U.S. v. Granados
| Decision Date | 04 November 2008 |
| Docket Number | No. Cr. 08-30052-02-KES.,Cr. 08-30052-02-KES. |
| Citation | 587 F.Supp.2d 1112 |
| Parties | UNITED STATES of America, Plaintiff, v. Ever David GRANADOS, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Timothy M. Maher, U.S. Attorney's Office, Pierre, SD, for Plaintiff.
David W. Siebrasse, Pierre, SD, for Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Defendant, Ever David Granados, is charged with one count of conspiracy to distribute and possess with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846. Docket 1. He moves to suppress all evidence obtained following the entry and search of his hotel room and his father's vehicle on June 14, 2008, all statements made to law enforcement agents on June 14, 2008, and testimony concerning a photo lineup conducted by law enforcement agents on June 16, 2008. Docket 39.
The court referred the motion to suppress to Magistrate Judge Mark A. Moreno pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommends that this court deny Granados' motion to suppress. Granados objects to the magistrate judge's factual and legal findings supporting his conclusion that officers had probable cause to arrest Granados and that exigent circumstances justified the warrantless entry into Granados' hotel room to arrest him. Granados also objects to the magistrate judge's finding that he voluntarily consented to the search of his hotel room and his father's vehicle. Granados further objects to the magistrate judge's recommendation that his statements to law enforcement officers not be suppressed. Finally, Granados objects to the magistrate judge's finding that there were no differences in appearance in the photo lineup that tended to isolate the picture of Granados. Docket 51. The government has no objection to the magistrate judge's report and recommendation.
The court must make a de novo review "of those portions of the [Magistrate's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also United States v. Lothridge, 324 F.3d 599 (8th Cir.2003); Jones v. Pillow, 47 F.3d 251, 253 (8th Cir.1995). 28 U.S.C. § 636(b)(1) requires that when a party objects to the report and recommendation of a magistrate judge concerning a dispositive matter, "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; see also Fed.R.Civ.P. 72(b). After a de novo review of the magistrate judge's report and recommendation and a review of the record, the court adopts the report and recommendation of the magistrate judge as supplemented herein.
Granados' motion to suppress arises out a controlled delivery of cash involving a confidential informant (CI). On June 14, 2008, officers learned that the CI would be meeting his alleged source of marijuana, Gonzalo Morales, at the Kelly Inn in Pierre, South Dakota, to give Morales money owed for a previous delivery of marijuana. A task force of FBI agents and Pierre Police Department officers (the task force) observed the CI and Morales meet in a Ford Expedition in the Kelly Inn parking lot. When the CI and Morales exited the Expedition, members of the task force arrested Morales, went to Granados' hotel room, entered without a warrant, and arrested Granados. Agents later searched the hotel room and vehicle and questioned Granados pursuant to written consent forms signed by Granados. A photo array containing Granados' picture was presented to the CI on June 16, 2008. The court will discuss the facts in more detail as they relate to Granados' specific grounds to suppress evidence and statements.
Granados objects to the magistrate judge's finding that probable cause and exigent circumstances justified the warrantless entry into Granados' hotel room and the arrest of Granados. Granados argues with each of the facts the magistrate judge set out in support of his conclusion. The court has conducted a de novo review of the record and determines that the evidence supports a finding of probable cause and exigent circumstances. As a result, it is unnecessary for the court to address many of Granados' disagreements with the magistrate judge's factual findings, but the court will address Granados' objections that relate to facts and evidence relied on by the court.
After learning from the CI that Morales was traveling to Pierre to collect payment, the task force held a briefing meeting to plan surveillance of the controlled delivery. The task force believed that another person was involved on Morales' side of the transaction. The CI had previously informed Division of Criminal Investigation Agent Jason Baldwin that Morales had worked with several other individuals in the past. Further, in the first of two FBI-monitored phone calls between the CI and Morales earlier that day, Morales spoke as if another person were traveling with him. Morales twice told the CI, "we will wait for you" at the hotel. Morales also stated that it would be better if "we go get the [hotel] room" and that he would tell the CI "where we're at" after getting the room. Near the end of the conversation, he confirmed that "we'll" get the hotel room. The task force planned to arrest Morales' associate as soon as possible after the CI and Morales completed the transfer of money and exited the vehicle. The task force also discussed safety concerns in the upcoming transaction. The CI indicated that Morales had been seen with three guns and a knife in the past and had visited the CI's family looking for his money.
After the briefing meeting, Detective Troy Swenson and Special Agent Guy Di-Benedetto set out to locate the vehicle Morales was traveling in. They observed a green SUV with out-of-state license plates traveling north on Highway 83 through Fort Pierre. They conducted a license check and learned that the vehicle was registered to David Granados of Albuquerque, New Mexico. Swenson testified that he could not see how many people were in the vehicle, but DiBenedetto testified that he could see at least two people. Granados argues that the officers' testimony is contradictory. But the court finds that because Swenson and DiBenedetto viewed the vehicle from different vantage points, the testimony of one that he could not see how many people were in the vehicle is not inherently contradictory with the testimony of the other that he could see two people. Although the testimony differs, it is not contradictory, and the credibility of both officers remains intact.
The task force set up surveillance at the Kelly Inn and observed the CI and Morales enter and hold a meeting in the Expedition, which was the same vehicle that Swenson and DiBenedetto had observed driving in Fort Pierre. The task force used an electronic transmitting device to listen in on and record the CI and Morales' conversation. Morales again spoke in the plural. He indicated that while he needed rubber bands to sort and separate the cash, "we take even ones." Later, he indicated that he wanted more buyers, saying "[w]e've got to do it." He explained that "this guy, my brother, and I are working together." He went on, At the end of the conversation, Morales told the CI to call him when the person with the rest of the money arrived: "[t]hat way we are ready for you to be back." When the CI and Morales exited the vehicle, Morales was arrested and the CI was escorted from the scene. No drugs or weapons were found on Morales.
Immediately after arresting Morales, members of the task force went to Room 250, the room Morales had told the CI he was staying in. A member of the task force obtained a key to Room 250 from the Kelly Inn front desk. Special Agent James Van' Iten testified that he smelled burnt marijuana in the hallway near Room 250, but he was not able to determine from where the smell came. Swenson testified that the odor was very strong in front of Room 250.1 When officers reached Room 250, the door to the room was closed. Swenson used the key card to open the door and enter the room without knocking. The officers handcuffed Granados and took him to a squad car in a secure area. Officers did not have a search warrant for the hotel room, an arrest warrant for Granados, or consent to enter the hotel room.
Van Iten testified that the task force entered Room 250 immediately after arresting Morales rather than securing the room and obtaining a search warrant based on safety concerns. Morales had been seen with firearms and a knife in the past, and the task force was concerned that Morales' associate in the hotel room would witness or receive a signal that Morales was arrested. Baldwin testified that he was concerned about safety because the suspects were unknown individuals, Morales had located the CI's family, and the controlled transfer took place on a Saturday evening while hotel patrons and employees were moving about in the hotel and parking lot and numerous civilians were watching a motorcycle event outside.
Granados objects to the following evidence on hearsay grounds: information relied upon in the briefing meeting, testimony regarding text messages between Morales and the CI, and the statements made by them on the telephone and in the Expedition. It is unclear whether Granados objects to the introduction of hearsay evidence at the suppression hearing or to the task force's use of hearsay evidence to justify the warrantless entry and arrest. In either case, Granados' objection is unavailing.
At a suppression hearing, the court may rely on hearsay...
To continue reading
Request your trial
-
U.S. v. Granados
...family, and the officers and agents themselves from a possible violent action from Morales' associate. United States v. Granados, 587 F.Supp.2d 1112, 1120 (D.S.D.2008). With respect to the issue of consent for the subsequent search of the Expedition and hotel room, Granados does not challen......
-
United States v. Leddon, 3:20-CR-30061-RAL
...at *12; Garcia-Garcia, 957 F.3d at 897-98; Lopez-Mendoza, 601 F.3d at 867; Smith, 260 F.3d at 924; see also United States v. Granados, 587 F.Supp.2d 1112, 1122 (D.S.D. 2008) (defendant voluntarily consented to the search of his hotel room and vehicle where he was detained in a squad car for......