United States v. Costoso

• Citation: 56 F.Supp.3d 104
• Decision Date: 28 October 2014
• Docket Number: Criminal No. 13–810 DRD.
• Parties: UNITED STATES of America, Plaintiff(s), v. Luis Daniel Robles COSTOSO, Defendant(s).
• Court: U.S. District Court — District of Puerto Rico

56 F.Supp.3d 104

UNITED STATES of America, Plaintiff(s)

v.Luis Daniel Robles COSTOSO, Defendant(s).

Criminal No. 13–810 DRD.

United States District Court, D. Puerto Rico.

Signed Oct. 28, 2014.

Jose A. Contreras, United States Attorneys Office, San Juan, PR, for Plaintiff.

Hector E. Guzman–Silva, Victor J. Gonzalez–Bothwell, Federal Public Defender's Office, Hato Rey, PR, Julio A. Gonzalez–Nieves, San Juan, PR, for Defendant.

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court are: (a) Motion Requesting Suppression of Evidence filed by the defendant Luis Daniel Robles Costoso (“Robles Costoso”), Docket No. 27; (b) United States of America's Response in Opposition to Defendant's Motion to Suppress, Docket No. 33; (c) Report and Recommendation, Docket No. 34; (d) Objection to Report and Recommendation on Motion Requesting Suppression of Evidence filed by Robles Costoso, Docket No. 35; and (e) United States of America's Response in Opposition to Defendant's Objection to Report and Recommendation on Motion to Suppress, Docket No. 39. For the reasons set forth below, the defendant's Motion to Suppress, Docket No. 27, is denied.

Issue

The core of this case is whether a search warrant is needed in a border search. The simple answer is no, provided that the border search does not disturb certain constitutional rights. The Court briefly explains below after considering the factual circumstances of this case.

Factual and Procedural Background

On or about October 30, 2013, the defendant Robles Costoso was approached by a Puerto Rico Police Department (“PRPD”) Officer, nearby Gate 25, used by Southwest Airlines at the Luis Muñoz Marín International Airport (“LMMIA”), moved by an alert provided by a K–9 known as “Sam–6” related to a piece of luggage with a bag tag # 0332897036. The K–9 has shown a behavior consistent with the odor to controlled substances. The Officer identified himself and requested the defendant for his boarding pass and a photo identification. When the Officer compared the defendant's boarding pass number with the bag tag number alerted by the K–9, both numbers matched. The defendant's boarding pass was for flight 5122 (Air Tran 122) from San Juan to Atlanta by Southwest Airlines, connecting with Southwest flight 5058 (Air Tran 58) from Atlanta to La Guardia Airport, New York. The officer advised the defendant that his luggage has been alerted by the K–9 for the presence of controlled substances.See Docket No. 1–1.

When asked by the Officer and a Drug Enforcement Agency (“DEA”) Agent “if he was willing to voluntary accompany them to the PRPD Drug Unit Office to identify his luggage and answer some questions,” the defendant agreed and followed the Officer and the DEA Agent to the office. Id. Whereupon at the unit defendant Robles Costoso identified his luggage as the black bag with tag # 0332897036. Id. The defendant Robles Costoso “provided written consent to open and search his bags.” Id. “Upon inspection, officers observed in Robles [Costoso]'s black bag a total of 12 bricks, with a gross weight of 15.75 kilograms.” Id. “A field test was conducted and the substances tested positive for cocaine.” Id.

Thereafter, the defendant Robles Costoso was read his Miranda rights, signed the Miranda form, and stated that he understood his rights. Id. Whereupon, the defendant admitted that the bag containing the kilograms of cocaine belonged to him, and explained how he prepared the controlled substance and placed them inside the bag. Id. Defendant Robles Costoso provided a detailed statement as to how he prepared the 12 bricks of cocaine, totaling a gross weight of 15.75 kilograms. See Docket No. 1–1. Defendant further explained what was the purpose of his trip to the Bronx, New York; his role on this trip; how and from whom he got the controlled substances, including names and addresses. Id.

The Grand Jury filed a two count Indictment on November 7, 2013 against the defendant Robles Costoso, charging the defendant with: (a) Count One, conspiracy to possess with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and § 846 ; and (b) Count Two, possession with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). See Docket No. 9.

The defendant's Motion Requesting Suppression of Evidence, Docket No. 27, was referred to Magistrate Judge Marcos E. López for report and recommendation. See Docket entries No. 29, 30. The Magistrate Judge entered a Report and Recommendation on August 14, 2014 without holding an evidentiary hearing, Docket No. 34. The Report and Recommendation was timely objected by the defendant on August 28, 2014, Docket No. 35, followed by the Government's opposition to the defendant's objections to the Report and Recommendation filed on September 25, 2014, Docket No. 39.

Standard of Review

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993) ; Rule 59(b)(2) of the Federal Rules of Criminal Procedure (“Fed. R.Crim.P.”), and Local Rule 72(a)(6) of the Local Rules for the District of Puerto Rico, as amended (“Local Rules”). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). As a general rule, an adversely affected party may contest the Magistrate Judge's report and recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72. Moreover, 28 U.S.C. § 636(b)(1), in its pertinent part, provides that:

Within fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

“The district judge need not normally conduct a new hearing and may consider the record developed before the magistrate judge, making his or her own determination on the basis if that record.” See Local Rule 72(d) of December 3, 2009, as amended on September 2, 2010.

However, “[a]bsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate's recommendation.”

Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150–151 (1st Cir.1994) (holding that specific objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate's report preserves only those objections that are specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988) ; Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). See generally United States v. Valencia–Copete, 792 F.2d 4, 6 (1st Cir.1986) ; Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). Hence, the standard for review of an objected report and recommendation is de novo review of those matters properly objected. (Emphasis ours). See Borden v. Secretary of H.H.S., 836 F.2d at 6. The Court, therefore proceeds, as the Report and Recommendation has been objected, to review de novo the Report and Recommendation issued by the Magistrate Judge, as to those parts that have been objected. Borden v. Secretary of H.H.S., supra.

Discussion

A. The Objections:

Defendant Robles Costoso's objections are the following:

“(1) That Defendant is not entitle[d] [sic] to an evidentiary hearing base[d] [sic] on the facts that were alleged in the motion to suppress; and (2) After analyzing the facts in the case it [the Magistrate Judge] concludes that defendant was not under custody when State Agents approach him and took his id and boarding pass.” See Docket No. 35. Defendant further alleges that “there is a significant discrepancy” as to when defendant was first under custody and the voluntariness of his movements.” Id. Furthermore, the defendant also alleges that absent a search warrant, “the events that occur after the initial intervention with Robles–Costoso are fruit of the poisonous tree.” (Citations omitted). See Docket No. 35.

B. The Government's Response:

The Government's response to the defendant's objections to the Report and Recommendation on the motion to suppress, Docket No. 39, emphasizes on the following:

(1) There is no right to an evidentiary hearing on a motion to suppress. The Government alleges, that “[a] criminal defendant has no presumptive right to an evidentiary hearing on a motion to suppress.” United States v. Cintrón, 724 F.3d 32, 36 (1st Cir.2013). “A decision to hold an evidentiary hearing on a motion to suppress rests with the sound discretion of the district court. United States v. Calderon, 77 F.3d 6, 9 (1st Cir.1996).” The Court agrees and incorporates the Magistrate Judge's findings and recommendation on this matter. See Report and Recommendation, Docket No. 34, pages 3–4.

(2) “When law enforcement [agents] first approached the defendant, they

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