United States v. Chaidez-Reyes

• Decision Date: 10 February 2014
• Docket Number: Criminal Action No. 1:13–CR–158–ODE–AJB.
• Citation: 996 F.Supp.2d 1321
• Parties: UNITED STATES of America v. Francisco CHAIDEZ–REYES.
• Court: U.S. District Court — Northern District of Georgia

996 F.Supp.2d 1321

UNITED STATES of America

v.Francisco CHAIDEZ–REYES.

Criminal Action No. 1:13–CR–158–ODE–AJB.

United States District Court,

N.D. Georgia,

Atlanta Division.

Feb. 10, 2014.

Christopher J. Huber, U.S. Attorneys Office, Atlanta, GA, for United States of America.

ORDER

ORINDA D. EVANS, District Judge.

This criminal case is before the Court on the Report and Recommendation of United States Magistrate Judge Alan J. Baverman filed January 14, 2014 [Doc. 37]. No objections have been filed.

In the Report and Recommendation, the Magistrate Judge recommends that Defendant's motion to suppress evidence and statements [Doc. 14] be granted in part and denied in part. Specifically, the Magistrate Judge recommended that the motion be granted as to Defendant's November 30, 2012 statements as to why he was in the backyard of 4115 Flat Shoals Road and as to the location of currency in his residence and denied in all other respects.

The Court having read and considered the Report and Recommendation and noting the absence of any objections, it is hereby adopted as the opinion and order of the Court. For the reasons set forth in the Report and Recommendation, Defendant's motion to suppress evidence and statements [Doc. 14] is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to Defendant's November 30, 2012 statements as to why he was in the backyard of 4115 Flat Shoals Road and as to the location of currency in his residence and DENIED in all other respects.

UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, United States Magistrate Judge.

Before the Court is Defendant Francisco Chaidez–Reyes' motion to suppress evidence and statements. [Doc. 14].¹ After an evidentiary hearing, [Doc. 26 (hereinafter “T___”) ], the parties filed briefs. [Docs. 28, 35 (Govt.), 32 (Chaidez) ]. For the following reasons, the undersigned RECOMMENDS that the motion be GRANTED IN PART and DENIED IN PART. Specifically, the Court RECOMMENDS that the motion be GRANTED as to Chaidez's November 30, 2012, statements as to why he was in the backyard of 4115 Flat Shoals Road and the location of currency in his residence and DENIED in all other respects.

Evidentiary Hearing Facts

Homeland Security Investigations (“HSI”) agents and local law enforcement officers were conducting a drug investigation in East Point, Georgia, in November 2012, and during the course of that investigation they suspected that thirty pounds of methamphetamine were being stored at 4115 Flat Shoals Road in Union City, Fulton County, Georgia. T4–5. On November 29, 2012, a cooperating defendant made monitored telephone calls to an unidentified person at that location in an effort to order a quantity of methamphetamine. T5; Deft. Ex. 1 at 11. After several telephone calls, a Mercury Marquis was seen leaving the residence. A Georgia State Patrol trooper stopped the vehicle for having an invalid license plate, and a search of the vehicle revealed approximately one-half pound of methamphetamine. T5. The driver, Sergio Armenta, was arrested. Local officers then obtained a state search warrant at 9:01 p.m. for the entire premises and curtilage of 4115 Flat Shoals Road. T6, 37; Govt. Ex. 1.

Federal and state officers executed the warrant beginning at 11:30 p.m. with initial entry by a SWAT team. Once the residence was declared secure, the search began at 12:05 a.m. on November 30, and it resulted in the discovery and seizure of over thirty pounds of methamphetamine and a firearm. T38, 148.

Fulton County Deputy Sheriff Farrar was one of the local officers providing security at the residence while the search was conducted. T53. Approximately one and one-half hours into the search, Farrar saw a light shining in the backyard and, along with other officers, went to the backyard to determine the source of the light. T53–54, 65. There, they discovered Defendant Chaidez sitting on the ground under a tree in the backyard. T54, 56, 66; Govt. Ex. 5. The officers, with their weapons drawn, ordered Chaidez to lay flat on the ground and handcuffed him. T57, 66–67. As Chaidez was lifted onto his feet, the officers saw a loaded firearm where Chaidez had been sitting. T57, 75; Govt. Exs. 6, 7. Farrar illuminated the weapon with his flashlight and saw that the serial number had been scratched off of the firearm. T58, 67; Govt. Ex. 6. Chaidez was searched, and the officers seized a cell phone, his wallet, $2500 in currency, and keys (which subsequently were found to open the door locks of 4115 Flat Shoals Road). T58–59. A flashlight also was located. T154.

Farrar then asked Chaidez, in English, what he was doing in the backyard. Chaidez replied that he lived a couple of doors down, and that he received a phone call from another person advising him that someone was in the house, so he came to check. T59–60, 68. Farrar described Chaidez's English as “pretty good.” T60.

Chaidez was taken inside 4115 Flat Shoals Road and seated on the floor of the living room. T60, 68, 78. Chaidez's cell phone was searched by reviewing its call log and contact list, and the call log reflected that Chaidez had received telephone calls on November 29 from Armenta after Armenta spoke with the cooperator about ordering methamphetamine. T116–17, 119, 155.^2,3 Inspecting Chaidez's cell phone also provided its phone number of law enforcement. T155.^4,5

Approximately fifteen to twenty minutes after Chaidez first was encountered in the backyard, HIDTA Task Force Officer Hannan asked Chaidez where he lived, and Hannan knew that Chaidez's response—4135 Flat Shoals Road—was within a short walking distance from 4115 Flat Shoals Road. T71, 80. In response to additional questioning, Chaidez stated that he lived with his wife and child and that someone was currently at his home. Hannan asked Chaidez if he would consent to a search of his house at 4135 Flat Shoals Road, and Chaidez stated that he would consent. T80. The conversation was in English, and Chaidez stated he understood Hannan's questions. T80, 86. Chaidez expressed concern about his family, and Hannan responded that they were not interested in his family, but only if there was “anything in the house that's not supposed to be there, any drugs or large sums of currency.” T81.⁶

Hannan obtained a consent-to-search form (in English) from Farrar. T93. Hannan read the form aloud while Chaidez looked on. T94. On the consent form, Hannan entered his name, the address to be searched, and his badge number, and he checked the boxes delineating topics of advice,^7,8 while Chaidez signed the form and filled in the date and time. T81–82, 92; Govt. Ex. 8. Chaidez acknowledged to Hannan that he could understand and read English somewhat. T94. Farrar witnessed the form being read to Chaidez in English and signed by him. Id.; T61, 70–71.

S/Francisco Chaidez

[ ] 11/30/2012

150 AM

Signature

Date

Time

Francisco Chaidez

Printed Name

Deputy present:

S/M. Hannan 2671

Witness:

J. Farrar #2158

Name/DID

#Name/DID

#

Govt. Ex. 8 (handwriting in italics).

After the consent-to-search form was completed, Chaidez was escorted to 4135 Flat Shoals Road. After Chaidez and the officers entered the residence, Chaidez, his wife, their small child, and Chaidez's father were seated in the living room while the house was searched. T62, 83. Approximately one pound of marijuana in a gallon-size ziplock bag was located in the basement. T63, 72–73. Hannan also noticed that a new-looking SUV in the garage appeared to be in a state of disassembly. He saw that there was a row of seats missing in the vehicle and recalled seeing what appeared to be that missing row of seats during the search at 4115 Flat Shoals Road. T84.

As the search of the house was drawing to a close, Hannan asked Chaidez whether there were any other narcotics or sums of money in the house, and Chaidez stated that there was money in his bedroom under the dresser. T85. After the money was found under the dresser, Hannan asked him how much it was, and Chaidez told him $60,000. T87. Chaidez was not Mirandized prior to being asked any questions by Hannan or at any time during his interaction with law enforcement at 4115 and 4135 Flat Shoals Road on November 29–30, 2012. T85.

Chaidez was charged under state law and arrested for possessing the firearm with the scratched-off serial number and for trafficking in marijuana and methamphetamine. T12–13. When these charges in Fulton County and unrelated traffic charges in Clayton County were disposed of, on March 6, 2013, Chaidez was picked up from local custody by HSI Special Agent Reagan and taken to HSI's field office, so that he could be processed for administrative immigration proceedings (since he previously had been ordered removed from the United States), as well as to be questioned about the November 2012 events. T8, 13, 106.

Chaidez was questioned by HSI Special Agents Fedgerwood ⁹ and Reagan in a small processing room, which contained a table and several chairs. T8, 15, 102. Before being placed in the interview room, Chaidez initially had been placed in one of the small holding cells at the HSI office. T15. Chaidez was dressed in street clothes. T15. Reagan gave Chaidez water. During the questioning, Chaidez was not handcuffed. T8, 15, 102–03. Chaidez advised the agents that although he was born in Mexico, he was comfortable speaking to the agents in English; Ledgerwood also described Chaidez as having a level of fluency in English and stated that he was able to “communicate in English well” although he could have a problem with certain words. T9–10, 18.

Ledgerwood orally advised Chaidez of his Miranda rights in English and then read Chaidez a Miranda waiver of rights form in Spanish, which Chaidez signed. Govt. Ex. 14; T8–9, 103–04.¹⁰ Ledgerwood introduced himself and Reagan. He began to ask Chaidez questions after he stated he was willing to answer questions about his immigration status. T17.¹¹

NAME

SIGNATURE

WITNESS:

DATE:

WITNESS:

DATE:

[Doc. 28–1].

Chaidez initially...