U.S. v. Olmedo

• Decision Date: 28 April 2008
• Docket Number: No. 07-20759-CR.,07-20759-CR.
• Citation: 552 F.Supp.2d 1347
• Parties: UNITED STATES of America v. Ricardo OLMEDO.
• Court: U.S. District Court — Southern District of Florida

552 F.Supp.2d 1347

UNITED STATES of America v. Ricardo OLMEDO.

No. 07-20759-CR.

United States District Court, S.D. Florida, Miami Division.

April 28, 2008.

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ORDER DENYING MOTIONS TO SUPPRESS

ADALBERTO JORDAN, District Judge.

Following oral argument, and upon a de novo review of the record, including the objections filed by Ricardo Olmedo [D.E. 472, 477], I adopt the thorough and well-reasoned reports issued by Magistrate Judge Torres [D.E. 441, 452]. Accordingly, Mr. Olmedo's motion to suppress the fruits of an illegal search and seizure [D.E. 320], and motion to suppress wiretap evidence and for a Franks hearing [D.E. 321], are DENIED.

DONE and ORDERED.

REPORT AND RECOMMENDATION ON DEFENDANT RICARDO OMEDO'S MOTION TO SUPPRESS FRUITS OF ILLEGAL SEARCH AND SEIZURE

EDWIN G. TORRES, United States Magistrate Judge.

THIS CAUSE came before the Court on Defendant Ricardo Olmedo's Motion to Suppress Fruits of Illegal Search and Seizure [D.E. 320], the government's Opposition thereto [D.E. 362], Defendant's Post-Hearing Reply [D.E. 419], and the government's Response to the post-hearing reply [D.E. 422]. This matter was referred to the undersigned Magistrate Judge by the Honorable Adalberto Jordan for report and recommendation. [D.E. 369]. An evidentiary hearing was held on February 21, 2008.¹ Having carefully considered the motion and opposition thereto, the arguments of counsel, the testimony of the four government witnesses and of Defendant, the exhibits admitted into evidence at the hearing, and being fully advised in the premises, the Court concludes that Defendant's motion to suppress should be DENIED, as more fully explained below.

I. BACKGROUND

Defendant was arrested on September 12, 2007, and charged with one count of conspiracy to possess with the intent to distribute cocaine, heroin, crack cocaine, and marijuana, and one count of possession with the intent to distribute cocaine. [D.E. 11]. His arrest stemmed from a Drug Enforcement Administration ("DEA") investigation of narcotics trafficking activities that resulted in the issuance of a Title III wiretap order for the cellular telephone of Defendant's son, Michael Olmedo.² According to the government, prior to September 12, 2007, the date of Defendant's arrest, law enforcement agents had intercepted thousands of telephone calls in which Michael Olmedo discussed the distribution of narcotics. Among those thousands of calls were multiple conversations between Michael and Defendant regarding drug trafficking activities. Agents conducted surveillance of Michael Olmedo and others in which they observed members of the alleged conspiracy engaging in suspected narcotics trafficking activities that corresponded to conversations intercepted by agents. Agents also seized over a kilogram of cocaine based upon information obtained from the wire interceptions.

On September 12, 2007, at approximately 5:41 p.m., agents intercepted a call between Defendant and Michael Olmedo in which Defendant told his son that "that" guy was calling him to go and pick up "that," and Michael told Defendant he was trying to get the money together. [D.E. 406 (Exhibit and Witness List from Feb. 21, 2008, Hrg), Dfs Ex. B (Synopsis of Session 10188)]. At approximately 5:55 p.m., another call was intercepted between Defendant and Michael. During the second call, Michael told Defendant that he was trying to get the "tickets;" Defendant told Michael that the guy had two; Michael asked if it was "the beautiful shit" and Defendant affirmed that it was; Michael said he was getting enough for one; when Defendant asked whether Michael got the full amount from the guy, Michael replied that he got twelve and would put in ten; and they arranged to meet at Defendant's house. [Id., Dfs Ex. C (Synopsis of Session 10194)]. The agent supervising the narcotics investigation, DEA Special Agent Francisco Fernandez, was advised of these calls by agents monitoring the wiretap. According to Special Agent Fernandez, "two" meant two kilograms of cocaine; "twelve" and "ten" meant $12,000 and $10,000, respectively; and the gist of these conversations was that Michael was in the process of collecting money to pay for two kilograms of cocaine, that Defendant would soon be meeting someone to exchange the money for cocaine, then he would deliver the drugs to Michael. Based on these intercepted calls, agents established surveillance on Defendant.

Officers followed Defendant's Ford pickup truck from his house to a cul-de-sac in an apartment complex where Defendant met a man in a black Mercedes Benz. Special Agent Fernandez heard over the DEA radio³ what he called a "play-by-play" account of what an officer who was on the scene was observing: the Mercedes parked near Defendant's truck; the man, in the Mercedes exited his car with a bag and got into Defendant's truck; a short while later he exited the truck with another bag in hand; and then both vehicles departed the location.

After hearing this, Special Agent Fernandez authorized a stop of the Mercedes to verify what the wire intercepts had suggested, that there would be an exchange of money and drugs. The Mercedes was stopped and Special Agent Fernandez was advised that a large amount of U.S. currency was found in the car. He also was informed that another call between Defendant and Michael Olmedo was intercepted after Defendant met with the man in the Mercedes: Defendant told Michael Olmedo that he (Defendant) got "two" from "him"; "he" asked for $10,000, otherwise to return it; Michael told Defendant that he (Michael) would pay Defendant back; and Defendant said they were really good. [D.E. 406, Govt. Ex. 1 (Synopsis of Session 10209)].

It was at this point that Special Agent Fernandez gave the order to stop Defendant's vehicle. His decision was based on the two initial intercepted calls regarding the two kilos and the money; the fact that Defendant met with an individual he was supposed to meet; the observations of the officer on the scene regarding the swap of bags on a street in an apartment complex; the fact that the black Mercedes did indeed have almost $20,000 in it; and the third intercepted call in which Defendant confirmed he had picked up the two kilos. Thus, Special Agent Fernandez got on the DEA radio and directed that Defendant be stopped by a marked unit.

Special Agent Fernandez was close to but did not witness the Miami-Dade police officers stop Defendant's truck. When he arrived on the scene, Defendant was already outside his truck. Special Agent Fernandez pulled up behind another officer's vehicle and stayed there. He got on the radio to find out if everything was okay, and to confirm whether officers found the two kilos of cocaine inside Defendant's truck. Once the two kilos were found, Defendant was arrested.

Miami-Dade County Police Detective Julio Benavides, whose role in the narcotics investigation was to conduct roving surveillance or stops as needed, witnessed the meeting between Defendant and the man in the black Mercedes on September 12th. Shortly before the meeting took place, Detective Benavides was contacted by another officer involved in the narcotics investigation, Detective Benjamin Young, and told that Defendant would be driving a green Ford pickup truck and would be picking up two bricks, or kilos, of cocaine. Detective Benavides was directed to the general vicinity of Bird Road and 114th Avenue, where Defendant's truck was then being followed by other law enforcement agents, and was told to be prepared to conduct surveillance or a stop as needed. Detective Benavides located Defendant's truck and followed it when it turned into an apartment complex. When the truck made a sharp right-hand turn into a culde-sac and stopped, the detective parked his unmarked vehicle to the west of the cul-de-sac, facing east, where he was able to observe the truck through his windshield.

Within a couple of minutes, the black Mercedes driven by a Latin male arrived and parked behind the truck. The driver of the Mercedes exited his vehicle, approached the driver's side of the truck, and made contact with the driver. He returned to the Mercedes, retrieved what appeared to be a Publix plastic bag containing something the size of a small book, then walked back to the truck and entered the passenger's side of the vehicle. The two men appeared to be talking and "messing around with" or "looking at" something inside the truck.⁴ The men were inside the truck for no more than five minutes, then the Mercedes's driver exited the truck and returned to his car. He was carrying the same plastic bag, but it now contained something smaller than before and was rolled up like a ball. He opened his door and began to use his cell phone, at which time Defendant departed.

Detective Benavides testified that as soon as Defendant's truck left the area, he announced over his Miami-Dade County police radio and the DEA radio assigned to him that the pickup truck was leaving the area. Then, when the Mercedes pulled away a few minutes later, Detective Benavides reported that event as well. He followed the Mercedes for about eight blocks, at which time it was pulled over by a marked county police vehicle., Detective Young joined him at the scene. Detective Benavides approached the Mercedes and observed the same plastic bag with a big roll of money in it on the front passenger seat. Detective Young took custody of the money, then both detectives left the scene to locate Defendant's truck. Shortly after confiscating the money, Detective Young announced this fact over the radio.

At approximately Sunset and Southwest 87th Avenue, the detectives located Defendants' truck, which had just been stopped by two marked county police vehicles. One of the officers on the scene, Sergeant Raul Martinez, approached the two detectives and advised that a kilogram of cocaine had been found inside the truck. Defendant was thereafter...