United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION AND ORDER CERTIFYING THIS CASE READY FOR TRIAL
LINDA T. WALKER, Magistrate Judge.
Pending before this Court is Defendant Miguel Trevino's Motion Suppress Statements and Motion to Suppress Physical Evidence and Statements. Docket Entries [49, 75]. This Court convened a suppression hearing with respect to Defendants Motions on February 6, 2014. Docket Entry . Defendant filed several requests for extensions of time to file his post-hearing brief in support of his motion to suppress. Docket Entries [90, 93, 96, and 102]. On August 4, 2014, Defendant filed his post-hearing brief. Docket Entry . The Government filed its response to Defendant's post-hearing brief on August 25, 2014. Docket Entry . Thereafter, Defendant requested and was granted an extension of time until November 23, 2014, to reply to the Government's response to Defendant's post-hearing brief. On November 25, 2014, Defendant informed the Court that he would not be filing a Reply. Accordingly this case is ripe for a ruling. For the reasons set forth below, Defendant's Motion to Suppress Statements and Motion to Suppress Physical Evidence and Statements should be DENIED. [Docket Entries 49, 75].
DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS
I. FACTUAL BACKGROUND
On August 13, 2013, the grand jury returned an indictment charging Defendant Miguel Claudio Trevino, along with two co-defendants, with one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C), and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)(ii). Docket Entry . In seeking to suppress physical evidence and statements made, Defendant argues the traffic stop, detention, and seizure of evidence from the vehicle in which he was a passenger was illegal, and any statements he made thereafter are inadmissible.
On July 24, 2013, Task Force Officer ("TFO") Christo Carlisle was conducting surveillance at the Red Roof Inn in Atlanta, Georgia. (Transcript of Feb. 6, 2014 Evidentiary Hrg., hereinafter "Tr., " 7, 9). TFO Carlisle and other law enforcement officers had information that someone at or near the Red Roof Inn was involved in narcotics, possibly involving money going back toward the border of Mexico. (Tr. 9-10). According to TFO Carlisle, the Red Roof Inn is located in a high crime area, known not only for drugs, but other crimes as well. (Tr. 10). Within a few seconds of pulling into the REd Roof Inn parking lot, Officer Carlisle observed a gray F-150 pickup truck with a Texas license plate on the front of the truck. (Tr. 10). TFO Carlisle checked the vehicle's registration and discovered it was registered in Hidalgo, one of the cities very close to the Mexico border. (Id.). While driving around the hotel, TFO Carlisle saw two gentlemen come out of the hotel, enter the pickup truck, pull out of the parking lot, and make a left turn onto Druid Hills. (Tr. 10, 19). Law enforcement officers following the F-150 truck observed that the truck stopped at a red light, turned left onto Buford Highway, and then immediately pulled into a coin laundry. (Tr. 11). TFO Carlisle also followed the truck onto Buford Highway, passed it, and turned into a place which was at a higher point in order to keep an eye on the truck. (Id.). TFO Carlisle observed that no one got out of the truck, instead the occupants just sat there in the truck. (Id.). A few minutes later, the F-150 truck left the parking lot, headed north on Buford Highway, only to pull into a Kroger parking lot. (Tr. 11-12). Again, no one exited the truck, and the truck stayed a couple of minutes in the Kroger parking lot, pulled out, and then proceeded back up Buford Highway. (Tr. 12). TFO Carlisle and other agents communicating by radio continued to follow the truck. (Tr. 13-15). Based on TFO Carlisle's training and experience, TFO Carlisle thought the occupants of the truck were conducting "heat checks, " meaning they checking for the presence of law enforcement or any kind of robbery crew that may be trailing them. (Tr. 11-12, 14).
Eventually, the truck went to another hotel, a Holiday Inn on Clairmont Road. (Tr. 15-16). TFO Carlisle, driving a black Dodge Charger, passed the F-150 truck while another agent pulled into the Holiday Inn parking lot where the agent was able to keep an eye on the truck and its two occupants. (Tr. 16, 19). After the truck pulled into the parking lot, the driver stayed in the truck, and the passenger exited the truck and walked into the Holiday Inn carrying a small bag. (Tr. 16). The agent who followed the truck into the parking lot, took a picture of the passenger who got out of the truck, and sent the picture to other agents. (Tr. 17, Gov't Ex. 1). Within a few minutes, the passenger returned to the truck with a different bag, a roller bag, similar to a suitcase that one would take the airport. (Id.). The passenger, later identified as the Defendant, was wearing a red-and-white striped shirt. (Tr. 18, 21; Gov't Exs. 1, 3).
The driver of the truck, later identified as co-defendant Roberto Isidoro Vera ("Vera"), pulled out of the Holiday Inn parking lot, went down Clairmont Road toward a body shop on Dresden Road, and made several turns, including several u-turns along the way. (Tr. 20, 23). After initially losing visual contact with the truck, the agents found the truck and its occupants at a body shop. (Tr. 20-21). TFO Carlisle and Agent Escheverry went next door to an AT&T building near the body shop to maintain visual surveillance of the F-150 truck and its occupants. (Tr. 21). After traveling to the backside of AT&T's property, TFO saw the Defendant in a red-and-white stripe shirt standing near the F-150 pickup, along with a couple of workers from the body shop. (Id.). Because the AT&T parking lot was located at a place higher than the body shop, TFO Carlisle and Agent Echeverry were able to observe the roller bag which was still in the back of the gray F-150 truck. (Id.).
Later, a white pickup truck with blue letters that spelled "Finney" on the side arrived and the roller bag was transferred from the gray F-150 pickup while Defendant and Vera's were present. (Tr. 23, 58). Shortly thereafter, a red Nissan Maxima pulled up and Vera got into the Maxima with another gentlemen. (Id.). The red Maxima and its occupants left the body shop for a few minutes, and when it returned, the Maxima backed up near the white Finney truck. (Id.). The roller bag and several other bags were transferred from the white Finney truck to the red Maxima. (Id.). As the white Finney truck and the red Maxima were leaving the body shop in tandem, the agents observed that Vera was in the driver's seat of the red Maxima and Defendant was in the passenger's seat. (Tr. 24).
TFO Carlisle pulled out of the AT&T parking lot and followed the vehicles which were still traveling in tandem. (Id.). After traveling down Shallowford Road, the white Finney truck got into the far left lane to turn onto Interstate 85 North. (Tr. 24). The red Maxima stopped in the right lane, appeared to be unsure of which way to go or where he was going, cut across four lanes of traffic without using a turn signal, and followed the white Finney truck onto Interstate-85 North. (Tr. 25-26). TFO Carl continued to follow both vehicles and observed that the red Maxima was following very, very close to the white Finney truck and was traveling over the posted speed limit. (Tr. 27). The white Finney truck moved to the right lane and decreased his speed leaving TFO Carlisle's car directly behind the red Maxima. (Id.).
While TFO Carlisle was behind the red Maxima, the white Finney truck swerved and tried to cut back in between TFO Carlisle's car and the red Maxima. (Tr. 28-29). Based on his experience in conducting traffic stops in drug cases, TFO testified that he has had his vehicle rammed by drug cartel members in "follow cars." (Tr. 28). At this point, TFO Carlisle activated his blue lights, flashing headlights, grille lights, fog lights, and siren to signal the red Maxima to pull over. (Tr. 29). When TFO Carlisle's blue lights came on, the white Finney truck, with its left signal light on, cut across every lane on Interstate 85, and turned onto Interstate 285 at the last second. (Tr. 30). TFO Carlisle did not follow or pursue the white Finney truck. (Id.). Instead, TFO Carlisle stayed behind the Maxima which did not immediately pull over, but maintained its speed and traveled approximately a mile and a half to two miles before pulling over onto the right shoulder of Interstate 85. (Id.).
TFO Carlisle, wearing his uniform, pulled behind the red Maxima at 11:52 a.m., approached Vera on the driver's side, and asked for his driver's license. (Tr. 30, 32, 61). No guns were drawn and TFO Carlisle was not yelling. (Tr. 30). After Vera gave TFO Carlisle a Texas driver's license, TFO Carlisle asked Vera to step to the back of the car so that he could speak with him. (Tr. 30). TFO Carlisle explained his reasons for pulling Vera over, which were failure to use his turn signal after crossing four lanes, speeding, following too close on the interstate, and failure to yield to an emergency vehicle. (Tr. 31, 62; Gov't. Ex. 4). TFO Carlisle asked Vera who owned the red Maxima he was driving, and Vera replied that he did not know the identity of the owner. (Tr. 31). Vera stated that he and the Defendant, an old friend, had just gotten into town [from Texas] the day before, but they did not have a reason to be in Atlanta. (Tr. 32). Vera did not know many facts about Defendant and could not say if he and Defendant were in Atlanta for business or pleasure; however, Vera did say that they were enroute to pick up car parts for his F-150 truck. (Id.). Vera also said his truck broke down and that is why they took it to the mechanic shop, and that the shop loaned him the Maxima to go get brake parts or some kind of parts for the F-150. (Id.).
TFO Carlisle went to the passenger side of the Maxima and asked Defendant for his identification and his reason for being in Atlanta. (Tr. 33). Defendant did not provide a reason why he and Vera were in Atlanta and did not know the owner of the vehicle. (Tr. 33-34). In contrast to Vera, Defendant stated that he and Vera were on their way to get lunch, and did not mention anything about going to get car parts. (Tr. 46). Defendant was also asked what kind of work he did, and Defendant replied that he did not have a job or any source of income. (Tr. 34). TFO Carlisle noticed a bulge in Defendant's pants pocket, asked what it was, and patted Defendant down to make sure the bulge was not a weapon. (Tr. 34). Defendant pulled out a huge wad of cash wrapped in different colored rubber bands. (Id.).
TFO Carlisle returned to his car and began to check their driver's licenses and issue a Georgia State Patrol warning to the driver. (Tr. 35). TFO Carlisle returned to the Maxima, gave Vera and Defendant their documents back, and issued Vera a courtesy warning ticket at 12:01 p.m. (Tr. 35-36; Gov't's. Ex. 4). Only eleven minutes passed between the beginning of the stop and the issuance of the courtesy warning ticket. (Tr. 36). In addition to the courtesy warning, because Vera was the driver of the Maxima, TFO also asked for consent to search and gave Vera a Consent to Search form printed in both English and Spanish. (Tr. 37, 65; Gov't's Ex. 5, 6). Although both Vera and Defendant spoke English fine and conversed easily with no problems, TFO Carlisle always provided people from the border with a consent form in English and Spanish because Spanish may be their native language. (Tr. 37). After Vera reviewed the consent forms, TFO Carlisle credibly testified that he told Vera to take his time, read the English or Spanish form, and to ask any questions he may have. (Tr. 39). Vera signed the English form and gave it back to TFO Carlisle within thirty to forty-five seconds. (Id.). Because his computer only allows one name on a consent form, TFO Carlisle wrote Defendant's name on the Spanish form then walked around to the passenger side of the car, where Defendant was and asked for Defendant's signature. (Id.). While writing Defendant's name on the consent form and describing it to him, TFO credibly testified that Defendant said "search the car. You can search the car." (Id.). Because TFO Carlisle already had Vera's signed consent to search and Defendant's verbal consent, TFO Carlisle did not present the form to Defendant. (Tr. 40).
After obtaining consent to search, TFO Carlisle proceeded to search the inside of the red Maxima. (Tr. 40). A broken cell phone and a Santa Muerta (a little statue) were the only things found inside the car. (Tr. 41). In the trunk of the vehicle, TFO Carlisle found a large roller bag and two smaller bags (one camouflage and one black). (Tr. 42; Gov't's Ex. 7). TFO Carlisle observed that the large roller bag was the same bag that the agents observed being transferred from the gray F-150 truck bearing the Texas license plate to the white Finney truck, albeit temporarily, then to the red Maxima. (Id.). When the roller bag was opened, TFO Carlisle observed what appeared to be bricks of cocaine or heroin packaged in shrink wrap and black electrical tape. (Tr. 43). To prevent any kind of flight or escape, at that point, Vera and the Defendant were placed in handcuffs. (Id.). One of the bricks was opened and field tested positive for cocaine. (Id.). TFO Carlisle pulled the roller bag out of the trunk, removed the bricks of cocaine, and put the bricks on the hood of the car to get an accurate count. (Id.). There were seventeen bricks or kilograms of cocaine in the roller bag. (Tr. 44). According to TFO Carlisle, when Defendant saw how many bricks [of cocaine] there were, Defendant freely and voluntarily blurted out, "They told me it was going to be ten." (Id.). TFO Carlisle also credibly testified that Defendant made other incriminating statements. (Tr. 44, 67).
At approximately 12:30 p.m., TFO Carlisle called Agent Matthew DeVane with ICE to let him know what he found in the red Maxima. (Tr. 44, 70). Agent DeVane was part of the investigation team that was outside of the Red Roof Inn earlier that morning. (Tr. 70). Agent DeVane arrived at the scene of the stop at approximately 12:45 p.m. and found both Vera and Defendant handcuffed and standing on the side of the road. (Tr. 71). Agent DeVane moved Defendant's handcuffs to the front of his body and asked Defendant to sit in the front seat of TFO Carlisle's car. (Id.). Defendant was presented with an ICE statement of rights form. (Tr. 73). Defendant advised that he had completed high school and read and understood English. (Tr. 74). Defendant read the form aloud. (Id.). Before signing the form, Defendant asked Agent DeVane questions about immunity. (Tr. 76). Agent DeVane told Defendant he could not provide any promises, and explained that the United States Attorney's Office would be the only entity that could provide a promise or guarantee [of immunity]. (Id.). Agent DeVane told Defendant that if he wanted to speak to him, this was his opportunity to do so. (Tr. 76). Agent DeVane repeatedly told Defendant that Defendant's signature [waving his rights] on the statement of rights form was voluntary, and not to sign the form if he did not agree with everything on it. (Tr. 74). Defendant finished reading the form aloud and then signed it. (Tr. 74-75). Because TFO Carlisle had stepped away earlier to answer a question from another trooper and did not see Defendant sign the ICE statement of rights form, Agent DeVane asked Defendant in TFO Carlisle's presence, whether Defendant had just signed the form. (Id.). After Defendant affirmatively stated ...