718 F.3d 568 (6th Cir. 2013), 11-5827, United States v. Figueredo-Diaz

Docket Nº:11-5827.
Citation:718 F.3d 568
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Anibal FIGUEREDO-DIAZ; Dario Morales-Loya, Defendants-Appellees.
Attorney:Kevin G. Ritz, United States Attorney's Office, Memphis, Tennessee, for Appellant. Edwin A. Perry, Office of the Federal Public Defender, Memphis, Tennessee, for Appellee Figueredo-Diaz. Edmund S. Sauer, Bradley Arant Boult Cummings LLP, Nashville, Tennessee, for Appellee Morales-Loya. Kevin G. R...
Judge Panel:Before: McKEAGUE and GRIFFIN, Circuit Judges; and DLOTT, District Judge.[*]
Case Date:June 05, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 568

718 F.3d 568 (6th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellant,

v.

Anibal FIGUEREDO-DIAZ; Dario Morales-Loya, Defendants-Appellees.

No. 11-5827.

United States Court of Appeals, Sixth Circuit.

June 5, 2013

Argued: Dec. 4, 2012.

Page 569

[Copyrighted Material Omitted]

Page 570

ARGUED:

Kevin G. Ritz, United States Attorney's Office, Memphis, Tennessee, for Appellant. Edwin A. Perry, Office of the Federal Public Defender, Memphis, Tennessee, for Appellee Figueredo-Diaz.

Edmund S. Sauer, Bradley Arant Boult Cummings LLP, Nashville, Tennessee, for Appellee Morales-Loya.

ON BRIEF:

Kevin G. Ritz, United States Attorney's Office, Memphis, Tennessee, for Appellant. Edwin A. Perry, Office of the Federal Public Defender, Memphis, Tennessee, for Appellee Figueredo-Diaz.

Edmund S. Sauer, Bradley Arant Boult Cummings LLP, Nashville, Tennessee, for Appellee Morales-Loya.

Before: McKEAGUE and GRIFFIN, Circuit Judges; and DLOTT, District Judge.[*]

OPINION

GRIFFIN, Circuit Judge.

The government appeals an order of the district court suppressing evidence regarding defendants Anibal Figueredo-Diaz and Dario Morales-Loya. We reverse and remand for further proceedings.

Federal agents tracked Emilio Rivas from Texas to Memphis, Tennessee, suspecting he might be trafficking drugs. Rivas later met defendants Figueredo-Diaz and Morales-Loya, and the three drove

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around Memphis in multiple vehicles before finally arriving at a warehouse. One of the vehicles was a tractor-trailer. The tractor was registered to Rivas. When agents moved in to investigate, defendants complied, but Rivas fled. While a search for Rivas was ongoing, a narcotics dog alerted the officers to the presence of controlled substances in the trailer. The agents later recovered, among other things, one ton of marijuana under the floor of the trailer. In the prosecution that followed, the district court ruled that defendants were unlawfully detained and, as a remedy, suppressed the marijuana evidence as to them, but not as to Rivas, whom it found was lawfully seized. Because the recovered evidence was not the product of defendants' detention, lawful or not, suppression was not warranted. Accordingly, we reverse and remand for further proceedings.

I.

In November 2009, Tennessee state investigator Joe Hoing, then on special assignment to the Federal Drug Enforcement Administration's Task Force, received a tip from a confidential informant. According to the informant, a man named Emilio Rivas had earlier that morning purchased a ticket for a one-way flight from McAllen, Texas, to Memphis, Tennessee, and was scheduled to arrive later that day. Based upon the one-way nature of the flight, the fact that the ticket was purchased with cash the day of the trip, and Hoing's awareness that McAllen is a " source city" for drug traffickers, Hoing suspected Rivas might be engaged in drug trafficking. He decided to investigate further.

At 8:30 that morning, Hoing went to the Memphis International Airport. He called Rivas's contact number, supplied earlier by the informant, but no one answered. Hoing tried again moments later and observed a man (later identified as Rivas) talking on a cell phone. Rivas then pulled a second phone from his pocket and answered Hoing's call. Hoing immediately hung up and began following Rivas.

Hoing and his team tracked Rivas to the Kettle Restaurant in Memphis. There, Rivas, while on the phone, approached one of the several tractor-trailers in the parking lot and climbed into the driver's seat. Defendant Anibal Figueredo-Diaz was waiting in the passenger's seat. Hoing checked the license of the vehicle and discovered that the tractor was registered to Rivas. After a few minutes, Figueredo-Diaz got out and walked to a nearby gas station. Minutes later, Rivas also exited and proceeded to briefly examine the trailer's undercarriage before climbing back into the driver's seat. Figueredo-Diaz returned from the gas station and retook the passenger's seat. Still on the phone, Rivas got out again and this time walked to the road, observing the traffic. A black Chevy Blazer driven by defendant Dario Morales-Loya pulled into the parking lot. Rivas got in and the two drove away. Figueredo-Diaz followed, driving the tractor-trailer.

Hoing's team tracked both vehicles as they headed southbound on Interstate 55 to a truck stop. The Blazer drove through the parking lot of the truck stop while Figueredo-Diaz parked the tractor-trailer. Hoing instructed an officer to stay with the truck as Hoing continued to follow the Blazer.

The Blazer continued southbound into Mississippi and eventually pulled into a driveway that led to a small house or office adjacent to a warehouse. Morales-Loya and Rivas went into the warehouse and then the adjacent building. Minutes later, a white Buick bearing Mississippi license plates and registered to a man named

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Simon Loya arrived.1 The unidentified Hispanic man driving it joined Rivas and Morales-Loya in the house or office. All three men later emerged. While Morales-Loya remained at the scene, Rivas and the unidentified man departed in the Buick and drove to the truck stop, where Figueredo-Diaz was waiting in the tractor-trailer. From the truck stop, both vehicles proceeded back to the warehouse.

The four men— Rivas, defendants Morales-Loya and Figueredo-Diaz, and the unidentified man— huddled around the rear of the trailer with its doors wide open. Hoing's crew, all identified in police clothing, approached the men for the purpose of conducting a Terry investigative stop. The four men responded differently. Figueredo-Diaz and Morales-Loya were detained without incident. However, Rivas and the unidentified man fled. The officers pursued them and eventually apprehended Rivas, but the unidentified individual escaped.

While the agents were chasing Rivas, an officer from the Olive Branch Police Department arrived at the scene with a narcotics detection dog. The officer walked the dog along the outside of the tractor-trailer and the dog alerted to the presence of narcotics. The dog likewise alerted for the presence of drugs regarding the Blazer, the Buick, and a van inside the warehouse. Officers searched all four vehicles, but discovered no drugs.

After Rivas was captured, Hoing returned to the warehouse and walked his own drug dog along the inside of the trailer. Hoing's dog also gave a positive alert. Because Hoing recalled Rivas inspecting the underside of the trailer at the restaurant earlier that day, the agents decided to search the underside of the trailer. There they discovered over 2,100 pounds of marijuana secreted in the trailer's undercarriage. Additionally, in the tractor's cab, the agents found $12,000 in cash, along with Figueredo-Diaz's passport and debit card.

The government charged Figueredo-Diaz, Morales-Loya, and Rivas with conspiracy to possess with intent to distribute at least 100 kilograms of marijuana, and possession with intent to distribute the same. See 21 U.S.C. §§ 841(a)(1), 846. All three moved to suppress the evidence seized in the search, claiming it was the fruit of their allegedly unlawful detention. A magistrate judge heard testimony and recommended denying the motions on the ground that the agents had reasonable suspicion to detain the three men. The district court followed the recommendation in part and rejected it in part, suppressing the evidence as to defendants Figueredo-Diaz and Morales-Loya but declining to do so for Rivas. The government timely filed this interlocutory appeal of the suppression order regarding...

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