United States v. Caraballo

• Decision Date: 07 August 2013
• Docket Number: Case No. 5:12–cr–105.
• Parties: UNITED STATES of America v. Frank CARABALLO.
• Court: U.S. District Court — District of Vermont

963 F.Supp.2d 341

UNITED STATES of America

v.Frank CARABALLO.

Case No. 5:12–cr–105.

United States District Court, D. Vermont.

Aug. 7, 2013.

Joseph R. Perella, AUSA, United States Attorney's Office, Burlington, VT, for United States of America.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BASED ON THE GOVERNMENT'S WARRANTLESS USE OF REAL–TIME CELL PHONE LOCATION INFORMATION (Doc. 38)

CHRISTINA REISS, Chief Judge.

This matter came before the court on Defendant's Motion to Suppress Evidence Based on the Government's Warrantless Use of Real–Time Cell Phone Location Information. (Doc. 38). Defendant contends that the government's warrantless search of his cell phone violated his Fourth Amendment rights. The government opposes the motion, contending that no search occurred and that if it did, it was justified by exigent circumstances, a reasonable good faith understanding of the applicable law, the automobile exception, and the inevitable discovery doctrine.

The government is represented by Assistant United States Attorney Joseph R. Perella, and Assistant United States Attorney Paul J. Van de Graaf. Defendant Frank Caraballo is represented by Mark A. Kaplan, Esq. and Natasha Sen, Esq.

Defendant is charged in a four count Second Superseding Indictment as follows: Count one: conspiring to distribute mixtures or substances containing detectable amount cocaine, cocaine base, and heroin, as part of a conspiracy involving 280 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A), 846; Count two: possession and use of a firearm in furtherance of a drug trafficking crime with an allegation that Defendant discharged the firearm and caused the death of Melissa Barratt by murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), (j)(1); Count three: possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and Count Four: possession of a firearm by a felon, with an allegation that Defendant has been convicted of four prior drug trafficking felonies in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e)(1).

I. FINDINGS OF FACT.A. The Barratt Homicide Investigation.

At approximately 10:45 a.m. on the morning of July 29, 2011, law enforcement responded to a report that a body of a woman had been found in a wooded area down an embankment near a stream approximately thirty yards from the East West Road in Dummerston, Vermont. The location was “off the beaten path,” Tr. 6/14/13 (“Tr.”) at 144, and on the outskirts of the town limits of Brattleboro, Vermont. When law enforcement arrived on the scene, they found the woman on the ground in a kneeling position with her hands clasped in front of her. She had a gunshot wound to the back of her head and because of the position of her body, her clasped hands, and the absence of a firearm nearby, law enforcement concluded that the woman did not commit suicide. It also did not appear that her body had been carried to the location at which it was found as there was no trail of blood or other signs that would support that conclusion. Law enforcement suspected that the woman was the victim of a homicide and that her assailant could still be armed. Based upon information from a construction crew that was working approximately a half mile from the scene and who reported they had heard what sounded like a gunshot that morning, law enforcement concluded the apparent homicide had occurred that day.

By the tattoos on the body of the deceased, criminal activity records, and a previous photo, law enforcement identified the woman as Melissa Barratt. Law enforcement learned that Ms. Barratt had been arrested on May 31, 2011 in Brattleboro, in conjunction with the sale of narcotics. After her arrest, law enforcement interviewed Ms. Barratt, who advised that she was involved in drug activity in Brattleboro with an individual named Frank Caraballo, that “she was extremely nervous and afraid of a Frank Caraballo,” and that “if he knew that she was talking to [the police officer], he would hurt her, kill her.” Tr. at 18–19. Ms. Barratt also told law enforcement that Defendant had “access to guns and was armed and [she] was afraid of him.” Tr. at 38. These firearms included “shotguns, Tech 9[ ]s and other types of weapons.” Tr. at 194–95. Ms. Barratt described Defendant as someone who was “very dangerous” and told law enforcement that “she had firsthand knowledge of him doing or assaulting or possibly involved in other homicides.” Tr. at 148. She “did not want to give out any information about him because of her fear of him. And the fact that if she did provide information she would basically be killed.” Id. Law enforcement had information that Ms. Barratt was still associated with Defendant on the day of the homicide.

In the late morning of July 29, 2011, Detective Sergeant Richard Holden of the Vermont State Police (“VSP”) reviewed the radio log for the Barratt homicide investigation. At the time, he was employed in VSP's Bureau of Criminal Investigation, which handled all major crimes for the VSP including homicides, missing persons, thefts, rapes, and kidnappings. He contacted VSP Detective Frank LaBombard, the case agent for the Barratt homicide investigation, to see if he needed any help. Detective LaBombard showed Detective Sergeant Holden digital photos of Ms. Barratt's deceased body that appeared to confirm that Ms. Barratt was the victim of a homicide. Indeed, it was Detective Sergeant Holden's belief at the time that the Barratt homicide was “a coldblooded execution.” Tr. at 26.

A command post for the Barratt homicide investigation was set up at the West Dummerston Fire Department approximately one half mile from the crime scene and approximately fifteen minutes from the Brattleboro area. Law enforcement gathered at the command post to assign tasks and to ensure that information gleaned from the investigation was shared with appropriate personnel. Throughout the day, information that was obtained was disseminated from the command post to law enforcement officers working on the case in the field. Detective Sergeant Holden was tasked with obtaining information regarding Defendant. He was informed that Brattleboro law enforcement had engaged in at least three recent controlled buys of narcotics from Defendant for which he had not yet been arrested or charged.

Detective Sergeant Holden contacted VSP's Fusion Center which, at the time, served as an intelligence center and database for law enforcement. Through the Fusion Center, Detective Sergeant Holden determined that the Fusion Center had processed a request for information regarding Defendant one month previously which was “extremely important” to him because it indicated “something was going on which is very valuable to us.” Tr. at 46. Detective Sergeant Holden discovered Defendant's criminal history included drug activity. He also determined that Defendant's brother was Michael Caraballo who had been charged a few months prior to the Barratt homicide with a drive-by shooting in southern Vermont. Detective Sergeant Holden read the police reports in Michael Caraballo's case, but he did not have any personal knowledge of that investigation or prosecution other than it was his understanding that Frank and Michael Caraballo had worked together in selling illegal drugs in the Brattleboro area. Detective Sergeant Holden found the information regarding Michael Caraballo's drive-by shooting case concerning because it suggested that Defendant may have access to firearms through his brother. Based upon this information, Detective Sergeant Holden considered Defendant an immediate danger to law enforcement, noting that: “He's armed and dealing drugs. I'm pretty sure that's a threat to law enforcement.” Tr. at 47. Detective LaBombard echoed these concerns. He testified that law enforcement's arrest of Michael Caraballo included gun possession charges and that when Michael “went to jail ... Frank had taken over the operation and was distributing narcotics in the area” and that some of Defendant's background included “criminal involvements with assaults.” Tr. at 150.

After it became clear that Defendant was “a person of interest” in the Barratt homicide investigation, Detective Sergeant Holden “thought it was extremely important to locate [Defendant] that day just because of the safety aspects of it.” Tr. at 25. Detective Sergeant Holden described those safety concerns as follows:

I was concerned that if there was information leaked before the homicide occurred we did not know what extent that information was. We knew that we had our narcotics officers in deep working with their C.I.s [confidential informants] investigating Frank Caraballo. And we were concerned that if there was some sort of information leaked we weren't sure if he was going to be going after any sort of C.I.s or narcotic officers at that point.

We were also concerned that if [Frank Caraballo] was stopped by a local law enforcement officer who did not know the situation of what was ongoing that he would be at risk or she would be at risk at the time of the car stop ... [because] there wasn't a gun found at the scene, I mean we had to assume, you know, the person was still armed and dangerous. If a local police officer stopped the vehicle for, you know, a minor infraction such as speeding and they had no idea what was going on just the totality of the stress of the driver, you know, there could have been a shoot out in a public area. We just didn't know. That was another concern of ours.... [Mr. Caraballo] wouldn't know why he was being stopped. I would have to assume that he was thinking it was in connection with the homicide, but that's not necessarily the case.

Tr. at 26–27. Detective Sergeant Holden's safety concerns extended to people “involved in the drug operation” with Defendant. Tr. at 27. He was aware that, in addition...