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United States v. Pineda-Zuniga

United States District Court, N.D. Georgia, Atlanta Division

September 14, 2017



          Leigh Martin May United States District Judge

         This case comes before the Court on the Magistrate Judge's Report and Recommendation ("R&R") [115], recommending that this Court deny Defendant Honorato Pineda-Zuniga's Motions to Suppress [84, 86]. Pursuant to 28 U.S.C. § 636(b)(1), Defendant filed objections to the R&R [126]. The facts and procedural history of this case are set forth in the R&R and are fully incorporated herein by reference.[1] After due consideration, the Court enters the following Order.


         Under 28 U.S.C. § 636(b)(1), the Court reviews the Magistrate's R&R for clear error if no objections are filed. 28 U.S.C. § 636(b)(1). If a party files objections, however, the district court must determine de novo any part of the Magistrate Judge's disposition that is the subject of a proper objection. Id; Fed. R. Crim. P. 59(b)(3). As Defendant filed objections to the R&R, the Court reviews the Magistrate Judge's findings and recommendations regarding these conclusions on a de novo basis. 28 U.S.C. § 636(b)(1).


         In the R&R, the Magistrate Judge recommends that the Court deny Defendant's Motions to Suppress evidence resulting from a vehicle stop, in which Defendant was a passenger. Defendant makes three objections to the Magistrate Judge's legal conclusions, each of which the Court will address in turn.

         A. Intercepts and Surveillance

         Defendant first objects to the Magistrate Judge's conclusion that law enforcement intercepts and surveillance provided reasonable and articulable suspicion to support the vehicle stop. Dkt. No. [126] at 1. As the Magistrate Judge recognized, an officer must have reasonable and articulable suspicion in order to stop a vehicle. See Terry v. Ohio. 392 U.S. 1, 21-22 (1968). Reasonable suspicion is "a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." Illinois v. Wardlow. 528 U.S. 119, 123 (2000). It must be based on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry. 392 U.S. at 21. In determining whether there was reasonable suspicion, the Court "look[s] at the 'totality of the circumstances' of each case to see whether the detaining officer ha[d] a 'particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002). The officer must have more than just a "hunch of criminal activity." United States v. Perkins, 348 F.3d 965, 970 (nth Cir. 2003) (quotation omitted). In making this determination, the Court must "give due weight to inferences drawn from those facts by ... local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996).

         Defendant argues that the Magistrate Judge should not have relied on law enforcement intercepts because DEA Task Force Officer David Noe, who does not speak Spanish, disregarded the interpreter's translations of these intercepts and instead used his own interpretations to support the vehicle stop. Dkt. No. [126] at 1-3. However, as the Magistrate Judge found, the record contradicts Defendant's argument. Officer Noe's testimony makes clear that he relied on the interpreter's translations. Dkt. No. [109] at 9. Officer Noe also later testified that the interpreters would, in addition to providing direct translations, offer their own thoughts as to what certain code words might mean. See Id. at 21-22. Officer Noe stated that he did not rely on those impressions, but instead his own impressions based on his knowledge and experience. Id, . The Court thus finds that Defendant's argument is not supported by the record.

         Next, Defendant argues that Officer Noe's opinions about what various code words in the intercepts meant were purely speculative, and never clearly discussed criminal activity. Dkt. No. [126] at 3. Defendant also argues that it was arbitrary for Officer Noe to infer that references to "Norato" were short for Honorato, Defendant's first name. Id. The Court finds that, in the context of the entire investigation, Officer Noe's inferences were reasonable. See. Dkt. No. [115] at 2-8 (describing the context in which Officer Noe reached his opinions and inferences). For example, Officer Noe opined that "33" was a code word for " money " based off of communications about one of Defendant's alleged coconspirators needing "33" to rent a house. Id. at 2. Officer Noe then applied his opinion about that code word's meaning to other intercepts. See icL at 5-6. In reaching this finding, the Court gives due weight to Officer Noe's inferences, as it must, based on his extensive training and over 20 years of experience. See Ornelas, 517 U.S. at 699.

         Last, Defendant argues that there was not sufficient evidence from the surveillance linking him to the stopped black Cadillac to support a finding of reasonable suspicion. Dkt. No. [126] at 3-5. However, that is not what was required of the law enforcement officers in this case. To the contrary, the officers were required to have reasonable suspicion for the traffic stop as a whole, not to stop Defendant personally. Indeed, the officer who stopped the car testified that when he pulled the car over, he was not even aware Defendant was a passenger. Dkt. No. [109] at 71-72.

         In sum, the Court agrees with the Magistrate Judge that there was reasonable and articulable suspicion to support the vehicle stop in this case. As set out by the Magistrate Judge, the investigation's intercepts and surveillance indicated the presence of a drug trafficking operation at addresses where the black Cadillac frequented. The intercepts included coded references to drugs and money, as well as clear expressions of concern about possible police surveillance. Before the traffic stop, the black Cadillac was seen leaving one alleged stash house with another vehicle that was stopped and found with four kilograms of methamphetamines. And immediately before the stop occurred, the black Cadillac was seen being loaded with luggage at a second suspected stash house. The Court finds that based on the totality of these circumstances, the officers had reasonable suspicion to stop the vehicle. As a result, Defendant's objections are OVERRULED.

         B. Window Tint as Pretext

         Defendant objects that the officer who pulled over the car, Trooper Kent, could not have relied on a perceived window tint violation in stopping the car. See Whren v. United States, 517 U.S. 806, 813 (1996) (holding that subjective intent, including pretext, is not relevant to whether probable cause exists to believe a violation of the law occurred). However, the Court need not reach this issue because it was not relied upon by the Magistrate Judge. The Magistrate Judge expressly refrained from making any finding as to the window tint violation because there was conflicting testimony on the topic, there was no corroboration for the purported violation, and because any finding was not ...

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