U.S. v. Eng
| Citation | 571 F.Supp.2d 239 |
| Decision Date | 30 July 2008 |
| Docket Number | Criminal No. 07-10069-RGS. |
| Parties | UNITED STATES of America v. Yoeung ENG, Hong Hak, The Nguyen, and Amanda Scott. |
| Court | U.S. District Court — District of Massachusetts |
Rosemary C. Scapicchio, Law Office of Rosemary C. Scapicchio, Kevin L. Barron, Charles P. McGinty, Federal Defender's Office, Boston, MA, Steven J. Rappaport, Rappaport & Delaney, Lowell, MA, Edward L. Hayden, Lynn, MA, George F. Gormley, Christie M. Charles, George F. Gormley, P.C., South Boston, MA, for Yoeun Eng, Hong Hak, The Nguyen, Amanda Scott.
David G. Tobin, U.S. Attorney Office, Boston, MA, for United States of America.
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANTS' MOTION TO SUPPRESS
On January 23, 2007, agents of Immigration and Customs Enforcement (ICE), acting on information supplied by a cooperating witness (CW),1 seized marihuana, two hand guns, and drug paraphernalia from the first-floor apartment of a two-family home at 55 Dunstable Road in Chelmsford, Massachusetts. A second search was conducted at a home at 220 Fayette Street in Lowell, Massachusetts. There agents seized United States currency and a scale. The searches were conducted under two separate warrants obtained from the Lowell District Court after a "security sweep" of 55 Dunstable Road. Defendants Yoeung Eng, Hong Hak, The (Rosanna) Nguyen, and Amanda Scott were arrested and subsequently indicted for conspiracy to distribute marihuana and for possession of marihuana with the intent to distribute.2 Defendants now move to suppress the fruits of the searches. An evidentiary hearing on the motion was held on October 9, 2007. The court then granted counsel several enlargements of time in which to obtain a transcript of the hearing and to submit further briefing, if desired.
Based on the credible evidence, I make the following findings of fact.
1. On January 22, 2007, Boston-based ICE Special Agent Linda McDonough received information regarding an imminent shipment of marihuana from upstate New York. The information had been given by the CW to ICE agents in New York. According to the CW, the marihuana was to be delivered to an unidentified person(s) at an unidentified location near Boston. With the CW's cooperation, ICE agents undertook to make a controlled (supervised) delivery.
2. Later that day, ICE agents confirmed that the CW had received 108 pounds of marihuana from his supplier. The marihuana was packed in two hockey bags concealed in the trunk of the CW's Chrysler Sebring. In the agents' presence, the CW dialed the telephone number that he had been given by his supplier. A male answering the phone told the CW that his "sister" would give him directions. A female then picked up the phone and instructed the CW to proceed to Exit 38 off Interstate Route 495 in Lowell, Massachusetts.
3. At 5:00 p.m., the CW redialed the number and told the male that he was inside the Applebee's Restaurant at Exit 38. The CW offered to give the male his car with the marihuana and to wait at Applebee's while it was being unloaded.3
4. Shortly after 8:00 p.m., a white Nissan Armada pulled into the parking lot at Applebee's.4 Two Asian males were in the front seat. An Asian female was seated in the rear. A call from one of the occupants of the Nissan informed the CW that "they" were outside. The CW went to the Nissan and gave the male passenger the key to his car. The Nissan's occupants then drove to a nearby Burger King (without the CW's car). From there, they drove to the parking lot of a Motel 6, where they met a white male driving a Ford Taurus with New York license plates. The two cars then drove to 220 Fayette Street in Lowell. Several Asian males gathered around the Taurus while the white male lifted a box out of the trunk. Both cars then returned to the parking lot at Applebee's. The Taurus parked. The Nissan drove away.5
5. Shortly after the Nissan left Applebee's, the CW received a call stating that "they" were on their way back. When the Nissan reappeared, the Asian female was the only occupant. She returned the CW's car key and told him that "uncle felt it wasn't a good idea" because "there were cops in the area." She told the CW to find a hotel room and wait for a call.
6. At 9:00 a.m. the following morning, the CW received a call asking if he "was ready." Arrangements were eventually made to meet at a nearby strip mall.6 There the CW found the Nissan and a white minivan waiting.7 The CW had been instructed earlier to follow the Nissan when it left the mall. He was also told that the minivan would bring up the rear to "keep them safe."
7. From the mall, the CW was led in caravan to 55 Dunstable Road in Chelmsford, Massachusetts (rather than 220 Fayette Street in Lowell as the agents had expected).8
8. The CW parked in the driveway at 55 Dunstable Road next to the Nissan. A green Cadillac (not previously seen by the agents) was parked on the far side of the driveway.9 The minivan pulled behind the CW's car, effectively blocking the CW's exit.
9. The CW got out of his car and opened the trunk. One of the males, later identified as Eng, joined the CW and began removing the hockey bags from the trunk. Nguyen stood beside him. Hong Hak remained in the minivan.
10. As Eng picked up one of the hockey bags, agents (ten to fifteen in number) made their presence known. Eng dropped the hockey bag and ran to the yard at the rear of 55 Dunstable Road. There he was quickly apprehended.10 Nguyen and Hong Hak were arrested in the driveway.
11. After the arrests were made, at least two agents entered 55 Dunstable Road through the rear door. They searched the first-floor apartment where in the kitchen they arrested Amanda Scott.11 Scott was dressed in pajamas.12 The agents observed a heat sealing machine in a bedroom, a hockey bag (similar to those in the CW's trunk) in a second bedroom, and a box of large plastic bags in the living room. Although the dwelling consists of two separate floors, the agents swept only the ground floor. Prior to the sweep, the agents had no indication that anyone was inside the house.
12. A search of Eng incident to his arrest yielded six cellular phones.13 Nguyen was carrying a cellular phone and keys to the Nissan and 55 Dunstable Road.14 Hong Hak had three cellular phones on his person.15
13. At the agents' request, Christal Downs, a Lowell police officer, applied to the Lowell District Court for search warrants for 55 Dunstable Road and 220 Fayette Street.16 The Dunstable Road warrant yielded a pound of marihuana (found in a crisper drawer of the kitchen refrigerator), two hand guns (one found under a bedroom pillow, the other under a love seat cushion in the living room), the previously espied heat sealer, a currency counter, a scale, and eleven hockey bags similar in appearance to those provided to the CW by the supplier.17
14. The search of 220 Fayette Street resulted in the seizure of U.S. currency of an unspecified amount, a scale, and some miscellaneous personal papers.
15. The first-floor apartment at 55 Dunstable Road had been leased by defendants Nguyen and Hong Hak. According to the landlord, Nguyen paid the monthly rent. Prior to the CW being led to 55 Dunstable Road, agents had no knowledge of the existence of 55 Dunstable Road or of the identities of any of its residents. The house at 220 Fayette Road is owned by Hak Sik, the father of defendant Hong Hak. Both Eng and Hak gave 220 Fayette Road as their home address when booked on January 23.
16. Officer Downs had not been present during the arrests and derived her information from Agent McDonough. Downs's affidavit (shorn of its boilerplate) recites the sequence of events related by the court and then states the following with respect to 55 Dunstable Road.
All three vehicles exited the parking lot and traveled to 55 Dunstable Road in Chelmsford, Massachusetts. The agents and officers then observed Yoeun Eng (operator of the Nissan Armada) walk over to the [CW's] Chrysler Sebring and remove a `hockey' style bag from the trunk of the vehicle. The officers identified themselves as law enforcement officials. At that time, Eng dropped the bag and ran towards the rear of the house. Hong Hak (operator of the minivan) and The Nguyen (passenger in the Armada) stayed in the driveway next to the bag that was removed from the trunk.... After securing the suspects in front of 55 Dunstable Road, agents discovered that the rear door of the residence was open and discovered a female later identified as Amanda Scott standing inside the residence.18 Agents entered the residence and conducted a security sweep to insure the safety and security of the officer and suspects. In plain view in one of the bedrooms was a heat seal machine, a larger version that is commonly used to package marijuana. In the living room in the nightstand, a box of plastic bags (large) were observed in plain view. In a second bedroom there is at least one large black hockey style duffel bag similar to the ones that were seized at the stop.
17. In applying for the warrant for 220 Fayette Street, in addition to the facts set out earlier regarding the activity on January 22, Officer Downs included the following.19
At approximately 8:18 PM [on January 22], the officers observed a white Nissan Armada, MA license plate 19AC80 registered to Hak Sik at 220 Fayette Street, Lowell Massachusetts arrived [sic] at the Applebee's parking lot.20
It was also later learned that [Hong] Hak resided at 220 Fayette Street in Lowell.
At approximately 10:45 AM [on January 23] agents and officers knocked on the door at the residence of 220 Fayette Street, Lowell MA, identified themselves and asked for permission to enter the residence. The person answering the door gave verbal consent for the officials to enter. The officers asked how many people were currently present at the...
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