U.S. v. Cota-Lopez, No. CRIM.EP-02-CR-1072-P.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtMartinez
Citation358 F.Supp.2d 579
Docket NumberNo. CRIM.EP-02-CR-1072-P.
Decision Date13 November 2002
PartiesUNITED STATES of America v. Melchor COTA-LOPEZ (1) Juan Carlos Urias-Millan (2) Jose Clemente Cota-Lopez (3)
358 F.Supp.2d 579
UNITED STATES of America
v.
Melchor COTA-LOPEZ (1) Juan Carlos Urias-Millan (2) Jose Clemente Cota-Lopez (3)
No. CRIM.EP-02-CR-1072-P.
United States District Court, W.D. Texas, El Paso Division.
November 13, 2002.

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COPYRIGHT MATERIAL OMITTED

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Mark S. Kloster, U.S. Attorney's Office, El Paso, TX, for Plaintiff.

Joseph Sib Abraham, Jr., Robert Ramos, Ray Velarde, Attorney at Law, El Paso, TX, for Defendants.

AMENDED MEMORANDUM OPINION AND ORDER1

MARTINEZ, District Judge.


On this day, the Court considered four motions filed in the above-captioned cause:

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(1) Defendant Melchor Cota-Lopez's Motion to Suppress Evidence and Memorandum of Law in Support of Motion to Suppress Evidence ("Motion to Suppress I") filed June 27, 2002, (2) Defendant Melchor Cota-Lopez's Supplemental Motion to Suppress Evidence ("Motion to Suppress II") filed on September 12, 2002, (3) Defendant Juan Carlos Urias-Millan's Motion to Suppress Evidence and Memorandum of Law ("Motion to Suppress III") filed on July 10, 2002, and (4) Defendant Jose Clemente Cota-Lopez's Motion to Suppress Evidence and Memorandum of Law ("Motion to Suppress IV") filed July 8, 2002. Following a hearing on said motions on August 22, 2002, counsel was provided with an opportunity to submit supplementary briefs and arguments in support of their respective motions and responses. The Court received the supplementary briefs on October 4, 2002,2 and thereafter took the motions under advisement.

After careful consideration of the evidence, arguments, and all pleadings, the Court is of the opinion that Defendant Melchor Cota-Lopez's Motion to Suppress I and Motion to Suppress II should be denied, Defendant Juan Carlos Urias-Millan's Motion to Suppress III should be denied in part and granted in part, and Defendant Jose Clemente Cota-Lopez's Motion to Suppress IV should be denied in part and granted in part.

I. FACTS

1. On May 13, 2002, Detective Louis Serrano ("Detective Serrano") of the Narcotics Division of the El Paso Police Department ("EPPD") was performing routine surveillance3 at a self-packing type business when he observed a blue 1995 Chevrolet Astro van (bearing Texas license plates) arrive with four occupants, later identified as Defendant Melchor Cota-Lopez ("Defendant Melchor"), Defendant Jose Clemente Cota-Lopez ("Defendant Jose"). Defendant Juan Carlos Urias-Millan ("Defendant Urias"), and Guillermo Cota-Lopez ("Guillermo"). (Tr. 82-84) Defendant Jose, Defendant Urias and Guillermo went into the business

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and came out a short time later with several unassembled cardboard boxes. (Tr. 82-83)

2. After taking notice of the van and its occupants,4 Detective Serrano followed the van to a residence located at 5912 Gene Torres Drive in El Paso, Texas (the "Residence"). Along the way, the van stopped briefly at a travel agency and hardware store before arriving at the Residence at about 3:40 p.m. (Tr. 62, 124, 127) Detective Serrano continued his surveillance of the Residence, observing the movement of the van and its occupants to and from the Residence.

3. A task force of local and federal law enforcement agencies assisted Detective Serrano in this investigation. Participants in the task force included (in addition to Detective Serrano) Detective Frank Gutierrez ("Detective Gutierrez"), Sergeant Silex ("Sgt.Silex"), and Officer Jose Vega ("Officer Vega") from the Narcotics Division of the EPPD, along with Larry Hightower ("Agent Hightower"), Special Agent with the Federal Bureau of Investigation (collectively, the "officers"). (Tr. 12-13, 165)

4. During the surveillance (at approximately 3:50 p.m.), Defendant Jose and Defendant Urias left the Residence in the van. (Tr. 62) The van took an indirect route to a local meat market, which Detective Serrano perceived as a "heat run," a counter-surveillance maneuver done to determine whether the police are conducting surveillance. (Tr. 84-85, 103) Defendant Jose and Defendant Urias went into the meat market. None of the officers followed them inside the meat market. (Tr. 132)

5. After approximately ten minutes, Detective Gutierrez observed Defendant Jose and Defendant Urias leave the meat market and drive the van to a nearby convenience store. Although Defendant Jose and Defendant Urias both had cellular phones on them, Defendant Urias, the driver, exited the van and made a phone call from the public payphone at the convenience store. Meanwhile, Defendant Jose drove the van back to the Residence and arrived there at approximately 4:10 p.m. (Tr. 12, 86, 133) After completing the call, Defendant Urias walked back to the Residence. Defendant Urias arrived at the Residence about five minutes after Defendant Jose. (Tr. 65, 87)

6. A short time later (at about 5:10 p.m.), Defendant Jose and Defendant Urias again left the Residence in the van and were subsequently stopped by Officer Vega for an improper lane change violation at an intersection near the Residence. (Tr. 137, 153) After the vehicle was pulled over, Defendant Urias and Defendant Jose provided Officer Vega their identification, which indicated that they were citizens of the Republic of Mexico and aliens to the United States. (Tr. 144)

7. Officer Vega, who immediately questioned Defendant Jose and Defendant

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Urias after they were detained, did not give a Miranda warning to them. (Tr. 155) Specifically, Officer Vega asked Defendant Jose and Defendant Urias about their travel plans. Defendant Urias told Officer Vega that they were coming from Cielo Vista Mall, (which is in fact located in the general direction to where the van was then traveling). Defendant Jose contradicted Defendant Urias and answered that they were coming from Burlington Coat Factory (which is also located in the direction to where the van was then traveling, but not in the same location as Cielo Vista Mall). (Tr. 144-145) Officer Vega then asked Defendant Jose and Defendant Urias whether they had come from the Residence, and both denied having been at the Residence or having any knowledge about it. (Tr. 155) Officer Vega immediately relayed this information to Detective Serrano, who informed Officer Vega that he was going to perform a "knock and talk"5 at the Residence. (Tr. 145)

8. Shortly thereafter, other EPPD officers arrived at the scene to assist Officer Vega with the stop. Officer Vega then proceeded to the Residence with his narcotic-detecting canine to assist with the "knock and talk." (Tr. 153) Defendant Jose and Defendant Urias remained in police custody at the traffic stop until the officers could conduct a consensual search of the Residence (a period of approximately forty minutes). (Tr. 145) Defendant Jose and Defendant Urias were not handcuffed, no threats or violence were used against them, and there was no overt display of authority (i.e. no weapons were drawn by any of the officers at the stop scene). (Tr. 149)

9. In the meantime, Detective Serrano, Detective Gutierrez, and Sgt. Silex initiated a "knock and talk" at the Residence. (Tr. 13) There was no direct sidewalk or path from the street to the front door, which therefore required the officers to walk up the driveway to the garage area in order to approach the house. (Tr. 88) The Residence had no fences, gates, "keep out" signs, or any other similar barriers. (Tr. 104)

10. During this time, Officer Vega was stationed at the sidewalk in front of the house with his canine in the event that permission to search was granted. (Tr. 141, 157) While on the sidewalk, the canine immediately detected an odor. (Tr. 148) The canine began pulling Officer Vega in the direction of the front door of the Residence. The canine sniffed at the bottom of the seam of the front door and gave an "indication" that she was detecting the existence of narcotics at the Residence. The canine finally "alerted" by barking and scratching at the door. (Tr. 149, 158-159).

11. The officers performing the "knock and talk" were dressed in civilian clothes (jeans and t-shirt), and all were armed with concealed weapons. (Tr. 15)

12. Upon approaching the Residence, the garage door to the Residence was open, but the officers could see the silhouette of a person standing behind the screen door inside the garage area. (Tr. 13-14) The officers

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continued toward the garage area and were greeted by Carmine Cota-Lopez ("Carmine"), Defendant Melchor's wife, who had opened a screen door to address them as they approached the garage. (Tr. 14, 39-40, 89) After Carmine greeted the officers, they entered the garage area and identified themselves by showing their police badges. (Tr. 39, 42) The officers explained to Carmine that they were conducting a narcotics investigation and then asked for permission to enter the house to further discuss their investigation. Carmine took Detective Gutierrez's badge and invited the officers to enter the Residence. (Tr. 16, 89-90) The officers did not search the garage area at that time, and no evidence or contraband was seized from the garage as a result of the officers' approach to the garage.

13. Carmine informed the officers that she lived in the Residence with her husband. She then asked the officers to wait in the dining room area while she went to retrieve her husband from one of the bedrooms. (Tr. 17) Carmine walked down the hallway and entered the master bedroom, and a few moments later, both Carmine and Defendant Melchor walked out to meet with the officers. (Tr. 18-19)

14. Although Detective Serrano did most of the talking, Detective Gutierrez could at all times overhear their discussion as he performed a visual sweep of the area inside the Residence. (Tr. 19) Sgt. Silex did not interact with the occupants of the Residence. Sgt. Silex was only present to protect the officers. (Tr. 21)

15. Detective Serrano informed Defendant Melchor that they were conducting a narcotics investigation and asked for consent to search the Residence.6 (Tr...

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12 practice notes
  • Coffin v. Brandau, No. 08–14538.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 3, 2011
    ...violation occurred in circumstances very similar to those facing the deputies in this case.16 See, e.g., United States v. Cota–Lopez, 358 F.Supp.2d 579, 590–91 (W.D.Tex.2002) (concluding that officers' entry into an attached open garage to knock on the service door “was entirely reasonable,......
  • Jardines v. State , No. SC08–2101.
    • United States
    • United States State Supreme Court of Florida
    • April 14, 2011
    ...that “as long as a canine unit is lawfully present when a drug sniff occurs, the sniff is not a search”); United States v. Cota–Lopez, 358 F.Supp.2d 579, 592 (W.D.Tex.2002) (rejecting argument that the heightened privacy interest makes dog sniff of front door at private residence intrusive,......
  • State v. Kono, SC 19613
    • United States
    • Supreme Court of Connecticut
    • December 22, 2016
    ...reasoning of Thomas as incompatible with United States Supreme Court cases involving canine sniffs); United States v. Cota–Lopez , 358 F.Supp.2d 579, 592 (W.D. Tex. 2002) (rejecting Thomas as contrary to United States Supreme Court precedent), aff'd, 104 Fed.Appx. 931 (5th Cir. 2004) ; Unit......
  • Hoop v. State, No. 49A02-0807-CR-666.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 14, 2009
    ...83 F.Supp.2d 1207, 1217 (D.Kan.1999); United States v. Marlar, 828 F.Supp. 415, 418 (N.D.Miss.1993); United States v. Cota-Lopez, 358 F.Supp.2d 579, 592 (W.D.Tex.2002), aff'd 104 Fed.Appx. 931 (5th Cir.2004); State v. Waz, 240 Conn. 365, 692 A.2d 1217, 1224 n. 21 (1997); People v. Guenther,......
  • Request a trial to view additional results
12 cases
  • Coffin v. Brandau, No. 08–14538.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 3, 2011
    ...violation occurred in circumstances very similar to those facing the deputies in this case.16 See, e.g., United States v. Cota–Lopez, 358 F.Supp.2d 579, 590–91 (W.D.Tex.2002) (concluding that officers' entry into an attached open garage to knock on the service door “was entirely reasonable,......
  • Jardines v. State , No. SC08–2101.
    • United States
    • United States State Supreme Court of Florida
    • April 14, 2011
    ...that “as long as a canine unit is lawfully present when a drug sniff occurs, the sniff is not a search”); United States v. Cota–Lopez, 358 F.Supp.2d 579, 592 (W.D.Tex.2002) (rejecting argument that the heightened privacy interest makes dog sniff of front door at private residence intrusive,......
  • State v. Kono, SC 19613
    • United States
    • Supreme Court of Connecticut
    • December 22, 2016
    ...reasoning of Thomas as incompatible with United States Supreme Court cases involving canine sniffs); United States v. Cota–Lopez , 358 F.Supp.2d 579, 592 (W.D. Tex. 2002) (rejecting Thomas as contrary to United States Supreme Court precedent), aff'd, 104 Fed.Appx. 931 (5th Cir. 2004) ; Unit......
  • Hoop v. State, No. 49A02-0807-CR-666.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 14, 2009
    ...83 F.Supp.2d 1207, 1217 (D.Kan.1999); United States v. Marlar, 828 F.Supp. 415, 418 (N.D.Miss.1993); United States v. Cota-Lopez, 358 F.Supp.2d 579, 592 (W.D.Tex.2002), aff'd 104 Fed.Appx. 931 (5th Cir.2004); State v. Waz, 240 Conn. 365, 692 A.2d 1217, 1224 n. 21 (1997); People v. Guenther,......
  • Request a trial to view additional results

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