U.S. v. Oung

• Citation: 490 F.Supp.2d 21
• Decision Date: 19 April 2007
• Docket Number: No. 05-10262-PBS.,05-10262-PBS.
• Parties: UNITED STATES of America v. Sophoan OUNG, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

490 F.Supp.2d 21

UNITED STATES of America v. Sophoan OUNG, et al., Defendants.

No. 05-10262-PBS.

United States District Court, D. Massachusetts.

April 19, 2007.

COPYRIGHT MATERIAL OMITTED

William F. Bloomer, Jennifer Hay Zacks, United States Attorney's Office, John Joseph Moakley, Boston, MA, for Plaintiff.

Victoria M. Bonilla-Argudo, Bourbeau and Bonilla, Boston, MA, Jessica Diane Hedges, Michael L. Tumposky, Stephen B. Hrones, Hrones & Garrity Lewis, Boston, MA, Edward J. Lee, Boston, MA, Michael F. Natola, Gary Zerola, Boston, MA Glen P. Randall, Office of Attorney Glen P., Lowell, MA, for Defendants.

ORDER

SARIS, District Judge.

Defendants, charged with drug trafficking and firearms offenses, move to suppress evidence seized at two residences in Lowell, Massachusetts on August 20, 2005 and statements made without Miranda warnings. They have also brought a Franks motion based on alleged misrepresentations in a search warrant for one of the residences. The witnesses were DEA Special Agent ("SA") Christian Brackett, the case agent; SA Paul Gazzara; Lowell Detective William J. Samaras; Larry Boggio, a resident of 30 Angle Street, Unit 40; Task Force Officer Daniel Rego; SA Young Jae Kim; and Lowell Police Officer James Fay. The defense submitted affidavits from Hershey's girlfriend, Yessenia Abreu; Sophoan Oung's wife, Soda Loy; and his brother Sophanara Oung. After a six-day evidentiary hearing,¹ the motion is ALLOWED IN PART and DENIED IN PART.

FINDINGS OF FACT

A. Early Investigation

The investigation began in 2005 with a phone call from a Lowell police officer to the DEA asking for help in the investigation of a cocaine trafficking ring in the Lowell area. The suspects were Sophoan Oung ("Hershey") and his brother Sophanara Oung ("Bee"). The DEA orchestrated six controlled purchases of cocaine in the Spring of 2005. The first was with Hershey. Later, an undercover agent contacted Bee via cell phone and set up the other buys. The federal court authorized a wiretap on Hershey's cell phone on July 25, 2005 and on Bee's cell phone three weeks later, on August 16. Defendant Phan Moul ("Magee") also used these phones.

Based on information from the wire, the agents learned that the stash house for street-level sales was 1311 Middlesex Street, called "Clubby One". After further investigation, on August 9, 2005 the agents learned that another stash location known as "Clubby Two" was located at 30 Angle Street, a townhouse complex with fifty-two units around a courtyard, near the Lowell Registry of Motor Vehicles. The agents suspected this location was used to store larger quantities of drugs.

In early August, SA Gazzara followed Magee in his Nissan Maxima and saw him park in the Registry parking lot adjacent to 30 Angle Street, enter the complex through a hole in the fence, and walk to either Unit 36 or 37. He also saw Bee with a green Nissan Maxima and Hershey with a Ford Explorer in the parking lot. Through binoculars, Gazzara observed the defendants enter one of the apartments. He couldn't figure out from the distance at which he was observing (approximately 125 yards) which unit was "Clubby Two" because both shared a back porch and their rear doors were located close to one another. One (# 37) was registered to Yessenia Abreu and had children's toys on the back porch and curtains on the window, and the other (# 36) was listed as belonging to an Alves. It had no curtains or children's toys. Neither person was known to the government. Based on surveillance, the police did not know if the men were going to Unit 36 or 37. However, they suspected (as it turns out, incorrectly) that Unit 36 was the stash because the other location had children's toys.

When the investigation began in February 2005, Bee and Hershey lived at 26 Hillside Street, Apartment One in Lowell. They later moved to the second floor of 109 Forest Street, a two-family home, where they lived with Hershey's wife and two children.

On August 17, 2005, Bee left Clubby Two and told Hershey on the wiretapped cell phone that he was going home (to Forest Street) to get his "gat". Hershey told him to get his gun too from under the bed. Hershey then called someone named Peter Song to procure .380 bullets, preferably hollow tip. Next, Hershey called his wife and told her to keep their children out of the bedroom because Bee had left a gun on the bed. Bee then returned to Clubby Two. There had been earlier intercepted conversations about guns (like a Mac-11 submachine gun) between Hershey and Magee. A confidential informant had also told police that Hershey and Bee were in possession of an AK-47 assault rifle.

Over the wire, the DEA learned that Hershey would soon receive a "package" from a supplier, later identified as Guber Quezada (also known as Andre, and nicknamed "Dre"). At approximately 9:27 p.m. on August 20, a Saturday, Hershey called Bee and instructed him to get $9,700 in cash from the apartment at 109 Forest for the meet with Dre. Police observed Bee leave Clubby One and drive to 109 Forest. After a few minutes, he left and returned to Clubby One. Approximately 20 minutes later, a Hispanic male arrived and entered Clubby One. At the same time, police intercepted a call to Hershey's phone from the supplier asking Hershey where he was. Hershey replied that his brother (Bee) was there and that Bee would handle things. After a few minutes, Quezada left the house and drove away. The police believed he had delivered a "package" of cocaine.

Agent Brackett and others followed Quezada for a few miles in an unmarked car. The agents had arranged for local police to perform a "wall off', a maneuver in which Quezada would be pulled over, in the guise of a routine traffic stop, so that police could learn his identity without alerting him to the investigation. When Quezada was observed speeding, a local cruiser made the stop. Quezada consented to a search of his vehicle, and police discovered the $9,700, which was confiscated along with his cell phone. The police initially intended to release Quezada. However, Quezada was driving on a suspended license and had outstanding warrants for motor vehicle violations. Quezada was arrested by local police and taken to the Lowell Police Department.

At 10:05 police intercepted another call between Hershey and Bee. Bee told Hershey that he had met "Dre," had the "stuff," and that "the shit was good, but not beige or anything." They talked about the money. Hershey then instructed Bee to "get it out of there," and bring the package to Clubby Two. At approximately 10:20, Agent Brackett observed Bee leave Clubby One and place a white plastic bag in the trunk of his car. Bee drove away towards 30 Angle Street, and Agents Brackett and Gazzara tailed him at a distance. The agents wanted to have a marked Lowell cruiser execute another "wall off' maneuver, but due to the large festival in Lowell that night they could not procure a marked cruiser in time.

B. Angle Street Search

While Bee was driving towards 30 Angle Street, he began driving erratically. Bee called Hershey and told him that he suspected a car was following him. When officers in the wire room relayed this information to Agents Brackett and Gazzara, they backed off. The agents proceeded to 30 Angle Street by another route, expecting that Bee would arrive before them. Over the wire, the police overheard Bee telling Hershey to open the garage door. The units at 30 Angle Street complex had garage doors.

At 10:37, Hershey placed a call to Magee, telling him that Bee had been followed and instructing him to "get everything out of the house, even the plug" (gun). At 10:49, another conversation occurred. They talked about the tail, and McGee told Hershey that he had "dropped everything off," and would change phones, cars, and "cut off' certain people. They agreed to meet the next day to sort things out. At this point, the agents decided to intervene and arrest the defendants immediately. This was an unanticipated event. Because the police had information that the suspects had several guns, including the AK-47, Mac-11 and hollow point ammunition, they decided to wait for backup. A request was made for additional marked units and officers with rifles, but due to the festival that night it took approximately thirty minutes to muster enough officers.

By 11:25, the police were massed outside Units 36 and 37, still unsure which was Clubby Two. Because of the children's furniture on the porch at Unit 37 and other decorations suggesting "a woman's touch," they suspected Unit 36. Moreover, lights were on inside the garage at Unit 36, but not 37. The agents knocked and announced their presence at Unit 36, and then forced their way in without a warrant. They saw a man they didn't recognize coming down, stairs from the second floor. Around this same time, the agents received information from the wire room that a woman was telling Hershey that police had just raided a neighbor's home. The agents left Unit 36 within minutes, realizing they'd entered the wrong apartment.

At 11:38, as police were leaving the unit, two calls were intercepted between Hershey and Yessenia Abreu. Abreu, audibly nervous, told Hershey that the police were "all over" the neighbor's house and outside her apartment. Hershey replied, "just go to the kid's room." Meanwhile, Agent Brackett approached two individuals sitting outside of Unit 40. He showed them a photo of Hershey, and they indicated that he lived in Unit 37 and drove a dark colored Nissan maxima. Agent Bracket used a flashlight to look through a window into the garage at Unit 37 and observed a dark green Nissan Maxima with tinted windows. This was consistent with the car Agent Gazzara had seen Bee driving earlier in the month. Detective Samaras had to lift Agent Brackett so that he could see into the window, but both were standing in a public area at the time.

Around 11:45 another call was intercepted. Hershey asked Abreu to hide...