OPINION AND ORDER
By an Indictment, dated June 30, 2016, a grand jury has charged defendants Gerald Mata-Peña (“Mata”) and Domingo Ramos-Hernández (“Ramos”) with Possession of Cocaine with Intent to Distribute, 21 U.S.C. § 841(a)(1), and Possession of a Firearm in Furtherance of a Drug-Trafficking Crime, 18 U.S.C. § 924(c)(1)(A). ECF No. 5 at 1-2. The grand jury also charged Ramos with Being an Illegal Alien in Possession of a Firearm and Ammunition, 18 U.S.C. § 922(g)(5)(A). Id. at 2-3. The charges stem from the traffic stop of a Toyota Tacoma truck in which Mata was the driver and Ramos, its owner, was the passenger. ECF No. 1-1 at 1. During the traffic stop, a police officer searched the truck and found three cardboard boxes inside a black plastic trash bag, containing opaque packages with a total of about six kilograms of cocaine. Id. at 1-2. Later, the officer found, inside a bag in the truck, a .40-caliber pistol with two fully-loaded magazines. Id. at 2. Mata and Ramos have pleaded not guilty to the charges. ECF Nos. 12,13.
On November 21, 2016, the Court conducted a suppression hearing. At the start of the hearing, the Government challenged Mata’s standing, under the Fourth Amendment, to contest the searches of Ramos’s truck. The Government requested leave to file a supplemental brief on standing, which the Court granted. During the evi-dentiary part of the hearing, the Government presented only a single witness: the officer who had not only stopped the truck, but found and seized аll of the physical evidence in the truck. Defendants did not present any witnesses, by contrast, relying instead on cross-examination of the Government’s witness. On November 30, 2016, the Government filed its supplemental brief, arguing that Mata lacks standing because, although he was driving the truck, he was only its passenger for Fourth Amendment purposes. ECF No. 53. Mata and Ramos filed separate responses to the brief. ECF Nos. 55, 56.
Having considered all of the evidence in the record, the Court now finds that the police violated the Fourth Amendment by searching and seizing, without probable cause or a warrant, the only contraband in the truck that was allegedly in plain view. The Court finds further that all of the physical evidence from the truck warrants suppression as fruit of the poisonous tree. However, the Court will grant suppression only as to Ramos becаuse only he has established his standing, under the Fourth Amendment, to contest the police conduct. Because Mata has failed to establish his own standing, the evidence against him will not be suppressed.
I. Evidence at the Suppression Hearing
Agent Nolbert Cortés-Gómez (“Agent Cortés”), badge number 31546, has been a member of the Puerto Rico Police Department (“PRPD”) since 2004.
On June 28, 2016, at approximately 4:00 a.m., Agent Cortés and other Tactical Operations Division members reported to the PRPD Academy in Gurabo, Puerto Rico, for a physical exam. At approximately 10:00 a.m., once the exams were over, the officers started to drive back to their sta-tionhouse in Mayagiiez, Puerto Rico, on the other side of the island, in a caravan of marked police vehicles. At approximately 11:30 a.m., near the 53.9-kilometer marker on Highway 52, Agent Cortés, who was driving the vehicle at the head of the caravan, saw a burgundy Toyota Tacoma truck make an illegal lane change—that is, change lanes without properly signaling in violation of P.R. Laws Ann. tit. 9, § 5156. Agent Cortés activated his vehicle’s lights
Agent Cortés’s passenger, Sergeant Nú-ñez, proceeded to the front driver’s-side window of the truck, while Cortés went to its- front passenger’s-side window. Both windows were rolled down. Mata was driving the truck, while Ramos, its owner, was sitting in the front passenger’s seat. While Sergeant Núñez spoke to Mata, Agent Cortés saw, through the open passenger’s window, a tall black plastic garbage bag, with an open cardboard box sticking out of its top, in the middle of the rear seat of the truck. Protruding out of the box was an unzipped CD binder, normally used, to store CDs in pages of sleeves, which had what appeared to be a rectangular package, wrapped in opaque newspaper, peering, out of its near side by a few inches. The binder was resting on the open flap of the box. Agent Cortés’s view of the package was unobstructed. In light of his training and experience, he thought that the package looked like a kilo of cocaine.
Based on an in-court demonstration of what the. exposed package looked like— using the actual boxes, binders, newspapers, and kilos of cocáine that the police found in the truck—Agent Cortés could see, at most, only a few inches of one of its short and narrow sides sticking out of the otherwise closed edge of the CD binder.
Agent Cortés now saw that the CD binder contained, behind the package he had just removed, a second rectangular package, wrapped in opaque newspaper. Unlike the exposed package, which had one of its short sides pointing towards the bottom of its binder, the second package had one of its long sides pointing towards it. Agent Cortés then removed the second package from the binder, tore off its wrаpping, and discovered a second kilo of cocaine. Inside the black plastic garbage bag on the rear seat of the truck were two more cardboard boxes, sealed with tape. The boxes were stacked vertically within the garbage bag, one on top of the other.
Agent Cortés removed the-two closed boxes from the bag, tore off their tape, and opened them. Buried in the middle of each box, which were filled with foam and newspaper (amongst other padding), was another binder, except these were both zippered shut. So, Agent Cortés unzipped the binders, opened them, and found, in each binder, two more rectangular packages, wrapped in opaque newspaper. Like the second package in the exposed binder,
At the stationhouse, Agent Cortés unwrapped the four packages he had found inside the closed CD binders, which in turn he had found inside the closed cardboard boxes, which in turn he had found in the black plastic garbage bag on the rear seat of the truck. Upon opening each package, Agent Cortés discovered a new kilo of cocaine, for a total of six kilos. Approximately thirty to forty-five minutes after the arrest, Agent Cortés conducted, in the parking lot of the stationhоuse, an “inventory search” of the truck, following a PRPD form and procedure. During the search, which he performed in front of defendants, Agent Cortés took a black bag, which he called a “man purse,” from the floor of the truck’s front passenger’s seat. Inside the bag, Agent Cortés found a .40-caliber Taurus PT140 pistol, with two fully-loaded ten-round magazines and $1,113 in cash. At the time of this “inventory search,” Agent Cortés did not believe that either defendant posed any threat of harm or evidence destruction. At some point, at the stationhouse, Agent Cortés asserts he issued Mata a traffic ticket for his illegal lane change. However, at the hearing, Agent Cortés did not recall either when or exactly where he had issued the ticket.
Agent Cortés’s above searches and seizures did not occur pursuant to a warrant or with the consent of Mata or Ramos.
II. Legаl Standards under the Fourth Amendment for Searches and Seizures
The Fourth Amendment “protects ‘[t]he right of the people .to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ ” City of Los Angeles v. Patel, — U.S. -,
“Under the automobile exception, ... ‘police officers may seize and search an automobile prior to obtaining a warrant where they have probable cause to believe that the automobile contains contraband.’ ” United States v. White,
“In general terms, probable cause exists when police have sufficient reason to believe that they have come across evidence of a crime.” Id. at 714 (citing Texas v. Brown,
The federal “prohibition on unreasonable searches and seizures is enforced through the exclusionary rule, which excludes evidence seized in violation of the Fourth Amendment.” United States v. Camacho,
“Exclusion is not an automatic consequence of a Fourth Amendment violation, but rather is available only where the benefits of deterring the police misconduct that produced the violation outweigh the costs of excluding relevant evidence.” United States v. Thomas,
“The ‘capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has а legitimate expectation of privacy.’ ” United States v. Stokes,
III. Analysis of the Search and Seizure Leading to the Initial Recovery of Cocaine
The only credibility determinations that the Court will make at this juncture is that Agent Cortés did, indeed, observe Mata change lanes illegally, in violation of P.R. Laws Ann. tit. 9, § 5156, thereby authorizing the police to stop the truck that Mata was driving. See United States v. Andrade,
Because the Court is declining to make further credibility determinations, absent a need to do so, the Court accepts, for present purposes, that, upon lawfully stopping the truck, Agent Cortés saw a few newspa
Since the Court has declined to make additional credibility determinations, the Court will simply note that it was mightily convenient for the police that, although someone had evidently taken the precaution of hiding the kilos of cocaine—by enclosing them in an opaque wrapping of newspaper, then placing them in a zippered-shut CD binder, then tucking the binder into a well-padded cardboard box, then camouflaging the boxes in a large black trash bag—-virtually all of that protective packaging was then undone, as to a single wrapped kilo of cocaine, thereby exposing part of the kilo to the plain view of a police officer, who had fortuitously decided to interrupt an entire caravan of police vehicles, in the middle of their hours-long drive across the island, to investigate a traffic infraction that is exceedingly common in this jurisdiction. Based on the Court’s own experiences on the roads of Puerto Rico, the officers must have seen dozens illegal lane changes during their drive back to Mayagüez. But Agent Cortés stopped only this particular vehicle, without any explanation as to why he chose, apparently spontaneously, to act as a traffic enforcer here. It was, it turns out, an exceptionally lucky choice.
Finally, the Court observes that the black plastic bag had been torn apart, that the duct taрe previously sealing the cardboard was pulled back and still affixed to its sides and that the package that was allegedly in plain view had its short side sticking out of the short end of its binder. Meanwhile, all the other packages had their long sides running parallel to the short ends of their binder. The Court finds it interesting that the only package that was allegedly in plain view was positioned so differently, within its binder, than all the other packages. If anything, the tearing up of the black plastic bag and the careless positioning of the exposed package seemed to suggest that someone had quickly opened up the garbage bag, and then the cardboard box, and then the CD binder, to check what was inside them. But Agent Cortés did not mention any apparent tampering with the newspaper wrapping of the exposed package, until, of course, he removed it as part of his 'war-rantless search. Again, all mightily convenient for the police.
Even accepting Agent Cortés’s facts as true, the record does not support the bold claim that “the incriminating character of [the partially-exposed package was] immediately apparent to [him].” Paneto,
During the demonstration, the Court viewed the blandly rectangular, book-like shape of the recovered kilos of cocaine, as well as one of those Mlos wrapped in the newspaper that had been used to camouflage them. Agent Cortés then placed the newspaper-wrapped Mlo partially inside of an unzipped, but otherwise closed, CD binder, which he then placed partially inside of an open cardboard box, all of which had been taken from the truck. Agent Cortés stated that what the Court was viewing constituted a fair and. accurate representation of what he had seen prior to searching and seizing the exposed package. And, the small portion of the package that was exposed to plain view—only a few inches of one of its sides—simply looked like part of a possibly book-shaped object, wrapped in newspaper. The closed flaps of the unzipped CD binder obscured the true shape and size of the package from view, especially the angle from which Agent Cortés would have seen it, standing outside of the tall truck. Actually, during the demonstration, Agent Cortés struggled with the open flap of the cardboard-box, upon which he had allegedly seen the exposed package, and its binder, resting. He repeatedly had to bend and press»the. open flap down, to help make the edge .of-the partially-exposed package more visible. Apparently, the weight of the package and binder, on their own, did not suffice;
The chambers of this Court are filled with lawful goods that, if encased' in newspaper, would look indistinguishable-'from the exposed package. Unlike the small’balloons, glassines, and tinfoil packets that not only are staples of the drug trade, but are infrequently used to package legal goods, the specific newspaper-wrapped package at issue here had a perfectly common shape, size, and appearance. Yet, based on his testimony, Agent Cortés relied upon only the appearance of the exposed portion of the páckage to determine that he had probable cause to search and seize the package without a warrant.
The Government does , not point to any pre-seizure circumstances that indicated that it was probable, that the wrapped package contained narcotics, as opposed to a lawful object—say, a book or a small collection of CDs or DVDs—of the same common shape and size; Nor did the Government elicit any testimony that indicated that the mode of transporting the newspaper-wrapped package—in a CD binder, in a cardboard box, in a large black trash bag, in a truck, on that highway—was itself suspicious. Instead, the Government only asserts that Agent Cortés could search and seize the partially-exposed package since he “was able to see’ [it] in plain view” and, “according to his training and experience ..., [it] was consistent with the way and form in which a kilogram
The Court knows that “[cjonduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.” United States v. Cardonar-Vicente,
In any event, the Government’s argument is ill-suited to this case because Agent Cortés only viewed the true size and shape of the exposed package after having seized it, by pulling all of it, as opposed to only a small part of it, into plain view. Thus, the Government may not claim that it was the similarity between the shape of the package and that of a kilo of cocaine that gave the officer probable cause, under the plain-view exception, to seize the package. See Hicks,
Although the shape and packaging of narcotics can sometimes be sufficiently distinctive to create probable cause when viewed by a trained eye, there was nothing distinctive about the small piece of wrapped package allegedly in plain view here that rendered it probable that its contents was drugs. See Barrios-Moriera,
IV. Application of the Exclusionary Rule to Suppress the Physical Evidence
The Court must now determinе whether the fruits of that Fourth
Amendment violation ought to be suppressed as to any defendant whose rights were violated. The Court recognizes that “[e]xclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search.” Davis v. United States,
“When the police exhibit ‘deliberate,’ ‘recklеss,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs.” Id. at 238,
The Court finds that the warrant-less search and seizure, without probable cause, of the wrapped package that was minimally in plain view merits the suppression. ■ of the. kilos of cocaine that Agent Cortés discovered as a direct result of those illegal acts. Agent Cortés’s own account of his acts made it clear that he had flagrantly violated the Fourth Amendment in his otherwise commendable zeal to find narcotics in the truck. Moreover, the Court finds that the taint of that initial illegality has poisoned thе searches and seizures that then led to the recovery of the other physical evidence from the truck, including the other kilos of cocaine and also the handgun and ■ ammunition. See United States v. Cordero-Rosario,
The record shows that the police found the other evidence only “by exploitation” of the illegality that had led to the discovery of the first kilo of cocaine. Id. at 76 (quoting Wong Sun v. United States,
In its supplemental brief, filed after Agent Cortés testified at the suppression hearing, the Government argues for the first time that “[e]ven if ... a Fourth Amendment violation occurred, this Court should deny the motion to suppress in its entirety as no police officer acted in bad faith.” ECF No. 53 at 4. The Government compresses the factual basis for its argument into a single sentence: “The Government respectfully submits that Agent Nol-bert Cortes’ testimony established that he acted in good faith at all times.” Id. at 5. How did his testimony establish it? The Government does not say. Perhaps the Government meant to refer to the fact that, when he testified at the hearing, Agent Cortés appeared to be blissfully unaware that one could raise valid constitutional objections to his conduct. Indeed, based on his complacent demeanor while testifying and the breathtaking fact that the Government initially proffered his testimony as proof of his perfect compliance with the Fourth Amendment, see ECF No. 37, the Court suspects that neither supervisor, nor fellow agent, nor prosecutor had earlier expressed any concern to him about his flagrant Fourth Amendment violations, which is, truthfully, the most worrisome fact of all. The Court finds that the good-faith exception to the exclusionary rule cannot be used to excuse the warrantless searches and seizures at issue here, as to which any adequately trained officer would have realized that he lacked probable cause or constitutional justification. See Herring,
Accordingly, the Court finds that all of the evidence that the police found in the truck—including the cocaine, pistol, and magazines with bullets—warrants suppression. See Cordero-Rosario,
Y. Limitation of Suppression to Defendants with Fourth-Amendment Standing
However, suppression is only appropriate as to those defendants who had a reasonable expectation of privacy in the truck and its contents. Stokes,
By contrast, Mata has failed to allege any interest in the truck or its contents, aside from his status as its “authorized driver,” while Ramos, “the owner of the vehicle, ... was sitting next to [him].” ECF No. 55, ¶ 3. Under controlling precedent, the Court finds that Mata “has failed tо meet his burden of proof establishing that he had a reasonable expectation of privacy in the truck.” Almeida,
VI. Conclusion
In sum, the Court hereby GRANTS Ramos’s motion to join Mata’s suppression motion, ECF No. 36. The Court also GRANTS the suppression motion, ECF No. 33, having found that Agent Cortés’s testimony, even if credited in full, shows that he flagrantly violated the Fourth Amendment in searching and seizing, with neither a warrant, nor probable cause, the wrapped package partially in plain view. Due to the taint of that illegality and a lack of attenuation, the Court SUPPRESSES all of the physical evidence that the рolice recovered from Ramos’s truck, BUT ONLY as to Ramos because only he established his standing to contest the police conduct pursuant to the Fourth Amendment. Accordingly, the evidence is not suppressed as to Mata.
SO ORDERED.
Notes
. The Court shall summarize Agent Cortés's hearing testimony, without crediting it. As explained below, even if the testimony were credited in full, the police conduct described therein violated the Fourth Amendment.
. During the demonstration, Agent Cortés was allowed to recreate, to his satisfaction, the way in which the package and binder were allegedly exposed to public view by resting on the open flap of the cardboard box. Buf the open flap of the box kept lifting up, obscuring the wrapped package from view, presumably because the package and binder were not heavy enоugh to weigh it down. So, Agent Cortés had to repeatedly bend the flap back down to make .the package more visible. The Court has assumed that Cortés had the best possible view of it.
. At some point, the powder was field tested and tested positive for cocaine. For the sake of convenience, the Court will refer to each rectangular cube of white powder that the police recovered as a kilo of cocaine.
. At the hearing defendants introduced a certified document, from September 2016, indicating that Mata had not received a traffic ticket in Puerto Rico in the last three years. In cross examination the government suggested that, presumably because the Puerto Rico Transportation Department usually has backlogs, Mata might have pending tickets that had not yet beеn processed. However, the Government did not introduce into evidence a copy of the ticket, nor any record of its issuance.
. The Government also mentions that the police may stop and frisk suspects for a weapon upon reasonable suspicion that they are armed and dangerous. See ECF No. 37 at 3-4. The Government tries to use that rule to argue that the search and seizure of the package in plain view was justified by reasonable suspicion. See id. at 5-6, That argument is mistaken. Arizona v. Hicks,
. The Cpurt can only call the search an "alleged inventory search” because the Govern- ■ ment barely 'elicited any evidence about the procedures that a PRPD officer must follow - in, say, opening closed bags in an impounded vehicle pursuant to an inventory search. In fact, the only evidence that the Government adduced was that some' procedures exist, that Agent Cortés claimed to have followed them, and that a form was filled out for the search.