United States v. Figueroa-Cruz

• Decision Date: 11 December 2012
• Docket Number: Criminal Case No. CR 11–S–424–S.
• Citation: 914 F.Supp.2d 1250
• Parties: UNITED STATES of America v. Donaldo FIGUEROA–CRUZ.
• Court: U.S. District Court — Northern District of Alabama

914 F.Supp.2d 1250

UNITED STATES of America

v.Donaldo FIGUEROA–CRUZ.

Criminal Case No. CR 11–S–424–S.

United States District Court,

N.D. Alabama,

Southern Division.

Dec. 11, 2012.

Joyce White Vance, U.S. Attorney, Gregory R. Dimler, William Russell Chambers, Jr., U.S. Attorney's Office, U.S. Probation, United States Probation Office, U.S.M., United States Marshal, Birmingham, AL, for United States of America.

William M. Dawson, Dawson & Wallace Law Office, Birmingham, AL, Ebony C. Ameen, Ameen & Assoc. PC, Atlanta, GA, for Donaldo Figueroa–Cruz.

ORDER

C. LYNWOOD SMITH, JR., District Judge.

This case is before the court on defendant Donaldo Figueroa–Cruz's “Motion to Suppress” (doc. 28), “Amended Motion to Suppress” (doc. 30), and “Further Motion to Suppress” (doc. 37). After holding an evidentiary hearing, the magistrate judge entered his findings and recommendation on August 2, 2012 (doc. 47). Defendant filed a “Notice of Appeal From Magistrate to District Judge” on August 7, 2012 (doc. 49).

Upon consideration of the entire record in this case, the court hereby ADOPTS the findings of the magistrate judge as the findings of this court, and ACCEPTS his recommendation. Accordingly, the motions to suppress (docs. 28, 30, and 37) filed by defendant Donaldo Figueroa–Cruz are DENIED.

FINDINGS AND RECOMMENDATION

PAUL W. GREENE, United States Chief Magistrate Judge.

On July 6, 2012 Donaldo Figueroa–Cruz filed an amended Motion to Suppress evidence seized during seized by law enforcement officers from a home in Birmingham, Alabama on October 5, 2011. (Doc. # 30). On July 17th he filed a second amendment. (Doc. 37) The motions are related to evidence seized by the government during an investigation into drug trafficking in the Northern District of Alabama. The investigation began in August and resulted in the arrest of the defendant and others in early October. The Government has submitted a response to each motion. (Docs.# 29 & 40) In the amended motion Mr. Figueroa anticipated the legal arguments later made in the government's response. (Doc. # 30 see unnumbered pages 2–6) A hearing on the motion began on Thursday July 19th and was reconvened and concluded on Monday July 23rd. The issues are joined and the matter is ripe for disposition. The motions are before the undersigned Magistrate Judge upon the June 25th reference of United States District Judge C. Lynwood Smith in accord with 28 U.S.C. 636(b)(1)(B); L.R. 72.1(b)(1)(B); see also United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.2010)

THE MOTIONS

Mr. Figueroa's amended motions implicate two separate Fourth Amendment principles governing the seizure of evidence for use in a criminal prosecution. The first, is the newly announced rule that the act of attaching a GPS tracking device to a vehicle and the use of that device to record the activities of the owner or exclusive driver is a search for the purposes of the Fourth Amendment and that to attach such a device without the authority of a warrant is a search conducted after an unconstitutional trespass.¹ The second principle relevant to Mr. Figueroa is the long standing rule that a warrantless entry by law enforcement officers into a dwelling is per se unreasonable under the Fourth Amendment in the absence of clear evidence that the reasons for such an entry are so compelling that the conduct falls into one of the narrowly drawn judicially created exceptions to the warrant requirement.

Mr. Figueroa's first amended motion asserted, inter alia that he had “... driven[a] vehicle in the time prior to his arrest ...” to which the government had attached a GPS tracking device without authority of a warrant and further that “... [he had done so] as a bailee and with the permission of the record owner of the vehicle.” (Doc. # 30 p. 1)(emphasis added) The government's undisputed conduct and the defendant's assertion of a property interest in a vehicle animates a consideration of the rule announced on January 23, 2012 by the Supreme Court in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) While the holding of Jones can be simply stated the implication of the rule can not. The Court identified the analytical task in Jones to be to “... decide whether the attachment of a Global—Positioning—System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.” Jones, ––– U.S. at ––––, 132 S.Ct. at 947 The Court ultimately held that “... the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search.’ ” 132 S.Ct. at 949 (emphasis added) ² The announced rule is derived from an opinion written by Justice Scalia joined by three justices and the concurring opinion of Justice Sotomayor. ³

The second amended motion also asserted that Mr. Figueroa seeks to suppress evidence discovered by the government “... [o]nly after [an] illegal entry and arrest of the defendant ...” (Doc. # 37 p. 1) The defendant maintained that while agents had obtained a search warrant from a state court judge for the residence in which he was found law enforcement officers had previously and unlawfully entered the dwelling before the warrant was actually issued.

OPERATIVE FACTS

Special Agent Sean Stephens of the Drug Enforcement Agency was the only witness called by either party. Stephens was the Case Agent and it was Stephens who made certain decisions which give rise to the issues addressed below. For the purposes of this order the facts set out below are presumed to be undisputed. To the extent that there may be an actual dispute of fact as opposed to a mere dispute over the significance of a fact or the effect that fact upon a legal conclusion, the factual findings below are based upon the undersigned's assessment of the credibility of the witness. The existence of the fact is not subject to de novo review if adequately supported by the record absent a new hearing before an Article III judge. Powell, 628 F.3d at 1256–57 The legal conclusions, however are entitled to no presumption and are subject to a review de novo. The facts are as follows.

(1) In August 2011 law enforcement officers in the Austin Texas area arrested two people in possession of in excess of 5 Kilograms of heroin. (Tr. 7/23/12 pp. 72–75) ⁴ Following the arrest at least one individual became a Cooperating Source or “CS”. The CS told officers that he/she had made several trips from Texas to Birmingham, Alabama driving a “load car” or vehicle used to transport heroin in large quantities. (Tr. 7/19/12 pp. 12–13) The CS told authorities that on one occasion while making such trip in a gray Lexus automobile he/she had received a traffic citation. (Tr. 7/19/12 p. 14) Officials were able to confirm that a traffic ticket had been issued to the CS and that at the time he/she was driving a Lexus registered to a man named Jose Benitez of Austin, Texas.(Tr. 7/23/12 p. 81) The CS stated that when he/she arrived in Birmingham he/she would meet a “heavy set Hispanic male who drove a green Jetta with a broken out window covered with tape.” (Tr. 7/19/12 p. 13) The CS would remain in an apartment located at 310 Beacon Crest Drive in Homewood, Alabama or motel while the Hispanic male exchanged the “load car” for the Jetta and drove it away. The man would return the “load car” in a few hours and the CS would drive it back to Texas. (Tr. 7/19/12 p. 14) While the “load car” was gone the CS told agents that he/she had the use of the green Jetta which remained at the apartment or motel. (Tr. 7/19/12 p. 14)

(2) Agents in Texas relayed the information received from the CS to agents in Birmingham including S.A. Stephens on August 23rd or 24th. (Tr. 7/19/12 p. 12) Using a map drawn by the CS Birmingham agents located the Apartment at 310 Beacon Crest Parkway. Agents could view the interior of the apartment through an open window. The unit appeared to have been abandoned and after a “week or two” the agents concluded that the location was no longer in active use by the traffickers. (Tr. 7/19/12 p. 15) Local law enforcement patrol officers, however continued to look for the Jetta. Approximately two weeks after the information was received from Texas the Jetta was discovered in the parking lot of the Willows Apartment complex at 3565 Lorna Road in Hoover, Alabama. (Tr. 7/19/12 p. 16, 17) Officers obtained the vehicle's Alabama license plate number and determined that the Jetta was registered to Hosea Cueverra Ugartae at 310 Beacon Crest Lane Homewood, Alabama (Tr. 7/19/12 p. 16) Agents also found that no Alabama drivers license had been issued to a Hosea Cueverra Ugartae. ( Id.)

(3) Agents conducted sporadic visual surveillance on the Jetta but were never able to observe anyone drive or even approached the car. (Tr. 7/19/12 p. 17) After a time agents “[d]ecided to put a GPS tracker on the vehicle in the hopes that whenever somebody did drive it off, [they] would be able to track the movements of the vehicle.” ( Id.) On September 20th, 2012 Detective Brock of the Hoover Police Department attached a self-powered GPS tracking device to the Jetta while it was in the parking lot of the Willows Apartment complex. (Tr. 7/19/12 p. 18) ⁵ At the time the device was attached agents did not have nor had they sought a warrant to either attach the device or to use it to monitor the movements of the Jetta. ( Id.)

(4) At the time the GPS device was attached agents had information that (1) the Jetta was registered to Hosea Cueverra Ugartae at 310 Beacon Crest Drive in Homewood, Alabama (2) that it had been driven by a heavy set Hispanic male and (3) that the Jetta was available for use by the drivers of the “load cars” during the period of time the unidentified Hispanic...