U.S. v. Quintana
| Decision Date | 20 January 2009 |
| Docket Number | Case No. 8:08-cr-309-T-23EAJ. |
| Citation | 594 F.Supp.2d 1291 |
| Parties | UNITED STATES of America v. Ariel QUINTANA. |
| Court | U.S. District Court — Middle District of Florida |
Daneil L. Castillo, Attorney at Law, Tampa, FL, for Defendant.
The defendant moves to suppress (Doc. 15, 32),* and the United States opposes the motion (Doc. 21). Pursuant to an order of referral, United States Magistrate Judge Elizabeth A. Jenkins conducted an evidentiary hearing and issued her report (Doc. 42) recommending granting the motion for leave to amend (Doc. 31), denying as moot the first amended motion to suppress (Doc. 15), and granting the second amended motion to suppress (Doc. 32). The defendant's motion for rehearing (Doc. 48) was denied (Doc. 58), and the defendant objected (Doc. 59) to certain legal conclusions in the report and recommendation.
The magistrate judge's report and recommendation (Doc. 42) is ADOPTED. The motion to amend (Doc. 31) is GRANTED, and the first amended motion to suppress (Doc. 15) is DENIED AS MOOT. The second amended motion to suppress (Doc. 32) is GRANTED. The evidence arising from the search of defendant's residence is SUPPRESSED. The defendant's objections to the report and recommendation (Doc. 59) are OVERRULED.
ORDERED.
REPORT AND RECOMMENDATION
Before the court are Defendant's First Amended Motion to Suppress (Dkt. 15), the Government's Response in Opposition (Dkt. 21), Defendant's Motion for Leave to Amend the Pending Motion to Suppress (Dkt. 31), and Defendant's Second Amended Motion to Suppress (Dkt. 32).1 An evidentiary hearing and oral argument have been held. For the reasons stated herein, I recommend that the Second Amended Motion to Suppress (Dkt. 32) be granted.
The following facts are established by a preponderance of credible evidence.
1. On June 6, 2008, Defendant was traveling in a sedan along Interstate 75 in Collier County, Florida, a route commonly known as "Alligator Alley." Florida Highway Patrol Trooper John Wilcox ("Wilcox"), using a radar gun and a "pace clock" technique, determined Defendant was traveling ninety miles per hour despite a posted speed limit of seventy miles per hour. At approximately 10:44 a.m., Wilcox stopped Defendant for speeding.
2. As Wilcox approached Defendant's vehicle, Defendant rolled down the passenger-side window. Wilcox, who has experience and training in identifying marijuana by smell, detected the odor of raw marijuana emanating from inside the vehicle.2 Wilcox asked Defendant for identification and motioned Defendant to exit the vehicle. Based on Defendant's drivers license and registration, Wilcox verified Defendant's identity as Ariel Quintana.
3. Concerned by the smell of raw marijuana in the vehicle, Wilcox radioed Trooper Mike Gideons ("Gideons") for backup. Gideons arrived approximately five minutes later. Because Defendant spoke only Spanish, Gideons summoned Trooper Yoenis Garcia ("Garcia") to translate for Defendant. Garcia arrived approximately five minutes later.
4. With Garcia's assistance in translating, Wilcox informed Defendant that he detected the odor of raw marijuana emanating from the vehicle and asked if he could search the vehicle. Although Defendant appeared nervous and repeatedly looked at the car, he denied there was marijuana in the vehicle and gave the troopers permission to search it.
5. In the vehicle, Wilcox located a tote or duffel bag in the front passenger seat which smelled strongly of raw marijuana.3 Inside the bag, Wilcox discovered folded clothing which also carried a strong odor of raw marijuana. On top of the bag, Wilcox found a pair of slip-on shoes, one of which had a green, leafy substance that appeared to be marijuana wedged into the sole. Nevertheless, Wilcox found no marijuana inside the bag or anywhere else in the vehicle. When Wilcox asked Defendant to explain the odor of marijuana on the bag, Defendant stated he occasionally smoked marijuana.
6. Wilcox then asked Defendant about his itinerary. Defendant explained that he was traveling to Miami to pick up his wife Amy because they were moving to the Ocala area.
7. Soon thereafter Wilcox was informed by a radio dispatcher that Defendant's drivers license was suspended.4 Defendant was arrested for driving with a suspended license and placed in handcuffs; he was not read his Miranda rights at that time.
8. While Defendant was in custody, his cell phone began to ring repeatedly. Without asking for permission, Garcia removed the cell phone from Defendant's pocket and dialed the last caller. Defendant's wife Amy, who lived in Hialeah, Florida, answered the call. Amy told Garcia that she and Defendant were in an "on again off again" relationship and that she was not aware of any plans to move to the Ocala area.
9. After the call ended, Garcia began looking through information in the cell phone, including a digital photo album, hoping to find evidence related to the odor of marijuana in Defendant's vehicle. Garcia saw photos of an intimate nature involving a woman as well as a photo of marijuana plants in what he characterized as a marijuana "grow house."5 Defendant stated that someone had sent him the photo of the house. Garcia showed the photo to Wilcox, who surmised that it may have been connected to the Lutz, Florida address listed on Defendant's drivers license.
10. At approximately 11:00 a.m. Wilcox telephoned Trooper Steve Varnell ("Varnell") in Hillsborough County, more than one hundred miles away from the scene of the traffic stop, and notified him that he suspected there was a marijuana grow house at Defendant's address.6 Wilcox informed Varnell that there could be a woman and two children at the residence who spoke only Spanish. Varnell, his son Trooper Steven E. Varnell ("Varnell Jr."), and Trooper Justin May ("May"), who speaks limited Spanish, proceeded to the address to investigate.7
11. At approximately 11:40 a.m. the troopers arrived at the residence, which was enclosed by a fence with a locked, electronic driveway gate, located approximately fifty yards from the home itself. There was also a smaller gate twenty-five to thirty feet from the driveway gate with a closed flip-type latch; the gate opened up into a wooded area located on the property. From the driveway gate, the view of the house was obscured by woods making it difficult to see any part of the house. There was nothing from outside the fenced area to indicate the residence was the site of a marijuana grow operation.
12. At approximately 11:53 a.m., following Varnell's instructions, Varnell Jr. jumped over the fence and unlocked the driveway gate. Varnell and May walked through the driveway gate and all three troopers proceeded toward the house. As they entered a paved driveway area near the front of the residence, they detected the odor of raw marijuana, heard mechanical sounds coming from a nearby garage, and observed that the windows were "blacked out." While May waited outside, Varnell and Varnell Jr. entered the open doorway of a detached garage next to the residence. Varnell concluded that the residence was in fact the site of a marijuana grow operation.
13. Varnell telephoned Wilcox, who was still at the scene of the traffic stop on Alligator Alley, and informed Wilcox of his conclusion. Using a card with Miranda rights written in Spanish (Gov't. Ex. 4), Garcia read Defendant his Miranda rights in Spanish, which Defendant acknowledged understanding. Using the information furnished to Wilcox by Varnell, Garcia informed Defendant that troopers had detected the odor of marijuana at the Lutz residence. Defendant then admitted there was a marijuana grow operation at the Lutz residence involving approximately 175 marijuana plants.
14. Defendant was subsequently transported to the Florida Highway Patrol station in Naples where he was given a form, written in both English and Spanish and time-stamped 12:25 p.m., asking for consent to a search of the Lutz property (Gov't. Ex. 1). Although Garcia attempted to read the form to Defendant, Defendant stated that he understood the form and signed it. After a copy of the consent form was faxed to a Florida Highway Patrol station in Hillsborough County, the troopers at the Lutz residence were verbally notified of the consent. At approximately 1:40 p.m., the troopers, then joined by agents with the Drug Enforcement Administration ("DEA"), conducted a warrantless search of the interior of the residence and a Haulmark trailer parked behind the home: They located marijuana plants and instruments used to cultivate marijuana.
15. At some point after signing the consent form, Defendant was issued a citation for driving with a suspended license and released from custody for purposes of that charge. Although Defendant was no longer under arrest, Defendant wrote a sworn statement in Spanish promising to travel with the police to the Lutz residence (Gov't. Ex. 2). The Florida Highway Patrol then transported Defendant from Naples to Lutz, with Defendant riding uncuffed in the front seat.
Upon Defendant's arrival in Lutz around 4:00 p.m., DEA Agent Larson ("Larson") read Defendant his Miranda rights in Spanish and Defendant stated he understood them. Although Defendant was not placed under arrest or in handcuffs, he was interviewed by Larson and May while law enforcement continued the search of the residence. Toward the end of the interview, May provided Defendant with a statement, handwritten by May in Spanish, giving the Florida Highway Patrol permission to seize any electrical items related to the cultivation of marijuana. Defendant signed his name below the statement. Defendant was then given an indemnification form (Gov't. Ex. 3), written in English, allowing...
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