U.S. v. Pagan

Decision Date02 October 2003
Docket NumberNo. CRIM. 02-247(JAG).,CRIM. 02-247(JAG).
Citation286 F.Supp.2d 231
PartiesUNITED STATES of America, Plaintiff, v. Luis Mercado PAGAN, Sylvia Rodriguez Duran, Defendants.
CourtU.S. District Court — District of Puerto Rico

Lynn M. Doble-Salicrup, United State Attorney's Office, San Juan, PR, for Plaintiff.

Juan R. Acevedo-Cruz, Arturo R. Negron-Garcia, San Juan, PR, for Defendants.

OPINION AND ORDER

GARCIA-GREGORY, District Judge.

On October 31, 2002, defendants Luis Mercado-Pagan ("Mercado-Pagan") and Sylvia Rodriguez-Duran ("Rodrigue-Duran") (collectively "defendants") moved to suppress the evidence obtained from a search of their two apartments by agents from the Puerto Rico Police Department's Narcotics Division (Docket No. 42). On November 5, 2002, the Court referred the motion to Magistrate-Judge Justo Arenas for a Report and Recommendation (Docket No. 45). On November 29, 2002, the United States of America (the "Government") filed its opposition (Docket No. 53). During the months of February and March 2003, Magistrate-Judge Arenas held a suppression hearing over a period of several days (Docket Nos. 61, 62, 64, 65). On July 10, 2003, having received and reviewed the parties' supplemental memoranda (Docket Nos. 78, 81), Magistrate-Judge Arenas recommended that the Court grant defendants' motion to suppress insofar as the affidavit filed in support of the warrant application contained false statements regarding alleged drug transactions witnessed by the affiant, agent Luis R. Rodriguez-Molina ("Rodriguez-Molina"), and without the statements, the affidavit fails to establish probable cause (Docket No. 84). On August 1, 2003, upon the Government's failure to timely file objections to the Report and Recommendation, the Court adopted it in its entirety and granted defendants' motion to suppress (Docket No. 86). On August 4, 2003, the Government moved for reconsideration of the Court's order of August 1, 2003 (Docket No. 88) and for leave to file its objections (Docket No. 87). For the reasons discussed below, the Court DENIES the Government's motion for reconsideration.

FACTUAL BACKGROUND1

On June 13, 2002, a Municipal Judge of the Commonwealth of Puerto Rico sitting in Mayaguez, issued a warrant authorizing the search of apartment number 105, Building Q, which defendants own, and apartment number 102, Building K, which they rent, at the "Villas del Deportivo" apartment complex in Cabo Rojo, Puerto Rico. The warrant was based exclusively upon the affidavit of agent Rodriguez-Molina. On June 14, 2002, officers from the Puerto Rico Police Department executed the warrant. The search of both apartments yielded approximately 172 marihuana plants and a .38 caliber Smith & Wesson revolver. The agents then arrested the defendants.

On June 20, 2002, a grand jury sitting in this district indicted the defendants with two counts: (1) aiding and abetting and unlawfully and intentionally possessing with intent to manufacture and distribute 172 marihuana plants in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (2) aiding and abetting each other and knowingly and unlawfully possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 921(a)(3).

DISCUSSION
A. Standard for Reviewing a Magistrate-Judge's Report and Recommendation

A District Court may, on its own motion, refer a pending motion to a U.S. Magistrate-Judge for a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Local Rule 503. Pursuant to Fed.R.Civ.P. 72(b) and Local Rule 510.2, the adversely affected party may contest the Magistrate-Judge's Report and Recommendation by filing written objections "[w]ithin ten days of being served" with a copy of the order. See 28 U.S.C. § 636(b)(1). If the adversely affected party files timely objections to the Magistrate-Judge's Report and Recommendation, the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which specific objection is made. See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Lopez v. Chater, 8 F.Supp.2d 152, 154 (D.P.R.1998).

B. Standard under Franks v. Delaware

Pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. at 155-6, 98 S.Ct. 2674. The Courts generally presume that an affidavit submitted in support of a search warrant application is valid, "but that presumption may be surmounted by a showing that it contains either (1) a `false statement [made] knowingly and intentionally, or with reckless disregard for the truth' or (2) `technically accurate statements' that `have been rendered misleading by material omissions....'" U.S. v. Grant, 218 F.3d 72, 77 (1st Cir.2000) (citations omitted).

In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks, 438 U.S. at 156, 98 S.Ct. 2674. "[T]he use of false statements to obtain a warrant violates the Fourth Amendment." Moreta-Ramirez v. Lemert, 233 F.Supp.2d 286, 290 (D.P.R.2002).

C. The Government's Motion for Reconsideration

The Government argues that the Court should reconsider its order adopting the Magistrate-Judge's Report and Recommendation because defendants have presented no evidence to dispute agent Rodriguez-Molina's observations of June 11, 2002, and that these observations by themselves are sufficient to establish probable cause and avoid suppression of the fruits of the search. The Court, however, disagrees.

Agent Rodriguez-Molina's affidavit describes two drug transactions involving Mercado-Pagan and an unidentified man driving a white van, which he claims to have witnessed on June 7 and 11, 2002, respectively. During the Franks hearing, defendants proved by a preponderance of the evidence that Mercado-Pagan was not and could not have been present at the transaction agent Rodriguez-Molina allegedly witnessed on June 7, 2002, and that, therefore, the statements relating to that date were false. Although they did not present evidence to dispute the observations of June 11, 2002, Magistrate-Judge...

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