United States v. Carachure-Guzman
| Decision Date | 23 April 2019 |
| Docket Number | CRIMINAL ACTION FILE NO. 1:18-CR-79-SCJ-JKL-1 |
| Parties | UNITED STATES OF AMERICA v. MIGUEL CARACHURE-GUZMAN |
| Court | U.S. District Court — Northern District of Georgia |
This criminal case is before the Court on Defendant's motion to suppress evidence seized from a residence located at 2220 Golden Valley Drive, Norcross, Georgia (the "Residence") as well as evidence seized pursuant to a GPS ping warrant. [Docs. 44 (preliminary motion to suppress, 51 (amended motion to suppress).] On January 8, 2019, I held an evidentiary hearing on the motion, at which TFO Howie Spitzer, TFO Joe LeCour, and DEA Special Agent Thomas Ivory testified. [See Doc. 68 (Hearing Transcript).] References to the transcript are noted as "Hr'g Tr. at ___." Following the hearing, Defendant submitted a post hearing brief [Doc. 71], the government filed a response [Doc. 74], and Defendant filed a reply [Doc. 78].1
Below, I first summarize the material background facts. Next, I address the parties' arguments relating to the search of the Residence. Lastly, I address Defendant's challenge to the GPS ping warrant. For the following reasons, I RECOMMEND that the motion be DENIED.
On December 5, 2017, TFO Spitzer, using a confidential source, purchased an ounce of heroin from Defendant in connection with an investigation into drug-trafficking organizations. (Hr'g Tr. at 6, 8.) Having identified Defendant as a target, an undercover officer with DEA Miami set up a money pickup (ostensibly, of drug proceeds to be laundered) with Defendant to be conducted at a Home Depot in Flowery Branch in Hall County, Georgia. (Id. at 8-10, 22-24.) On January 24, 2018, Defendant arrived at the Home Depot in a silver or gray Honda sedan; however, he did not have the full amount of money he was supposed to bring. (Id. at 9.) Defendant was turned away and instructed to contact the undercover agentwhen he had the full amount. Law enforcement officers then followed Defendant from the Home Depot to the Residence. (Id.)
On February 20, 2018, law enforcement conducted surveillance on the Residence, where they observed a silver or gray Nissan Versa come and go. (Hr'g Tr. at 12-13.) While agents were conducting surveillance, TFO Spitzer received a call from DEA Miami stating that Defendant wanted to set up a money pickup for that day. (Id. at 12.) TFO Spitzer agreed to set up the money pickup and then observed Defendant leave the Residence in the gray Nissan Versa. (Id. at 13.) TFO Spitzer followed Defendant to an apartment complex and observed an unknown male exit the driver's side of a Mercedes, get into the passenger seat of the Versa with Defendant for approximately a minute, exit the Versa, and then drive away. TFO Spitzer believed, based on the information he had about the upcoming money pickup, that he had witnessed Defendant picking up money. (Id.)
Defendant then drove to a shopping center, where TFO Spitzer observed him meet with at least two other individuals. (Hr'g Tr. at 13-14.) TFO Spitzer believed that those meetings were also money pickups. (Id. at 14.) Law enforcement then followed Defendant back to the Residence, where he backed into the garage and closed the garage door. (Id. at 15.) TFO Spitzer then received information fromthe undercover agent in Miami saying that Defendant was twenty minutes away from the pickup location, and that he sounded as if he was indoors. A few minutes later, the garage door opened, and the Versa left. (Id.) TFO Spitzer and several other agents followed the Versa. (Id. at 16.) Before the Versa drove onto Interstate 85, they noticed that another individual, Armando Landa-Hernandez, was driving the car. The agents eventually performed a traffic stop on Mr. Landa on an I-85 exit ramp and seized approximately $200,000 from the vehicle, 400 grams of heroin from a trap under the front passenger seat, and a digital kitchen scale. (Id.) TFO Spitzer observed that Mr. Landa was talking on the phone as he was being pulled over. (Id. at 17.)
In the meantime, law enforcement officers, including TFO LeCour, SA Porter, and SA Ivory, who were performing surveillance of the Residence learned of the traffic stop and that contraband had been recovered. (Hr'g Tr. at 42, 45, 60-61.) An agent observed a Hispanic male, later identified as Defendant, exit the Residence talking on a cellphone and looking left to right. (Id. at 43.) As Defendant walked away from the Residence, TFO LeCour approached Defendant in his vehicle, exited the vehicle, and told Defendant to get down on the ground. TFO LeCour had a badge indicating that he was law enforcement. (Id.) He hadhis gun drawn at the "low ready down" position, meaning that it was not pointed at Defendant. (Id. at 43-44, 52-53.) TFO LeCour testified that he approached Defendant in that manner because he knew that there were large amounts of narcotics associated with the Residence, and that based on his knowledge, training, and experience, he knew that firearms and illegal drugs are associated. (Id. at 44.) Defendant complied with the instructions. (Id.) Defendant was on the ground for eight to ten seconds before SA Porter instructed Defendant to stand back up. (Id. at 44-45.) Either TFO LeCour or SA Porter performed a brief pat-down of Defendant. (Id. at 46.) Agents then moved Defendant to the driveway area of the Residence, and he sat in the open sliding-door area of a police van. (Id. at 48, 53-54, 62; Gov't Ex. 3 [Doc. 65-1 at 25].) Defendant was not handcuffed. (Hr'g Tr. at 54.)
Defendant, whose primary language is Spanish, appeared to speak limited English, so TFO LeCour and SA Porter radioed SA Ivory, who is fluent in Spanish, to assist with translation. (Hr'g Tr. at 61-62.) SA Ivory approached Defendant, identified himself, and asked him questions to determine his proficiency in English or Spanish. (Id. at 63.) Defendant stated that he spoke very little English, so SA Ivory proceeded to speak with him in Spanish. SA Ivory determined that Defendantcould understand what he was saying based on Defendant's verbal and physical responses. Defendant gave no indication that he had difficulty understanding SA Ivory. (Id.)
Having satisfied himself with Defendant's level of proficiency, SA Ivory read Defendant the Miranda warnings in Spanish. (Hr'g Tr. at 63-64.) Defendant indicated that he understood them and responded that he wished to answer questions. (Id. at 64.) SA Ivory proceeded to ask Defendant where he had come from, and Defendant pointed to the Residence. (Id. at 64-65.) SA Ivory also asked him whether a key in Defendant's possession that other officers had observed when Defendant had been first approached belonged the Residence, and Defendant responded affirmatively. (Id. at 65.) SA Ivory then asked for consent to search the Residence. (Id.) Defendant verbally responded yes, and he executed a Spanish language DEA consent-to-search form. (Id. at 65-67; Gov't Ex. 4 [Doc. 65-1 at 26].) The consent to search form provided that was requesting authorization to search the Residence, confirmed that Defendant had not been threatened in any manner, and that he was freely giving consent to search. (Hr'g Tr. at 66.) SA Ivory also advised Defendant that he could revoke consent at any time during the search, and asked Defendant if he understood that, to which Defendant respondedaffirmatively. (Id. at 67.) SA Ivory did not threaten Defendant in any way, nor did he touch him, strike him, offer him anything in exchange for the consent, or threaten any consequences for the refusal to consent. (Id. at 67-68.)
At that point, agents called for unformed law enforcement officers from the Gwinnett County Police Department. (Hr'g Tr. at 67-68.) Once the officers arrived, Defendant, SA Ivory, and other law enforcement officers walked to the Residence. (Id. at 68.) Defendant, who had the key, opened the door to the Residence and was in the house during the ensuing protective sweep of the premises. (Id. at 69; see also id. at 47, 55.) Several agents and task force officers conducted a safety sweep to locate other individuals who may be hiding in the house who could pose a threat to law enforcement. (Id. at 49-50.) During the sweep, agents discovered in the master bedroom walk-in closet packaged-up material that appeared to be illegal narcotics and, in another bedroom, a handgun laying on a bed. (Id. at 50, 56-57.)
SA Ivory did not participate in the sweep; instead, he remained by Defendant's side during the search. (Hr'g Tr. at 69, 75.) While the sweep was taking place, SA Ivory again reminded Defendant that at any time he could withdraw or revoke consent and that SA Ivory could convey his wishes to theofficers conducting the sweep. (Id. at 69.) At no point did Defendant withdraw or express a desire to withdraw consent. (Id. at 70.) When the protective sweep was completed, Defendant was placed in handcuffs and transported to a pretrial detention facility in Atlanta. (Id.)
Later that afternoon, TFO Spitzer, with the assistance of a federal prosecutor, drafted an affidavit to apply for a search warrant to search the Residence. (Hr'g Tr. at 18.) They ultimately decided to present the warrant to a state court judge, so TFO Spitzer relayed the information to TFO Robert McCoy, who swore out the warrant to search the Residence. (Id. at 19-20, 75; Gov't Ex. 2 [Doc. 65-1 at 14-24].) Once the warrant was issued, TFO Spitzer and other agents returned to the Residence and executed the warrant. (Hr'g Tr. at 20.)
Defendant argues that his initial stop and detention as he was leaving the Residence was impermissible. [Doc. 71 at 3.] Defendant writes: ...
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