US v. Leon-Chavez
| Decision Date | 31 August 1992 |
| Docket Number | Civ. No. 92-CR-26B. |
| Citation | 801 F. Supp. 541 |
| Parties | UNITED STATES of America, Plaintiff, v. LEON-CHAVEZ, Uriarte, and Zamora-Anaya, Defendants. |
| Court | U.S. District Court — District of Utah |
COPYRIGHT MATERIAL OMITTED
Richard D. McKelvie, Salt Lake City, for plaintiff.
Mary C. Corporon, Ronald J. Yengich, R. Steven Chambers, Loni F. Deland, Salt Lake City, for defendants.
This matter was referred to Magistrate Judge Ronald N. Boyce pursuant to 28 U.S.C. § 636(b)(1)(B). On March 12, 1992, and March 18, 1992, the Magistrate Judge heard oral argument on defendants' motion to dismiss, motions in limine, and motions to suppress. On May 11, 1992, the Magistrate Judge issued an Order denying the motions in limine without prejudice. On May 18, 1992, he issued a Report and Recommendation. The Magistrate Judge recommends that the motion to dismiss and the motions to suppress be denied. Each defendant has filed Objections to the Report and Recommendation. Defendant Zamora-Anaya also objects to the denial of the motions in limine.
On August 27, 1992, a hearing on defendants' Objections was held before the district court. The court, having made a de novo review of defendants' Objections and having heard oral argument from counsel, finds that the Magistrate Judge was correct in his legal interpretation and factual conclusions. Based on this finding, defendants' Objections are overruled, and the Report and Recommendation of the Magistrate Judge is accepted pursuant to 28 U.S.C. § 636(b)(1)(C). Accordingly,
IT IS HEREBY ORDERED that the May 11, 1992, Order of the Magistrate Judge is AFFIRMED. Defendants' motions in limine are denied without prejudice.
IT IS FURTHER ORDERED that the May 18, 1992, Report and Recommendation of the Magistrate Judge is adopted in its entirety. Defendants' motion to dismiss and motions to suppress are DENIED.
DATED this 31st day of August, 1992.
REPORT AND RECOMMENDATION
Eleazar Leon-Chavez, Eduardo Uriarte, and Carlos Zamora-Anaya have been indicted on one count of possession of five kilograms or more of cocaine with intent to distribute (File Entry # 1). Defendants Eleazar Leon-Chavez and Carlos Zamora-Anaya have filed motions to suppress (File Entries # 23 and # 24). The motions do not comply with D. Utah Rules 307(b) and 202(a) because defendants do not state the basis for their motions with specificity. Subsequently, Carlos Zamora-Anaya filed a motion to dismiss the indictment because "no probable cause existed for his arrest or detention" (File Entry # 33).1 Eduardo Uriarte made a separate motion to suppress (File Entry # 37).2 Later he made a second motion to suppress evidence obtained from the premises at 815 North 1400 West, Salt Lake City, Utah (File Entry # 48). This motion was also supported by a memorandum (File Entry # 49). Chavez thereafter filed a motion to suppress evidence from the same residence and a vehicle on the premises (File Entry # 51).
The motions to suppress were referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). Hearing on the motions to dismiss and suppress was held. This report and recommendation is submitted pursuant to the reference and on the motions of the defendants.
Two separate hearings were held on the motions, one on March 12, 1992 and one on March 18, 1992.
At the hearing on March 12, 1992, it was stated that two separate police searches were made. One was the search of a storage area where cocaine was found. A second search was made of a residence at 815 North 1400 West and a 1982 Ford automobile parked at the residence. This search was made on January 17, 1992. Weapons were found, $127,000 in cash, and apparently some photographs were seized (Tr. p. 6-8). The charge in this case refers to the cocaine found in a storage unit at Unit K-68 at National Self Storage (File Entry # 1, Tr. p. 8).
William F. McCarthy of the West Valley City Police Department testified as to the arrest of defendant at the National Self Storage unit (Tr. p. 21). McCarthy is assigned to the Drug Enforcement Task Force. On January 17, 1992 he executed a search warrant on a shed at National Self Storage at 350 South Redwood Road. McCarthy was the affiant (Tr. p. 22). McCarthy had received information from the storage unit management that one Albert Garcia had rented shed K-68. The management was suspicious of activities including people coming and going and different people with Garcia. The address Garcia had given the storage company was a fictitious address (Tr. p. 22). McCarthy pursued the investigation. He found an Albert Garcia at 815 North 1400 West for whom the social security number was the same given to the storage unit. Vehicles registered at that address matched vehicle information obtained form the storage company (Tr. pp. 23-24). A K-9 dog was obtained and several sheds were approached to have the dog react to. The dog had a record of 95% accuracy for the detection of narcotics (Tr. p. 25). McCarthy was present when the dog was run past the storage units (Id.). One was the target of the investigation; four or five units were involved in the sniff (Tr. p. 26). The dog expressed no interest in any shed until he came to K-68. This was the shed rented by Albert Garcia. When the sniffer dog reached K-68 he tried to tear off the door. Thereafter, the dog showed no interest in other sheds. The reaction, according to the dog's trainer, indicted the presence of narcotics (Tr. p. 27). Albert Garcia also had a criminal history. A search warrant for the storage unit was obtained by Officer McCarthy (Id.).
At 10:30 a.m. on January 17, 1992 McCarthy began a surveillance on the storage unit. At about ten minutes after 5:00 p.m. a utility type pickup truck arrived carrying the three defendants. The management of the Unit said they were persons who had been seen there before (Tr. pp. 27-28). McCarthy, with a customs officer, followed the truck and it parked in front of the storage shed. Zamora-Anaya was at the right rear of the truck (Tr. p. 28). Zamora was looking around, as if checking for anyone (Id., 29). There was no doubt in McCarthy's mind that Zamora was a lookout. The customs officer joined McCarthy and he ran towards the truck telling the individuals they were police (Id. p. 29). Defendants Uriarte and Chavez came out of the storage shed. Later, McCarthy went into the shed and searched an open package of cocaine which was on a television set (Tr. p. 30). The cocaine was on the top of a color console table (Tr. p. 30). The package had a "V" cut in it and appeared to be just opened because cocaine residue was still on a razor on top of the box and the console table (Tr. p. 30). Ten or more kilos were obtained from the unit (Tr. p. 30).
When the truck arrived at the storage company the three defendant were in it. Uriarte and Leon-Chavez got out of the truck and went into the shed (Tr. pp. 30-32). Prior to executing the search warrant, and making the arrest of the suspects McCarthy had no specific information on Zamora-Anaya (Tr. p. 32). The storage manager had first provided the police with the information. Zamora-Anaya got out of the truck and stood to its rear close to the shed door. This was where he was when McCarthy approached.
A white Ford was observed at the premises at 815 North 1400 West which was later searched with a warrant and two machine pistols and $127,000 in cash found. This was after the shed search (Tr. pp. 33-34). The storage unit manager had described the persons coming to the shed as hispanic males (Tr. p. 35). The storage unit manager had indicated people using a flat bed truck had moved some furniture into the unit (Tr. p. 35).3
Zamora-Anaya was just a few feet, the width of the truck from the entrance of the storage shed, when the other two were inside the shed (Tr. pp. 38-39). Officer McCarthy approached Zamora-Anaya with his gun and told him to freeze. According to McCarthy, Zamora-Anaya was not free to go but not under arrest. McCarthy then put Zamora on the ground and called the other two individuals out from the storage unit (Tr. p. 40). All were handcuffed. One had cocaine on him. They were advised they were under arrest after they were picked up form the ground (Tr. p. 41). McCarthy had seen a kilo of cocaine on the counter top in the shed. That was when he indicated defendants were under arrest (Tr. p. 41). McCarthy could see the cocaine before he entered the shed (Tr. p. 42). It was in a green cardboard box about a foot long and two inches wide (Tr. p. 42). There was a razor cut in the top of the box (Id.).
On March 18, 1992 defendant Eleazar-Leon-Chavez testified (Tr. p. 18).4 He testified that on January 17, 1992 he was residing at 815 North 1400 West in Salt Lake City (Tr. p. 19). He had the keys to the house and had been given permission to reside on the premises (Tr. p. 19). He invited defendants Eduardo Uriarte and Zamora-Anaya to reside there as well. Leon-Chavez was in charge of the premises (Id.). A Mr. Villa loaned the house to Leon Chavez (Tr. p. 19). Villa was a person Leon Chavez had met in Long Beach. Leon Chavez claimed Albert Garcia had given him permission to use the storage shed. He was listed on the shed card as a person who was permitted access to it (Tr. p. 21). Leon Chavez knew nothing about the white car at the resident premises and never drove it nor had keys for it (Tr. pp. 22-23). He claimed no interest in the car (Tr. p. 23). Leon-Chavez and the other defendants had stayed at the residence for two weeks before Christmas, left, and came by on January 11, 1992 (Tr. p. 24). Zamora had been given permission to stay at the house by Leon Chavez (Tr. p. 26). Uriarte was also living at the house. The government had no evidence that Villa was not the owner of the house (Tr. p. 31). Based on the above evidence the magistrate judge enters the following findings of fact:
1. One Albert Garcia, not a...
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