U.S. v. Zertuche-Tobias, Criminal No. H-96-181.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtAtlas
Citation953 F.Supp. 803
PartiesUNITED STATES of America, v. Graciano Eduardo ZERTUCHE-TOBIAS and Edgardo Rodriguez Carrera.
Docket NumberCriminal No. H-96-181.
Decision Date03 December 1996
953 F.Supp. 803
UNITED STATES of America,
v.
Graciano Eduardo ZERTUCHE-TOBIAS and Edgardo Rodriguez Carrera.
Criminal No. H-96-181.
United States District Court, S.D. Texas, Houston Division.
December 3, 1996.

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Kenneth Dies, U.S. Attorneys Office, Houston, TX, for U.S.

Joseph A. Connors, McAllen, TX, Dan B. Gerson, Houston, TX, for Graciano Eduardo Zertuche-Tobias.

Stanley G. Schneider, Schneider and McKinney, Houston, TX, for Edgardo Rodriguez Carrera.

Carlos Correa, Houston, TX, for Maria Delourdes Duran.

MEMORANDUM AND ORDER

ATLAS, District Judge.


Pending before the Court are the Motions to Suppress of Defendants Graciano Eduardo Zertuche-Tobias ("Zertuche") and Edgardo Rodriguez Carrera ("Carrera"). The Government strenuously opposes the Motions. An evidentiary hearing was held on October 28-31, 1996, during which the Government and Zertuche called witnesses, and counsel for all parties cross-examined the witnesses extensively.1 The Court has carefully considered all of the parties' arguments, both written and oral, as well as all other matters of record in this case and the relevant authorities. For the reasons stated herein, Carrera's Motion to Suppress [Doc. # 73] is GRANTED and Zertuche's Motion to Suppress [Doc. # 59] is DENIED.

FINDINGS OF FACT

The Court, having considered carefully the testimony and having weighed the credibility

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of all witnesses, makes the following findings of fact.

Initial Observations From Surveillance and Investigation.—Detective Frank Fullbright, a detective with the Harris County Sheriff's Department assigned to the Harris County Organized Crime Task Force ("Task Force"), first observed Defendants on August 15, 1996, during his routine surveillance of La Quinta Inn ("Motel") on the east side of Houston. Fullbright knew, from his twelve years of narcotics investigation and police work, that the Motel was a likely spot for narcotics trafficking transactions. His assignment for the Task Force was to investigate activities at the local hotels and motels to identify individuals engaging in suspicious conduct that indicated narcotics trafficking. By use of surveillance, he had been very successful in identifying individuals and vehicles carrying narcotics, or large sums of cash that were believed to be related to narcotics transactions. He could not recall a search after this technique that had not resulted in seizure of drugs or cash.

Fullbright had commenced general surveillance at the Motel on Tuesday, August 14, and had seen a man, later identified as Mr. Navarez, check into Room 255 with a woman and child. Navarez later rented another room, Room 102, that subsequently was occupied by another man.

On the morning of Wednesday, August 15, Fullbright saw Zertuche drive slowly around the Motel parking lot and then park. Zertuche was in a 1996 black Suburban and had a passenger with him.2 Zertuche's passenger went to Room 255 at the Motel, spoke to Navarez for a few minutes, went back down to the black Suburban, and spoke to Zertuche. Zertuche then went up and talked with Navarez for about five minutes. Thereafter, at about 11:15 a.m., Navarez visited Room 102.3

Meanwhile, Fullbright, through databases to which the Task Force has access, identified the black Suburban as registered to Zertuche, whom the United States Drug Enforcement Agency ("DEA") had previously encountered on two occasions and had included in two money laundering investigations. Fullbright contacted Agent William Owen of the DEA, who had personal knowledge of these prior incidents, and learned that the DEA suspected that Zertuche was involved in money laundering or narcotics transactions. In April 1992 in a Dallas airport, federal officials had seized approximately $23,000 in cash from an individual with whom Zertuche was traveling, and the currency was never claimed. In addition, in December 1995, Zertuche had visited Houston, and had traveled around the city and stayed in a hotel room with several individuals involved in narcotics dealings. Fullbright and Owen knew that the DEA had arrested Zertuche and the men he was with in December 1995, resulting in a seizure of $400,000, although Zertuche later was released without charges.4

Fullbright, while observing Zertuche's activities, saw a second car, a 1993 blue Suburban, driving slowly around the parking lot. The driver did not acknowledge or indicate that he knew Zertuche or the others when he first passed Zertuche's car. The driver of this vehicle, it was later learned, was Defendant Carrera.

A little while later, Zertuche and his passenger went to a Denny's Restaurant located near the Motel, and the men from Rooms 255 and 102 joined them. After eating, all four went to the rear of the Motel and talked while standing near Room 255. Carrera, driving the blue 1993 Suburban, arrived again, and this time stopped and joined the conversation. After about ten minutes, the passenger and the men from Room 255 and 102 went to Room 255. Zertuche and Carrera

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left in the black Suburban in which Zertuche had arrived.

After stopping at a Big and Tall Man's Shop nearby and apparently doing some shopping,5 Zertuche and Carrera drove Zertuche's car to a house at 11919 Kemp Hollow, on the far west side of Houston. They put the black Suburban inside the garage and closed the door. Approximately 20-40 minutes later, Carrera left in the black Suburban.6

Stop and Search of the Suburban Carrera Was Driving.—After Carrera left the Kemp Hollow home he traveled back east on I-10, and was followed by three law enforcement officers in unmarked cars and plain clothes. The officers decided to stop Carrera to determine his identity, and to ask him questions if he agreed to answer. The officers wanted to verify that the information they had on Zertuche's black Suburban was correct. They also wanted to ask Carrera questions as part of their narcotics investigation and seek consent to search the black Suburban.

Owen, who was driving in the lane next to Carrera, turned on the police lights inside his vehicle. Owen then showed his badge and motioned to Carrera to pull over, which Carrera did. Pasadena Police Officer Dan O'Sullivan and FBI Agent Clark Webb, each in plainclothes, were in unmarked cars in front of and behind Carrera's car, respectively. They pulled over when Carrera began to stop, and parked their cars around his on the shoulder of the freeway.

Owen asked Carrera to step out of his car. Carrera did so; there is no evidence that he hesitated or was reluctant. Owen asked Carrera to move from the driver's side of the black Suburban to the front, and eventually to the passenger side.7

Owen, who does not speak Spanish, told Carrera in English who he was and that they were investigating a narcotics transaction. He asked Carrera for his driver's license and the registration and proof of insurance for the Suburban. As he was waiting for Carrera to retrieve his license, Owen asked Carrera where he was coming from. Carrera stated in English that he had been at a car auction. When Owen asked specifically if Carrera had been at the Kemp Hollow address, Carrera said "no." Owen stated that Carrera appeared nervous, and that Owen's suspicions were even more strongly aroused because Carrera emphatically denied that he had been at the Kemp Hollow address when Owen asked one or more follow up questions about it. Furthermore, Owen knew that Carrera's claim that he had just left an auto auction was false,8 since he and others had followed Carrera from the Kemp Hollow house.

As Owen was talking with Carrera with Officer O'Sullivan standing by, FBI Agent Webb joined them. O'Sullivan testified that he heard Owen ask Carrera where he had

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been that day and where he was coming from. He corroborated Owen's testimony that Carrera stated that he just come from a car auction, and that Carrera denied having been to the Kemp Hollow residence.

According to O'Sullivan, whom the Court found particularly credible and who had the most definitive recollection of the interchange with Carrera, while Owen took Carrera's license to his car to check it on the law enforcement databases, O'Sullivan again asked Carrera, in English, for the car registration and insurance. Carrera started to go towards the vehicle to retrieve the documents. When O'Sullivan and/or Owen said they would get the papers, Carrera responded in English that they were behind the driver's side visor. The officers, believing the Suburban and Carrera were engaged in a narcotics transaction, were concerned about weapons since the vehicle had not been searched. O'Sullivan immediately stepped over to the Suburban, opened the passenger door, reached inside and across the front seat to the driver's side visor, and pulled out a small red plastic envelope.9 Carrera stood by and did not object. Carrera did not ask O'Sullivan for the envelope, did not ask O'Sullivan to stop as he reached inside the envelope, and did not offer to pull the documents out of the envelope himself as O'Sullivan reached in and removed the envelope's contents. To O'Sullivan's surprise, the envelope contained not only the Suburban's insurance and registration cards, but also a glassine bag containing a small quantity of cocaine.

O'Sullivan did not explicitly ask permission to retrieve or look inside the plastic envelope.10 He acknowledged that Carrera did not verbally give him permission specifically to reach into the car to get the registration and insurance papers. He stated, however, that he believed that when Carrera moved toward the car to get the papers and then told him where they were, Carrera demonstrated his consent to show the papers to the officer. O'Sullivan believed he had permission to pull the papers from the plastic envelope.

After finding the glassine bag, O'Sullivan asked what it was and Carrera...

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  • U.S. v. Cota-Lopez, No. CRIM.EP-02-CR-1072-P.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • November 13, 2002
    ...access through the "knock and talk" procedure, was not in custody for Miranda purposes); see also U.S. v. Zertuche-Tobias, 953 F.Supp. 803 (S.D.Tex.1996) (holding that officers' knocking on front door and requesting to talk to suspect, which was referred by the police as a "k......
  • State v. Warren, No. 05-KK-2248.
    • United States
    • Supreme Court of Louisiana
    • February 22, 2007
    ...36 F.Supp.2d 770, 777 (E.D.Mich., 1999); State v. Smith, 346 N.C. 794, 796, 488 S.E.2d 210 (1997); United States v. Zertuche-Tobias, 953 F.Supp. 803, 829 (S.D.Tex., 1996). Knock and talk investigation "involves officers knocking on the door of a house, identifying themselves as officer......
  • Carter v. Diamond Urs Huntsville, LLC, Civ. A. H-14-2776
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 30, 2016
    ...a home by police are permissible when they obtain consent to search by a person qualified to give such consent. U.S. v. Zertuche-Tobias, 953 F. Supp. 803. 817 (S.D. Tex. 1996), citing U.S. v. Cooper, 943 F.3d 140, 145 (5th Cir. 1995); U.S. v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007)(......
  • United States v. Harvey, Criminal Action No. 1:12CR29.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 25, 2012
    ...of location of an object does not in itself indicate consent for police to search for object” (citing United States v. Zertuche–Tobias, 953 F.Supp. 803, 827 (S.D.Tex.1996)). Nor has the government [901 F.Supp.2d 694]identified any other statement, gesture, or other conduct by Harvey which c......
  • Request a trial to view additional results
14 cases
  • U.S. v. Cota-Lopez, No. CRIM.EP-02-CR-1072-P.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • November 13, 2002
    ...access through the "knock and talk" procedure, was not in custody for Miranda purposes); see also U.S. v. Zertuche-Tobias, 953 F.Supp. 803 (S.D.Tex.1996) (holding that officers' knocking on front door and requesting to talk to suspect, which was referred by the police as a "k......
  • State v. Warren, No. 05-KK-2248.
    • United States
    • Supreme Court of Louisiana
    • February 22, 2007
    ...36 F.Supp.2d 770, 777 (E.D.Mich., 1999); State v. Smith, 346 N.C. 794, 796, 488 S.E.2d 210 (1997); United States v. Zertuche-Tobias, 953 F.Supp. 803, 829 (S.D.Tex., 1996). Knock and talk investigation "involves officers knocking on the door of a house, identifying themselves as officer......
  • Carter v. Diamond Urs Huntsville, LLC, Civ. A. H-14-2776
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 30, 2016
    ...a home by police are permissible when they obtain consent to search by a person qualified to give such consent. U.S. v. Zertuche-Tobias, 953 F. Supp. 803. 817 (S.D. Tex. 1996), citing U.S. v. Cooper, 943 F.3d 140, 145 (5th Cir. 1995); U.S. v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007)(......
  • United States v. Harvey, Criminal Action No. 1:12CR29.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 25, 2012
    ...of location of an object does not in itself indicate consent for police to search for object” (citing United States v. Zertuche–Tobias, 953 F.Supp. 803, 827 (S.D.Tex.1996)). Nor has the government [901 F.Supp.2d 694]identified any other statement, gesture, or other conduct by Harvey which c......
  • Request a trial to view additional results

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