United States v. Avagyan, Criminal Action No. 3:15cr155-ALL

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: Robert E. Payne, Senior United States District Judge
• Citation: 164 F.Supp.3d 864
• Parties: United States of America, Plaintiff, v. Manvel Avagyan, Davit G. Ghazaryan, and Hrayr Margaryan Defendants.
• Decision Date: 22 February 2016
• Docket Number: Criminal Action No. 3:15cr155-ALL

164 F.Supp.3d 864

United States of America, Plaintiff,
v.
Manvel Avagyan, Davit G. Ghazaryan, and Hrayr Margaryan Defendants.

Criminal Action No. 3:15cr155-ALL

United States District Court, E.D. Virginia, Richmond Division .

Signed February 22, 2016
Filed February 23, 2016

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Michael C. Moore, Margaret Winslow Reed, United States Attorney's Office, Richmond, VA, for Plaintiff.

Debra Desmore Corcoran, Law Office of Debra D. Corcoran & Associates, Henrico, VA, Michael Moshe Levin, Wegman & Levin, North Hollywood, CA, Mary Elizabeth Maguire, Office of the Federal Public Defender, Charles Arthur Gavin, Cawthorne Deskevich & Gavin PC, Richmond, VA, for Defendants.

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge

This matter is before the Court on several related motions: Defendants Ghazaryan and Margaryan's MOTION TO SUPPRESS EVIDENCE WITH INCORPORATED REQUEST FOR FRANKS HEARING (Docket No. 37), Defendants Ghazaryan and Margaryan's SUPPLEMENTAL MOTION TO SUPPRESS (Docket No. 59), Defendants Ghazaryan and Margaryan's SECOND SUPPLEMENTAL MOTION TO SUPPRESS (Docket No. 70), Defendant Avagyan's MOTION TO SUPPRESS

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EVIDENCE WITH INCORPORATED REQUEST FOR FRANKS HEARING (Docket No. 39), and Defendant Avagyan's SUPPLEMENTAL MOTION TO SUPPRESS (Docket No. 58). For the reasons stated below, Ghazaryan and Margaryan's motions have been denied (Order, Docket No. 75), and Avagyan's motions have been granted in part and denied in part. (Order, Docket No. 77).

BACKGROUND

A. Factual Background

1. Ghazaryan, Margaryan, and the Honda Van

On the afternoon of April 21, 2015, a member of the Wells Fargo Bank security staff reported to the Spotsylvania County Sheriff's Office that “three Middle Eastern males” were observed making several trips between a Wells Fargo Bank, a PNC Bank, and a Honda van in the parking lot of Hilltop Shopping Center—behavior that the security staff considered to be inconsistent with normal bank use. (Tr. 36:6-44:5; 130:12-2). The report from the Wells Fargo Bank staff provided a description of the Honda, including a license plate number. (Defendants Ghazaryan and Margaryan's Mtn. to Suppress Evidence with Incorporated Request for Franks Hrg., Docket No. 37, 2 (“G/M Suppression Mem.”); Gov't's Resp. in Opp., Docket No. 44, 1 (“Gov't's Suppression Resp.”); Tr. 36:6-37:11; 44:9-10). The dispatcher¹ for the sheriff's office relayed this information over the radio, and in so doing identified the source of the information as a Wells Fargo Bank security official. (Tr. 36:6-25; 153:10-24).

Having received the dispatch,² Deputy Hanrahan was dispatched to Hilltop Shopping Center, where he found a car matching the description and bearing the license plates that had been reported to the dispatcher. (Tr. 44:7-47:6).³ Hanrahan approached the vehicle from the driver's side and observed, through a partially rolled-down window, Ghazaryan and Margaryan eating. (Tr. 47:13-48:2).⁴ The windows of the sliding doors and the rearmost windows were heavily tinted, and, even through the partially opened front window, Hanrahan could not clearly see the back rows of the van. (Tr. 48:3-21; 83:21-25; 95:5-95:6; 210:4-7). Thus, Hanrahan was unable to confirm whether a third person was in the van. Hanrahan asked Ghazaryan and Margaryan what they were doing in the area and informed them about the contents of the dispatch call. (Tr. 49:3-50:1). Ghazaryan denied having been at the banks and denied being with a third person. (Tr. 50:2-23; Gov't's Suppression Resp. 2; G/M Suppression Mem. 2).

During Hanrahan's inquiry, Deputy Davies arrived on the scene and approached

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the van from the passenger side. (Tr. 51:9-13; 84:8-10; 131:5-22). Like Hanrahan, Davies also was unable to see into the back of the van because of the heavy window tinting. (Tr. 131:23-132:25; 133:1-134:12; 161:20-162:5). Davies asked Ghazaryan and Margaryan if there was a third person in the van, and was told that there was not. (Tr. 133:1-134:12). Davies expressed his concern to Ghazaryan and Margaryan that he had received reports of three, not two, men associated with the van. (Tr. 133:1-134:12). Given the heavy window tint and the reports of a third person, Davies was concerned for his safety and that of his fellow officer, Hanrahan. (Tr. 160:6-161:15). Davies twice asked Margaryan if he could open the van and twice received an affirmative answer. (Tr. 134:12-19). Davies stated that the van door opened automatically before he could pull on the door. (Tr. 134:23-25).⁵ With the door opened, Davies saw an open plastic shopping bag on the floor behind the front passenger seats. (Tr. 135:1-6; 162:12-165:3). Without manipulating the bag, Davies could see into⁶ the bag, where he observed pieces of cut-up “silver metallic” plastic cards, cut-up magnetic strips, and cut-shredded pieces of paper. (Tr. 137:7-15).⁷ Davies also observed a cell phone in the back of the van. (Tr. 137:18-24). When Davies asked Ghazaryan and Margaryan where their cell phones were, they each held up a phone. (Tr. 137:18-24). Ghazaryan subsequently claimed that the phone in the back of the car was also his phone. (Tr. 137:24-138:5).⁸ Recognizing that the contents of the bag were likely the tools and results of a process known as credit card skimming,⁹ Davies removed the plastic bag from the Honda. (Tr. 138:15-19).

Hanrahan asked Ghazaryan and Margaryan for identification, which both men produced. (Tr. 52:15-18). Both men produced Brooklyn, New York licenses. (Tr. 53:17-19; 55:20-24). Ghazaryan also produced a New York State Highway Patrol Police Benevolent Association card, which Hanrahan interpreted as an attempt to deflect suspicion. (Tr. 52:20-22, 55:14-19). After examining the New York licenses, Hanrahan asked Ghazaryan what he was doing in Spotsylvania County; Ghazaryan advised Hanrahan that he was looking to buy cars to resell. (Tr. 55:25-56:11). Hanrahan found this suspicious because Hilltop Shopping Center was out of the way for

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interstate travelers and not in the vicinity of used car lots. (Tr. 56:12-58:5).¹⁰ Hanrahan took defendants' driver's licenses to his squad car so that he could “run their information.” (Tr. 58:6-62:11). Ten to fifteen minutes passed while Hanrahan attempted to navigate the New York City Police Department's information clearing houses. (Tr. 62:4-16; 98:20-101:6).

While Hanrahan was in the process of running Ghazaryan and Margaryan's information, Davies approached Hanrahan with the white plastic bag that he had taken from the van. (Tr. 62:18-25). Davies showed Hanrahan that the bag contained torn up ATM receipts, blank gray credit cards, and cut-up credit cards (Tr. 64:3-8). Hanrahan and Davies each independently believed these materials to be evidence of credit card skimming. (Tr. 66:3-68:3; 140:12-22).

Hanrahan received a call that a possible third related individual had been observed at Scafa's Restaurant, which was nearby but was across the parking lot. (Tr. 68:8-25). As will be discussed subsequently, that person, Avagyan, was later brought to Hanrahan's location. Before Avagyan arrived, Deputy Fuller arrived and began watching Ghazaryan and Margaryan, who were still in the van. (Tr. 71:12-22;169:17-171:14). Ghazaryan persisted in moving his hands even after Fuller asked him to stop, so Hanrahan asked Ghazaryan to step out of the van and Ghazaryan complied. (Tr. 71:23-72:19; 125:16-126:8; 171:15-175:5; 225:17-25). Hanrahan placed Ghazaryan in handcuffs. (Tr. 71:23-72:19; 125:16-126:8; 171:15-175:5; 225:17-25). Hanrahan advised Ghazaryan that he was being detained and that he (Hanrahan) would pat Ghazaryan down for weapons. (Tr. 72:20-73:4). Next, Hanrahan asked Ghazaryan if he (Hanrahan) could search Ghazaryan. (Tr. 72:20-73:4). Ghazaryan assented. (Tr. 73:2-73:4). The search yielded several blank gray¹¹ credit cards identical to those that were found in the white plastic bag that Davies had removed from the van. (Tr. 73:10-76:1). Margaryan was handcuffed and detained more or less contemporaneously. (Tr. 76:3-7). Both men were placed in squad cars and informed that they were officially under arrest. (Tr. 76:3-20;176:22-178:1). At some point after defendants were removed from the Honda, Detective Rickens¹² gave Miranda warnings to Ghazaryan and Margaryan. (Tr. 212:25-213:2).

After Ghazaryan and Margaryan were placed under arrest, the deputies began to search the Honda. Detective Rickens was on the phone with the Commonwealth's Attorney while the deputies were searching the Honda and, on the Commonwealth's Attorney's advice, Rickens instructed the deputies to stop searching the car until they obtained a warrant. (Tr. 76:19-25; 151:24-152:17; 175:19-21; 210:21-213:6). Rickens obtained a search warrant for the van the next day. (Tr. 213:20-22).

2. Avagyan

While Hanrahan and Davies detained Ghazaryan and Margaryan, other officers went door to door in the shopping center attempting to find the missing third suspect, described as a “male, possibly Hispanic or Middle Eastern,” with “an approximate build of about six-foot, medium

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build” and “possibly wearing a camouflage shirt. (Tr. 186:20-188:22). At some point, an unspecified “passerby” reported to the sheriff's office that the third suspect might be located at Scafa's Restaurant. (Gov't's Suppression Resp. 5). After receiving that tip, Deputy Horn went to Scafa's Restaurant, encountered Avagyan, and informed Deputy Basil and Captain Pearce that he (Horn) believed that he had located the third suspect. (Tr. 188:22-189:3; 200:19-20). Basil and Pearce went to Scafa's. (Tr. 188:22-189:3; 200:19-20).¹³ Avagyan appeared to Basil to meet the physical description of the third subject. (Tr. 200:5-202:12).¹⁴ Although Basil testified that “Deputy Horn advised [the other deputies that] the subject's actions made him very suspicious of the individual,” Basil could not testify as to the actions that Horn had observed, and Horn did not testify at the...