United States v. Hernandez-Mieses

• Decision Date: 30 June 2017
• Docket Number: Crim. No. 16-746(PG).
• Citation: 257 F.Supp.3d 165
• Parties: UNITED STATES of America, Plaintiff, v. Sandy HERNANDEZ–MIESES (1), Defendant.
• Court: U.S. District Court — District of Puerto Rico

257 F.Supp.3d 165

UNITED STATES of America, Plaintiff,

v.Sandy HERNANDEZ–MIESES (1), Defendant.

Crim. No. 16-746(PG).

United States District Court, D. Puerto Rico.

Signed June 30, 2017

Desiree Laborde–Sanfiorenzo, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff.

Luis R. Rivera–Rodriguez, Luis Rafael Rivera Law Office, San Juan, PR, for Defendant.

OPINION AND ORDER

JUAN M. PÉREZ–GIMÉNEZ, UNITED STATES DISTRICT JUDGE

In November of 2016, Sandy Hernandez–Mieses ("Hernandez" or "Defendant"), Yonattan Jimenez–Diaz ("Jimenez"), and Oniel Lajara–De La Cruz ("Lajara") were charged with various firearm and drug-related counts. Co-defendant Hernandez now moves motion to suppress the evidence against him (Docket No. 63, 81), and the United States' opposes his request (Docket No. 66, 85).¹ After holding an evidentiary hearing and carefully considering the parties' arguments, the court finds that the Defendant's motion to suppress should be GRANTED IN PART AND DENIED IN PART for the reasons explained below.

I. BACKGROUND

According to the criminal complaint (Docket No. 1–1), in the early morning hours of November 1^st, 2016, Homeland Security agents, task force and law enforcement officers set out to execute an arrest warrant against Hernandez issued by this court in another criminal case.² At 5:45a.m., the officers arrived at Hernandez's residence and noticed activity inside the home. After identifying themselves at the front door, an individual approached the door and locked it from the inside of the house. Special Agent Yuany Fernandez ("Fernandez") and Group Supervisor Ricardo Nazario ("Nazario") broke the window of the front door and opened it by turning the keys in the lock on the inside. Through the broken door window, Fernandez and Nazario observed three men inside the residence, including Hernandez sitting on a wheelchair. The two other men, later identified as co-defendants Jimenez and Lajara, fled through the back door and patio of the residence. The officers eventually caught Jimenez, whose clothes were wet and covered in sand. Jimenez told the officers he was a citizen of the Dominican Republic and had just arrived on a yawl.

At the residence, the agents arrested Hernandez in the dining room area, where they saw in plain view four cellular phones and cash on the dining room table and a pistol on the kitchen counter. The agents proceeded to perform a security sweep of the home with the assistance of Customs and Border Protection canine Honzo, trained to detect concealed humans, narcotics and currency. In the rooms of the second floor of the residence, Honzo alerted the officers to a sports bag containing cocaine, as well as cash in drawers and inside a box in a closet. Upstairs, the agents also found additional cellular phones and a pistol inside a safe box in the closet of the master bedroom.

The agents also found material evidence in two cars. A white 2005 Ford was parked in the garage of the residence. The agents opened the van after noticing the hood felt hot, fresh mud along the bottom, and water dripping from the rear. Therein, the agents found approximately thirty to forty wet bales containing what appeared to be cocaine. With keys found on the dining room table, the agents also opened a 2011 Toyota Sienna parked in the driveway of the residence. Inside, they found a pistol, cash and additional cellular phones. Additionally, they found the photographic identifications of the other two co-defendants that had fled the scene.

After the government filed the complaint against defendants, the latter were indicted on November 30, 2016. See Docket No. 46. Specifically, the government charged Hernandez with the following: (1) conspiracy to import a narcotic controlled substance (cocaine) in violation of 21 U.S.C. §§ 963, 952(a), and 960(a)(1) & (b)(1)(B) ; (2) aiding and abetting and importation of a narcotic controlled substance (cocaine) in violation of 21 U.S.C. §§ 952 and 960(a)(1) & (b)(1)(B) ; (3) conspiracy to possess with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii), 846 ; (4) aiding and abetting and possession with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii) and 18 U.S.C. § 2 ; (5) aiding and abetting and possession of firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A) & 2. See id.

The matter is before the undersigned on Hernandez's request to suppress the evidence found in his home and cars during the execution of the arrest warrant. See Dockets No. 63, 81. Hernandez argues that the search of his residence during and after the execution of his arrest was in violation of the Fourth Amendment because it exceeded the limits of the protective sweep and search incident to arrest exceptions. In particular, Defendant contends that the warrantless search was unreasonable because it involved a canine unit and the officers searched in spaces outside the scope of a protective sweep, such as the second floor of the residence, the garage, bags, drawers, and cars. Concerning the vehicles where the agents found incriminating evidence, Hernandez contends that the law enforcement officers lacked the requisite probable cause to search them. Hernandez also questions whether some of the evidence found was actually in plain view as the officers purport. According to Hernandez, he was handcuffed and in a wheelchair and the agents were in control of the perimeter, and thus, a search warrant was required to allow for the full search of the Defendant's home that the officers performed. In his brief, the Defendant requested the suppression of the following:

a) Glock Handgun found on kitchen top on the first floor;

b) Pistol magazine at entry of the house;

c) 4 kilograms of cocaine found on male child's room at the second floor;

d) Cellphones allegedly found on the bed of a male child's room at the second floor;

e) Money found on male child's room at the second floor;

f) Money and receipts found on master room including some $45,940.00 in cash;

g) Beretta handgun found on walking closet at the master room;

h) Around 1,700kgs of cocaine narcotics found at a closed van in the garage of the house;

i) A brown Glock found in the middle console of Toyota Sienna in the driveway;

j) Some monies found in the Toyota Sienna; and,

k) Cellphones found on dining room table.

See Docket No. 81 at page 6.

The United States opposed Hernandez's motion to suppress, see Docket No. 66, 85. The government argued that the circumstances of the arrest justified the search, such as the unexpected presence of additional cohorts in the house who took flight upon the officers' entry to the residence and the firearm and other tools of the drug trade seen in plain view. Accordingly, the government argues that the evidence found is not the fruit of the poisonous tree, but instead falls under the mantle of various exceptions to the Fourth Amendment's warrant requirement, such as the protective sweep doctrine, the plain view doctrine, the automobile exception and the inevitable discovery doctrine.³

II. FACTUAL FINDINGS⁴

The court held a suppression hearing on March 9, 2017. See Docket No. 79. The government called Group Supervisor Ricardo Nazario of Homeland Security to testify.

Nazario

Nazario has been a special agent of Homeland Security Investigations ("HSI") for sixteen years, the last seven of which he has been Group Supervisor for the Caribbean Corridor Strike Force. In essence, Nazario investigates maritime drug smugglings.

The Investigation: Beach Break

At the time relevant herein, Nazario was working on an operation known as "Beach Break," investigating a drug-smuggling organization. As a result, this court issued an arrest warrant against Hernandez, among others, in Criminal Case No. 16–646(GAG). Nazario set out to execute this arrest warrant on November 1, 2016 at Hernandez's residence. Prior to this day, Nazario had conducted surveillance of Hernandez at his residence.

The Arrest

At approximately 5:45a.m., Nazario arrived at Hernandez's residence in a group consisting of about twenty special agents and task force officers in ten cars. In addition, one of the officers was handling a K–9 unit from Customs and Border Protection called Honzo, which was trained to look for concealed humans and narcotics. Prior to the operation, Nazario briefed the law enforcement agents that there was a high probability of finding weapons, narcotics, and currency in the house. See Docket No. 76 at pages 66–67.

Photos from Hernandez residence show a Toyota Sienna could be seen parked at the house's driveway. The garage door was closed and the Toyota Sienna was blocking it. There was also a Mercedes Benz parked on the street in front of the house.

Upon approaching the front of the house, Nazario noticed the lights inside the house were on. To his surprise, he also perceived the movement of several individuals inside the house. At the door, Nazario announced and identified himself as police. Immediately thereafter, he saw the shadow of an individual locking the door. After trying to open the door and being unable to, the officers broke the frosted glass on the door and looked through the holes they made. Nazario saw Hernandez sitting on his wheelchair and two other individuals who immediately took off. They ran to the outside of the back of the house. The two fleeing subjects were indentified as Jimenez and Lajara, the co-defendants in this case. Nazario then reached for the keys in the door and opened it.⁵ He ran in an attempt to catch Jimenez and Lajara but they had already jumped the fence of the back of the house. Nazario thus ordered some agents to find them on the streets of the neighborhood. They caught up with co-defendant Jimenez and arrested him. Hernandez, on the other hand, stayed put sitting by the dining room table when another officer arrested him. It was Nazario's testimony that...