United States v. Brito-Arroyo, CRIMINAL CASE NO. 1:17-cr-00337-TWT-RGV
| Decision Date | 02 March 2019 |
| Docket Number | CRIMINAL CASE NO. 1:17-cr-00337-TWT-RGV |
| Parties | UNITED STATES OF AMERICA v. ZURY BRITO-ARROYO, BONIFACIO BRITO-MALDONADO, and ROBERTO ARROYO-GARCIA |
| Court | U.S. District Court — Northern District of Georgia |
Defendants Zury Brito-Arroyo ("Brito-Arroyo"), Bonifacio Brito-Maldonado ("Brito-Maldonado"), and Roberto Arroyo-Garcia ("Arroyo-Garcia"), collectively referred to as "defendants," are charged with manufacturing and possessing with intent to distribute methamphetamine, conspiring to do so, and maintaining a place to manufacture methamphetamine, wherein a minor child resides, and near an elementary school. [Doc. 27].1 Brito-Arroyo and Brito-Maldonado are also charged with being illegal aliens in possession of firearms, and Arroyo-Garcia is charged with illegally reentering the United States, after previously having been deported. [Id.]. Arroyo-Garcia has filed a motion and an amended motion to dismiss or alternatively to sever Count 7, [Docs. 59 & 83], Brito-Maldonado and Brito-Arroyohave filed motions to suppress, [Docs. 64, 77, & 114], and Brito-Arroyo has filed a motion for disclosure of confidential informants, [Doc. 117]. Following evidentiary hearings on April 26, 2018, April 30, 2018, September 25, 2018, and October 2, 2018,2 on the pending motions to suppress, the parties filed post-hearing briefs, [Docs. 130, 133, 138, & 139]. For the reasons that follow, Brito-Arroyo's motion for disclosure of confidential informants, [Doc. 117], is DENIED, and it is RECOMMENDED that Arroyo-Garcia's motions to dismiss or alternatively to sever, [Docs. 59 & 83], Brito-Maldonado's motion to suppress evidence obtained from the search of his residence, [Doc. 64], and Brito-Arroyo's motions to suppress evidence from the tracker device and from other searches, [Docs. 77 & 114], be DENIED.
During the summer of 2017, Special Agent Steven Ledgerwood ("SA Ledgerwood") of Homeland Security Investigations ("HSI") received information from a confidential informant ("CI") that the driver of "a blue Jeep Grand Cherokeewith a Georgia tag . . . HU90EW" (the "Jeep") had conducted "an exchange of narcotics" at a "well known location where drugs are distributed here in Atlanta." (Tr. 2 at 8-10).3 The CI further stated that he saw the drugs and believed they were "methamphetamine." (Tr. 2 at 10). SA Ledgerwood also subsequently learned that the Sandy Springs Police Department was investigating the same Jeep for "money laundering activities." (Tr. 2 at 13). Agents were able to locate the Jeep parked at the Mosaic Apartment complex in Sandy Springs and attempted to conduct surveillance of it without success because there were days when the Jeep did not move, and on one occasion when it did move, agents "lost the vehicle almost immediately in that traffic around 285 and Roswell Road." (Tr. 2 at 11). SA Ledgerwood decided to seek a tracker warrant for the Jeep. (Tr. 2 at 11-12).
SA Ledgerwood sent a text message to HSI Task Force Officer ("TFO") Eric Angel ("TFO Angel"), who also serves as a Deputy Sheriff with the Coweta County Sheriff's Office, asking, (Tr. 2 at 13-14, 23; Tr. 2, Gov't Ex. 1). SA Ledgerwood selected TFO Angel from among approximately twelve task forceofficers to obtain the warrant based on SA Ledgerwood's understanding that a deputy has "statewide authority" and because TFO Angel would obtain the warrant from a superior court judge, rather than a magistrate, which SA Ledgerwood believed to be "better courts to go through." (Tr. 2 at 22-25, 47). Additionally, SA Ledgerwood believed that "superior court judge[s]" had "statewide authority" to issue warrants, (Tr. 2 at 41, 43), which he understood to mean that "a superior court judge in Coweta County could issue a tracker warrant for a car that's located in Fulton County," or as far away as "Savannah, Georgia," (Tr. 2 at 43). TFO Angel had the same understanding. (Tr. 2 at 51, 64). At the time he requested that TFO Angel apply for a tracker warrant for the Jeep, SA Ledgerwood also had a separate large investigation with connections to Coweta County, and TFO Angel was aware of that investigation, (Tr. 2 at 28, 51), and erroneously assumed the Jeep was operating within Coweta County as part of SA Ledgerwood's large, ongoing investigation, (Tr. 2 at 52, 64-65, 67).
TFO Angel agreed to request the tracker warrant and asked SA Ledgerwood to provide him with the probable cause for the search warrant application, (Tr. 2 at 15; Tr. 2, Gov't Ex. 1), which SA Ledgerwood sent via email, stating:
On August 14, 2017, a reliable HSI confidential informant (CI), whose information has led to several arrests and seizures of multi-kilograms of heroin, cocaine and methamphetamine, advised that the driver of a blue Jeep Cherokee with Georgia tag HU90EW delivered narcotics toa known location where drug dealers assemble on Winters Chapel Road in Lawrenceville, Georgia. The CI advised that he/she overheard the driver advise the customer that he possessed more narcotics. Agents ran the tag and discovered that the vehicle was registered to a female in Buford, Georgia. HSI Agents discovered that Sandy Springs Police also had information that the vehicle was involved in money laundering.
(Tr. 2, Gov't Ex. 2); see also (Tr. 2 at 16). TFO Angel then "cut and pasted," (Tr. 2 at 50), the substance of SA Ledgerwood's email into the search warrant application as the probable cause to support the warrant, stating:
The facts establishing probable cause that the foregoing described motor vehicle, instrument, article and/or thing are connected with the foregoing crime(s) described herein are: On August 14, 2017, a reliable HSI confidential informant (CI), whose information has led to several arrests and seizures of multi-kilograms of heroin, cocaine and methamphetamine, advised that the driver of a blue Jeep Cherokee with Georgia tag HU90EW delivered narcotics to a known location where drug dealers assemble on Winters Chapel Road in Lawrenceville, Georgia. The CI advised that he/she overheard the driver advise the customer that he possessed more narcotics. Agents ran the tag and discovered that the vehicle was registered to a female in Buford, Georgia. HSI Agents discovered that Sandy Springs Police also had information that the vehicle was involved in money laundering.
(Tr. 2, Gov't Ex. 3 at 3-4). In addition to the probable cause statement supplied by SA Ledgerwood, TFO Angel included in the application that the Jeep was being used "within Coweta County," (Tr. 2, Gov't Ex. 3 at 1), to commit crimes and "is or will be located in Coweta County," (Tr. 2, Gov't Ex. 3 at 3 (emphasis omitted)); see also (Tr. 2 at 41-42). This portion of the application was unchanged from a previouswarrant application TFO Angel had submitted and was used as a template for the tracker warrant application. (Tr. 2 at 47-51). A Superior Court Judge for the Coweta Judicial Circuit signed the tracker warrant on August 17, 2017. (Tr. 2, Gov't Ex. 3); see also (Tr. 2 at 20).
TFO Angel informed SA Ledgerwood that the warrant had been signed and sent him a copy of it. (Tr. 2 at 20). SA Ledgerwood gave the warrant a cursory review to confirm it had been signed and that he had authorization to track the Jeep, (Tr. 2 at 36), and he then coordinated with HSI Special Agent Jason Saude ("SA Saude"), TFO Anthony Petron ("TFO Petron"), and TFO Robert Gardner ("TFO Gardner") to install the tracker, (Tr. 2 at 25-26). SA Ledgerwood informed them of the warrant but did not show it to them. (Tr. 2 at 25, 37, 72-73, 76-77). SA Saude installed the tracker on August 22, 2017, (Tr. 2 at 27, 72), while the Jeep was Georgia, (Tr. 2 at 73-74, 78); see also (Tr. 2 at 74-76). Agents monitored the information received from the tracker, which led them to the neighborhood of a house located at 1319 Zachary Way, Norcross, Georgia, 30093 ("Zachary Way"). (Tr. 2 at 33-34, 39). TFO Angel did not return the tracker warrant until July 2018, because until that time he had been under the impression that returns did not need to be filed for tracker warrants. (Tr. 2 at 52-53; Tr. 2, Gov't Ex. 5).
Agents began surveillance at Zachary Way the morning of August 28, 2017. (Tr. 1 at 135). They observed the Jeep come and go from Zachary Way multiple times and also observed two adult males, later identified as Brito-Maldonado andArroyo-Garcia, come and go from Zachary Way in a Ford Mustang and a Honda. (Tr. 1 at 43-44, 87-89, 135-36). Agents asked the Georgia State Patrol ("GSP") to follow the Jeep after it left Zachary Way and to attempt to develop independent probable cause to stop it for a traffic violation. (Tr. 2 at 110-12, 169). GSP Trooper Ian Moremen ("Trooper Moremen") received the assignment, (Tr. 2 at 110), and responded to the vicinity where agents had spotted the Jeep and located it traveling southbound on I-85 in Gwinnett County, Georgia, (Tr. 2 at 111).
Shortly after locating the Jeep, Trooper Moremen observed it failing to maintain its lane by drifting into the left lane near a tractor trailer and then returning to its own lane, and he decided to conduct a traffic stop for the violation he observed. (Tr. 2 at 112). Before conducting the stop, Trooper Moremen had to catch up to the Jeep, identify its tag number, call-in the tag number and report the impending traffic stop over the radio, and activate his emergency equipment, i.e., his "blue-lights," which triggered a video recording that includes the fifteen seconds prior to activation and an audio recording at the moment of activation. (Tr. 2 at 145-47, 162-63).4
After stopping the Jeep, Trooper Moremen approached the passenger side of the vehicle and...
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