Defendant stated that the motion to suppress only challenged the detention and search on December 10, 2008, and the voice exemplars taken on April 29, 2009. Defendant is not challenging the admissibility of evidence seized on April 29, 2009, as the result of execution of a federal search warrant (Tr. at 46, Gov’t Exs. 6 and 7) at his residence, or the statements that he made following his waiver of Miranda rights on April 29, 2009 (Tr. at 52-54). Because Defendant did not deal with the issue of the voice exemplars in his post-hearing brief, the Government did not address the admissibility of the exemplars. [Doc. 571 at 3 n. 1]. The Government, however, has advised the court and Defendant that the voice exemplars will only be used for the purpose of identification at trial.
.Defendant’s reliance on state law, because the stop was conducted by a state officer, is misplaced. It is well-settled in this Circuit that federal statutory and constitutional law controls in determining the admissibility of evidence in federal court.
United States v. Bembry,
. This Unit's primary focus is road safety with a secondary mission of using indicators and travel patterns to identify individuals committing felonies. (Tr. at 5).
. Although the officer had suspicions about the tractor-trailer's load based on the information provided by the FBI, he was not going to stop the motor vehicle without observing a traffic violation. (Tr. at 24).
. DIAP is a multi-agency program involving the Drug Enforcement Administration, EPIC and the Federal Motor Carrier Safety Assistance Program. (Tr. at 10-11).
. The bill of lading describes the commodity being transported on the motor vehicle. (Tr. at 10).
. The situations that Sgt. Swicord was aware of where a driver was flown to a location to pick-up a load involved special reasons, such as hazardous materials which required a driver with specialized license and endorsements. (Tr. at 21-22). On cross-examination, the officer affirmed his opinion, based on his extensive experience with truckers traveling to and from the border area of Texas, that flying someone to that area to pick-up a low cost load was simply not cost-effective and not necessary due to the number of drivers available in the area. (Tr. at 21-23). Drivers did not need to be flown back
. Sgt. Swicord stated that Defendant was not free to leave at this time. However, because he was being cooperative, Sgt. Swicord did not tell Defendant that he was free to leave and also did not tell him that he could not leave. (Tr. at 33-34).
. Defendant makes repeated references to the Supreme Court decision in
Franks v. Delaware,
. Defendant argues that the traffic stop was a pretext for conducting a search for contraband because the FBI had provided information that the tractor-trailer may be transporting a controlled substance. [Doc. 497 at 2-3]. That argument does not support a finding that Defendant's Fourth Amendment rights were violated. The law is well established that " '[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’ "
United States v. Jones,
. The facts in
Muehler
involved the detention of an individual, Mena, in handcuffs during the execution of a search warrant. While Mena was being detained, officers questioned her about her immigration status.
Muehler,
.However, each of these computer checks must be conducted as a routine part of the traffic stop and not undertaken after the conclusion of the traffic stop to further detain a driver absent articulable suspicion of other criminal activity.
Boyce,
. The burgundy tractor was pulling a box trailer with a cooling system, known as a "reefer,” both with Texas license plates. (Tr. at 7).
. Having attended and completed the DOT inspection school, Sgt. Swicord was authorized to inspect, including paperwork, and detain commercial motor vehicles such as that operated by Defendant. (Tr. at 9-10).
. Likewise, in cases determining whether there is probable cause for an arrest or to issue a search warrant, it is well-established that courts may rely on the type of opinion evidence, based on a law enforcement officer’s training and experience, as offered at the evidentiary hearing in this case.
See United States v. Whitner,
. Although Sgt. Swieord stated that Defendant was not free to leave at this time, because Defendant was being cooperative, Sgt. Swieord did not tell him that he could not leave. (Tr. at 33-34). So, as far as the objective facts establish, Defendant was not being detained at the time he consented to the search. Because the Government and Defendant apparently assumed that once the traffic stop was completed, that is, when Defendant was handed the warning and all of his documents were returned, Defendant was further detained by the Trooper, the court did not address the issue. However, as noted
supra,
" 'further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter.’ ”
Ramirez,
. Citations to the transcript are: (Tr. at).
. Based on information gathered during the investigation, the agents believed that the house at this location was the residence of Defendant, and although Defendant was not observed at the residence a few days before or that morning, vehicles known to be operated by Defendant were observed at the residence. (Tr. at 6, 18-19).
. The court cited a number of cases from other circuits recognizing "an officer's duty to inquire in ambiguous situations.”
Id.
at 847 (citing, e.g.,
Kimoana,
. The Government also provided to the court a certified copy of the warrant, affidavit and attachments which have been filed with the court. [Doc. 578],
. Although not stated in the affidavit for the search warrant, the arrest of Defendant at the second residence, 604 Sandyhills Avenue, referenced in the affidavit was based on a warrant for her arrest issued following the return of a federal indictment in the Northern District of Georgia for her alleged involvement in the drug trafficking and money laundering organization. [Docs. 1 and 25].
. In
Anton,
the affidavit for a search warrant for the defendant's residence provided that agents had observed the defendant, along with his trailer, at gun shows and had observed the defendant in possession of firearms at the gun shows, that an informant had advised that the defendant possessed over 300 guns, and that, based on the agent's experience, convicted felons and firearms dealers typically store contraband items on their property. Based on this information, the court found that the search warrant was supported by probable cause.
. Alternatively, the Court of Appeals found that the good faith exception applied, as had the district court, because "there was no indication that the police acted recklessly or lacked a reasonable belief in the existence of probable cause....” Id.
. Defendant relies on the District Court decision in
United States v. Parker,
.
See United States v. Alexander,
.
Aguilar v. Texas,
. The court further notes that the practice and procedure regarding search warrants and affidavits in support thereof provides that the Magistrate Judge retains the original signed affidavit for filing with the Clerk while the affiant retains the original search warrant until the return is made to the Magistrate Judge for filing.
See United States v. Valenzuela-Espinoza,
. Although Defendant does not raise the issue of Franks until his discussion of the applicability of the good faith exception, this matter is properly addressed initially in determining whether the affidavit established probable cause.
. Defendant also contends that the good faith exception does not apply because of the alleged Franks violation. [Doc. 456 at 21-24]. However, the court has found that Defendant failed to establish a basis for finding a Franks violation, and this ground for denying applicability of the good faith exception need not be further addressed by the court.
. Defendant has withdrawn his Franks violation claims. [Doc. 385].
. The other items of evidence found in the residence were seized as a result of the execu
. In his post-hearing brief, except for contending that his statements were fruits of his unlawful arrest, Defendant does not otherwise attack the sufficiency of the Miranda warnings or his waiver of his rights. [Id.].
. Citations to transcript are: (Tr. at).
. Although the Government initially placed Defendant on notice that he had to establish a legitimate expectation of privacy in the residence located at 2386 Cruse Road and the court noted at the end of the evidentiary hearing that Defendant's evidence on this issue appeared weak (Tr. at 50-53), neither Defendant nor the Government addressed Defendant’s "standing” to challenge the search conducted in the residence in any of the briefs filed with the court. Accordingly, the court finds that the Government abandoned any challenge on this issue.
. The arrest warrants were for Ramon Torres (indicted as Juan Manuel Mendoza a/k/a Ramon Aguilar Torres a/k/a Jose) and Angel (witnesses were unable to recall a last name, but a defendant in the original indictment is identified as Angel Luis Ayala). (Tr. at 29; Doc. 1).
. The list of the fifteen firearms found in the residence is set forth in the Government’s response [Doc. 596 at 11-12] to Defendant’s motion to suppress evidence seized executing the federal search warrant.
. The Government advised that the voice exemplars will not be used against Defendant in any manner. (Tr. at 50).
. Marijuana was found in a blue bag in the bedroom where Defendant was initially located; however, those drugs were discovered after Defendant left the residence, and he was not asked about the drugs. (Tr. at 15, 46-47).
. Those circumstances, which would independently establish probable cause, include Defendant’s presence in a known drug stash house for a large-scale drug trafficking organization in which known members of the organization are located and the fact he was found sleeping on a bed with a firearm under the mattress and in a room with a quantity of controlled substances. (Tr. at 7-8, 17-18, 28, 31, 41-44, 46). Given the nature of the organization under investigation, the agents would have been entirely reasonable in concluding only individuals involved and trusted by the members of the organization would be living in the residence, and Defendant claimed the location to be his residence [see Doc. 332, ¶ 1],
. On what basis the court is not quite sure, but Defendant includes within the scope of the items seized from his person the firearm found under the mattress and the drugs found in the blue bag in his bedroom. [Doc. 472 at 7], Defendant appears to forget that the agents were in possession of a search warrant for the premises which entitled them to search all areas of Defendant’s bedroom and to seize drugs and firearms found therein. [Doc. 498-2]. Seizure of those items was pursuant to the warrant regardless of the lawfulness of Defendant’s detention. Moreover, the search of Defendant’s person and personal belongings in his possession falls within the scope of the warrant. Although arguably in dicta, in
United States v. Young, 909
F.2d 442 (11th Cir.1990), the Eleventh Circuit Court of Appeals adopted the reasoning of the First Circuit Court of Appeals finding “that the usual occupant of a building being searched [by a warrant] would lose a privacy interest in his belongings located there....”
Id.
at 445 (citing
United States v. Micheli,
. Ignoring Defendant Anaya-Medina's affidavit [Doc. 388] in which he stated under oath that his voice was intercepted on at least one telephone call on each of the identified target telephones and the court’s finding [Doc. 395] that Defendant Anaya-Medina had established that he was an "aggrieved person” under the Act,
see United States v. Faulkner,
. Although afforded the opportunity to either challenge the court's requirement to show a reasonable expectation of privacy or to supplement their motions to establish same, no Defendant supplemented their motions as directed in order to challenge minimization. [Doc. 353 at 3-4; Doc. 449]. And, in light of Defendants' responses, or lack thereof, supplementing the remaining issues before the court, it is doubtful that Defendants would have met their burden to demonstrate that the wire intercepts were improperly minimized to the extent requiring suppression. Absent a flagrant violation of the minimization requirements, total suppression of all monitored calls is highly unlikely and, quite probably, inappropriate.
See United States v. Ozar,
. Likewise, the Act is satisfied for the orders issued extending intercepts on TT 23 on March 26, 2009, authorized by District Judge Charles A. Pannell, Jr., and on April 28, 2009, by District Judge Beverly B. Martin.
. This is the seizure that was the subject of Defendant Barnes' motion to suppress. See Defendant Otha Barnes' Motion to Suppress, supra.
. In
United States v. Gurrola-Rodriguez,
. As has already been discussed with respect to Defendant’s alleged cooperation and as will be further discussed infra, such is not an issue with the affidavits herein.
. And although not explicitly stated by the Eleventh Circuit Court of Appeals, in
United States v. Collins,
. Citations to that transcript are: (3/19/10 Tr. at).
. Citations to that transcript are: (4/21/10 Tr. at).
. Estevan Flores Mora is the registered owner of the vehicle. (3/19/10 Tr. at 22-23, 60).
. However, the Government subsequently advised the court and counsel for Defendant that the Government only intends to use the voice exemplars taken on April 29, 2009, for the purpose of identification.
.And the testimony of Special Agent Joseph Ladd was just as conclusory. (3/19/10 Tr. at 7, 40).
. Citations to this transcript are: (9/28/10 Tr. at). 206
. Quite frankly, the court is not sure what Defendant is arguing with respect to the Pay-ton test given his statement in the "Conclusion regarding arrest warrant re: Payton.” Defendant states, "There was no probable cause for the arrest warrant of FNU/LNU, 'Sancudin' because there is no reasonable belief that the residence was that of ‘Sancudin.’ The two vehicles were registered to Estevan Flores Mora. The probable cause, if any, to issue an arrest warrant it would be for Estevan Flores Mora, not FNU/LNU, 'Sancudin', and certainly not Luis Haces Delgado.” [Doc. 631 at 7].
. Agent Smith was not present for this surveillance. (9/28/10 Tr. at 8, 25).
. Agents could not locate the address on the registration, although there is a N. Cliff Valley Road in Atlanta. (Tr. at 15, 27-28).
. Because no positive identification of “Sancudin” had been made in September or November, Agent Smith could not state for sure that the same person was in the maroon Cadillac as had been in the red Mustang. (9/28/10 Tr. at 31).
. Each apartment complex building had eight units. (9/28/10 Tr. at 17).
. On either April 13 or April 17, 2009, Agent Smith also took photographs of the apartment complex and the breezeway with apartment number 7. (9/28/10 Tr. at 20-22, 41; Gov't Exs. 2, 3, 4).
. Neither agent was part of the group that had investigated the drug trafficking organization but were asked to assist with the arrest. Agent Stephan was the team leader for the operation, and Agent Ladd, who was proficient in Spanish, was asked to participate as an interpreter. (3/19/10 Tr. at 5-6, 49).
. Repeatedly during his testimony, Agent Ladd referred to the arrest warrant as a search warrant. There was no search warrant. The arrest warrant (3/19/10 Tr. at 50; Gov’t Ex. 19) was issued after return of an indictment [Doc. 1]. The warrant was issued for: “FNU LNU # 3 a/k/a ‘Saneudin’, a/k/a ‘UM1820’ ”. (Gov't Ex. 19).
. The agent later stated that he was not sure if he had a surveillance photograph but recalled that the photograph was a head and shoulder shot of “Saneudin." (3/19/10 Tr. at 71, 85-86).
. Agent Smith testified that agents attempt to execute an arrest warrant at an individual's home at this time of day because the expectation is that individuals are still at home. (9/28/10 Tr. at 23).
. SWAT agents advised that the Hispanic male later determined to be "Sancudin,” that is, Defendant Haces-Delgado, was found sleeping on the sofa when SWAT entered the apartment. (3/19/10 Tr. at 13, 62). A wallet and cellular telephone were either found on his person or next to him. (3/19/10 Tr. at 13, 47, 62). When Defendant gave permission, Agent Ladd looked through the wallet and found identification in the name Luis HacesDelgado. (3/19/10 Tr. at 13).
. Agent Stephan conversed with the case agents, who approved of relying on Agent Montgomery's identification, and he determined that Defendant was "Sancudin.” (3/19/10 Tr. at 54, 90).
. The testimony at the hearing is not clear as to the exact sequence of events after the agents entered the apartment. At one time, Agent Ladd testified as outlined by the court supra. He later stated that the voice exemplars were taken prior to the request for identification and further attempts to identify "Sancudin.” (3/19/10 Tr. at 9-13, 34). However, for purposes of resolving Defendant’s motions, the sequence of these events is not critical.
. During the interview with Ms. Haces, she stated that she and her husband, Estevan Flores Mora, her children and mother (or mother-in-law) lived in the apartment with her brother and half-brother. These two men slept in the front room. (3/19/10 Tr. at 22, 43).
. It is not clear from the evidentiary hearing testimony and inventory placed into evidence that any items, besides the three firearms and ammunition found by SWAT in the front closet, were seized pursuant to the consent search of the apartment. (3/19/10 Tr. at 22, 25, 47, 62; Gov’t Ex. 7).
. Defendant advised that he drove the red Mustang "on occasion” to visit his girlfriend. (3/19/10 Tr. at 76, 84). He denied any knowledge of the maroon Cadillac or a black Accura. (3/19/10 Tr. at 76).
. Once the interview of Defendant was completed, he was transported to FBI offices for processing. (3/19/10 Tr. at 65).
. Sgt. Brink testified that both he and his K-9, Junior, are certified, and that Junior is trained to detect the odors of heroin, methamphetamine, cocaine and marijuana. (4/21/10 Tr. at 14-14, 20-21).
. "The Fourth Amendment requires that arrest warrants be based ‘upon probable cause, supported by Oath or Affirmation’ — a requirement that may be satisfied by an indictment returned by a grand jury....”
Kalina v. Fletcher,
. These facts and circumstances include the "collective knowledge” of all the investigating agents in this case given the communication among them prior to entry into the residence.
See Grider v. City of Auburn, Alabama,
. The plain view doctrine is one exception to the warrant requirement.
Horton v. California,
. The Eleventh Circuit Court of Appeals reached the same conclusion, citing
Hill,
in
Rodriguez v. Farrell,
. As noted supra, a review of the record and exhibits does not disclose the seizure of any additional items based on the consent search of the apartment.
.This probable cause is supplemented by the fact that the vehicle was used on at least two occasions by ''Sancudin” to conduct a drug transaction. (9/28/10 Tr. at 9-12).
.The evidence presented at the hearing established that both Sgt. Brink and Junior were " ‘well-trained.’ ”
Nelson,
.The court discussed
supra, see
Defendants
. While the amount of and type of drugs for which each defendant is held responsible may be relevant at sentencing,
see United States v. Bacon,
. Defendants have not made any showing, and the Government responds that there is no
Bruton
issue [Doc. 367 at 7], to establish that severance is required pursuant to
Bruton v. United States,
. And the evidence against Defendant Aguilar-Camudio, as outlined in the Government’s response to the motion for severance [Doc. 367 at 2-4], is not nearly so minimal as Defendant would ask the court to find in seeking the motion for severance.
. And nothing in the record indicates that a witness who provided information about Defendant Martina Flores had any association with Defendants Barnes, Aguilar-Camudio or Haces-Delgado. [Doc. 581 at 2 n. 1].
. The following Defendants have already been certified ready for trial or have pled guilty: Martin Arreola-Romero (2); Angel Luis Ayala (3); Belisario Gil Mendoza (9); Juan Manuel Mendoza (10); Raphael Pedroza Perez (11); Jose Cesar Almeida (14). Defendants Jorge Lucatero-Torres (8) and Obiel Pineda-Pardo (12) have never been arraigned.