United States v. Soto-Peguero

• Decision Date: 09 May 2017
• Docket Number: CRIMINAL NO. 15-10182-RWZ.
• Citation: 252 F.Supp.3d 1
• Parties: UNITED STATES of America v. Oristel SOTO–PEGUERO and Luis F. Guzman–Ortiz
• Court: U.S. District Court — District of Massachusetts

252 F.Supp.3d 1

UNITED STATES of America

v.Oristel SOTO–PEGUERO and Luis F. Guzman–Ortiz

CRIMINAL NO. 15-10182-RWZ.

United States District Court, D. Massachusetts.

Signed May 9, 2017

Theodore B. Heinrich, United States Attorney's Office, Boston, MA, forPlaintiff.

Roberto M. Braceras, Chad Harple, Jacob Raver, Goodwin Procter, LLP, William Keefe, Law Office of William Keefe, E. Peter Parker, Law Office of E. Peter Parker, Joseph M. Griffin, Jr., Boston, MA, for Defendant.

MEMORANDUM AND ORDER

ZOBEL, S.D.J.

Defendant Oristel Soto–Peguero stands accused of two counts of possession of heroin with intent to distribute, see 21 U.S.C. § 841(a)(1), two counts of conspiracy to distribute and possess with intent to distribute heroin, see 21 U.S.C. §§ 846 and 841(a)(1), and one count of use of a firearm during and in relation to a drug offense, see 18 U.S.C. § 924(c).¹ Defendant Luis F. Guzman–Ortiz is charged with two counts: possession of heroin with intent to distribute, see 21 U.S.C. § 841(a)(1), and with conspiracy to distribute and possess with intent to distribute heroin, see 21 U.S.C. §§ 846 and 841(a)(1). Soto–Peguero has moved to suppress evidence obtained and resulting from wiretaps of two telephones, a car stop, and a sweep of his apartment. See Docket # 118. Guzman–Ortiz joins the motion to the extent it seeks suppression of evidence from the car stop and from the apartment. See Docket # 122.² The court held an evidentiary hearing on January 19 and 20, 2017, and heard the parties' arguments on April 19, 2017.

I. Facts

Based on the credible testimony and consideration of the parties' submissions, I find the following facts:

A. Wiretaps

In late summer 2014, the Drug Enforcement Administration ("DEA") began investigating a heroin trafficking organization centered in Taunton, Massachusetts, and operated by Eddyberto Mejia–Ramos. Starting in mid–January 2015, DEA agents conducted wiretaps of phones used by Mejia–Ramos. They began first by intercepting Target Telephone ("TT") # 1. The intercepted communications showed that Mejia–Ramos stopped using TT # 1 around February 4, 2015, and began using TT # 2. Agents received authorization to intercept TT # 2 on February 24, 2015, and through intercepted communications, learned that an unknown male, later identified as Jorge Montalvo, used TT # 3 to supply drugs to Mejia–Ramos. Mejia–Ramos stopped using TT # 2 around March 26, 2015, and on April 13, 2015, the court authorized the interception of TT # 3 and TT # 4, the latter of which Mejia–Ramos was then using. These interceptions revealed, inter alia, that Soto–Peguero supplied heroin to Mejia–Ramos and that Mercedes Cabral, on behalf of Soto–Peguero, transported heroin to and proceeds from Mejia–Ramos.

B. Vehicle Stop

Insofar as relevant to the instant motion, intercepted communications on July 6, 2015, revealed that Soto–Peguero had planned to transport drugs to Mejia–Ramos that day. Soto–Peguero called Mejia–Ramos at 1:43 pm, and Mejia–Ramos said, "when I get down there I'm gonna give [you a] call ... so you can bring that up, because most likely I'll be ready for today." Suppression Hearing Exhibit 2, at 1. During that conversation, Soto–Peguero said, "I have a lot of food, try to resolve that, that I have a lot of food around there, I got ready for you." Id.

Beginning at 6 pm on that day, Special Agent ("SA") Carl Rideout of the DEA and Task Force Officer ("TFO") Christian Theodore³ conducted surveillance at 632 Norwest Lane in Norwood, Massachusetts. They observed Cabral leaving the apartment complex in a Hyundai Sonata. She drove to a grocery store in Boston and returned to the apartment around 8 pm, at which point, she and Soto–Peguero carried groceries into the apartment. At 8:57 pm, Mejia–Ramos called Soto–Peguero and told him to come by at 10:00 pm and "bring something heavy." Id. at 2. Soto–Peguero replied, "I'm going to send the wife/woman." Id. Soto–Peguero asked, "are you going to clean everything? So I can send you at least 400?" Id. Mejia–Ramos responded, "Not 10. Yeah, is to clean everything." Id.

At approximately 9:34 pm, Cabral left the apartment again. Soto–Peguero called Mejia–Ramos at 9:38 pm and said, "[t]he woman is on her way. She should be there in 20 minutes, half an hour."Id. at 3. Rideout, Theodore, and two other officers followed Cabral as she drove onto Route 24 South and then onto Route 44 West toward Taunton. TFO Theodore contacted Massachusetts State Police ("MSP") Troopers Ryan Walczak and Jason Vital and requested that they conduct a traffic stop.

At approximately 10:10 pm, Trooper Vital stopped Cabral for a marked-lane violation. Trooper Walczak and Trooper Andy Mason joined Vital shortly after the stop. TFO Theodore, SA Rideout, and Bristol County Sheriff's Office Major Nelson Degouveia observed the stop from a nearby gas station. The three MSP troopers approached the car and asked Cabral to produce her license and registration. Cabral said that she could not locate her license and gave Trooper Vital the rental agreement, on which she was not listed as a driver. At the time, Cabral's license was suspended, which Theodore had learned prior to the stop and had communicated to the troopers. Trooper Walczak asked Cabral to exit the vehicle. Cabral attempted to take her purse and phone with her, but Vital told her to leave them in the car. At that point, Cabral handed the purse to Vital, and Walczak placed her under arrest.⁴ A vehicle inventory revealed that her pocketbook contained a large object wrapped in green plastic. Inside the plastic wrapping were several brick like substances, each about the size of a bar of soap, which according to Walczak, was consistent with how heroin was packaged and stored. The pocketbook also contained $501.00 in cash.

C. Evidence from 632 Norwest Lane

Soon after the seizure from the vehicle, at approximately 10:13 pm, about eleven officers surrounded Soto–Peguero's home at 632 Norwest Lane in Norwood, a two-bedroom, two-story, attached condominium. There was a light on downstairs. One officer knocked several times on the front door, yelling "police," After no one answered, Detective Kevin Mahoney of the Dedham Police Department⁵ tried to breach the door using a ram. He unsuccessfully rammed the door four or five times, after which, he heard a gun shot and saw a hole in the door. His final attempt to open the door failed. At about this time, he noticed two people looking out from the top-floor window.

When the front door proved to be invincible, officers in the back of the unit made a forced entry through the rear door and opened the front door for the officers in that location. After their entry, the officers conducted a protective "sweep" of the residence. See, e.g., Jan. 19, 2017 Tr. at 94:15–16; Jan. 20, 2017 Tr. at 29:24–30:1. Two men who were upstairs came down. As the first individual, Soto–Peguero, came down the stairs on his stomach as directed, a package containing three bags of a tan brown substance fell from his pants. The second individual, Guzman–Ortiz, then descended in like fashion, and the officers arrested both. During the "sweep" of the apartment, the officers uncovered a block of heroin and a firearm in the front bedroom and a block of heroin in the back bedroom.

The next day, on July 7, 2015, SA Rideout obtained a search warrant to search the premises, which was executed that same day. During that search, officers found additional items including bags of heroin and ammunition.

II. Analysis

Soto–Peguero moves to suppress all wiretap communications intercepted on TT ## 2 and 4, all evidence seized during the vehicle stop, all evidence seized from 632 Norwest Lane, and any evidence derived either directly or indirectly from this evidence.

A. Wiretaps

Soto–Peguero argues for the suppression of the evidence and fruits obtained from the interception of TT ## 2 and 4 on the grounds that the government did not try less intrusive alternatives before applying for the orders authorizing these interceptions. He contends that while the government tried using three cooperating sources before seeking to intercept TT # 1, it did not do likewise before applying for authorization to intercept TT ## 2 and 4. Further, he says, the applications for these orders do not include any reasons why these less intrusive procedures were unlikely to succeed or would be too dangerous.

Under 18 U.S.C. § 2518, "[e]ach application for an order authorizing or approving the interception of a wire, oral, or electronic communication ... shall include," inter alia, "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous."

18 U.S.C. § 2518(1)(c). This showing has been referred to as the "necessity" requirement for a wiretap order. See United States v. Meléndez–Santiago, 644 F.3d 54, 57 (1st Cir. 2011).

"Th[e] language [of § 2518 ] ... is simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974) (citing S. Rep. No. 1097, 90th Cong., 2d Sess. 101); see also United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989). "Prior to granting authorization for a wiretap, the issuing court ‘must satisfy itself that the government has used normal techniques but it has encountered difficulties in penetrating a criminal enterprise or in gathering evidence—to the point where (given the statutory preference for less intrusive techniques) wiretapping becomes reasonable.’ " Ashley, 876 F.2d at 1072 (quoting United States v. Abou–Saada, 785 F.2d 1, 11 (1st Cir. 1986) ). The government does not need to "show that other methods have been wholly unsuccessful," nor is it required "to run outlandish risks or to exhaust every conceivable alternative before requesting authorization for electronic...