United States v. Almonte, CRIMINAL 2:21-00160

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtDavid A. Faber Senior United States District Judge
Docket NumberCRIMINAL 2:21-00160
Decision Date04 March 2022



CRIMINAL No. 2:21-00160

United States District Court, S.D. West Virginia

March 4, 2022


David A. Faber Senior United States District Judge

Before the court is the motion of defendant Julio Hisael Almonte to suppress evidence. (ECF No. 24.) Defendant asks the court to suppress “all evidence derived from (1) the stop of the vehicle he was driving on June 30, 2018, and (2) the subsequent seizure and search of his cell phone.” (Id.) The court held a hearing on the motion on January 12, 2022. At the conclusion of the hearing, the court took the matter under advisement and granted the parties leave to file supplemental briefs, which they have now done. For the reasons that follow, the court will deny the motion.

I. Background

On the morning of June 30, 2018, West Virginia State Police Trooper Eric Bostic (“Trooper Bostic”)[1] was at the Sutton detachment of the West Virginia State Police, which is located next to the 911 dispatch center for Braxton County. (Jan. 12 Hr'g Tr. 7.) At 8:30 a.m., Trooper Bostic received a call from


the 911 dispatch center regarding a possible hit-and-run nearby involving a gray pickup truck pulling another vehicle on a trailer, which was then reportedly heading north on I-79.[2] (Tr. 7-8.)

Trooper Bostic was ready to go when he received this call, and his police vehicle was right outside the door. (Tr. 40-41.) He immediately travelled to the Flatwoods exit and staged there, at the entrance ramp, to watch for the pickup truck. (Tr. 8-9, 40-41.) The Flatwoods exit is less than 1 mile from the Sutton detachment and approximately 5 miles north of where the hit-and-run reportedly occurred, which was at Exit 62, otherwise known as the Gassaway exit. (Tr. 8.) By the time Trooper Bostic reached his staging area, only a few minutes had passed from when he received the report of the suspected hit-and-run. (Tr. 9.) Shortly thereafter, Trooper Bostic spotted a gray pickup truck pulling another vehicle (a blue van) on a trailer. (Tr. 11, 41.) The pickup truck was a Ford Raptor (“Raptor”), and defendant was the driver. (Tr. 11.)[3]


Trooper Bostic initiated a stop of the Raptor. (Tr. 11.) He did not notice any damage to the Raptor, but he did not immediately inspect the front of it; instead, he went directly to the window at the passenger side of the Raptor, and defendant rolled down the passenger window. (Tr. 13-14, 36.) Trooper Bostic requested proof of registration, proof of insurance, and identification from defendant. (Tr. 13.) Because Trooper Bostic was having trouble hearing defendant over the noise of the interstate, Trooper Bostic requested and received permission from defendant to open the passenger door. (Tr. 14.) Trooper Bostic and defendant engaged in a discussion of the suspected hit-and-run, and defendant was aware of the collision; he denied being involved in the collision and explained that a gray Toyota was involved, and he had pulled over to help. (Tr. 14.) Concerning the Raptor, defendant said that his brother-in-law, “O, ” had given him permission to drive it. (Tr. 14.)

Once the passenger door was open, Trooper Bostic smelled an odor of fresh marijuana, which he believed to be emanating from a “ditty bag” on the passenger seat. (Tr. 15-16.) Trooper Bostic, who has made hundreds of marijuana arrests throughout his career, sought and obtained permission from defendant to search the Raptor and the blue van that it was towing. (Tr. 16.) This was approximately five to ten minutes into the stop. (Tr. 47.)


The search yielded marijuana plus three identification cards bearing the same photo but different names, and purporting to be issued by different states; it also yielded a key fob to a gray 2017 Toyota Tacoma (“Tacoma”) and the purchase paperwork for the Raptor and the Tacoma.[4] (Tr. 16-18.) The paperwork indicated that D.F. had purchased the Raptor and A.F. had purchased the Tacoma. (Tr. 16-19.) Trooper Bostic believed that the ID cards were fraudulent. (Tr. 18.) A.F. was a name on one of the ID cards found during the search (in the van being towed), but the search did not yield an ID for D.F. (Tr. 19-21.)

At some point, Trooper Bostic asked defendant where he was coming from, and defendant said that he had picked up the Raptor from his brother-in-law at the New Jersey state line and had driven it to Charleston to pick up the van that he was towing. (Tr. 19-20.) This struck Trooper Bostic as false because he had noticed that there were only 290 miles on the Raptor's odometer, which is obviously an insufficient number of miles to cover the distance from New Jersey to Charleston, let alone from the point of purchase in Charleston, up to New Jersey, back to Charleston, and then up to Braxton County. (Tr. 19-20.)


During the stop, an iPhone (“the phone”) was sitting on the Raptor's console. (Tr. 21-22.) Trooper Bostic noticed calls and texts coming in from “O, ” but he could not see the content of the texts, and he did not try answering the phone. (Tr. 21-23, 51-52.) At first, defendant said that the phone belonged to his sister and that he did not have the passcode to it. (Tr. 22.) Later, he said it was his phone but that he still did not have the passcode and could access it only by facial recognition.[5] (Tr. 22.)

Approximately 2.5 hours into the stop, Trooper Bostic placed defendant under arrest for giving false information and for possessing marijuana. (Tr. 23.) During most of the time between that initiation of the traffic stop and the arrest,


Trooper Bostic was waiting to hear back from Deputy Williams of the Braxton County Sheriff's Department concerning his findings from the scene of the hit-and-run. (Tr. 20, 48-49.) It was not until Deputy Williams arrived that Trooper Bostic received confirmation that the same 2017 Toyota Tacoma for which defendant had a key fob was involved in the hit-and-run. (Tr. 49.)

Trooper Bostic took defendant to the Sutton detachment and conducted two recorded interviews of defendant, each lasting less than fifteen minutes. (Tr. 23-24; Hr'g Ex. 2.) Defendant received and acknowledged his Miranda rights before these interviews. (Tr. 24, 28, 33.) The first interview took place before Trooper Bostic had contacted the dealerships where the Raptor and Tacoma were purchased and before Trooper Bostic had obtained a search warrant for the phone or examined the contents thereof. (Tr. 28-29.)

After the first interview and after further investigative efforts, Trooper Bostic sought a warrant from a Braxton County magistrate. (Tr. 28-30.) The following is what Trooper Bostic knew at that time:

1. Defendant had lied about how he took possession of the Raptor, as the low mileage on the odometer flatly contradicted his story. (Tr. 19-20.)
2. The phone was receiving text messages from “O”, who, in one version of defendant's story, had given defendant the truck. (Tr. 14, 22.)
3. During defendant's first interview at the Sutton detachment (the “first interview”), he had given a different name of the person for whom he was allegedly transporting the Raptor. (Tr. 26.) He said that G.F. had met him at a gas station in Dunbar and showed him ID and paperwork indicating that G.F. had purchased the Raptor (thus, defendant thought things were “legit”); in fact, though, “D.F.” was on the purchase paperwork found in the Raptor and provided by Todd Judy Ford. (Ex. 2.)
4. Trooper Bostic had spoken to the Todd Judy Ford dealership in Charleston and confirmed that a “D.F.” had purchased the Raptor; he also found a “handshake” congratulatory photo that the dealership had posted on Facebook, revealing that someone with the same likeness as that found on the fraudulent ID cards in the Raptor (with names different than “D.F.”) had purchased the Raptor. (Tr. 29-30.)
5. In the first interview, defendant had suggested that the phone would contain information corroborating his story that he drove down to Dunbar, West Virginia, from New Jersey and met a guy, G.F., at a gas station. (Ex. 2.)
6. Also in the first interview, defendant had denied knowing the driver of the Tacoma involved in the earlier hit-and-run, even though defendant had stopped at the scene of the accident and had the key fob to the Tacoma. (Ex. 2.)
7. Defendant had been evasive in his responses to questions during the first interview and had struggled to answer basic questions about his travel history. (Ex. 2.)

Trooper Bostic's application for a search warrant consisted of two parts: a written application and an oral interview with the magistrate (which was recorded). (Tr. 31-32.) Even together, they did not include all facts supporting probable cause to search the phone. The written application, called an “APPLICATION AND COMPLAINT FOR SEARCH WARRANT, ” contains six basic facts in support or a finding of probable cause to search the phone:

1. Trooper Bostic performed a traffic stop on the Raptor driven by defendant.
2. Defendant had a key for a Tacoma in the Raptor.
3. Another person, whose identification was in the Raptor, had purchased the Tacoma.
4. The Tacoma was in an accident on the interstate.
5. Defendant said his brother-in-law let him use the Raptor.
6. Defendant said his brother-in-law's phone number was in his phone.

(Ex. 4.)

As part of the application process, Trooper Bostic appeared before the magistrate, swore to the contents of the written application (which the magistrate repeated in the recording), and engaged in a colloquy with the magistrate concerning the facts that Trooper Bostic believed provided probable cause. (See Tr. 30-32; Jan. 12 Hr'g Ex. 1.) The colloquy revealed the following facts:

1. Trooper Bostic had stopped defendant in the Raptor, and defendant said that his brother-in-law, D.F., owned it; the paperwork matched that name.

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