United States v. Flores
| Decision Date | 17 November 2022 |
| Docket Number | CRIMINAL ACTION 1:19-CR-389-LMM-CCB-15 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOAQUIN FLORES, JR., Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
ORDER AND FINAL REPORT AND RECOMMENDATION
Defendant Joaquin Flores, Jr. is charged with conspiring to distribute methamphetamine and possessing with the intent to distribute methamphetamine. (Doc. 231). The matter is now before the Court for consideration of various motions (and perfected motions) that he filed, including for a bill of particulars (Doc. 599), to suppress evidence from the search of his home (Docs. 600, 701), to suppress evidence seized from a phone taken during the search of his home, (Docs. 602, 704), to suppress evidence from a tracking device, (Docs. 603, 703) and to suppress evidence from pole-camera surveillance, (Docs. 623, 702). The Government has filed an omnibus response, (Doc. 716), and Defendant has filed a reply, (Doc. 728). For the reasons set forth below, the motion for a bill of particulars is DENIED, and I recommend that the motions to suppress be DENIED.
Defendant's motion to suppress evidence seized from the search of his home relates to consent that he allegedly provided during a conversation with agents on the day he was arrested. Defendant argues that he did not consent, that he was not provided with Miranda warnings, and that his statements were involuntary, all rendering the consent (if given) invalid. For this motion, the Court recounts below in some detail the testimony from an evidentiary hearing about the conversation Defendant had with law enforcement agents. The motion to suppress evidence seized from a phone is related, in that the phone was seized from the house, but it was subsequently searched pursuant to a warrant, which Defendant argues was not supported by probable cause. The motion to suppress evidence obtained from a pole camera involves testimony from the same evidentiary hearing, which the Court also summarizes below. Finally, the motion to suppress evidence from a vehicle tracking device is based entirely on the notion that there was not probable cause to support a corresponding search warrant, and the motion for a bill of particulars is based solely on the contents of the indictment. The facts below, then, relate primarily to the conversation in which Defendant allegedly provided consent to search his home and phone and to the testimony elicited about the pole camera. The facts related to the other motions (for example, the details of the various warrants at issue) are addressed solely in the analysis portion of the R&R specific to those motions.
In August of 2020, Danae Busby was a special agent with the Drug Enforcement Administration (she now works with the United States Fish and Wildlife Service). (Doc. 672 at 46-47).[1] She participated in a pre-dawn operation on August 13, 2020, when agents executed an arrest warrant for Defendant Flores at his home in Douglasville, Georgia. Id. at 47-48. The United States Marshals Service participated in the arrest as well, and deputies with that agency involuntarily opened the door and conducted a security sweep of the house. Id. at 48-49. The deputies encountered four men inside the house, including Defendant. Id. at 50. Agent Busby was not part of the team that made entry into the house - rather, she was standing by outside with Task Force Officer Jose Cadena waiting to speak with Defendant. Id.
One of the deputies brought Defendant, in handcuffs, out to Busby and Cadena. Id. Defendant was placed into the front passenger seat of the agent's vehicle, and she read him his Miranda warnings from a card that lists the warnings otherwise contained on a DEA 13A form (in other words, the form lists the warnings, those warnings are reproduced onto a card, and the agent read from the card). Id. at 50-52, 75. Agent Busby did not present Defendant with an actual DEA form 13A - which has a space for an interviewee to sign, acknowledging that he understands his Miranda warnings - and, as such, there is no written confirmation of the warnings or Defendant's understanding of those warnings. Id. at 75. Nor was the conversation recorded. Id. at 73. But Agent Busby testified that Defendant said that he understood his rights and that he was willing to answer questions - although she could not recall his exact words verbatim. Id. at 52, 76. Defendant did not indicate that he had any trouble understanding, it did not appear that he was injured or in distress, and he did not offer any complaints. Id. at 51. Defendant remained “pretty calm” throughout the entire conversation. Id. at 53.
Agent Busby does not remember exactly how she began the conversation after Defendant waived his rights, nor does she recall whether she discussed anything related to his potential prosecution. Id. at 52-53. She does remember, however, that she did not promise him anything or threaten him,[2] and that she showed him photographs and a video of other targets in the investigation (although she does not remember what type of device she used to show him the electronic images). Id. at 53-54, 78.
About five minutes into the interview (which lasted about 20-30 minutes altogether), one of the deputy marshals asked Busby to ask Defendant if he would consent to a search of his house. Id. at 54-55, 79. She asked Defendant if he had any bombs or firearms in the house, he said no, she then asked if agents could search it, and he said yes (although she does not recall the exact wording of his response). Id. at 54-55, 80. She did not threaten him or offer any benefit in exchange for consent (or tell him that he was not required to consent to the search), and she communicated his consent to one of the deputy marshals. Id. at 55, 79.
The interview continued, and some time later during the conversation another law enforcement officer approached the agent with a phone that was found on top of a nightstand in a bedroom of the house. Id. at 56, 81-82. She testified that although she does not know exactly when the phone was taken from the house, it would have been after Defendant gave consent to search. Id. at 83-84. Agent Busby asked Defendant if the phone was his, and he said yes. Id. at 56-57. She then asked for consent to search it, and Defendant gave her consent, along with the passcode. Id. She did not search the phone, and she is not aware of anyone else searching the phone pursuant to that consent (agents later obtained a search warrant for the phone - and she is not aware of anyone searching it prior to obtaining the warrant). Id. at 57-58. Agent Busby was armed during the interview, although she never drew or brandished her weapon (nor did she see anyone else do so). Id. at 58.
Officer Cadena testified that when Agent Busby read the Miranda warnings, she and Defendant were seated inside the van, and Cadena was standing outside the van. (Doc. 676 at 20, 28). The door to the van was open, and Cadena heard Busby read the Miranda warnings from a card. Id. Cadena does not remember Defendant's precise words, but he testified that Defendant agreed to speak with agents after being advised of his rights. Id. at 21, 28-29.
Officer Cadena testified that he remembered Defendant consenting to the search of the house, but does not remember the circumstances surrounding that consent. Id. at 21-22. In response to questions from the Court, Officer Cadena testified that he heard Defendant consent to a search of the house, but does not remember the specific words Defendant used. Id. at 29-30. He testified that he does not remember seeing a phone, that there was discussion about a phone, and that he does not remember anything about the discussion of the phone. Id. at 31-32.
Rafael Colin lived with Defendant and was at the house at the time of the arrest. (Doc. 672 at 142). He testified that seven to eight people entered the house with guns drawn. Id. at 143-44. Colin was taken outside in handcuffs. Id. at 144. He saw the agents take Defendant to the van, and he testified that he did not hear them advise Defendant of any of his rights or ask for consent to search while they were passing Colin on the lawn. Id. at 145. He also testified that he was not in the van during the agents' conversation with Defendant. Id. at 147. Defense counsel asked Colin if there was ever a time after agents originally made entry into the house when all the agents left and other agents then re-entered. Id. at 145-46. He seemed to suggest that agents were continually in the house-but he also said that he could not always see the house from where he was outside. Id. at 146.
Defendant testified that Rafael Colin woke him up by knocking on his door and saying that the police were there. (Doc. 676 at 11). Defendant walked to the living room, where armed officers pointed guns at him, and they pulled him outside and placed him in handcuffs. Id. at 12. At that time, Defendant's mother was still inside the house. Id. at 13. Agents then put Defendant into the passenger side of a van that was parked in front of the house, where he remained handcuffed (Defendant says that the cuffs were in front of him, as opposed to behind his back). Id. at 14. Defendant repeatedly asked the agents what was going on, and she (this is presumably a reference to Agent Busby) showed him pictures and asked if he recognized the people in those photos. Id.
Defendant testified that he was never told that he had the right to an attorney, that he had the right to remain silent, or...
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