United States v. Sanchez

• Decision Date: 12 September 2018
• Docket Number: CRIMINAL ACTION NO. 2:16-CR-10-RWS-JCF
• Citation: 334 F.Supp.3d 1284
• Parties: UNITED STATES of America, v. Carlos SANCHEZ, Defendant
• Court: U.S. District Court — Northern District of Georgia

334 F.Supp.3d 1284

UNITED STATES of America,

v.Carlos SANCHEZ, Defendant

CRIMINAL ACTION NO. 2:16-CR-10-RWS-JCF

United States District Court, N.D. Georgia, Gainesville Division.

Signed September 12, 2018

William Louis McKinnon, Jr., Jennifer Whitfield, Theodore Hertzberg, Office of the United States Attorney, Atlanta, GA, for United States of America.

Donn Millard Peevy, Peevy & Lancaster, Lawrenceville, GA, Gregory Wayne Lancaster, Wayne Lancaster, P.C., Buford, GA, for Defendant.

ORDER

RICHARD W. STORY, United States District Judge

This matter is before the Court on the Report and Recommendation of Magistrate Judge J. Clay Fuller [Doc. No. 336]. Defendant Sanchez has filed objections to the Report and Recommendation [Doc. No. 342], and the Court has reviewed his objections de novo. The Court is persuaded by the analysis contained within the Report and Recommendation and finds that the post-arrest statements about Defendant's nickname are admissible.

Defendant Sanchez's objections [Doc. No. 342] are OVERRULED, and the Report and Recommendation [Doc. No. 336] is hereby approved and adopted as the opinion and order of this Court. As such, Defendant's Motions to Suppress [Doc. Nos. 80 and 88] are GRANTED in part and DENIED in part. Statements about Defendant's iPhone passcodes and evidence found on his iPhones on February 17, 2016, after he provided his passcodes is suppressed. Other evidence, including evidence obtained as the result of the warrantless search of his car and non-passcode protected cell phones on February 17, 2016, and his post-arrest statements about his nickname, is admissible.

SO ORDERED this 12^th day of September, 2018.

REPORT AND RECOMMENDATION

J. Clay Fuller, United States Magistrate Judge

This matter is before the undersigned on Defendant Sanchez's Motion To Suppress Evidence And Motion In Limine (Doc. 80) and Motion To Suppress Statements (Doc. 88).¹ For the reasons discussed below, it is RECOMMENDED that Defendant's motions be GRANTED in part and DENIED in part .

Background

Defendant Sanchez and others are charged in a 12-count Indictment with drug-related offenses, including conspiracy. (Doc. 1). Defendant filed a motion to suppress evidence seized by law enforcement officers without a warrant on February 17, 2016 (Doc. 80) and a motion to suppress any statements Defendant made following his February 17th arrest (Doc. 88). Defendant argued that the February 17th search violated his Fourth Amendment rights because he did not consent to the search and there was no probable cause to support the search. (See Doc. 80). He filed a supplemental brief in support of his motions on January 5, 2018 (Doc. 286) in which he argued that even though he was on parole at the time of the search, there was no arrest warrant or revocation petition to support the search, he "had not waived his 4th amendment right as a condition of parole," and reasonable suspicion did not support the search (id. at 3-4). The Court conducted a hearing on Defendant's motions on January 26, 2018 (see Doc. 291), and the transcript of that hearing was filed on February 13, 2018 (Doc. 294).² The Government filed a post-hearing brief on March 19, 2018 (Doc. 301), and Defendant filed his post-hearing brief on April 4, 2018 (Doc. 306).

Following the January 26, 2018 hearing, the Government submitted a brief in which it argued that the February 17, 2016 search of Defendant's car and cellphones were authorized by the parole search condition; even if reasonable suspicion were required to search, it existed; Defendant was lawfully under arrest when he provided iPhone passcodes and voluntarily provided them; and Defendant's disclosure of his nickname to GBI agents after he was arrested on the state arrest warrant was part of a routine booking procedure and therefore admissible, even though Defendant had asserted his Miranda rights. (Doc. 301). Defendant then filed a reply brief (Doc. 306) in which he asserts that he did not lose the protection of the Fifth Amendment's rights against self-incrimination by virtue of his status as a parolee and therefore his Fifth Amendment rights were violated when he was required to provide his iPhone passcodes and then arrested for failing to do so. (See id. 306 at 7-9).

In an Order entered May 9, 2018 (Doc. 311), the undersigned found that Defendant's discussion of the Fifth Amendment self-incrimination issue was "somewhat conclusory, not particularly well-developed, and made in his reply brief," and required the parties "to submit additional briefing on whether the requirement that Defendant provide his iPhone passcodes violated his Fifth Amendment right against self-incrimination and if so, what evidence, if any, should be suppressed as a result of that violation." (Id. at 9). Defendant then filed a brief (Doc. 316), and the Government responded (Doc. 322). With briefing on Defendant's motions complete, the undersigned now considers their merits.

Facts ³

In early 2016 FBI Special Agent Joe Thompson was the case agent on an investigation using wiretap surveillance with the primary target being Defendant Horace Mayfield. (Tr. 60-61). On January 16, 2016, agents heard Mayfield talking to a person about the price and quantity of methamphetamine Mayfield was going to pick up. (Tr. 61). Although the agents did not know at that time the identity of the person Mayfield was talking to, they knew the person's phone number. (Tr. 61-62). Thompson now believes that the person with whom Mayfield was speaking was Defendant Sanchez, but he and the other agents did not then know that person's identity. (Tr. 62-63). The unidentified person told Mayfield that another person (later identified as Gustav Melendez) would call him and give him an address where Mayfield was going to pick up methamphetamine. (Tr. 62-63). Melendez called Mayfield and gave him an address for a Target store at 2400 North Druid Hills in Atlanta. (Tr. 63-64). Mayfield also asked Melendez, "is this Cholo," and Melendez responded, "no, this is ‘G,’ Cholo's cousin." (Tr. 73). Melendez also told Mayfield that he was in Cholo's BMW, that it was his now, and Mayfield asked if Cholo had been fired. (Tr. 73). Melendez told him "no ... [Cholo] had just gotten too busy and that [Meledez] had taken over ... some of his business." (Tr. 73). Agents did not then know the identity of Cholo. (Tr. 73, 75). Agents then conducted surveillance at the Target store on January 16th, and Mayfield arrived in a BMW driven by a woman. (Tr. 64). Melendez, who was carrying a package close to his body, got into the car with Mayfield, but when Melendez exited the vehicle he was not carrying the package. (Tr. 64-65). Agents continued conducting surveillance on Melendez after January 16th and saw him in an Audi A6 which was registered to an address at 317 Ard Place in Atlanta. (Tr. 65).

The next day, January 17th, Mayfield communicated with another individual⁴ via text, and that person asked Mayfield if he had talked to "Droop" and asked Mayfield for Droop's number. (Tr. 74). Mayfield told the person he had spoken with Droop the day before and provided the same phone number as the phone number of the unidentified person Mayfield had initially spoken with the day before to discuss the price and quantity of the methamphetamine he was going to pick up. (Tr. 74). Agent Thompson now believes that number was Defendant Sanchez's, but the agents did not know that at the time, nor did they know the identity of "Droop." (Tr. 74-75).

On January 30th the agents were following Mayfield, who traveled to the same Target store where he met Melendez on the 16th. (Tr. 66). Melendez once again entered Mayfield's vehicle and then left the location. (Tr. 66). Agents followed Melendez to nearby Druid Valley Apartments but were unable to determine to which specific apartment Melendez went. (Tr. 66). Agents later identified an apartment they believed Melendez was using and obtained a search warrant for that address, 1531 Druid Valley Drive, Apartment B, Atlanta, Georgia. (Tr. 67; see also Gov't Exs. 1a, 1b, 1c).

February 17, 2016 was designated as the "takedown day" for the wiretap investigation, i.e., the day when search warrants would be executed and targets arrested. (Tr. 68). On that day, Andrew Jerram was employed as a Community Supervision Officer with the Georgia Department of Community Supervision, which serves probation and parole officers across the state, and he is also assigned as a Task Force Officer with the FBI Safe Streets Gang Task Force. (Tr. 10-12). In 2015 the probation field supervision functions of the Department of Corrections were merged with the parole supervision functions of the State Board of Pardons and Paroles to create the Department of Community Supervision, and former parole officers (now called Community Supervision Officers) such as Jerram retained the powers and authority of a parole officer to supervise parolees and probationers. (Tr. 10-12, 39-41).

Officer Jerram performed perimeter security during the February 17th execution of the search warrant at 1531 Druid Valley Drive. (Tr. 12-13, 15-16, 67-68). He was accompanied by FBI Special Agents Larry Gera and Greg Donovan. (Tr. 13). No one was present in the apartment when agents made entry that day. (Tr. 68). The agents observed cash, a large quantity of methamphetamine, scales, containers with methamphetamine residue, an electronic money counter, firearms, and papers in the apartment. (Tr. 14-16, 69; Gov't Exs. 2a through 2g). One of the papers they discovered was a letter addressed to Melendez at 317 Ard Place in Atlanta, which appears to bear his signature. (Tr. 14-16, 70-71; Gov't Ex. 2g). Once Agent Thompson saw the letter with the Ard Place address, he decided to send some agents there to set up surveillance. (Tr. 72). Jerram, Donovan, and Agent Prince went to that address to watch it until other agents could go there to talk to the residents. (Tr. 14-15). They arrived at 10:49 a.m. (Tr. 41, 54-55).

While they were watching...