U.S. v. Zavala

• Decision Date: 22 August 2008
• Docket Number: No. 07-20200.,07-20200.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis ZAVALA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

541 F.3d 562

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis ZAVALA, Defendant-Appellant.

No. 07-20200.

United States Court of Appeals, Fifth Circuit.

August 22, 2008.

Lauretta Ann Drake (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Nancy M. Simonson (argued), Canales & Simonson, Corpus Christi, TX, Chris Flood, Flood & Flood, Houston, TX, for Luis Zavala.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, DeMOSS and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant Jose Luis Zavala was convicted after trial of two counts of possession with intent to distribute over five kilograms of cocaine, and two counts of conspiracy to possess with intent to distribute over five kilograms of cocaine. 21 U.S.C. §§ 841, 846; 18 U.S.C. § 2. The district court sentenced Zavala to 235 months of imprisonment, five years of supervised release, and a $5,000 fine. The district court entered judgment on February 28, 2007, and Zavala filed a timely notice of appeal.

According to Zavala, the district court erred in denying his motion to suppress certain testimony of John Moreman, an agent of the Drug Enforcement Administration (DEA). Moreman searched Zavala's cell phone after Zavala's vehicle was stopped by the police, and he testified at trial regarding the subscriber number (the 6323 number) that he obtained through this search. In addition to claiming that Moreman's testimony regarding the 6323 number should have been suppressed, Zavala also claims that the cell phone records pertaining to the 6323 number should have been suppressed as fruit of the poisonous tree. Based on this alleged constitutional error, Zavala claims that the district court erred in denying his post-verdict motion for new trial because there is a significant possibility that Moreman's testimony regarding the 6323 number had a substantial impact upon the jury's verdict.

In response, the Government argues that (1) the police had probable cause to arrest Zavala at the time his cell phone was searched, so Moreman's testimony regarding the 6323 number was admissible because it was obtained incident to arrest; (2) Moreman had consent to search the cell phone; (3) the search of the cell phone was equivalent to a license check; (4) Moreman's testimony regarding the 6323 number is admissible because an independent source — Javier Pompa-Hernandez — identified this number, which purged any taint associated with the constitutional violation; (5) probable cause to arrest Zavala developed after the search of his cell phone, so Moreman's testimony regarding the 6323 number was admissible under the inevitable discovery exception; and (6) any constitutional error is harmless beyond a reasonable doubt because the overwhelming weight of the evidence supports the jury's guilty verdict.

We conclude that the district court erred in denying the motion to suppress Moreman's testimony regarding the 6323 number. We agree with the district court's legal conclusion that the initial stop of Zavala's vehicle was an investigative stop based on a reasonable suspicion of drug trafficking activity, not probable cause. The search of Zavala's cell phone was not the equivalent of a license check. Because Moreman did not have consent or probable cause to arrest Zavala at the time of the search, the search was unconstitutional. Moreman's testimony regarding the 6323 number should have been suppressed because the exclusionary rule prohibits the introduction of testimony concerning knowledge acquired during an unlawful search.

The independent source and inevitable discovery exceptions to the exclusionary rule do not apply in this case. Furthermore, the Government has not carried its burden of demonstrating that this constitutional error was harmless beyond a reasonable doubt. The jury might have convicted Zavala based, in whole or part, on the inadmissible testimony of Moreman. Thus, we reverse the judgment of the district court and remand for a new trial.

I. Factual Background & Procedural History

A. Factual Background

In an appeal from the denial of a motion to suppress, we may consider both the evidence admitted at the suppression hearing and at trial. United States v. Jones, 239 F.3d 716, 718 (5th Cir.2001).

1. The Co-Conspirators

Zavala was convicted of two counts of possession with intent to distribute and two counts of conspiracy. The possession and conspiracy counts related to conduct occurring during two distinct time periods: (1) conduct occurring between September 2003 and June 2004; and (2) conduct occurring on July 16, 2004. Other indicted co-conspirators relevant to this appeal include Mario Luna, Jose Rivera, and Javier Pompa-Hernandez. Both Luna and Pompa pled guilty and testified against Zavala at trial.

2. The Arrest of Luna

Moreman obtained information from a cooperating source that Luna wanted to purchase 210 kilograms of cocaine in Houston. Two undercover DEA agents met with Luna in the parking lot of a restaurant. While in Luna's vehicle, Agent Felix Gonzalez observed a large amount of cash in a partially opened bag. After agreeing to contact each other in the future regarding the drug transaction, the agents followed Luna from the restaurant to his home (the High Manor residence), where a search uncovered forty kilograms of cocaine, drug ledgers, and a cell phone. The district court denied Luna's motion to suppress the evidence discovered at Luna's home on June 25, 2004, concluding that exigent circumstances justified the warrantless entry and that Luna gave a voluntary oral and written consent to search. The constitutional validity of that search is not before us in this appeal.

According to Moreman, Luna's drug ledgers contained several entries for a man named "Gorro." The total amount associated with Gorro was 132 kilograms of cocaine. The name Gorro was also found in Luna's cell phone, and the agents later determined through subpoenaed phone records that Gorro's subscriber number (the 4886 number) belonged to Rivera. Unlike the phone records for the 6323 and the 9418 number, the phone records for the 4886 number identified the name of the individual subscriber.¹ The DEA initiated surveillance at Rivera's residence on Miramar Shores. Based on the information obtained from the search of Luna's residence, the agents suspected that Rivera was distributing cocaine in Houston.

Luna pled guilty and testified against Zavala at trial. He testified that he distributed cocaine in Houston and that Pompa transported money to Luna's boss, Daniel Elizondo, in Mexico. Luna recorded information regarding his drug transactions in a ledger, and he always used nicknames for the parties involved. He explained that Rivera's nickname was Gorro and that Zavala's nickname was Nejo. According to Luna, his cell phone contained an entry for Nejo. Only Luna, Pompa, and Elizondo knew Zavala by that nickname. Luna testified that Zavala purchased cocaine from him on several occasions. Luna acknowledged that he never referred to Zavala by name in his drug ledger or in the factual basis of his plea agreement. Thus, Luna's first public disclosure of the identity of Nejo was at Zavala's trial. On cross examination, Zavala attacked Luna's credibility and argued that Luna identified Zavala as Nejo in order to obtain a lesser sentence.

3. The Arrest of Zavala and Pompa

On July 16, 2004, Moreman followed Rivera as he left his Miramar Shores residence. When he stopped at a red light, Moreman dialed the phone number for Gorro and observed that Rivera answered his cell phone.² The agents followed Rivera to his other residence on Tall Timbers. Rivera drove a Ford pickup and parked in the driveway. Moreman had no information — from a confidential source or otherwise — that there was going to be a drug transaction at the Tall Timbers residence on that date.

After Rivera drove the pickup into the driveway, Moreman initiated fluid surveillance of the location.³ The agents' observations were being broadcast over police radio. Because Moreman's knowledge of the events occurring at the Tall Timbers residence was based on fluid surveillance, he was unable to recount every detail of the interaction among Rivera, Pompa, and Zavala.

Shortly after Rivera parked in the driveway of the Tall Timbers residence, Zavala and Pompa arrived in a Ford Taurus. At that time, the DEA agents did not recognize Pompa or Zavala from any previous investigation. The Taurus and the pickup parked next to each other and faced the same direction. Zavala was driving the Taurus, and Pompa was sitting in the passenger seat. The agents observed Pompa remove some unidentified items from the Taurus, place them into a cardboard box, and put the box into Rivera's pickup. The DEA agents did not see Zavala load or move the cardboard box; he was merely standing outside the Taurus. Agent Richard Hicks testified that he could not observe the shape or the identity of the items that Pompa placed into the cardboard box. However, the DEA agents suspected that they were witnessing a drug transaction between Rivera, Pompa, and Zavala.

Shortly thereafter, the agents observed Rivera leave the Tall Timbers residence, enter a mechanic's shop down the street, and exit carrying a large pair of pliers. Rivera drove back to the Tall Timbers residence and again parked next to the Taurus. The agents suspected that Rivera retrieved the pliers in order to open a secret compartment in the Taurus containing contraband; however, the agents did not actually see what Rivera did with the pliers. Two surveillance teams followed the pickup and the Taurus as they left the Tall Timbers residence. At that time, the agents did not know the location of the cardboard box or its contents.

Because the agents suspected that they had just witnessed a drug deal, Moreman instructed a uniformed officer to stop the Taurus on Beltway 8 in Houston. Zavala did not commit a traffic...