United States v. Pastrana-Roman

• Decision Date: 31 March 2023
• Docket Number: CRIMINAL 19-104 (ADC)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. OSVALDO PASTRANA-ROMAN, Defendant.
• Court: U.S. District Court — District of Puerto Rico

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UNITED STATES OF AMERICA, Plaintiff, v. OSVALDO PASTRANA-ROMAN, Defendant.

CRIMINAL No. 19-104 (ADC)

United States District Court, D. Puerto Rico

March 31, 2023

REPORT AND RECOMMENDATION

GISELLE LOPEZ-SOLER, UNITED STATES MAGISTRATE JUDGE

I. Introduction

On February 13, 2019, Osvaldo Pastrana-Roman was charged with violations of 18 U.S.C. §924(c)(1)(A), 18 U.S.C §924(c)(1)(B)(ii), 18 U.S.C. §922(g)(1), 18 U.S.C. §922(o), and three counts of violations to 21 U.S.C. § 841(a)(1). Docket No. 13. Defendant filed a motion to suppress and supplement thereto. Docket Nos. 44, 52 and 65. The Government opposed. Docket Nos. 49 and 70. Defendant replied. Docket No. 76. Defendant argues that the search, which was conducted at night, was unreasonable because the warrant did not authorize night execution. He further argues that his consent to the search of the house was not valid or voluntary. Defendant moved to suppress the evidence seized from his house and any incriminating statements made by him during the search.

The motion was referred to the undersigned for an evidentiary hearing and a Report and Recommendation. Docket No. 88. An evidentiary hearing was held on December 8, December 9, and December 12, 2022. The Government called agent Christopher Atiles-Cruz and agent Isaac Salas-Ramirez, both from the Puerto Rico Police Department (“PRPD”). The defense called FPD Investigator Anthony Toro-Sambrana and PRPD Sergeant Pedro Colon-Burgos. Evidence was admitted. The parties submitted post-hearing briefs. Docket Nos. 115-116. After carefully considering the evidence presented during the hearing, the Court recommends that Defendant’s motion to suppress be DENIED.

II. Factual Background

The following account is drawn from the evidence, testimonial and documentary, received at the suppression hearing.

On January 18, 2019, Atiles-Cruz worked as an Investigating Officer of the Stolen Vehicles Division of the PRPD in Aguadilla. Transcript of Evidentiary Hearing (“TR”) 9 ¶¶ 9-10. That day, however, he was assigned to provide support to the Stolen Vehicles Division in Bayamon. TR 10 ¶ 5. There, he received instructions to investigate a confidential complaint that informed that stolen vehicles (Kia and Hyundai) were being hidden in a property located at El Juicio Sector in Bayamon. TR 10 ¶¶ 10-12, 21-22. On that same day, Atiles-Cruz went to the area where the property was located and conducted surveillance from a “strategic point” where he could see the entrance of the property and the residence. TR 11 ¶¶ 4-8, TR 12 ¶¶ 16-18, TR 13 ¶¶ 9-13, TR 67 ¶¶ 2-13. No criminal activity was observed on January 18, 2019. TR 48 ¶¶ 1-13. Atiles-Cruz returned to the property on January 21, 2019, to continue the surveillance of the property. At about 4:30 p.m., Atiles-Cruz saw a modern Hyundai Accent enter the property; the car had no license plate and a forced door in the driver’s side. TR 14 ¶¶ 5-9, TR 45 ¶¶ 21-25, TR 48 ¶¶ 1-13.

On January 21, 2019, at 9:55 p.m., Atiles-Cruz submitted a sworn statement to a state court judge; Sworn Statement No. 1170. Government Exhibit 1-A. Atiles-Cruz described the residence in detail and the vehicle to be searched. Id. Atiles-Cruz requested a search warrant for stolen vehicles and stolen vehicle parts located in the property and requested authority to conduct the search during the day or night. Id. The sworn statement was signed, as approved by the state judge, on January 21, 2019. Id. And a search warrant was issued on that same day at 9:55 p.m., containing the description of the residence, the vehicle to be searched, and a reference to Atiles-Cruz’s sworn statement. Government Exhibit 2-A. The search warrant does not contain an express provision to allow for execution at night but did grant authority to search for the stolen vehicle and stolen vehicle parts in the property. Id.

On January 21, 2019, Salas-Ramirez, also temporarily assigned to the PRPD Stolen Vehicles Division in Bayamon, was assigned the execution of the search warrant. TR 107 ¶¶ 2425. The execution took place at about midnight on January 22, 2019. TR 79 ¶¶ 6-8. As testified, agents of the PRPD opened the gate of the property and, while walking towards the residence, saw the Defendant come out with no shirt, black pants and a firearm. TR 80 ¶¶ 14-17. When he saw the agents, the Defendant went inside the residence. The Defendant finally came out of the residence ten (10) minutes later in response to requests by the agents, this time without a firearm. TR 81 ¶¶ 10-15, TR 82 ¶¶ 2-12, TR 83 ¶¶ 13-17. The Defendant was informed of the search warrant, he was given the warrant to read, and he placed his initials in the search warrant. TR 83 ¶¶ 1-2, TR 83 ¶¶ 20-25, TR 87 ¶¶ 10-14, TR 107 ¶¶ 16-25. See also Government Exhibits 2-4. Salas-Ramirez clarified his testimony when he stated that the Defendant was informed that the agents had a search warrant that permitted them to search the property for stolen vehicles and parts of stolen vehicles. TR 105 ¶¶ 8-15, TR 119 ¶¶ 14-17. Thereafter, the Defendant was informed of his rights under Miranda, he read the form provided by law enforcement and signed it. TR 92 ¶¶ 4-11, TR 97 ¶¶ 20-22, TR 107 ¶¶ 12-18, TR 126 ¶¶ 2-17. Government Exhibit 10. The Government presented photographs of the Defendant while signing the form with the Miranda warnings. See Government Exhibits 8-9.

Defendant was then asked whether he had a weapons permit. When he said he did not, the agents asked for consent to search the home and provided Defendant with a consent form. TR 132 ¶¶ 5-15. As testified, the Defendant wrote his name on the form, which was then filled out by the agent before the Defendant signed the form. TR 88 ¶¶ 3-16, TR 89 ¶¶ 4-17, TR 91 ¶¶ 9-20. See Government Exhibit 5-A, 6-7. The consent form describes the residence to be searched. Government Exhibit 5-A. Defendant had questions about the consent form but was told that, if he did not consent, a warrant for the home would be forthcoming. TR 98 ¶¶ 10-12, 21-22, TR 100 ¶¶ 19-25. Per the testimony of Salas-Ramirez, the Defendant read all the documents presented to him, although nervous, he did not appear to be confused and appeared to understand the documents, was not in handcuffs, and did not have any restraints when presented with the documents. TR 99 ¶¶ 14-25, TR 107 ¶¶ 3-17, TR 119 ¶¶ 21-23, TR 120 ¶¶ 9-11, TR 124 ¶¶ 4-10. Although Salas-Ramirez admitted that the Defendant was not at liberty to leave when he was presented with the consent form, he testified that there were no weapons pointed at the Defendant at that time and that no one raised their voice to the Defendant in the process of obtaining consent. TR 99 ¶¶ 1825, TR 107 ¶¶ 3-17, TR 130 ¶¶ 17-22, TR 133 ¶¶ 15-24, TR 134 ¶¶ 2-8.

1. Defendant was not entitled to a hearing under Franks.

In the motion to suppress originally filed by Defendant, he asserted that Atiles-Cruz lacked probable cause to request the warrant to search for the stolen vehicle and stolen vehicle parts in his property. Docket No. 44. Defendant filed a Sworn Statement under Penalty of Perjury in support of his request. Docket No. 52-1. But there is absolutely nothing in the sworn statement to infer that the search warrant in this case was procured through false statements or material omissions. Id. For this reason, the Court, through then U.S. Magistrate Judge Velez-Rive, expressed that it would recommend the denial of a hearing under Franks. Docket No. 62. The Defendant tried to resurrect this request during the hearing and in his post-hearing brief. To no avail.

A defendant is entitled to an evidentiary hearing under Franks when he makes a “substantial preliminary showing” that both: (1) a false statement, knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit, and (2) the allegedly false statement is necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A showing that a material omission was made could also constitute the basis for a Franks hearing. United States v. Rivera Rosario, 300 F.3d 1, 20 (1^st Cir. 2002). When the request is based on false statements, the Court must consider whether the false statements were necessary for the finding of probable cause. United States v. Barbosa, 896 F.3d 60, 68 (1^st Cir. 2018); United States v. Castillo, 287 F.3d 21 (1^st Cir. 2002). When the request is based on material omissions, the Court must consider whether inclusion of the omissions would have led to a finding of no probable cause. Id.

The Defendant presented photographs of the entrance of his property, of two white tents inside the property, and of cars parked under the tents and in the property, to challenge Atiles-Cruz’s ability to observe the residence at the time of surveillance, and to point to information that Atiles-Cruz omitted in the affidavit submitted in support of the search warrant. Defendant Exhibits A, B, H and I. The defense also presented the testimony of FPD Investigator Toro-Sambrana to put into question Atiles-Cruz’s ability to observe the residence during surveillance. See also arguments at Docket No. 115 at pp. 4-7. In post-hearing arguments, the Defendant also argues that Atiles-Cruz’s surveillance was not corroborated by his supervisor. This is insufficient to warrant a hearing under Franks.

The photographs of the property taken years after the surveillance are not probative of the state of the property when surveillance was performed. There is nothing in the record to contradict Atiles-Cruz’s testimony that he had visibility of the property on the two days that he performed the surveillance. But most importantly, there is absolutely nothing that could lead the Court to disregard Atiles-Cruz’s observation of what...