U.S. v. Juan Reynaldo Cordova.

• Decision Date: 17 December 2010
• Docket Number: Criminal Action No. 1:09–CR–475–WSD–CCH–5.
• Citation: 758 F.Supp.2d 1367
• Parties: UNITED STATES of Americav.Juan Reynaldo CORDOVA.
• Court: U.S. District Court — Northern District of Georgia

758 F.Supp.2d 1367

UNITED STATES of America

v.Juan Reynaldo CORDOVA.

Criminal Action No. 1:09–CR–475–WSD–CCH–5.

United States District Court, N.D. Georgia, Atlanta Division.

Dec. 17, 2010.

Jeffrey Aaron Brown, U.S. Attorney's Office, Paul Rhinehart Jones, Office of United States Attorney, Atlanta, GA, for United States of America.

ORDER AND OPINION

WILLIAM S. DUFFEY, JR., District Judge.

This Opinion and Order addresses for the second time Magistrate Judge C. Christopher Hagy's Report and Recommendation (“R & R”) [99] on Defendant Juan Reynaldo Cordova's (“Cordova” or “Defendant”) Motion to Suppress Statements [40], Motion to Suppress Evidence [41] (“Motion to Suppress”), and Motion to Dismiss Indictment for Violation of the Double Jeopardy Clause of the Fifth Amendment [43] (“Motion to Dismiss”).

On February 3, 2010, the Magistrate Judge conducted an evidentiary hearing on the motions and recommended that each of the motions be denied. Cordova objected to the Magistrate Judge's recommendation to deny his motion to suppress evidence seized during searches occurring on March 26, 2009, and to the recommendation to deny his motion to dismiss based on a claim of double jeopardy.

The first Order and Opinion [110], entered on September 10, 2010, disposed of several issues relating to the R & R. First, the order noted Cordova's withdrawal of his Motion to Suppress Statements and his motion to suppress evidence seized during the March 21, 2009, search. Based on the withdrawal, those motions were denied as moot. Second, the order denied as moot Cordova's motion to suppress evidence seized during the October 28–29, 2009, search because the government represented that it will not seek to introduce evidence from that search. Finally, after its plain error review, this Court adopted the R & R's factual findings.

What remains is Cordova's motion to suppress evidence obtained during the March 26, 2009, searches and his motion to dismiss the indictment on double jeopardy grounds. The first Order and Opinion discussed the law relating to the first search of March 26, 2009, a “protective sweep” of Cordova's bedroom, but determined that the facts regarding the search required further development. The Court therefore conducted an evidentiary hearing on September 23, 2010. Following the hearing, the Government and Defendant submitted their additional briefing ¹ on the matter and the Court now addresses Defendant's suppression and double jeopardy motions.

I. BACKGROUND

In early 2009, Gwinnett County law enforcement officials were investigating a series of local convenience store armed robberies. As part of this investigation an official from Gwinnett County sent a broadcast email to other law enforcement agencies in the area seeking information about and assistance in the robbery investigation. Special Agent Jason Tyler of the United States Immigration and Customs Enforcement (“ICE”) received the email.

Agent Tyler works with the ICE Atlanta Gang Unit investigating federal crimes involving transnational gangs. As part of his duties, Agent Tyler investigates the activities of a group known as MS–13, a street gang comprised of individuals from Central America and Mexico. When he reviewed the broadcast email that was sent by Gwinnett County, and pictures of the robbery suspects attached to it, he recognized two of the suspects. He responded to the broadcast email and began cooperating with Gwinnett County law enforcement's investigation of the robberies, including by sharing information he had developed in his MS–13 investigation. The Gwinnett County armed robbery investigation was distinct and separate from the federal MS–13 investigation, and Agent Tyler's participation in the robbery investigation was limited to a supporting role.

On March 26, 2009, Gwinnett County officials executed arrest warrants for Alden Onan Espana and Francisco Tejada–Landaverde, co-defendants in this action. Because the arrests were facilitated by information from the federal MS–13 investigation, Agent Tyler participated in them. He knew, however, based on information developed in Gwinnett County's investigation, that at least four people were involved in the armed robbery for which Espana and Tejada–Landaverde were arrested.

Agent Tyler had encountered Espana and Tejada–Landaverde outside a restaurant five days before they were arrested on March 26, 2009. When Agent Tyler encountered them, Espana and Tejada–Landaverde were with Cordova and another co-defendant in this matter, Jose Roberto Salazar–Orellana. At the restaurant, Cordova and the others had consented to Agent Tyler photographing them and they each gave Agent Tyler their current address information.

While Gwinnett County authorities took Espana and Tejada–Landaverde to the police station for questioning after the March 26, 2009, arrests, Agent Tyler and two Gwinnett County police officers decided, using the addresses Agent Tyler had obtained several days earlier, to try to speak with Cordova and Salazar–Orellana about the robberies. The agents and officers first went to the address given by Salazar–Orellana. When they could not contact him they went to the address given by Cordova.

Early in the evening on March 26, 2009, Agent Tyler, ICE Special Agent Ledgerwood, another ICE agent, and two Gwinnett County police officers arrived at the address Cordova had given. The address was a small, two-story single-family house located at the end of a driveway. The driveway led to a single car garage, and there was a walkway from the driveway to the side of the house where the front door was located. The agents and officers knocked on the front door and spoke with the two women who opened it. The women indicated that Cordova was not home and the agents began walking down the driveway to the street. While walking away, Cordova ran down the driveway asking if the agents were looking for him. The agents said that they were and they asked if they could talk to Cordova inside the house. Cordova responded, “sure, no problem.” When this exchange occurred, Cordova and the agents were standing in the driveway. The group was approximately 20 feet away from the front entrance of the house. As they turned to walk back towards the front door of the house, a woman, visibly pregnant and identified as Marisol, started walking from the front door towards the group. She was about ten feet from them and ten feet from the home when Cordova, in Spanish, said to her under his breath in an excited manner to “take out the bag [or backpack].” ² Marisol turned and, in a quick pace, began walking toward the house. Agents Tyler and Ledgerwood saw Marisol do this, quickly spoke with each other to confirm that they both understood Cordova to have said to take out the bag or backpack, and they, in a quick pace, but short of running, tried to catch up with Marisol, When they began following Marisol, Agent Tyler understood the comment made by Cordova about the bag to refer to possible contraband, and he believed Marisol intended to tamper with, destroy, move or hide possible evidence in the robbery investigation. Agent Ledgerwood was motivated by this same reason, and by his concern that, because the crime they were investigating involved weapons and MS–13 was known to be a violent gang, she might be retrieving a weapon that could endanger the agents.

Agent Ledgerwood was the first to enter the home after Marisol. ³ Just inside the doorway was a set of stairs leading to the second floor. As Agent Ledgerwood entered Marisol was already near the top of the stairs, telling a man at the top of the stairs to take out the bag. When he failed to respond she rushed past him and into a bedroom. Agent Ledgerwood immediately went up the stairs and followed Marisol down the hallway and into the bedroom Marisol had entered. When he did he saw Marisol retrieve a small pink backpack from the closet and start opening it. He pushed her away from the backpack and tossed it on the floor. As he asked her why she had rushed upstairs he looked down and saw a gun handle through an opening in the bag. Agent Tyler then entered the room. Agents Ledgerwood and Tyler called for a third officer to come upstairs to remove the gun from the bag. This third officer discovered that the gun was loaded.

Cordova entered the bedroom next. He was not arrested or handcuffed. In response to an officer's question, Cordova said there were no other weapons in the home, and he agreed to the officer's request to look around the bedroom. The agents searched the room and in it discovered a case of Modella beer, which was one of brands that had been reported stolen during the robberies, some cigarettes, and a hooded sweatshirt with a distinctive design that Agent Tyler recognized from one of the photographs taken from the armed robbery surveillance videos. Cordova agreed to allow the agents to take these items.

Agent Tyler indicated in his report that he asked for and received from Cordova verbal consent to search an iPhone, digital camera, and cell phone that the agents found during their search of the bedroom. Agent Tyler testified that requesting consent for these kinds of devices was his typical practice, but that he did not specifically remember when or whether consent was given. Cordova assisted the agents in their search of the electronic devices and he attempted to find a cord that would allow Agent Tyler to copy the photos from the camera to a computer.

One of the Gwinnett County officers then asked Cordova to come to the Gwinnett County Police Department for questioning and Cordova agreed. Agent Tyler went with them and observed the interview of Cordova conducted by Gwinnett County law enforcement personnel. He did not participate in the interview. He had only a limited, coordination role in the investigation after March 26, 2009.

On October 28, 2009, Cordova was arrested on the federal indictment that is the subject of this action. Gwinnett County also...