United States v. Garcia-Escalera, Case No. 13–CR–0229–CVE.

• Decision Date: 06 February 2014
• Docket Number: Case No. 13–CR–0229–CVE.
• Citation: 998 F.Supp.2d 1191
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: UNITED STATES of America, Plaintiff, v. Samuel GARCIA–ESCALERA, a/k/a Poncho, a/k/a Escalera Samuel Garcia, a/k/a Panfilo Waumuchil Soyte, Joel Deloera–Escalera, a/k/a Roberto, a/k/a Joel Doloera, a/k/a Luis Perez–Hernandez, Courtney Riley, Defendants.

998 F.Supp.2d 1191

UNITED STATES of America, Plaintiff,

v.Samuel GARCIA–ESCALERA, a/k/a Poncho, a/k/a Escalera Samuel Garcia, a/k/a Panfilo Waumuchil Soyte, Joel Deloera–Escalera, a/k/a Roberto, a/k/a Joel Doloera, a/k/a Luis Perez–Hernandez, Courtney Riley, Defendants.

Case No. 13–CR–0229–CVE.

United States District Court,

N.D. Oklahoma.

Feb. 6, 2014.

Gary Louis Davis, Tulsa, OK, for Plaintiff.

OPINION AND ORDER

CLAIRE V. EAGAN, District Judge.

Now before the Court are the following motions: Defendant Garcia–Escalera's Motion for Pretrial Determination of Admissibility of Alleged Co–Conspirator's Statements and Brief in Support (Dkt. # 48); Garcia–Escalera's Motion to Suppress Statements (Dkt. # 49); Garcia–Escalera's Motion to Suppress Evidence from 476 South 78th East Avenue and the Fruits of that Evidence (Dkt. # 50); and Defendants' Garcia–Escalera and Doloera–Escalera's Joint Motion to Suppress Evidence and Statements (Dkt. # 51). Defendants Samuel Garcia–Escalera, Joel Deloera–Escalera, and Courtney Riley are charged with conspiracy to possess with intent to distribute and to distribute at least 500 grams of a mixture or substance containing methamphetamine (count one). In addition, Garcia–Escalera is charged with maintaining a drug involved premises (count two) and being an illegal alien in possession of a firearm (count four), and Deloera–Escalera is charged with the same offenses (counts three and five). A pretrial motions hearing was held on February 4, 2014, and the government offered the testimony of Tulsa Police Department (TPD) Officer W.R. Mackenzie and Oklahoma Bureau of Narcotics (OBN) Agent John Morrison. Defendant Garcia–Escalera testified in support of his motion to suppress statements (Dkt. # 49). The government requested leave to present additional witnesses and, on February 5, 2014, the Court heard the testimony of Courtney Riley concerning defendant Garcia–Escalera's ability to speak and understand English.¹ The Court also heard supplemental testimony from Oklahoma Bureau of Narcotics Agent John Morrison about the execution of a search warrant at 1515 South 67th East Avenue and the information provided to the officers who executed the warrant.

I.

On the morning of January 8, 2013, Mackenzie and other backup officers executed a search warrant at 12427 East 27th Street, Tulsa, Oklahoma. Mackenzie knocked on the door and announced the presence of TPD officers, but no one answered the door. TPD Officer C. Collins breached the front door and entered the residence, and he encountered a female who identified herself as Courtney Riley. Officers asked Riley if any one else was in the residence, and she advised the officers that “Todd” was in the shower. Officers discovered Todd Diaz hiding in the shower, and Riley and Diaz were detained while the officers executed the warrant. Police found methamphetamine, digital scales, drug notations, and $203 in United States currency. A field test showed that the weight of the methamphetamine exceeded 500 grams.

Mackenzie advised Diaz of his Miranda rights, and Diaz stated that he wished to speak to Mackenzie. Diaz was “extremely cooperative,” and he told officers where they could find more methamphetamine hidden in the residence. Diaz identified his supplier as “Pancho” ² and he stated that Pancho sold him four pounds of methamphetamine twice a month. Pancho had been Diaz's supplier for about eight months. According to Diaz, Diaz had delivered $10,000 to Pancho on the evening of January 7, 2013, and he believed that the money was delivered to Pancho's residence. Diaz paid $18,000 a pound the first time he purchased methamphetamine from Pancho, but they subsequently negotiated a deal under which Diaz would pay $60,000 for four pounds of methamphetamine. Diaz had traded vehicles with Pancho on January 7, 2013, and Pancho was borrowing Diaz's maroon Dodge truck. Diaz was driving Pancho's black Chrysler 300. Mackenzie's report states that Pancho put a hood over Diaz's head and made him lie down in the back of a vehicle. Pancho drove around and took off the hood once they were inside a residence, and it does not appear that Diaz was permitted to see the outside of the residence. Pancho retrieved four pounds of methamphetamine, and the hood was placed on Diaz's head before they exited the residence. Mackenzie testified that he did not believe that Diaz was required to follow this procedure for every drug transaction, and he did not intend for his report to suggest that Diaz was hooded during each purchase.

Diaz agreed to assist officers in locating Pancho's residence, and he took them to 476 South 78th East Avenue, Tulsa, Oklahoma. When they drove by the residence, Mackenzie observed a maroon Dodge truck parked in the driveway. Diaz also provided Mackenzie with Pancho's cell phone number. TPD Officer Tim Wilson was in the patrol car when Diaz directed Mackenzie to Pancho's residence, and he heard Diaz describe the hooding procedure used by Pancho. Wilson testified that Diaz explained that he was hooded during the beginning of his business relationship with Pancho, and he did not believe that Diaz was required to be hooded during every drug purchase at Pancho's residence.

Mackenzie prepared an affidavit for a search warrant of 476 South 78th East Avenue. In relevant part, the affidavit states:

[Diaz] stated that he understood his rights and that he would talk with me. [Diaz] was extremely cooperative during this investigation. [Diaz] immediately directed officers to the methamphetamine located within his residence. [Diaz] stated the following facts about his methamphetamine supplier.

• That he gets four pounds of methamphetamine from an unknown Hispanic male twice a month.

• That he has been getting methamphetamine from this suspect for approximately eight months.

• That he goes to a residence in the area of 4th and memorial to picks [sic] up the methamphetamine.

• That he also goes to this residence to pay for methamphetamine he has already sold.

Dkt. # 50–2, at 2. Mackenzie did not mention any facts concerning Pancho's procedure of placing a hood on Diaz's head and driving to an undisclosed location to retrieve the methamphetamine. The affidavit states that Diaz traded vehicles with the drug supplier, and that he was borrowing the supplier's Chrysler 300. Mackenzie stated that Diaz had accompanied him to the supplier's residence, and that Diaz's vehicle was parked in the driveway. He also stated that Diaz had “picked up methamphetamine from this residence and has delivered currency to this residence several times.” Id.

A state court magistrate signed the warrant authorizing Mackenzie to search for methamphetamine and “monies or unexplained wealth, records and financial records in physical, digital or electronic form, proof of residency, cellular phones, keys, safes, surveillance equipment, firearms.” Dkt. # 50–5. Before serving the search warrant, TPD Officer C. Moyer observed a women enter the residence and leave shortly thereafter in a vehicle. The woman's vehicle was stopped and she identified herself as Deborah Goins. She stated that she had just left Pancho's house and she stopped by the house to use the restroom. She had a key to the residence, but she left the residence unlocked when she left. At 1:45 p.m., officers executed the warrant and found over $4,000 in United States currency in two pants pockets, marijuana, a loaded semi-automatic handgun and ammunition, cellular telephones, keys and title to a Chrysler 300 vehicle, a Mexican identification card, and drug notations. Dkt. # 50–6. Garcia–Escalera was present in the residence when the warrant was executed, and Mackenzie advised Garcia–Escalera of his Miranda rights. The Miranda warning was read to Garcia–Escalera in English. Garcia–Escalera shook his head or verbally responded to indicate that he understood his Miranda rights and, in response to questioning in English by Mackenzie, he made the following statements:

• he identified himself as Rogelio Vasquez

• he stated that he had a firearm for protection

• he denied that he had any drugs

• the money found in the pants pockets did not belong to him

• he stated that he did not own a vehicle

• he denied that his nickname is Pancho

• none of the cellular phones found in the residence belonged to him.

Mackenzie testified that he does not speak Spanish and that he did not attempt to ask Garcia–Escalera any questions in Spanish.

Garcia–Escalera testified at the suppression hearing and offered a different description of the search of 476 South 78th East Avenue. He testified that he is a citizen of Mexico who had been illegally in the United States for about five or six months at the time of his arrest, and he claims that he has a limited understanding of the English language. According to Garcia–Escalera, he was asleep on a couch when police came to execute the search warrant, and he heard police announce their presence outside of the front door. He answered the door after police had partially broken the door. He claims that he was immediately thrown to the ground and handcuffed, and multiple police officers were yelling and screaming. He testified that he was placed in a chair for questioning, and police threw him into the chair and hit him. Garcia–Escalera testified that a police officer with a beard, whom he identified at the hearing as Mackenzie, yelled at him in English and he may have heard the word “silence,” but his Miranda rights were never read to him in Spanish. He also claims that Mackenzie tried to speak Spanish, but he spoke Spanish badly and he may have been trying to say “cooperate” in Spanish. He admits that he said the name “Rogelio Vasquez,” but he believed that police were asking him where he worked. Garcia–Escalera testified that he did landscaping and gardening work with an individual known as Rogelio Vasquez.

On January 23, 2013, Diaz, Riley, and Samuel Garcia–Escalera were charged in state court with various...