United States v. Morgan
| Decision Date | 08 December 2011 |
| Docket Number | CRIMINAL NO. 6:11-cr-0055 |
| Parties | UNITED STATES OF AMERICA v. MONTY MORGAN (01) |
| Court | U.S. District Court — Western District of Louisiana |
Monty Morgan is charged by superceding indictment with two counts of bringing in and harboring aliens and two counts of transporting aliens in violation of 8 U.S.C. §§ 1324.1 A motion to suppress filed by Morgan was the subject of an evidentiary hearing on October 20, 2011.2 Testifying for the government were Air Interdiction Agent Catherine Evans, Detective Lance Guidroz of the St. Landry Parish Sheriff's Department K-9 Unit, and Immigrations and Customs Enforcement Agent Erol Catalan. The defendant offered the deposition testimony of his co-defendant, Luis Leonel Fuentes-Cardona, the report of investigation of the Department of Homeland Security, and a cash receipt explained below. For the following reasons, the undersigned recommends that the motion be granted.
According to Agent Evans's testimony, while off duty on February 21, 2011, she received a telephone call from an unidentified source at the airport in Victoria, Texas.3 The source told her that an aircraft bearing tail number N713MT, had departed Victoria en route to Opelousas, La.4 There were people aboard the aircraft who were "acting strangely," smelled like marijuana, and when the pilot purchased fuel for the plane, he paid cash for it.5 The source further advised that the aircraft had landed at Victoria on the previous day with four passengers, two males and two females.6 The two females were dropped off, the aircraft flew to McAllen, Texas, and when it returned to Victoria, there were two Hispanic males aboard.7 The parties spent the night in Victoria and the aircraft departed for Opelousas at about 10 a.m. the following day with the pilot and the five passengers.8 The source did not say if theoccupants smelled like marijuana when they arrived on the 20th or when they left on the 21st nor did the source ever describe what was meant by "acting strangely."9
Agent Evans testified that the government uses the Victoria airport as a fueling location, and at some point in the past, she dropped off a card and asked for anyone to contact her if they saw any suspicious activity.10 However, Agent Evans did not know whether the source who called her was the individual to whom she gave her card, and had no information to verify the reliability of the caller or his information other than to verify the itinerary given to her.11 Although there was no other information indicative of drug or illegal alien smuggling received from the source,12 she became suspicious that the aircraft and its occupants may have been involved in smuggling marijuana and/or illegal aliens, so she wanted to check the aircraft upon landing in Louisiana to see if everything was "on the up and up."13
Agent Evans testified that she and two other agents embarked on an aircraft to follow the Morgan aircraft to its destination in Opelousas.14 She contacted the Airand Marine Operations Center in California and determined that they would not be able to overtake the Morgan aircraft or be there at the time of its arrival as their aircraft was about 5-10 minutes behind.15 As a consequence, she asked the Air and Marine Operations Center to contact the St. Landry Parish Sherif's Department to provide personnel and K-9 assistance.16 Agent Evans testified that all she told Air and Marine was what her source had told her, to-wit, there were people "acting strangely," who smelled like marijuana, and there were possibly two illegal aliens aboard, which she surmised based on the presence of the two Hispanic males picked up in McAllen, Tx.17
At the time Agent Evans arrived at the Opelousas airport, the pilot and passengers were all out of the plane and seated on the ground in handcuffs. 18 They were situated so that they could not speak to each other and at least one law enforcement officer from the St. Landry Parish Sheriff's Department or other law enforcement agency was adjacent to each person.19 Detective Guidroz testified that he was informed the law enforcement officers, with weapons drawn, had ordered theoccupants out of the plane and onto the ground where they were handcuffed.20 This was corroborated by Fuentes-Cardona who testified law enforcement officers, with their weapons drawn shouting that they were going to shoot, ordered the occupants out of the plane and to lay face down on the tarmac where they were handcuffed with their hands behind their backs before any questions were asked.21 Agent Evans testified that, based on the information she had, it would not have been her practice to place the pilot and passengers in handcuffs in the manner she observed when she arrived.22
Without advising Morgan of his Miranda rights, she questioned him as to his flight itinerary and whether the two Hispanic males were legally in the country.23 Morgan responded that they were not.24 Fuentes-Cardona testified that, while he was handcuffed on the ground at the airport, a "lady" law enforcement officer who got out of another plane that had just landed, asked him whether he was in the countryillegally and he responded that he was.25 He was asked if there were any drugs on the airplane and he said no.26
Morgan's handcuffs were removed and he was instructed to remove all the bags from the aircraft.27 At about that time Detective Guidroz, arrived on scene in his K-9 unit. Agent Evans asked Morgan if they could run the K-9 around the plane, and Morgan stated that they could.28 The dog alerted positive on the starboard side of the aircraft behind the pilot's seat.29 It is not clear whether Agent Evans or Detective Guidroz asked Morgan if they could search the plane, but Morgan responded with an oral consent.30 Agent Evans testified that her report indicates a consent form was executed by Morgan, however, she didn't remember being present when he signed it and could not find it, therefore, there is no consent form in the record.31 The searchof the aircraft, bags and passengers revealed only a "personal use" amount of marijuana in the possession of one of the non-Hispanic passengers.32
The occupants were taken to the Narcotics Division Office located at the front of the airport where they were interviewed by Agent Catalan and one of his colleagues about two hours later.33 According to Agent Catalan, Morgan was advised of his Miranda rights, acknowledged that he understood them and verbally agreed to answer questions; however, Morgan did not agree to sign a Miranda waiver form.34 Agent Evans was present but did not ask questions in the initial interview.35
During the initial interview, Morgan stated that he "figured" the two Hispanic males were illegal but did not know.36 He stated that, on the referral of a friend in Florida who was from Guatemala, he had gone to McAllen to pick them up to work on some specialty equipment that he had.37 One of the other passengers, whopossessed the marijuana, was a friend along for the ride who had invited the two females.38
Agent Catalan and his colleague then interviewed some of the other occupants. One of the females admitted smoking marijuana with one of the passengers and Morgan on the way to Victoria, however, she did not know if the Hispanic men were illegal.39 Agent Catalan testified that Tucker Colomb, the individual who was in possession of the marijuana, "did not seem to be in his right mind" and "was just giving stories all over the place."40
Then the agents interviewed Fuentes-Cardona who was read his Miranda rights by an interpreter and agreed to answer questions.41 Fuentes-Cardona admitted he was a Guatamalan, who was illegally in the country and who had previously been deported.42 According to Catalan's report, Fuentes-Cardona said he contacted Morgan about a month earlier and asked if he would pick Fuentes-Cardona up and bring him to Louisiana if he were able to get back across the border to which Morganagreed.43 Fuentes-Cardona testified that his brother-in law had already gotten him across the border where he and a companion decided to use the services of a "coyote". 44 Once in Texas, the coyote wanted to charge the men more money than they had, and because the coyote was beating people who could not or would not pay more, fearing for his life, Fuentes-Cardona begged the coyote for some time to get the additional money.45 According to Fuentes-Cardona, he contacted a friend who worked for Morgan who, in turn, got the money to secure his and a companion's release from the coyote.46 Morgan picked up Fuentes-Cardona and his companion in McAllen the day after they were released by the coyote.47 Fuentes-Cardona never saw anybody smoking marijuana and knew nothing of it.48
After interviewing the other occupants, Agent Catalan and his colleague returned to Morgan to confront him with the information they had learned from the others.49 At that point, Morgan admitted smoking marijuana on the flight toVictoria.50 Agent Evans testified she then asked Morgan how would he feel if he got his pilot's license revoked for smoking marijuana while flying and Morgan became visibly upset.51 Morgan admitted that he knew that Fuentes-Cardona had been previously deported.52 He admitted he had been contacted by Fuentes-Cardona who asked if Morgan would be willing to pick up Fuentes-Cardona and a friend in Texas if they could get across the border.53 Morgan agreed. Morgan also admitted that he was asked to provide additional money to Fuentes-Cardona.54 Morgan stated that his wife assisted in getting money wired to Mexico which was used to obtain the release of Fuentes-Cardona and his companion, and once they were released in Texas, he picked them up at the McAllen airport.55
Morgan contends that the warrantless arrest was illegal because the...
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