United States v. Hermiz

• Citation: 42 F.Supp.3d 856
• Decision Date: 29 August 2014
• Docket Number: Case No. 13–20755.
• Parties: UNITED STATES of America, Plaintiff, v. Ronni HERMIZ (D–1) and Chris Daniel Korkis (D–2), Defendants.
• Court: U.S. District Court — Eastern District of Michigan

42 F.Supp.3d 856

UNITED STATES of America, Plaintiff

v.Ronni HERMIZ (D–1) and Chris Daniel Korkis (D–2), Defendants.

Case No. 13–20755.

United States District Court, E.D. Michigan, Southern Division.

Signed Aug. 29, 2014.

Michael C. Martin, Robert Metzgar, United States Attorney, Detroit, MI, for Plaintiff.

Federal Defender, Federal Defender Office, Michael J. Kemnitz, Detroit, MI, for Defendants.

OPINION & ORDER

SEAN F. COX, District Judge.

There are two Defendants charged in this action: 1) Defendant Ronni Hermiz (“Hermiz”) and 2) Defendant Chris Daniel Korkis (“Korkis”). This matter is currently before the Court on Motions to Suppress filed by Hermiz and Korkis. After the parties initially briefed the issues, the Court held an evidentiary hearing over the course of several days. The parties then filed supplemental briefs after the evidentiary hearing concluded. For the reasons that follow, the Court shall DENY Defendant Korkis's Motion to Suppress because Korkis lacks standing to challenge a search of the rental car at issue in this case. The Court shall GRANT Defendant Hermiz's Motion to Suppress and rules that the evidence derived from the warrantless tracking of his rental car, including the marijuana seized from the Malibu, cannot be used against Hermiz at trial.

BACKGROUND

This action was initiated by a criminal complaint filed on September 16, 2013, alleging that Defendant Hermiz made false statements in applying for citizenship or naturalization.

Hermiz was arrested on September 19, 2013. Hermiz was indicted on October 15, 2013, with: “Unlawful Procurement of Citizenship,” in violation of 18 U.S.C. § 1425(a) (Count One); and “Materially False, Fictitious, or Fraudulent Statements,” in violation of 18 U.S.C. § 1001(a)(2) (Count Two). Both charges stem from Hermiz's alleged failure to disclose that he was arrested on July 13, 2011, in connection with an alleged drug conspiracy.

The Government filed a First Superceding Indictment on February 2, 2014, adding Korkis as a Defendant. It contains the same two counts as to Hermiz, but labels them Counts Two and Three, and adds a new Count One against both Hermiz and Korkis—charging them with conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 846 and 841(a). The conspiracy alleged in Count One is alleged to have involved marijuana and occurred on or about July 13, 2011.

Hermiz filed a Motion to Suppress (Docket Entry No. 40) on April 16, 2014. Korkis also filed a Motion to Suppress (Docket Entry No. 43) on that same date.

During the investigation underlying this case, law enforcement agents used various investigative techniques. It is undisputed that they placed a GPS tracking device on a rental car (a white Chevrolet Malibu) that was rented by Hermiz and that they did not obtain a warrant before doing so. They did that in July of 2011—before the United States Supreme Court issued United States v. Jones, which held that “the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search.’ ” United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).

In their motions to suppress, each Defendant asks the Court to suppress evidence based on the warrantless placing of the GPS tracking device on the Malibu.

In addition, Defendant Korkis also challenges the physical search of the Malibu while he was driving it on July 13, 2011.

In response to the motions, the Government argues that Korkis lacks standing to challenge a search of the Malibu. It also argues that the Court should not suppress evidence here even though the officers did not obtain a warrant for the placing of the GPS device on Malibu for the following reasons: 1) a warrant was not required because the “search” was reasonable; 2) even if a warrant is required, the exclusionary rule should not be applied in this case because the agents acted on a good faith understanding of the law, the evidence was sufficiently attenuated from the GPS tracking, and the evidence would have been discovered from an independent source.

With the issues so framed by the parties, this Court held an evidentiary hearing, which proceeded over the course of several days.

The Government called the following witnesses at the hearing: 1) Shohn Joyner, who at the times relevant to the motions was a U.S. Border Patrol Agent; 2) Glen Lendel, who at the relevant times was Joyner's supervisor at the U.S. Border Patrol; 3) Heath Stevens, a U.S. Border Patrol Agent who operated a stationary camera positioned on the St. Clair river at various times. Neither Defendant testified during the evidentiary hearing and Defendants presented no other witnesses at the hearing.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Having heard and observed the witnesses who testified at the evidentiary hearing and the other evidence presented, allowing for this Court to assess credibility, having considered the arguments presented by counsel, and having applied the governing legal principles, the Court makes the following findings of fact and conclusions of law.¹

FINDINGS OF FACT

Shohn Joyner (“Joyner”) is currently a Special Agent with the United States Drug Enforcement Agency. In June of 2011, Joyner was employed as a Border Patrol Agent with the United States Border Patrol, Detroit Sector. While with the Border Patrol Agency, Joyner was the lead case agent for an investigation involving Ronni Hermiz.

That investigation began after Joyner received an Intelligence Report stating that a water craft registered to Raad Hermiz, Ronni's brother, had crossed from the United States to Canada smuggling water pipe tobacco and alcohol into Canada. Joyner also reviewed a Bulletin issued by the Canadian Border Service regarding the smuggling incident. That report implicated both Ronni Hermiz and Raad Hermiz. Joyner then compiled information on Raad and Ronni Hermiz and discovered they each had some criminal history.

Joyner reached out to the Michigan State Police and learned that they had a prior incident where Ronni Hermiz had been located on the border in East China Township, at a vacant home during the winter. A neighbor had called the police because there had been some type of theft in the area. When questioned by the police, Ronni Hermiz told them he was looking for a place to fish. That explanation was not plausible, however, because the water was frozen and Ronni Hermiz had no fishing equipment with him. The event struck Joyner as suspicious because, based on his training and experience, cross-border smugglers typically look for a spot on the river where they will be concealed from law enforcement.

During the investigation, Joyner conducted some limited physical surveillance of Raad and Ronni Hermiz and kept a surveillance log.

Joyner learned that Ronni Hermiz lived in a home on Yonkers Drive in Sterling Heights, Michigan. Joyner conducted physical surveillance of Ronni Hermiz at that residence in late June and early July of 2011.

On July 5, 2011, Joyner conducted physical surveillance at the Yonkers home and observed Raad Hermiz there.

On July 6, 2011, Joyner observed a white Chevy Malibu parked at the Yonkers home at approximately 10:30 a.m. Joyner ran a check on the Malibu and discovered that it was a rental car registered to Avis. That was significant to Joyner because, in his experience, cross-border criminal activity often involves the use of rental cars. Joyner saw Ronni Hermiz enter the Malibu and drive away from the Yonkers home. Joyner, who was in an unmarked patrol vehicle, began conducting rolling surveillance and asked other agents to assist.

As Joyner followed him on July 6, 2011, Ronni Hermiz first stopped at a store that did not have a sign identifying it. He observed Ronni enter the store, speak with a female, and then leave the store after about 20 minutes, carrying bags marked with the logo from the Nino Salvaggio market on them. As Ronni left the store, Joyner observed Ronni conduct counter- surveillance. Joyner explained that, in his experience, criminals will drive in a certain manner in order to make sure they are not being followed, doing things like driving too slow in comparison to the speed limit, switching lanes repeatedly, doing abrupt stops, etc. Joyner later went back to that store the next day and learned that it sold cellular telephones in bulk. That was significant to Joyner because, in his experience, individuals involved in drug trafficking often use “drop or throwaway phones,” which are phones that are inexpensive, used for a month or for a single event, and then discarded.

On July 6, 2011, after leaving the cell phone store, Joyner followed Ronni Hermiz to a hydroponics store in Sterling Heights. Although Joyner saw other customers entering and exiting from the front door, he saw Ronni enter the store through the back door, that appeared to be an employee door. At this time, Joyner was aware that Ronni worked at a party store and had no information as to him being employed by the hydroponics store. Ronni's visit to the store was significant to Joyner because, in his experience, individuals involved in growing marijuana frequent hydroponic stores.

After Ronni Hermiz left the hydroponics store, Joyner followed him to a residence at 5099 Pointe Drive in China Township, Michigan. That raised Joyner's suspicions because Ronni Hermiz lived in Sterling Heights, a significant distance from China Township, and all the records Joyner had reviewed did not show any connection to a China Township address. Joyner learned that the owner of the residence at 5099 Pointe Drive was deceased and that no one was living there at the time. Nevertheless, Joyner observed Ronni Hermiz open the garage and park inside the garage.

The residence at 5099 Pointe Drive is a residential home that has access to the St. Clair River and has a boat well. Canada is on the other side of the St. Clair river.

At this point, Joyner decided to request...