United States v. Román
| Docket Number | CRIMINAL 22-013 (RAM) |
| Decision Date | 18 September 2023 |
| Parties | UNITED STATES OF AMERICA Plaintiff, v. ERNESTO MÉNDEZ ROMÁN, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
REPORT & RECOMMENDATION
Pending before the court is a motion by Defendant Ernesto Méndez Román ("Defendant") to suppress evidence pursuant to Franks v. Delaware 438 U.S. 154 (1978). ECF No. 47. On January 12, 2022, a grand jury returned a seven count indictment against Defendant charging him with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), four counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), being a prohibited person in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), and possession of contraband in prison in violation of 18 U.S.C. § 1791(a)(2). ECF No. 11 at 1-4. Defendant seeks the suppression of incriminating evidence found as a result of the execution of two warrants for a two story residence ("the residence") located in "Mariana Ward, Naguabo, Puerto Rico" on December 24, 2021. ECF No. 47 at 2. The search of the residence was the result of a surveillance operation conducted by the Puerto Rico Police Bureau ("PRPB") on December 20, 21, and 22, 2021. ECF No. 47 at 2; ECF No. 51 at 1. Defendant contends that a police officer participating in that surveillance, Officer Luis Rios Camacho ("Officer Rios Camacho"), made false statements and exhibited a "reckless disregard for the truth" in sworn statements that were used to obtain the two search warrants from a Puerto Rico municipal judge which were used to search the residence on December 24, 2021. ECF No. 47 at 3-4, 15. Defendant argues that those false and reckless statements made the warrant “invalid on its face,” and even after considering the remaining content of the sworn statements, there was not probable cause to search the residence requiring the suppression of any evidence found therein. ECF No. 47 at 18-19. After Defendant filed his present “Motion to Suppress with Request for a Frank's [sic] Hearing” the court granted Defendant's request for a Franks hearing which was subsequently held over three days on December 13, 2022, January 19, 2023, and March 10, 2023. ECF Nos. 86, 91, 108.
Puerto Rico Police Officers Ríos Camacho and José Díaz (“Officer Díaz”) conducted a surveillance operation of the residence in Naguabo, Puerto Rico from December 20 to December 22, 2021. ECF No. 47 at 2; ECF No. 51 at 1; ECF No. 104 at 80, 88, 100; ECF No. 105 at 200. Ms. Carla Mercado Colón (“Ms. Mercado Colón”), Defendant's consensual partner, testified that she, Defendant, her father, and her three children lived in the residence. ECF No. 104 at 18. She and Defendant lived on the second floor with her father and her two sons while her daughter lived on the first floor. ECF No. 104 at 18.[1] On the basis of the police surveillance conducted on those dates, Officer Ríos Camacho prepared two search warrant applications on December 22, 2021, both of which included a “Sworn Statement” attesting to the same set of facts described below. ECF No. 104 at 84; Exhibit D, ECF No. 111-28; Exhibit E, ECF No. 111-29. Officer Ríos Camacho's sworn statements assert that he was assigned to “gather intelligence relating to various murders that occurred in the town of Fajardo due to the control of drug points” and state that “[t]he investigation carried out shows that [Ernesto Méndez Román] a.k.a. Cano is living in the town of Naguabo, Mariana ward, and he is a leader of the criminal organization of the Pedro Rosario Nieves Housing Project.” Exhibit D, ECF No. 111-28 at 10; Exhibit E, ECF No. 111-29 at 14-15.
The sworn statements communicate that on December 20, 2021 Officer Ríos Camacho traveled to “the residence” in a confidential police vehicle and at approximately 3:00 PM visually identified Defendant “wearing black shorts and a black sweater with a black cap . . . smoking in the garage area next to a blue Toyota Yaris vehicle.” Exhibit D, ECF No. 111-28 at 10; Exhibit E, ECF No. 111-29 at 15. Officer Ríos Camacho's sworn statements describe how “[a]fter several minutes I observed that [Defendant] went up to the second level of the residence by using the stairs next to it, entering through the first aluminum door that was open[.]” Exhibit D, ECF No. 111-28 at 11; Exhibit E, ECF No. 111-29 at 15. According to the sworn statements, after several more minutes Officer Ríos Camacho saw a “woman with black skin” with “two minors, a boy and a girl” exit the second floor of the residence, descend the stairs, and get into the blue Toyota Yaris. Exhibit D, ECF No. 111-28 at 10-11; Exhibit E, ECF No. 111-29 at 15.
Exhibit D, ECF No. 111-28 at 10-11; Exhibit E, ECF No. 111-29 at 15. According to the sworn statements, Officer Ríos Camacho then observed Defendant go down the stairs from the second floor of the residence, briefly enter and exit the open door of the first floor of the residence, climb into the blue Toyota Yaris, and then leave the residence in that vehicle. Exhibit D, ECF No. 111-28 at 11; Exhibit E, ECF No. 111-29 at 15. The sworn statements also specify that the blue Toyota Yaris “license plate JBW 710” has a “theft lien.” Exhibit D, ECF No. 111-28 at 11; Exhibit E, ECF No. 111-29 at 15. The sworn statements further describe how Officer Ríos Camacho returned to the area of the residence on December 21 and December 22, 2021 where he again observed Defendant and the presence of the blue Toyota Yaris with license plate “JBW 710” at the residence. Exhibit D, ECF No. 111-28 at 11; Exhibit E, ECF No. 111-29 at 15.
As a result of the above surveillance, Officer Ríos Camacho's warrant applications state that “[b]ased on my experience as an Agent of the Puerto Rico Police, I consider that in the RESIDENCE DESCRIBED ABOVE (TWO LEVELS), [is] being used for the storage of firearms and a stolen vehicle, for which reason it is very respectfully requested that should this Court find probable cause, it should issue a search and seizure order to be executed day or night against said residence to seize all evidence in violation of the Weapons Law, Act 8 or other illegal articles.” Exhibit D, ECF No. 111-28 at 12; Exhibit E, ECF No. 111-29 at 16. The warrant applications also contain a precise description of the residence in question and instructions to arrive at the residence. Exhibit D, ECF No. 111-28 at 12; Exhibit E, ECF No. 111-29 at 16. Based on Officer Ríos Camacho's warrant applications, two search warrants-one for the first floor and one for the second floor of the residence-were granted by a Puerto Rico Municipal Judge in Fajardo, Puerto Rico on December 22, 2021 and the search warrants were executed on December 24, 2021. ECF No. 105 at 164, 174, 192-94; Exhibit D, ECF No. 111-28 at 12; Exhibit E, ECF No. 111-29 at 16. It is undisputed by the parties that in the search of the residence, police found a pistol, a stolen vehicle, and other incriminating evidence, including controlled substances. ECF No. 47 at 2; ECF No. 51 at 3; ECF No. 53 at 5.
A defendant is entitled to a suppression hearing under Franks v. Delaware, 438 U.S. 154 (1978) if he makes a “substantial preliminary showing” that a false statement or omission in the affidavit in the warrant application “was made knowingly and intentionally or with reckless disregard for the truth” and that the false statement or omission was “necessary to the finding of probable cause.” United States v. Arias, 848 F.3d 504, 511 (1st Cir. 2017) (quoting United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015)). Once granted a hearing, the defendant is only entitled to the suppression of evidence obtained under the challenged warrant if he shows by a preponderance of the evidence both (1) “that an affidavit in [the] warrant application contains false statements or omissions, made intentionally or with reckless disregard for the truth,” and (2) “that a finding of probable cause would not have been made without those false statements or omissions[.]” Id. (citing United States v. Tanguay, 787 F.3d 44, 49 (1st Cir. 2015)).
In Defendant's motion to suppress and requesting a Franks hearing, Defendant argues extensively that Officer Ríos Camacho's version of events found in the sworn statements of the warrant applications cannot be entirely true because some of the events described by Officer Camacho - such as the presence of a firearm - were not captured by a security camera at the residence during the dates of the surveillance. ECF No. 47 at 4-7. However, the evidence regarding the security camera introduced at the Franks hearing did not establish by a preponderance of the evidence that Officer Ríos Camacho made intentional false statements or omissions or acted with reckless disregard for the truth.
In her testimony, Ms. Mercado Colón explained that the residence had a security camera located in the far right window of the second floor of the house if observed...
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