United States v. Gomez, Case No. 11–20304–CR.

• Citation: 807 F.Supp.2d 1134
• Decision Date: 31 August 2011
• Docket Number: Case No. 11–20304–CR.
• Parties: UNITED STATES of America, v. Alexei GOMEZ, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

807 F.Supp.2d 1134

UNITED STATES of America,

v.Alexei GOMEZ, et al., Defendants.

Case No. 11–20304–CR.

United States District Court, S.D. Florida.

Aug. 31, 2011.

Amanda Perwin, U.S. Attorney's Office, Miami, FL, for United States of America.

Michael Dennis Walsh, Attorney at Law, Miami, FL, for Defendants.

ORDER ON MAGISTRATE JUDGE'S REPORT

URSULA UNGARO, District Judge.

THIS CAUSE is before the Court upon the Defendant's First Particularized Motion to Suppress Evidence and Brief in Support. (D.E. 37.)

THE COURT has considered the Motion and the pertinent portions of the record and is otherwise fully advised in the premises.

This matter was referred to Magistrate Judge Edwin G. Torres, who, on July 22, 2011, held an evidentiary hearing on the Motion. On August 12, 2011, the Magistrate Judge issued a Report setting forth his findings of fact and conclusions of law and recommending that the Motion be denied. (D.E. 46.)

The parties were afforded the opportunity to file objections to the Magistrate Judge's Report; however, no objections were filed. After conducting a de novo review of the record, it is hereby

ORDERED AND ADJUDGED that the Magistrate Judge's Report (D.E. 46) is RATIFIED, ADOPTED, AND AFFIRMED: Defendant's First Particularized Motion to Suppress Evidence (D.E. 37) is DENIED.

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

EDWIN G. TORRES, United States Magistrate Judge.

This matter is before the Court on Defendant Alexei Gomez (“Defendant”)'s First Particularized Motion to Suppress Evidence and Brief in Support (“Motion”). [D.E. 37]. The Court has reviewed the Motion, the Government's response in opposition [D.E. 41], and held an evidentiary hearing regarding this Motion on July 22, 2011. Initially, the Court limited briefing to only the Government's response [D.E. 40]; however, during the hearing, the Court gave Defendant the option to file a reply with respect to certain issues raised during the hearing. Instead, Defendant chose to rest on his Motion and argument presented. The Court's decision rests on the following facts gleaned from the papers filed by the Parties and those presented during the July 22, 2011 evidentiary hearing. For the following reasons, Defendant's Motion should be DENIED.

I. FINDINGS OF FACT

On April 5, 2011, law enforcement agents (“agents”) seized approximately two (2) kilograms of cocaine at the DHL hub located in Miami, Florida. The agents investigated a package that contained unusually high densities when scanned by X–RAY; a subsequent canine unit alerted agents that this package contained narcotics. With their suspicions sufficiently piqued, agents opened the package to investigate its contents. The package contained a horse saddle that, when drilled, revealed a white substance. This substance field tested positive for cocaine. The shipment originated in San Jose, Costa Rica sent from a shipper/exporter Servicio Internacionals De Carga and was addressed to the Defendant at a business address located in Miami, Florida.

With this information, agents searched the Florida Driver and Vehicle Information Database to reveal Defendant's home address and driver license picture. The agents also investigated the recipient address and uncovered it was a real estate business, Choice One Realty (“Choice One”), that employed the Defendant. The agents then decided to reseal the package and attempt a controlled delivery to the Defendant later that afternoon. Prior to attempting the delivery, however, the agents did not secure an anticipatory search and seizure or arrest warrant.

At approximately 4:30 p.m., an agent delivered the package to Choice One while the remaining agents staged around this location waiting for somebody to pickup the package. Eventually, agents asked Choice One's manager to call the Defendant and inform him that a package had arrived for him; the manager left Defendant a voicemail message. At about 7:30 p.m., an individual matching the description of, and operating a vehicle registered to, the Defendant appeared at Choice One. He picked up the package, placed it in his vehicle and drove away.

The agents followed close behind the Defendant. Likely a result of the predominance of single lane roads in their vicinity, all parties involved soon became aware of each other's presence. The Defendant's driving behavior showed signs of distress and turned erratic with frequent “heat runs” ¹ and unnecessary doubling back u-turns. An unintended consequence of this behavior was, however, that agents were able to observe Defendant operating his cell phone as the line of vehicles passed by one another after each u-turn. This erratic driving, coupled with the fact that Defendant was driving away from his residence, motivated the agents to effect a stop. The agents immediately handcuffed the Defendant, secured him in an agent's vehicle and informed him he was arrested because of the package.

After securing Defendant's vehicle, the agents conducted a search of the vehicle and recovered, among other benign objects, an operational Metro PCS cellular phone (“cell phone”). This cell phone is capable of making calls, receiving voice mail, sending text messages and taking photographs, but it is not a “smartphone.” As such, Defendant's cell phone is not, for instance, an iPhone that can utilize computerized functions like accessing the internet or maintaining sophisticated computer-like data storage capabilities. The agents testified that the cell phone was not internet capable.

Upon seizing the cell phone, Agent Randy McPhee (“Agent McPhee”) reviewed its call log history and made a written record of each name and number for incoming and outgoing calls made during the preceding 24–48 hour period. Afterwards, the cell phone was left powered “on” and placed on the trunk of a vehicle at the scene of the arrest.²

At about this time, Defendant's cell phone, which rang audibly, began to receive several phone calls from a “Javier Blue” whose name appeared on the cell phone's caller ID in the agents' plain view. After the fourth or fifth unanswered attempt, Agent Marcos Olaniel (“Agent Olaniel”) answered Defendant's ringing cell phone and engaged “Javier Blue” in conversation. “Javier Blue” asked, “do you have the package.” After Agent Olaniel, posing as Defendant, responded “yes,” “Javier Blue” quickly grew suspicious of his unfamiliar voice and terminated the call. “Javier Blue” called back several additional times to resume communication with Defendant but, each time, the call was terminated by either Agent Olaniel (to avoid detection) or “Javier Blue” (due to his suspicion). Because of these problems, Agent Olaniel changed mediums of communication and continued the conversation by text message.

“Javier Blue” proved receptive to text messages and asked the “Defendant” to deliver the package to his residence. Because Agent Olaniel was at an informational disadvantage, he devised a ruse explaining that, due to engine problems, “Javier Blue” would have to pick up the package directly from their location.

Approximately thirty minutes later, “Javier Blue” arrived in a Toyota Corrola along with two additional individuals. “Javier Blue” exited this vehicle, walked towards Defendant's vehicle, surveyed the surrounding area, and then attempted to walk back to the Corrola. The agents then appeared and detained all three individuals. “Javier Blue” was identified as co-defendant Javier Almeida. Co–Defendant Almeida gave agents his consent to examine his cell phone and discovered that, among other things, his cell phone matched the number of “Javier Blue.” Based on this information, the agents arrested Javier Almeida.³ Thereafter, the agents photographed Defendant's cell phone to memorialize their text message exchange with Javier Almeida.

On April 6, 2011, Defendant was charged by criminal complaint for one count of knowingly and intentionally conspiring to import 500 grams or more of cocaine into the Unites States in violation of 21 U.S.C. § 952(a) and § 960(b)(2)(B). [D.E. 3]. Seven days later, Magistrate Judge Patrick White issued an after-the-fact search and seizure warrant for Defendant's cell phone. The scope of this warrant was broad and included the phone itself, as well as all phone numbers, any records relating to outgoing/incoming calls, voicemail messages, any contacts stored on the cell phone, all instant/text messages, and any picture/videos stored on the cell phone.

On July 11, 2011, Defendant moved to suppress evidence seized by agents, along with fruits thereof, pursuant to a purportedly unlawful warrantless search of Defendant's cell phone in violation of the Fourth Amendment. Specifically, Defendant seeks to suppress the following evidence: 1) the cell phone's call log history; 2) the name “Javier Blue” that appeared on the caller ID in plain view; 3) Agent Olaniel's voice and text conversation with “Javier Blue;” and, 4) the photographic evidence of the Agent Olaniel/Javier Almeida text message conversation. In short, Defendant seeks to suppress all cell phone evidence obtained on April 5, 2011. Defendant maintains that the agents' warrantless search of his cell phone did not fall under a recognized exception to the Fourth Amendment. In response, the Government asserts that the agents conducted a valid warrantless search pursuant to the “search incident to arrest” and “exigent circumstances” exceptions. And, to the extent either exception is found unjustified, the Government contends the “independent source doctrine” remedies any purported constitutional misstep.

II. ANALYSIS

The Fourth Amendment protects individuals from unreasonable searches and seizures. See U.S. Const. Amend. IV. “Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88...