United States v. Perez

• Decision Date: 21 June 2022
• Docket Number: 19-cr-313 (ECT/TNL)
• Parties: United States of America, Plaintiff, v. Santos Gomez Perez, Defendant.
• Court: U.S. District Court — District of Minnesota

United States of America, Plaintiff,
v.
Santos Gomez Perez, Defendant.

No. 19-cr-313 (ECT/TNL)

United States District Court, D. Minnesota

June 21, 2022

Thomas M. Hollenhorst, Assistant United States Attorney Minneapolis, MN (for the Government); and

Kevin M. O'Brien, (for Defendant).

REPORT & RECOMMENDATION

Tony N. Leung United States Magistrate Judge

I. INTRODUCTION

This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendant Santos Gomez Perez's Motion for Suppression of Evidence from Search and Seizure, ECF No. 52, and Motion for Suppression of Statements, ECF No. 53. These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable Eric C. Tostrud, District Judge of the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

A hearing was held on February 3, 2022. ECF No. 60. Thomas M. Hollenhorst appeared on behalf of the United States of America (the “Government”). Kevin M. O'Brien appeared on behalf of Defendant. Post-hearing briefing is now complete, and this motion is ripe for a determination by the Court.

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II. FINDINGS

The Court heard testimony from Sergeant Rigoberto Aguirre of the St. Police Department. The Government offered and the Court received Government Exhibit 1, the application, search warrant, and receipt, inventory, and return for the search of an auto shop for mobile tracking devices [hereinafter “Tracking Device Warrant”]; Exhibit 2, the application, search warrant, and receipt, inventory, and return, for a search of the same auto shop for firearms among other things [hereinafter “Firearm Warrant”]; Exhibit 3, a rights advisory certificate^[1] in the Spanish language; and Exhibit 4, Defendant's recorded statement^[2] made in the Spanish language on March 15, 2019. Following the hearing, an English-language translation^[3] of Defendant's recorded statement was provided by the Government via e-mail, copying defense counsel. These translations^[4] have been deemed Exhibits 4A and 4B. Tr. 88:12-89:22; see Tr. 8:7-9:9. Based upon the file and documents contained therein, along with the testimony and exhibits presented, the undersigned Magistrate Judge makes the following findings.

A. March 14, 2019

Sergeant Aguirre has been with the St. Paul Police Department for more than 15 years. Tr. 16:18-21. On March 14, 2019, Sergeant Aguirre was assigned to the narcotics

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unit “as a supervisor.” Tr. 16:25-17:3. As part of his supervisory duties that day, Sergeant Aguirre participated in the search of an auto shop located in Minneapolis, Minnesota. Tr. 17:4-19; see generally Tracking Device Warrant. The search was for purposes of locating tracking devices that had been placed on two vehicles. See Tr. 18:814; see generally Tracking Device Warrant App. The devices had “disappeared” and were believed to be taken off the vehicles at the auto shop. Tr. 18:12-16; see Tr. 54:255:8. Sergeant Aguirre testified that the particular tracking devices in question were rectangular-shaped; approximately “5 inches by 4 inches, maybe 2 inches thick”; and resembled “a black box.” Tr. 18:22-19:3. The tracking devices were “small enough to fit into a metal filing cabinet or some other type of cabinet.” Tr. 19:4-6.

Approximately ten law enforcement officers participated in the search of the auto shop. Tr. 19:15-20. The door they used to enter the auto shop was unlocked. Tr. 58:5-9. The officers entered with their service weapons drawn. Tr. 63:16-18. The auto shop was in a “big building” with sections such that the portion being searched had “its own front door.” Tr. 19:22, 21:13-17; see Tr. 57:16-18. Sergeant Aguirre testified that, “[w]hen you first walk in the door[,] there's a small lobby that you can walk through.” Tr. 21:1920; see Tr. 58:24-59:9, 63:2-8. Another door off the lobby goes to an open, garage area. Tr. 21:21-23; see Tr. 63:2-8. The garage was large, and Sergeant Aguirre estimated the garage could hold “somewhere in the area of 10, 15 cars.” Tr. 21:23-24; see Tr. 22:9-10, 60:15-17. There were approximately eight vehicles in the garage. Tr. 22:6-8. There were tools and “various cabinets, containers, [and] boxes of all sorts all over.” Tr. 22:24, 17-18; see Tr. 60:18-20, 67:6-8. Sergeant Aguirre testified that the garage “was a little

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bit overrun by vehicles and gear and everything.” Tr. 22:4-5.

1. Defendant Detained & In Custody

Law enforcement announced their presence and indicated they were there to conduct a search. Tr. 23:11-14. Two people, one of whom was Defendant, were located right away, either in the lobby area or by the front door. Tr. 23:14-16, 24:7-10; see Tr. 59:14-60:1. At least one additional person was located in the garage. Tr. 23:16-17. All three individuals were handcuffed for officer safety. Tr. 24:11-20, 76:14-15. Defendant was handcuffed on the floor. Tr. 64:6-9. At the time, Defendant was also suspected of having engaged in drug-trafficking activities. Tr. 24:21-24. There is no dispute that Defendant was in custody and detained as of this point in time. Tr. 24:25-3. Law enforcement began to search for the tracking devices, including in cabinets and boxes. Tr. 25:4-14; see Tr. 66:24-67:5.

2. Conversation with Sergeant Aguirre

Sergeant Aguirre was subsequently informed that Defendant wanted to speak with him. Tr. 25:16-19, 75:19-24; see Tr. 26:12-14. Sergeant Aguirre met with Defendant in the garage. Tr. 25:20-22. Defendant was still handcuffed at the time and other law enforcement officers were present “with firearms[,] wearing vests that identif[ied] them as police.” Tr. 25:23-26:7.

It was approximately early afternoon when Sergeant Aguirre spoke with Defendant. Tr. 28:9-10. Sergeant Aguirre spoke with Defendant in Spanish. Tr. 29:2123, 30:13-15. Sergeant Aguirre testified that he considers himself fluent in Spanish and grew up speaking Spanish with and learning Spanish from his parents, who “are native

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Spanish speakers from Mexico.” Tr. 30:1-10. On cross-examination, Sergeant Aguirre agreed that he was not a certified interpreter. Tr. 74:6-8. Sergeant Aguirre testified that he felt he understood what Defendant was communicating to him. Tr. 30:16-18. No recording was made of the conversation between Sergeant Aguirre and Defendant. Tr. 33:7-11, 72:14-15. Sergeant Aguirre did not advise Defendant of his Miranda rights before speaking with him at the auto shop. Tr. 71:9-13.

At the hearing, Sergeant Aguirre testified as to the substance of the conversation he had with Defendant in Spanish. Tr. 30:19-21. Sergeant Aguirre testified that Defendant “wanted an opportunity to get out of trouble.” Tr. 28:15-18; see also Tr. 27:20-21. At the time, Defendant was aware that he had been arrested in connection with narcotics. Tr. 26:23-27:2, 75:25-76:5; see Tr. 64:24-65:9. Sergeant Aguirre testified that it was “very common” for someone to “want to trade information in exchange for some kind of prosecutorial help or just not being arrested that particular day.” Tr. 26:19-22; see also Tr. 27:17-19. Sergeant Aguirre testified that “it was clear to [him] when [he] approached [that Defendant] wanted to offer information.” Tr. 29:15-16. Sergeant Aguirre did not ask any questions before Defendant began speaking to him. Tr. 29:5-15, 31:16-18.

Defendant told Sergeant Aguirre “that he knew of a place, and not this garage, that had a - various amounts of firearms that were delivered to him that were supposed to be transported or . . . concealed and taken over to Mexico.” Tr. 27:22-25; see also Tr. 28:11-18. Defendant “wanted to give that information and help [law enforcement] by getting a phone call and leading [law enforcement] to those firearms,” Tr. 27:25-28:2.

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Sergeant Aguirre suspected the firearms in question were “illegal firearms and at least they were going to be transferred out of the country and into Mexico.” Tr. 28:2-4; see Tr. 28:19-20.

Sergeant Aguirre asked Defendant where the firearms were located in order to “get more of a sense of . . . what information he[ was] really trying to provide.” Tr. 28:2129:2; see Tr. 31:23-32:5. Sergeant Aguirre asked Defendant “follow[-]up questions to clarify” where the firearms were being transported to and Defendant indicated they were going to Mexico. Tr. 32:15-17; cf. Tr. 71:18-72:13. When Sergeant Aguirre asked where the firearms were located, Defendant “said another location.” Tr. 32:18-19; cf. Tr. 71:1872:13. Defendant “also mentioned that he needed to receive a phone call from Mexico, specifically from Guadalajara.” Tr. 32:24-33:1. Their conversation lasted for approximately “two to three minutes.” Tr. 31:21-22. Sergeant Aguirre testified that Defendant was not being investigated for firearms trafficking at the time of their conversation. Tr. 34:1-4.

After getting this initial information from Defendant, Sergeant Aguirre “stepped away . . . to . . . process the information that [he] was receiving.” Tr. 34:9-15. He spoke to other law enforcement officers about what should be done with the information provided. See Tr. 34:13:-25. Sergeant Aguirre then began walking back towards Defendant. Tr. 34:25-35:3. Defendant was standing next to the garage door and had full view of the entire garage. Tr. 35:1-3. As Sergeant Aguirre was walking towards Defendant, Defendant's “eyes-his facial expression changed, almost like a surprise or a nervousness.” Tr. 35:3-5. Sergeant Aguirre then heard someone call for a camera. Tr.

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35:5-6. Sergeant Aguirre testified that, in his line of work, when he hears the word “camera,” it “means that something has been found that needs to be documented and pictured.” Tr. 35:5-8. Defendant then “started walking toward [Sergeant Aguirre] in handcuffs saying, I'm just going to show you.” Tr. 35:10-13; see Tr. 35:21-36:1, 36:1215 (“I'm going to show you. I'll just show you. Something to that extent.”)...