United States v. Gonzalez

• Decision Date: 27 July 2015
• Docket Number: No. CR 12–0128 JB.,CR 12–0128 JB.
• Citation: 121 F.Supp.3d 1094
• Parties: UNITED STATES of America, Plaintiff, v. Ramon GONZALEZ, Sr., Defendant.
• Court: U.S. District Court — District of New Mexico

121 F.Supp.3d 1094

UNITED STATES of America, Plaintiff,
v.
Ramon GONZALEZ, Sr., Defendant.

No. CR 12–0128 JB.

United States District Court, D. New Mexico.

Filed July 27, 2015.

121 F.Supp.3d 1101

Damon P. Martinez, United States Attorney, Reeve L. Swainston, Cynthia L. Weisman, Stephen R. Kotz, Assistant United States Attorneys, Albuquerque, NM, for the Plaintiff.

Jerry A. Walz, Walz & Associates, Albuquerque, NM, for the Defendant.

121 F.Supp.3d 1102

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion to Suppress, filed August 7, 2014 (Doc. 675)("Motion"). The Court held evidentiary hearings on the Motion on January 22, 2015, January 28, 2015, and January 30, 2015. The primary issues are: (i) whether the United States Drug Enforcement Agency's investigation of the Homero Varela Drug–Trafficking Organization ("Varela DTO") gave Luis Almonte and Manny Marquez—sheriff's deputies with the El Paso County Sheriff's Office—probable cause to stop Defendant Ramon Gonzalez, Sr.'s truck and to search his trailer on November 10, 2011; (ii) whether the Court will suppress the cocaine and marijuana that Almonte and Marquez discovered in Gonzalez, Sr.'s trailer, and Gonzalez, Sr.'s post-arrest statements as fruit of an unlawful search and seizure under the Fourth Amendment to the United States Constitution; and (iii) whether, if the Court cannot impute probable cause from the DEA's investigation of the Varela DTO to Almonte and Marquez, their stop of Gonzalez, Sr.'s truck and search of Gonzalez, Sr.'s trailer violated the Fourth Amendment. Under the collective knowledge doctrine, the DEA's investigation of the Varela DTO gave Almonte and Marquez probable cause to stop Gonzalez, Sr.'s truck and to search his trailer. Accordingly, the Court will not suppress the cocaine and marijuana that the deputies discovered in Gonzalez, Sr.'s trailer, and will not suppress Gonzalez, Sr.'s post-arrest statements as the fruit of an unconstitutional search or seizure.¹ If the Court could not impute probable cause from the DEA's investigation to the deputies, however, their search of Gonzalez, Sr.'s trailer was unlawful, and the Court would suppress the drugs that they discovered during their search and Gonzalez, Sr.'s post-arrest statements as the fruit of an unlawful search and seizure. Consequently, the Court will deny the Motion.

FACTUAL BACKGROUND

When ruling on a motion to suppress, the Court must state its essential findings on the record. See Fed.R.Crim.P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). This Memorandum Opinion and Order's findings of fact shall serve as the Court's essential findings for rule 12(d)'s purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269–70 (10th Cir.1982) ("[U]nder Rule[ ] 104(a) ..., the district court ‘is not bound by the Rules of Evidence except those with respect to privilege.’ " (quoting United States v. Matlock, 415 U.S. 164, 174, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) )). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the

121 F.Supp.3d 1103

court is not bound by evidence rules, except those on privilege."). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 ("The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule."); United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir.2009) (unpublished)² ("We need not resolve whether Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ]'s³ protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.’ "); United States v. Ramirez, 388 Fed.Appx. 807, 810 (10th Cir.2010) (unpublished)("It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings."). Cf. United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.2011) (Browning, J.)(concluding "that Crawford v. Washington does not apply to detention hearings").⁴

121 F.Supp.3d 1104

1. The DEA's Investigation of the Varela DTO.

1. Special Agent Gerald Maestas has worked for the DEA for approximately fifteen years, and has been involved in at least ten wiretap investigations. See Transcript of Hearing at 19:17–23 (taken January 22, 2015)(Maestas), filed March 30, 2015 (Doc. 753)("Jan. 22, 2015, Tr."); id. at 27:7–9 (Maestas).

2. By the time Maestas reviewed the intercepted telephone calls related to what would later become known as the El Paso Drug Seizure—i.e., the seizure of the cocaine and marijuana that the deputies discovered in Gonzalez, Sr.'s trailer—he had spent approximately eight months as the case agent in charge of the DEA's investigation of the Varela DTO. See Jan. 22, 2015, Tr. at 27:14–18 (Swainston).

3. The DEA's investigation of the Varela DTO involved, among other things: (i) the development and use of at least eight confidential sources, who collectively provided reliable, active, and historical information about the organization, Varela, Gonzalez, Sr., and numerous other associates of the organization dating back to at least 2009; (ii) the use of undercover agents; (iii) the review and analysis of electronic data, which included an analysis of the use of cellular telephones by members and associates of the Varela DTO; (iv) physical surveillance, including the use of a pole camera; and (v) the examination of discarded trash. See Jan. 22, 2015, Tr. at 27:19–29:16 (Swainston).

4. Beginning in July, 2011, the United States District Court for the District of New Mexico authorized four wiretaps for the DEA's investigation. See Jan. 22, 2015, Tr. at 29:16–21 (Swainston).

5. In July, 2011, Maestas identified Gonzalez, Sr. as a drug smuggler, a Sinaloa Cartel associate, and a Varela associate. See Jan. 22, 2015, Tr. at 29:24–30:6 (Swainston).

6. The DEA began intercepting telephone calls between Varela and Jaime Ibarra–Solis, whom Maestas had identified as Varela's primary source of supply of illegal drugs. See Jan. 22, 2015, Tr. at 30:14–18 (Swainston).

7. Maestas determined, through reviewing telephone toll records⁵ and intercepted communications from Varela and others, that Gonzalez, Sr. was communicating with J. Ibarra–Solis. See Jan. 22, 2015, Tr. at 30:19–21 (Swainston).

121 F.Supp.3d 1105

8. From November 3, 2011, through November 11, 2011, the DEA intercepted approximately twenty pertinent telephone calls between: (i) Varela and J. Ibarra–Solis; (ii) Varela and Gonzalez, Sr.'s nephew, Andres Gonzalez; (iii) Varela and Gonzalez, Sr.'s son, Ramon Gonzalez, Jr.; (iv) Varela and Steve Chavez; and (v) Varela and Gonzalez, Sr. See Jan. 22, 2015, Tr. at 31:2–7 (Swainston).

9. Based on his assessment of the intercepted communications, Maestas believed that a shipment was about to occur, in which Gonzalez, Sr. and A. Gonzalez would transport cocaine from J. Ibarra–Solis to Varela. See Jan. 22, 2015, Tr. at 31:12–18 (Swainston).

10. On or about November 9, 2011, Maestas directed other agents and officers to use a "walled-off stop"⁶ to intercept the shipment in El Paso, Texas. Jan. 22, 2015, Tr. at 32:19–24 (Swainston).

2. Wiretap Evidence Showing a Drug Shipment Was Likely Imminent.

11. What follows in the findings of fact is primarily Maestas' interpretation of the intercepted communications, with which the Court agrees; following each finding of fact, there is a citation sentence that provides a direct quotation or synopsis of the telephone conversation—translated from Spanish into English—that Maestas is interpreting. It appears that, where the direct quotation or synopsis includes pronouns, the Spanish translator attempted to identify each pronoun's antecedent in parentheses. In other words, the content in the parentheses was not explicitly...