United States v. Gonzalez-Seda, Criminal No. 15–440 (FAB)

Decision Date20 December 2016
Docket NumberCriminal No. 15–440 (FAB)
Citation224 F.Supp.3d 128
Parties UNITED STATES of America, Plaintiff, v. Leonard GONZALEZ–SEDA, Defendant.
CourtU.S. District Court — District of Puerto Rico

Cristina Caraballo–Colon, U.S Attorney Office, San Juan, PR, for Plaintiff.

Eric A. Vos, Federal Public Defender's Office, Hato Rey, PR, for Defendant.

MEMORANDUM AND ORDER

BESOSA, District Judge.

I. Standard

A district court may refer a pending dispositive motion to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B) ; Fed. R. Civ. P. 72(b) ; Loc. R. 72(a). Any party may file written objections to the report and recommendation within fourteen days of being served with the magistrate judge's report. 28 U.S.C. § 636(b)(1) ; Loc. R. 72(d). A party that files a timely objection is entitled to a de novo determination of those portions of the report to which specific objection is made. 28 U.S.C. § 636(b)(1) ; Loc. R. 72(d) ; United States v. Raddatz , 447 U.S. 667, 675, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). In conducting its review, the Court is free to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) ; accord Loc. R. 72(d).

On April 28, 2016, the United States magistrate judge issued a very thorough and well-analyzed Report and Recommendation ("R & R") (Docket No. 103), recommending that defendant Gonzalez–Seda ("Gonzalez")'s motion to suppress, (Docket No. 54), be DENIED. On June 16, 2016, after being granted an extension of time by the Court, (Docket No. 105), Gonzalez filed an objection to the R & R. (Docket No. 107.)

Having made an independent examination of the entire record in this case, including Gonzalez's objection, the Court ADOPTS IN FULL the magistrate judge's findings and recommendations. Below, the Court briefly addresses one of the more meritorious arguments advanced in the defendant's objection.

II. Defendant's Objection Regarding K–9 Reliability and Probable Cause

In the final pages of his objection, Gonzalez asserts that the alert of a trained K–9 could not properly have been relied upon as probable cause to perform a more invasive search of his vehicle. This, he maintains, is because the government failed to prove that the K–9 was in fact a reliable detector of the kind of weapons that were ultimately discovered during that search. Gonzalez argues that, instead of requiring the government to prove the dog's reliability, the R & R essentially—and mistakenly—placed the burden of proving its un reliability on the defense. (Docket No. 107 at p. 16.)

Gonzalez admittedly wins a small battle here. When the alert of a K–9 is used to establish probable cause for the search of a vehicle, the government generally bears the burden of demonstrating the dog's reliability in detecting contraband. SeeFlorida v. Harris , 568 U.S. 237, 133 S.Ct. 1050, 1058, 185 L.Ed.2d 61 (2013). Here, as Gonzalez notes, the government did not provide "a single reference to the profile and performance of the K–9" during the suppression hearing. (Docket No. 107 at p. 16.) Rather than addressing this void in the record, the magistrate judge seemingly placed the burden of disproving reliability on the defense, writing that "even though the defendant had a chance at the suppression hearing, he did not present any evidence to discredit the qualifications and reliability of the K–9 which was used in this case." (Docket No. 103 at p. 28.) Gonzalez is correct that this shift in the reliability burden was inappropriate.

Nevertheless, this triumph is insufficient to overturn the magistrate judge's ultimate finding regarding the legality of the intrusive automobile search that followed the K–9's marking of Gonzalez's vehicle. As the R & R points out, a court need not determine the legality of a dog sniff if probable cause is available from an independent source. See United States v. Bush , 727 F.3d 1308 (11th Cir. 2013). Here, law enforcement agents had independent probable cause to search Gonzalez's vehicle due to the configuration anomalies that they observed when performing the routine inventory inspection. The alert of the K–9, therefore, was neither the sole nor the primary source of probable cause for the search. Rather, it simply confirmed the agents' pre-existing suspicions that the vehicle contained additional illegal items, suspicions that were already sufficient to justify a more invasive search of the vehicle. In light of this alternative source of probable cause, the issue of K–9 reliability—and the R & R's error in shifting the burden on that particular matter to the defense—are irrelevant.

III. CONCLUSION

The Court ADOPTS IN FULL the magistrate judge's findings contained in the R & R. (Docket No. 103.) Accordingly, defendant Gonzalez's motion to suppress is DENIED. (Docket No. 54.)

IT IS SO ORDERED.
REPORT AND RECOMMENDATION

CAMILLE L. VELEZ–RIVE, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

On July 8, 2015, a federal Grand Jury returned a four count Indictment against defendant Leonard González–Seda ("González–Seda") for possession with intent to distribute a detectable amount of marihuana, in violation of Title 21, United States Code , Section 841(a)(1) and 841(b)(1)(B) ; possession of a firearm in furtherance of a drug trafficking offense, in violation of Title 18, United States Code , Section 924(c)(1)(A) ; prohibited person in possession of a firearm (convicted felon), in violation of Title 18, United States Code , Section 922(g)(1) and Section 924(a)(2) ; and possession of a firearm with an obliterated serial number, in violation of Title 18, United States Code , Section 922(k). (Docket No. 6).

On October 8, 2015, González–Seda filed a "Motion to Suppress Evidence Obtained without Probable Cause" moving the court to suppress all statements and incriminating evidence seized during his warrantless arrest, search of his vehicle and his subsequent statements to law enforcement agents because: 1) the traffic stop lacked probable cause and Defendant's subsequent detention, arrest, questioning and search were fruits of the illegal intervention; 2) the warrantless K–9 inspection conducted after Defendant's arrest also lacked probable cause because the K–9 was unreliable; and 3) the destructive search of Defendant's vehicle was unreasonable in light of the limited administrative authority to do an inventory search of the vehicle, even if consent to do an ordinary search was taken as valid. (Docket No. 54).

On November 2, 2015, the Government filed its "Response in Opposition to Defendant's Motion to Suppress Evidence and Statements" claiming the Motion to Suppress should be denied for the following reasons: 1) law enforcement officers had probable cause to make the traffic stop; 2) the K–9 inspection did not require a warrant; 3) the search of the vehicle was reasonable and lawful under the automobile exception doctrine; and 4) Defendant expressly consented to the search of his vehicle. (Docket No. 76).

On March 1, 2016, the suppression hearing started with the direct and cross-examination of PRPO Roberto Beauchamp–Rodríguez ("PRPO Beauchamp") on behalf of the Government. Defendant then called Héctor Rosado–Santiago ("Rosado–Santiago") to the witness stand. Direct and cross-examination conducted. The Government then called HSI TFO Allen Ortiz–Rivera ("TFO Ortiz–Rivera") as a rebuttal witness. Direct and cross-examination conducted. Several documents from both parties were admitted into evidence. Some of the exhibits were admitted subject to translations being provided. (Docket No. 90).1

On April 5, 2016, the suppression hearing continued with the direct and cross-examination of PRPO Eliseo López–Resto ("PRPO López–Resto") on behalf of the Government. One additional exhibit was admitted into evidence, pending its translation. Defendant González–Seda then briefly testified on his own behalf. Prior to Defendant's testimony, he was advised by defense counsel and the undersigned of the possible consequences of testifying at this stage of the proceedings. Direct and cross-examination conducted. Oral arguments were then heard on behalf of both parties. (Docket No. 98).

LEGAL DISCUSSION
A. Investigatory Stop based on Reasonable Suspicion.

The issue of whether the stop of Defendant González–Seda's vehicle was legal and based on reasonable suspicion, as required by Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is first addressed.2

Defendant González–Seda claims in his Motion to Suppress that the initial stop of his vehicle lacked probable cause. Defendant posits that the officers of the Puerto Rico Police Department ("PRPD") made a baseless traffic stop that was a subterfuge for an illegal intervention and subsequent interrogation and search. Defendant claims that it was physically impossible for the PRPD officers to have seen at 4:10 am, from a moving identified patrol vehicle, that Defendant was not wearing his seat belt. (Docket No. 54, p. 5).

The Government counters by arguing that Defendant's traffic violation for not wearing his seat belt was enough probable cause to support a traffic stop and consequently a valid arrest. (Docket No. 76, p. 5).

An investigative stop, also known as a Terry stop, see Terry v. Ohio , 392 U.S. at 1, 88 S.Ct. 1868, occurs when a police officer, acting on reasonable and articulable suspicion of criminal activity, briefly detains an individual to confirm or dispel his suspicion. Id. at 6, 88 S.Ct. 1868 (citing United States v. McCarthy , 77 F.3d 522, 529 (1st Cir. 1996) ).

With regards to investigative stops, the Court must determine "not whether the police had probable cause to act, but instead whether the actions taken were reasonable under the circumstances." Id. The Court must first conclude whether the officer's action was justified at its inception. If the action is justified, the Court must then ask whether the action taken was reasonably related in scope to the circumstances which justified the...

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