United States v. Carranza-Ontiveros
| Decision Date | 13 July 2020 |
| Docket Number | CRIMINAL INDICTMENT NO.: 1:19-CR-155-MLB-JKL-2 |
| Parties | UNITED STATES OF AMERICA, v. DOLEGARIO CARRANZA-ONTIVEROS, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Defendant Dolegario Carranza-Ontiveros is charged in this case with conspiracy to possess with intent to distribute heroin and cocaine, possession with intent to distribute heroin and cocaine, and possession of a firearm in furtherance of a drug crime. [Doc. 54.] The case is presently before the Court on Defendant's Preliminary Motion to Suppress [Doc. 71], his First Particularized Motion to Suppress Cell Phone Records Search Warrant [Doc. 75], and his First Amended Motion to Suppress [Doc. 97]. In these motions, he moves to suppress (1) evidence and statements he made following what he contends was an unlawful arrest on March 28, 2019, and (2) data (including historical cell-site information) associated with two cell phones that were in Defendant's possession at that time.1 On January 8, 2020, I held an evidentiary hearing on the circumstances of Defendant's March 28 encounter with law enforcement.2 [Docs. 82, 86.] Defendant has filed a post-hearing brief in support his motions [Doc. 98] and the government has filed its response [Doc. 101]. Defendant has not filed a reply, and the time for doing so has passed. [See Doc. 95 ().]
In the discussion below, I first address the motions to suppress evidence and statements and then the motion to suppress cell phone data. For the reasons that follow, I RECOMMEND that the motions to suppress statements and evidence be GRANTED IN PART AND DENIED IN PART, and that the motion to suppress cell phone data be DENIED.
In his post-hearing brief, Defendant contends that his encounter with law enforcement on March 28, 2019 was an arrest from its inception, and that as an arrest, it was unlawful because the government failed to establish probable cause. As a result, he contends that the evidence seized (including cell phones and a gun)and the un-Mirandized statements he made should be suppressed as fruit of an unlawful arrest. [Doc. 98 at 5-10.] The government responds that the encounter was merely an investigatory detention, not a full-blown arrest, and that his detention was supported by a reasonable suspicion that he was engaged in drug activity. [Doc. 101 at 7-23.] The government further contends that law enforcement properly seized the cell phones during an initial frisk for weapons; but that even if the seizure violated the Fourth Amendment, the phones and gun should not be suppressed under the inevitable discovery exception to the exclusionary rule. [Id. at 30-35.] Finally, the government argues that Defendant's statements are not subject to suppression because they were not elicited as part of custodial interrogation, but rather, during a legal investigative stop before the right to Miranda warnings had attached. [Id. at 24-30.]
In early March 2019, the ATF began a drug investigation of Kemp Broadie, a codefendant in this case. (Tr. 4.) The investigation included using a confidential source to purchase drugs from Broadie on March 6 and 20, 2019 (Tr. 85-87), and surveilling his residence in Atlanta (the "Residence") using a pole camera (Tr. 5).
On March 27, 2019, the confidential source arranged a meeting with Broadie for the following afternoon to buy approximately one kilogram each of cocaine andheroin. (Tr. 3, 88.) On March 28, in anticipation of the meeting, DEA Special Agent Jim Brown monitored the pole camera video from his car using a mobile phone app (Tr. 8, 28), and beginning around 9:30 or 10:00 in the morning, law enforcement assembled in the neighborhood around the Residence (Tr. 12).
At approximately 8:56 a.m., the pole camera video showed a blue Honda Accord arrive at the Residence and two people—later identified as Defendant and his nephew Hector Mendel—get out of the car and go into the Residence. (Tr. 29, 89.) As far as SA Brown knew, none of the agents had seen either the Honda or the two individuals before, and they were unaware of their identities. (Tr. 29, 89-90.) At 9:20 a.m., the two individuals exited the Residence with Broadie, and the three of them left in two cars, the blue Honda and a Mercedes that was parked at the Residence. (Tr. 30-31.) Agents did not follow or conduct surveillance on the cars after they left.3 (Id.)
Approximately two hours later, the pole camera video showed Broadie return to the Residence driving the Mercedes and park under a tent in the driveway. (Tr. 32.) He exited the car and carried a red backpack into the Residence. (Id.) The blue Honda returned to the area at the same time as the Mercedes, but it continuedto drive around for approximately two minutes until it finally parked on the street in front of the Residence. (Tr. 32-33.) Due to a technical malfunction, the pole camera video froze for about two-and-a-half minutes after the Honda parked, and agents did not observe anyone exit the Honda or enter the Residence from the Honda. (Tr. 33.)
At approximately 1:35 p.m., Broadie left the Residence alone carrying a briefcase, got into a Suburban that had been parked on the street outside the Residence since earlier in the morning, and left to meet the confidential source. (Tr. 12, 30, 34-35, 90.) Shortly thereafter, the Georgia State Patrol ("GSP") pulled him over, seized approximately one kilogram each of heroin and cocaine, and arrested him for possession of controlled substances. (Tr. 11, 65, 91.) During the traffic stop, Broadie indicated that there may still be someone inside the Residence. (Tr. 64.)
Meanwhile, DEA agents and GSP troopers assisting with the investigation were stationed around the Residence, waiting for a search warrant to be issued. (Tr. 11, 17, 24.) Because the Residence had been identified as a stash house where drugs might be packaged, and there were concerns that someone inside might pose a risk to officer safety or destroy evidence, the agents were instructed that "[i]fanyone exits the [R]esidence . . . detain that person, and . . . immediately secure the [R]esidence pending the warrant." (Tr. 64-65.)
At 4:02 p.m., SA Brown saw an individual on the pole camera video, later identified as Defendant, exit the front door of the Residence carrying a small bag and walk toward the street where the blue Honda Accord was parked. (Tr. 14-16, 36, 67; Gov't Ex. ("GX") 1A at 4:02:05.4) Less than fifteen seconds later, at least nine unmarked law enforcement vehicles and two GSP cruisers converged on Defendant from both directions, up and down the street. (GX-1A at 4:02:19-42.) Two plainclothes agents got out of their vehicles and approached Defendant with their guns drawn and pointed at him. (Tr. 16-17; GX-1A at 4:02; GX-4 at 0:00:14-0:00:23; GX-5 at 0:00:08.5) Defendant dropped the black bag, raised his hands (which were empty), got face down on the ground in the street, and placed his hands behind his back. (Tr. 57-58; GX-4 at 0:00:15-:22.)
Seconds later, Trooper Ennis got out of his car and approached Defendant who was still lying face-down on the ground in the street with his hands behind his back.6 (Tr. 45, 49, 58; GX-5 at 0:00:05.) He handcuffed Defendant and then reached into Defendant's pockets, pulling out a cell phone from his front right pants pocket, a second cell phone from his right jacket pocket, and receipts and money from Defendant's left pants pocket. (Tr. 49, GX-5 at 0:00:27-:49.7) Trooper Ennis placed the items on the ground next to Defendant; he did not search the phones or read the receipt, nor did he search the bag that Defendant had dropped. (Tr. 50, 55-56.) According to Trooper Ennis, he searched Defendant to ensure that Defendant did not have a weapon on him and to separate Defendant from his cell phone to prevent Defendant from using it to alert someone inside the Residence who might pose a safety threat. (Tr. 53.)
After the search was complete, Trooper Ennis stood Defendant up and walked him toward an agent's truck, leaving Defendant's belongings on theground. (Tr. 49-50.) Trooper Ennis did this so that the agents could keep an eye on him and to keep him separate from his belongings. (Tr. 54.) Special Agent Thomas Jackson, leader of the DEA team, then approached Defendant and asked if there was anyone else in the Residence. (Tr. 60, 62, 67.) Defendant responded that one person, his nephew, remained inside. (Tr. 67-68.)
At approximately 4:03, a minute or two after Defendant exited, agents formed a line (referred to as a "stack") and entered the Residence to clear it of anyone who may be inside. (Tr. 17, 68; GX-1A at 4:03.) During the sweep, agents encountered Defendant's nephew, Mendel, in the kitchen area. (Tr. 21.) Approximately five minutes later, the agents emerged from the Residence to await the issuance of the search warrant. (Tr. 20.)
After the sweep had ended, SA Jackson started working on a personal history report (known as a "DEA 202") to enable the agents to check for outstanding warrants on Defendant. (Tr. 69-70.) At approximately 4:10, SA Jackson walked Defendant—who was still handcuffed and seated near an agent's truck where Trooper Ennis had placed him—toward the front of the Residence. (Tr. 72; GX-1A at 4:10:45.) SA Jackson asked Defendant if he had identification. (Tr. 73.) Defendant responded, "yeah, it's in my bag," or words to that effect. (Tr. 73, 96.)At approximately 4:12, SA Jackson went to his vehicle to get evidence bags, and then went to the area where Trooper Ennis had first encountered Defendant and found the bag that Defendant had dropped. (Tr. 75-76, 77.) SA Jackson opened the bag looking for identification, and immediately discovered a handgun. (Tr. 76.) He asked other team members to secure the gun and place it into an evidence bag. (Tr. 77.) SA Jackson continued to look inside the bag, and found Defendant's...
To continue reading
Request your trial