JAMES O. BROWNING, District Judge.
When ruling on a motion to suppress, the Court must state its essential findings on the record. See Fed.R.Crim.P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). This Memorandum Opinion and Order's findings of fact shall serve as the Court's essential findings for rule 12(d)'s purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982) ("[U]nder Rule[] 104(a) ..., the district court `is not bound by the Rules of Evidence except those with respect to privilege.'" (quoting United States v. Matlock, 415 U.S. 164, 174, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974))). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R.Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the
1. Special Agent Gerald Maestas has worked for the DEA for approximately fifteen years, and has been involved in at least ten wiretap investigations. See Transcript of Hearing at 19:17-23 (taken January 22, 2015)(Maestas), filed March 30, 2015 (Doc. 753)("Jan. 22, 2015, Tr."); id. at 27:7-9 (Maestas).
2. By the time Maestas reviewed the intercepted telephone calls related to what would later become known as the El Paso Drug Seizure — i.e., the seizure of the cocaine and marijuana that the deputies discovered in Gonzalez, Sr.'s trailer — he had spent approximately eight months as the case agent in charge of the DEA's investigation of the Varela DTO. See Jan. 22, 2015, Tr. at 27:14-18 (Swainston).
3. The DEA's investigation of the Varela DTO involved, among other things: (i) the development and use of at least eight confidential sources, who collectively provided reliable, active, and historical information about the organization, Varela, Gonzalez, Sr., and numerous other associates of the organization dating back to at least 2009; (ii) the use of undercover agents; (iii) the review and analysis of electronic data, which included an analysis of the use of cellular telephones by members and associates of the Varela DTO; (iv) physical surveillance, including the use of a pole camera; and (v) the examination of discarded trash. See Jan. 22, 2015, Tr. at 27:19-29:16 (Swainston).
4. Beginning in July, 2011, the United States District Court for the District of New Mexico authorized four wiretaps for the DEA's investigation. See Jan. 22, 2015, Tr. at 29:16-21 (Swainston).
5. In July, 2011, Maestas identified Gonzalez, Sr. as a drug smuggler, a Sinaloa Cartel associate, and a Varela associate. See Jan. 22, 2015, Tr. at 29:24-30:6 (Swainston).
6. The DEA began intercepting telephone calls between Varela and Jaime Ibarra-Solis, whom Maestas had identified as Varela's primary source of supply of illegal drugs. See Jan. 22, 2015, Tr. at 30:14-18 (Swainston).
7. Maestas determined, through reviewing telephone toll records
9. Based on his assessment of the intercepted communications, Maestas believed that a shipment was about to occur, in which Gonzalez, Sr. and A. Gonzalez would transport cocaine from J. Ibarra-Solis to Varela. See Jan. 22, 2015, Tr. at 31:12-18 (Swainston).
10. On or about November 9, 2011, Maestas directed other agents and officers to use a "walled-off stop"
11. What follows in the findings of fact is primarily Maestas' interpretation of the intercepted communications, with which the Court agrees; following each finding of fact, there is a citation sentence that provides a direct quotation or synopsis of the telephone conversation — translated from Spanish into English — that Maestas is interpreting. It appears that, where the direct quotation or synopsis includes pronouns, the Spanish translator attempted to identify each pronoun's antecedent in parentheses. In other words, the content in the parentheses was not explicitly stated during the telephone conversations, but added by whomever interpreted the calls. This information is the rawest data that the Court has for these telephone conversations. Gonzalez, Sr. has not argued that any of the synopses or direct quotations inaccurately translated Spanish into English.
12. In a November 2, 2011, telephone call, Varela told J. Ibarra-Solis that he was preparing a horse trailer that would be ready in January, 2012, in which he could transport larger shipments of cocaine. See Jan. 22, 2015, Tr. at 94:15-21 (Swainston, Maestas); Session Number: 11 (Nov. 3, 2011) at 3,
14. In a November 4, 2011, telephone call, Varela asked J. Ibarra-Solis if he expected a cocaine shipment soon. See Jan. 22, 2015, Tr. at 97:24-98:4 (Swainston, Maestas); Session Number: 22 (Nov. 4, 2011) at 3, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 22")("Varela told UM471 that he was checking to find out what time they [UNK] are coming, and have they [UNK] told UM471 what time they would be coming. UM471 told Varela that he would call and find out, but he first needs to go to the doctor to have his stitches removed.").
15. In a subsequent call on November 4, 2011, Varela learned that J. Ibarra-Solis' driver backed out of his agreement to transport the cocaine. See Jan. 22, 2015, Tr. at 98:5-11 (Swainston, Maestas); Session Number: 79 (Nov. 4, 2011) at 7, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 79")("UM471 informed that the guy [UNK] who was going to give them (UM471 et al) a ride had backed out and didn't want to go anymore. UM471 commented that since yesterday the guy [UNK] was giving excuses and added that his buddy [UNK] was angry about it.").
16. Varela agreed to help find a new driver, but said that he did not have any trips scheduled at that time. See Jan. 22, 2015, Tr. at 98:12-13 (Swainston, Maestas); Call 79 at 7 ("Varela commented that he didn't have any trips right now. UM471 asked if Varela knew of somebody who would help them out. Varela responded that he would try to find out....").
17. J. Ibarra-Solis stated that he had a vehicle available and that it was similar to the vehicle that Gonzalez, Jr. had previously used to transport drugs. See Jan. 22, 2015, Tr. at 98:13-21 (Swainston, Maestas); Call 79 at 7.
19. In a telephone call on November 5, 2011, Varela told J. Ibarra-Solis that J. Ibarra-Solis' brother-in-law was working on a trailer with hidden compartments that could hold money or drugs. See Jan. 22, 2015, Tr. at 99:5-13 (Swainston, Maestas); Session Number: 117 (Nov. 5, 2011) at 4, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 117").
20. In another call that same day, Varela asked J. Ibarra-Solis if his brother, Alonso Ibarra-Solis, had at least two kilograms of cocaine in Albuquerque; J. Ibarra-Solis replied that his brother did not have any cocaine at that time. See Jan. 22, 2015, Tr. at 99:21-25 (Swainston, Maestas); Session Number: 119 (Nov. 5, 2011) at 5, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 119").
21. In a telephone call later that day, J. Ibarra-Solis asked Varela for his telephone number, so that someone could call Varela to pick up money from him. See Jan. 22, 2015, Tr. at 101:2-6 (Swainston, Maestas); Session Number: 194 (Nov. 5, 2011) at 16, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 194")("UM471 asked Varela for a phone number, so that they [NFI] call call [sic] him, in order for them [UNK] to go ahead and pick that [NFI] up from him (Varela).").
22. Later that day, Varela told J. Ibarra-Solis that he would send him $198,000.00. See Jan. 22, 2015, Tr. at 101:7-9 (Swainston, Maestas); Session Number: 195 (Nov. 5, 2011) at 17, admitted at the January 22, 2015, evidentiary
23. In the final telephone call on November 5, 2011, Varela told J. Ibarra-Solis that Varela had given the money to Ramiro and that Ramiro would give the money to J. Ibarra-Solis. See Jan. 22, 2015, Tr. at 101:10-15 (Swainston, Maestas); Session Number: 218 (Nov. 5, 2011) at 21, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 218").
24. On November 6, 2011, J. Ibarra-Solis explained in a telephone call with Varela that, altogether, including A. Ibarra-Solis' cocaine, he had between thirty-five and forty kilograms of cocaine to send to Varela, but they still could not find a driver to transport it. See Jan. 22, 2015, Tr. at 101:17-21 (Swainston, Maestas); Session Number: 293 (Nov. 6, 2011) at 3, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 293").
25. Varela said that he was tempted to ask A. Gonzalez to transport the cocaine. See Jan. 22, 2015, Tr. at 101:21-23 (Swainston, Maestas); Call 293 at 3 ("Varela told UM471 that he is feeling like asking this man's nephew [UNK] to go for them.").
26. J. Ibarra-Solis told Varela to ask A. Gonzalez to drive the load, and advised J. Ibarra-Solis to not tell A. Gonzalez that the cocaine belongs to A. Ibarra-Solis. See Jan. 22, 2015, Tr. at 101:24-102:1 (Swainston, Maestas); Call 293 at 3
27. In a telephone conversation later that day, Varela told J. Ibarra-Solis that he had asked Gonzalez, Sr. about transporting the drugs and that Gonzalez, Sr. had asked for J. Ibarra-Solis' telephone number. See Jan. 22, 2015, Tr. at 102:7-11 (Swainston, Maestas); Session Number: 444 (Nov. 6, 2011) at 14, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 444").
28. Varela told J. Ibarra-Solis that Gonzalez, Sr.'s "eyes popped out" when Varela told him that there was a large shipment of cocaine to transport. Jan. 22, 2015, Tr. at 102:12-14 (Swainston, Maestas); Call 444 at 14.
29. Varela said that Gonzalez, Sr. was still upset about a prior dispute with A. Ibarra-Solis, but that Gonzalez, Sr. was the only one who could help them with the shipment in light of their time constraints. See Jan. 22, 2015, Tr. at 102:15-19 (Swainston, Maestas); Call 444 at 14 ("Varela told UM471 that he (Varela) is still upset about the problem, but well he has no other recourse but to continue working. Varela proceeded to tell UM471 that the man is the only one who can help them (Varela et al) out right now.").
30. In a telephone conversation later that day, J. Ibarra-Solis told Varela that Gonzalez, Sr. had agreed to transport the cocaine. See Jan. 22, 2015, Tr. at 104:6-8 (Swainston, Maestas); Session Number: 489 (Nov. 6, 2011) at 21, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 489").
31. In a later telephone call on November 6, 2011, J. Ibarra-Solis indicated to Varela that, because they had failed to find a driver in time, the source of supply sent the cocaine to someone else. See Jan. 22, 2015, Tr. at 104:9-12 (Swainston, Maestas); Session Number: 491 (Nov. 6, 2011) at 22, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 491")("UM471 told Varela that the man had sent them yesterday afternoon.
32. J. Ibarra-Solis told Varela that the only cocaine left to send is A. Ibarra-Solis'. See Jan. 22, 2015, Tr. at 104:12-15 (Swainston, Maestas); Call 491 at 22 ("Varela asked UM471 if the only ones left are his (UM471's) brother. UM471 affirmed....").
33. J. Ibarra-Solis told Varela that his source of supply promised to have another twenty kilograms of cocaine to transport on Tuesday, November 8, 2011. See Jan. 22, 2015, Tr. at 104:15-19 (Swainston, Maestas); Call 491 at 22 ("UM471 told Varela that he (man) had promised him that he would have a 2,0[
34. The next day, November 7, 2011, J. Ibarra-Solis confirmed to Varela that the source of supply was going to send twenty kilograms of cocaine to J. Ibarra-Solis. See Jan. 22, 2015, Tr. at 106:17-20 (Swainston, Maestas); Session Number: 590 (Nov. 7, 2011) at 10, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 590").
35. On November 8, 2011, J. Ibarra-Solis told Varela that he was able to secure only four kilograms of cocaine at that time. See Jan. 22, 2015, Tr. at 106:21-23 (Swainston, Maestas); Session Number: 795 (Nov. 8, 2011) at 30, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 795").
36. J. Ibarra-Solis said that, in addition to his four kilograms of cocaine, another twenty-three kilograms of cocaine was available from A. Ibarra-Solis. See Jan. 22, 2015, Tr. at 106:23-107:2 (Swainston, Maestas); Call 795.
37. J. Ibarra-Solis said that Gonzalez, Sr. agreed to do the shipment and would
38. Varela had previously planned a trip to Mexico during the week that the cocaine shipment was supposed to arrive. See Jan. 22, 2015, Tr. at 107:7-16 (Swainston, Maestas).
39. Varela asked J. Ibarra-Solis to leave four kilograms of cocaine for him with one of J. Ibarra-Solis' contacts in Albuquerque and hold them until Varela returned. See Jan. 22, 2015, Tr. at 107:12-16 (Swainston, Maestas); Call 795 at 30 ("Varela then added so that they could come to an agreement and then so that Jaime could give him (Varela) those 4[NFI].").
40. J. Ibarra-Solis and Varela then discussed cutting Gonzalez, Sr. out of the next shipment of cocaine and not telling him about it. See Jan. 22, 2015, Tr. at 110:18-24 (Swainston, Maestas); Call 795 at 31.
41. Varela told J. Ibarra-Solis to ask A. Ibarra-Solis to give Varela fifteen kilograms of cocaine from his shipment. See Jan. 22, 2015, Tr. at 111:1-3 (Swainston, Maestas); Call 795 at 31 ("Varela advised that at least those 4[NFI] are there and that he (Jaime) should tell his brother [NFI] to give Varela some 15[NFI] at least to do something....").
42. Varela then changed his mind and asked J. Ibarra-Solis for only two additional kilograms of cocaine, so that he could have a total of six kilograms. See Jan. 22, 2015, Tr. at 111:3-5 (Swainston, Maestas); Call 795 at 31 ("Varela then said at least another 2[NFI] so it could be 6[NFI].").
43. In a telephone call on November 9, 2011, J. Ibarra-Solis and Varela discussed that Varela's brother-in-law would receive the cocaine shipment from J. Ibarra-Solis' contact in Albuquerque. See Jan. 22, 2015, Tr. at 111:9-15 (Swainston, Maestas); Session Number: 912 (Nov. 9, 2011) at 6, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 912").
45. Again, later that day, J. Ibarra-Solis told Varela that he was calling Gonzalez, Sr., but Gonzalez, Sr. was not answering his telephone. See Jan. 22, 2015, Tr. at 112:1-4 (Swainston, Maestas); Session Number: 959 (Nov. 9, 2011) at 13, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 959")("Jaime informed that he was calling this man [NFI] and he didn't answer.").
46. Varela told J. Ibarra-Solis that A. Gonzalez said that he and Gonzalez, Sr. were already in El Paso to pick up the cocaine shipment; Varela agreed to call A. Gonzalez. See Jan. 22, 2015, Tr. at 112:5-7 (Maestas); Call 959 at 13 ("Varela said that he had to be there [NFI] and Varela noted that he (Varela) had talked to the nephew [NFI] and he (the nephew) had said that they were there already.... Varela said that he would call the nephew.").
47. In a subsequent call, J. Ibarra-Solis told Varela that Gonzalez, Sr. had finally answered his telephone. See Jan. 22, 2015, Tr. at 112:12-16 (Maestas); Session Number: 965 (Nov. 9, 2011) at 15, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 965")("Varela asked if he (Ramon) had already answered. Jaime affirmed and added Jaime was calling Varela to let him know.").
48. Maestas' toll analysis of telephone calls during this period showed communications between Gonzalez, Sr.'s telephone and J. Ibarra-Solis' telephone. See Jan. 22, 2015, Tr. at 112:17-21 (Maestas, Swainston).
49. In anticipation of the drug transport, Varela told J. Ibarra-Solis that the United States Border Patrol checkpoint between El Paso and Albuquerque was active. See Jan. 22, 2015, Tr. at 112:23-25 (Maestas); Session Number: 1000 (Nov. 9, 2011) at 23, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 1000")("Varela told Jaime the machines [NFI] were placed there [NFI].... Varela reiterated he (Varela) had just passed there [NFI] and the machines were in place [NFI].").
50. J. Ibarra-Solis asked if Varela had told Gonzalez, Sr. that the checkpoint was active. See Jan. 22, 2015, Tr. at 112:25-113:2 (Maestas); Call 1000 at 23 ("Jaime acknowledged and asked if Varela had told them (Ramon et al).").
51. Varela "affirmed and added that they (Ramon et al) were going to wait a little longer." Call 1000 at 23.
52. On November 6, 2011, in a call between Varela and Gonzalez, Jr., Varela
53. Varela explained that he had forty-five kilograms of cocaine available to him and confirmed to Gonzalez, Jr. that his source of supply is J. Ibarra-Solis. See Jan. 22, 2015, Tr. at 115:23-116:5 (Maestas); Call 418 at 12 ("UM4 asked Varela if Alonso or Jaime had called. Varela said Jaime. Varela said that they (Jaime/Alonso) have 45 right now, and they want for Varela to bring them [NFI].").
54. In another call later that day, Varela asked Gonzalez, Jr. if he was willing to transport the drugs. See Jan. 22, 2015, Tr. at 116:7-9 (Maestas); Session Number: 457 (Nov. 6, 2011) at 17, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 457")("Varela told UM418 that's why he (Varela) was calling him, to see if he (UM418) could go and get at least that [NFI].").
55. Varela then joked about transporting the cocaine himself, and told Gonzalez, Jr. to wait for his call in case Varela called him from jail. See Jan. 22, 2015, Tr. at 116:11-14 (Maestas); Call 457 at 17 ("Varela agreed and added those 45[NFI] were there [NFI] and added he didn't know what he was going to do. Varela added he might have to go alone. UM418 laughed. Varela told UM418 to wait for the call in case he (Varela) called him (UM418) from jail.").
56. In a November 9, 2011, call, Varela asked Gonzalez, Jr. if his source of supply for marijuana had arrived, because Varela had some buyers who were looking for 300 pounds of marijuana. See Jan. 22, 2015, Tr. at 119:3-8 (Maestas); Session Number: 895 (Nov. 9, 2011) at 5, admitted at the January 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 895")("Varela asked if Gonzalez Jr.'s friends had arrived yet and informed that he (Varela) was being asked for 300[NFI].").
57. Gonzalez, Jr. indicated that the marijuana would arrive on Monday. See Jan. 22, 2015, Tr. at 119:3-8 (Maestas); Call 895 at 5 ("Gonzalez Jr. replied that for Monday.").
58. Gonzalez, Jr. asked about the cocaine, and Varela said that his suppliers had sent twenty kilograms of cocaine. See Jan. 22, 2015, Tr. at 119:10-12 (Maestas); Call 895 at 5 ("Gonzalez Jr. asked about this dude [UNK] and asked if they [UNK] had arrived late. Varela negated and said that at the end they [UNK] did send some and 20[NFI] would arrive.").
59. Varela then indicated to Gonzalez, Jr. that his supplier would ship twenty-three kilograms of cocaine, but that J. Ibarra-Solis wanted a week for distribution and payment in case Gonzalez, Jr. was interested in receiving some of the shipment. See Jan. 22, 2015, Tr. at 119:12-19 (Maestas); Call 895 at 5 ("Gonzalez Jr. asked if they [NFI] were going to be Jaime's. Varela said that he thought those [NFI] would be Jaime's but he wanted a week and noted that they [NFI] were going
60. Gonzalez, Jr. asked for J. Ibarra-Solis' telephone number, so that he could speak to J. Ibarra-Solis himself. See Jan. 22, 2015, Tr. at 119:19-21 (Maestas); Call 895 ("Gonzalez Jr. asked for Jaime's number so he could talk to Jaime.").
61. On November 5, 2011, in a telephone conversation between Varela and A. Gonzalez, Varela told A. Gonzalez that J. Ibarra-Solis was calling him insistently. See Jan. 22, 2015, Tr. at 120:1-4 (Maestas); Session Number: 122 (Nov. 5, 2011) at 6, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 122")("Varela told UM580[
62. A. Gonzalez thought that Gonzalez, Sr. did not want to work with the Ibarra-Solises because of a previous transaction in which Freddie Ibarra-Solis, another one of J. Ibarra-Solis' brothers, took a long time to pay Gonzalez, Sr. for a drug shipment. See Jan. 22, 2015, Tr. at 120:5-10 (Maestas); Call 122 at 6.
63. A. Gonzalez indicated that he was ready to do the drug shipment. See Jan. 22, 2015, Tr. at 120:10-13 (Maestas); Call 122 at 6 ("UM580 added that he already put a hitch ball on the truck, and he is good to go. Varela told UM580 that this way, his (UM580's) uncle won't be disappointed when he sees that the trailer is missing.").
64. A. Gonzalez said that he had horses that he could use as a cover load; in other words, A. Gonzalez said that he could transport the horses in the trailer along with the drugs, in the hopes that law enforcement searching the trailer would not search any further upon seeing the horses. See Jan. 22, 2015, Tr. at 120:18-121:1 (Maestas); Call 122 at 6 ("Varela said that he (UM580) is going to need some horse. UM580 said that it is not a problem, and he can get some horses out there somewhere.").
65. A. Gonzalez said that he would need to wait until Wednesday, November 9, 2011, to do the shipment, because of his horse-training responsibilities. See Jan. 22, 2015, Tr. at 121:3-7 (Maestas); Call 122 at 7 ("UM580 said for Varela to tell him [UNK], and if they [UNK] are willing to wait, he can do it Wednesday, and UM580 and Varela can get a share.").
66. On November 9, 2011, A. Gonzalez told Varela he could not transport the cocaine himself, or by himself, and that it would be better to let Gonzalez, Sr. do the shipment. See Jan. 22, 2015, Tr. at 121:14-20 (Maestas); Session Number: 950 (Nov. 9, 2011) at 11, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 950")("Andres... said that regarding what they (Andres & Varela) had talked the other day, Andres wasn't going to be able to go by
67. Varela told A. Gonzalez that it was only going to be two or three kilograms of cocaine this time. See Jan. 22, 2015, Tr. at 121:20-22 (Maestas); Call 950 at 11 ("Varela commented that they were going to be only 2 or 3 anyway.").
68. Varela said that the next shipment, which would take place presumably the following week, would not involve Gonzalez, Sr., and that the fees associated with that shipment would go to Varela and A. Gonzalez only. See Jan. 22, 2015, Tr. at 122:25-123:5 (Maestas); Call 950 at 11 ("Varela expressed that for the next time they (Varela et al) would take them all, and told Andres not to say anything.... Varela reiterated that it would be all just for him (Andres) and Varela. Andres acknowledged.").
69. On November 5, 2011, Chavez asked Varela if he had any cocaine. See Jan. 22, 2015, Tr. at 123:16-17 (Maestas); Session Number: 139 (Nov. 5, 2011) at 10, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 139")("Chavez ... asked Varela if they [UNK] brought a bunch.").
70. Varela said he had just received a call from a source of supply in Mexico, and they were asking for help transporting cocaine. See Jan. 22, 2015, Tr. at 123:16-20 (Maestas); Call 139 at 10 ("Varela told Chavez that they [UNK] had just called him (Varela) and had asked him (Varela) to help them out to bring them [NFI] from over there.").
71. Varela said that he was sending someone over to do the shipment that night. See Jan. 22, 2015, Tr. at 123:20-22 (Maestas); Call 139 at 10 ("Varela is going to send his (Varela's) guy over there [NFI] tonight.").
72. Chavez asked how many kilograms of cocaine, and Varela indicated that he was unsure, but that it was a lot. See Jan. 22, 2015, Tr. at 123:22-24 (Maestas); Call 139 at 10 ("Chavez asked Varela how many he (Varela) was going to have. Varela said he didn't know, but was told that it's quite a bit.").
73. Chavez said he would help Varela with distributing or selling that cocaine. See Jan. 22, 2015, Tr. at 123:24-124:1 (Maestas); Call 139 at 10 ("Chavez told Varela that if Varela would help him, he (Chavez) will help Varela move them [NFI].").
74. Varela indicated that the cocaine was coming from A. Ibarra-Solis, but he also thought J. Ibarra-Solis and A. Ibarra-Solis were putting their cocaine together for one shipment. See Jan. 22, 2015, Tr. at 125:11-17 (Maestas); Call 139 at 10 ("Chavez asked Varela if he was going to get them [NFI] from the other brother and not f[r]om the other one. Varela affirmed and said that from the other brother, but that he (Varela) thought that they are both going to put theirs together.").
75. Chavez said that he would rather take cocaine from Varela than an unknown source, suggesting that Chavez had more trust in the quality of Varela's cocaine. See Jan. 22, 2015, Tr. at 125:18-21 (Maestas); Call 139 at 10 ("Chavez told Varela that he would rather get them [NFI] from Varela, because they are way better than the other ones.").
76. In a later call on November 5, 2011, Varela told Chavez that Varela needed to sell some drugs and make money. See Jan. 22, 2015, Tr. at 125:24-25 (Maestas); Session Number: 145 (Nov. 5, 2011) at 11, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call
77. Varela said A. Ibarra-Solis will probably give them eighteen kilograms of cocaine for $17,000.00 per kilogram if they paid for it up front rather than on consignment. See Jan. 22, 2014, Tr. at 125:24-126:4 (Maestas); Call 145 at 12 ("Varela told Chavez that he thinks they [UNK] will hook them up over there [NFI] for like 18. Varela said that they're 17 if they [UNK] pay them right away, b[u]t Varela told Chavez that his (Chavez's) friends will hook them (Varela et al) up at 18.").
78. During this period, Varela was purchasing the cocaine for $23,000.00 per kilogram on consignment, so the conversation between Varela and Chavez indicated that Varela could purchase the cocaine at a lower price if he paid for it up front. See Jan. 22, 2015, Tr. at 126:12-14 (Maestas).
79. On November 8, 2011, Varela asked if he should delete Chavez' old number, and Chavez said yes. See Jan. 22, 2015, Tr. at 127:3-6 (Maestas); Session Number: 666 (Nov. 8, 2011) at 11, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 666")("Varela asked Steve if he (Steve) wanted Varela to delete the other one (phone number). Steve affirmed....").
80. Chavez added that no one had his new telephone number but the driver and his buyer in Florida. See Jan. 22, 2015, Tr. at 127:6-8 (Maestas); Call 666 at 11 ("Steve added no one had this one (phone number) but the guy there (possibly Miami), the driver and now Varela.").
81. Chavez said his buyer has cash and never asks Chavez to give him drugs on consignment. See Jan. 22, 2015, Tr. at 127:9-10 (Maestas); Call 666 at 11 ("Steve added those fuckers had cash and didn't ask for anything to be fronted.").
82. Chavez said that the price of a kilogram of cocaine in Florida is $32,000.00 to $35,000.00 per kilogram, and that his buyer was willing to pay $35,000.00 per kilogram. See Jan. 22, 2015, Tr. at 127:10-14 (Maestas); Call 666 at 11 ("Steve asked Varela if he knew how much they got for those fuckers there. Varela replied about 34[NFI]. Steve informed Varela they got between 32 and 35[NFI], Steve added he could get 35 for them today.").
83. Chavez said that his buyer could sell all of the twenty kilograms of cocaine. See Jan. 22, 2015, Tr. at 128:2-5 (Maestas); Call 666 at 11 ("Steve told Varela he could sell, move them.").
84. In a later call on November 8, 2011, Chavez asked Varela if he would be able to provide at least twenty kilograms of cocaine; Varela affirmed. See Jan. 22, 2015, Tr. at 128:7-129:10 (Maestas); Session Number: 688 (Nov. 8, 2011) at 13, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 688")("Steve asked if it would be no less than 20[NFI]. Varela affirmed.").
85. Chavez' buyer in Florida got on the telephone and told Varela that he could move fifteen to twenty kilograms per week. See Jan. 22, 2015, Tr. at 129:24-25 (Maestas); Call 688 ("UM proceeded to tell Steve they (UM et al) moved a total of 20[NFI].... UM told Varela that he (Steve) could tell Varela he (UM) was moving between 15 to 20[NFI] weekly.").
86. The buyer said that he could pay for six or seven kilograms right now, and then asked to wait six or seven days — or seven to eight days, to be safe — to sell the remainder of the cocaine and to collect the proceeds. See Jan. 22, 2015, Tr. at 129:24-130:6
87. In a later call on November 8, 2011, Chavez told Varela that the deal is done in Florida and that there was no turning back; in other words, Chavez said that he was ready to conduct the transaction for the twenty kilograms of cocaine. See Jan. 22, 2015, Tr. at 130:18-20 (Maestas); Session Number: 723 (Nov. 8, 2011) at 19, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 723")("Steve told Varela that it was all lined up for sure. Steve asked Varela if it was for sure, Steve added there was no turning back for him (Steve).").
88. Varela said that he would be leaving town and indicated that he did not want to leave the cocaine at his house while he was on vacation. See Jan. 22, 2015, Tr. at 131:3-5 (Maestas); Call 723 at 19 ("Varela added he (Varela) couldn't have all that (the 20) standing there (possibly his location) till he came back.").
89. The next day, November 9, 2011, Varela told Chavez that a person nicknamed "Cheekies" — who Maestas later identified as Rigoberto Eduardo Serano — would give him Varela's cocaine. Jan. 22, 2015, Tr. at 131:12-17 (Maestas); id. at 143:10-12 (Maestas). See Session Number: 971 (Nov. 9, 2011) at 17, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 971")("Varela told Steve Chiquis would hook Varela up.").
90. Chavez asked if it was the same quality of cocaine that Varela always gets, and Varela said yes. See Jan. 22, 2015, Tr. at 131:18-132:14 (Maestas); Call 971 ("Steve ... asked if they were the same ones or the PVC fuckers. Varela replied they were the same ones. Steve asked if the ones Varela always got. Varela affirmed.").
91. Chavez is a firefighter for the Albuquerque Fire Department and a construction worker; he is not involved with horse racing or horse training. See Jan. 22, 2015, Tr. at 124:18-125:6 (Maestas, Swainston).
92. Varela was not a construction worker or a firefighter. See Jan. 22, 2015, Tr. at 125:7-9 (Maestas, Swainston).
93. On November 6, 2011, Gonzalez, Sr. called Varela, and Varela said that J. Ibarra-Solis had forty-five kilograms of cocaine ready to be transported. See Jan. 22, 2015, Tr. at 133:20-22 (Maestas); Session Number: 329 (Nov. 6, 2011) at 11, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 329")("Varela informed Ramon that they (Jaime et al) had 45 there [NFI].").
94. Gonzalez, Sr. said that J. Ibarra-Solis had no one to transport the cocaine at that time. See Jan. 22, 2015, Tr. at 133:24-25 (Maestas); Call 329 at 11 ("Ramon advised they (Jaime et al) didn't have anyone to train their horses [NFI] right now.").
95. Varela replied that the vehicle that was being used for cocaine shipments could only hold sixteen kilograms of cocaine and that they wanted to transport all
96. Varela said that law enforcement would catch them if they had to cross the Border Patrol checkpoint back and forth multiple times. See Jan. 22, 2015, Tr. at 134:18-21 (Maestas).
97. In a subsequent telephone conversation on November 6, 2011, Varela asked if Gonzalez, Sr. was ready to transport the cocaine, and Gonzalez, Sr. said that he was. See Jan. 22, 2015, Tr. at 135:16-18 (Maestas); Session Number: 452 (Nov. 6, 2011) at 15, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 452")("Varela asked if Ramon was ready. Ramon acknowledged....").
98. Both discussed generally the need to transport the forty-five kilograms of cocaine, and Gonzalez, Sr. said that he would bring all of the cocaine at once. See Jan. 22, 2015, Tr. at 135:15-22 (Maestas); Call 452 at 15 ("Varela told Ramon to call since he (Varela) had asked him [UNK] to help him (Varela) out with at least half [NFI].... Ramon said that he (Ramon) would bring all of them [NFI] at once.").
99. In a later call on November 6, 2011, Gonzalez, Sr. told Varela that J. Ibarra-Solis would call right now and that J. Ibarra-Solis would probably want to arrange the shipment of cocaine the following day. See Jan. 22, 2015, Tr. at 136:1-4 (Maestas); Session Number: 484 (Nov. 6, 2011) at 20, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 484")("Ramon told Varela he [UNK] would call right now, but that Ramon that that he [UNK] would probably want to do it tomorrow [NFI].").
100. In a November 7, 2011, telephone call, Varela asked Gonzalez, Sr. if he had talked to J. Ibarra-Solis, and then asked if Gonzalez, Sr. had left for El Paso yet. See Jan. 22, 2015, Tr. at 136:6-9 (Maestas); Session Number: 544 (Nov. 7, 2011) at 12, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 544")("Varela asked Ramon if he had talked to ... and then asked if he [UNK] had left over there [NFI] after all.").
101. Gonzalez, Sr. told Varela that J. Ibarra-Solis had said that all the cocaine was ready at the stash location and that it was for Varela; Varela affirmed. See Jan. 22, 2015, Tr. at 136:16-21 (Maestas); Call 544 at 12 ("Ramon informed Varela he [NFI] had said that all the muebles/furniture [NFI] of those apartments [NFI] were for Varela. Varela affirmed....").
102. The next day, November 8, 2011, Gonzalez, Sr. told Varela that J. Ibarra-Solis said that the cocaine shipment would not be ready until the following day. See Tr. at 137:19-22 (Maestas); Session Number: 595 (Nov. 8, 2011) at 1, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 595")("Ramon said that he (Jaime) had called and
103. Gonzalez, Sr. said that he thought that J. Ibarra-Solis might be using another guy to do the cocaine shipment. See Tr. at 137:12-24 (Maestas); Call 595 at 1 ("Ramon said that he thought that he (Jaime) might be using another guy.").
104. Varela said no and added that he was still waiting. See Jan. 22, 2015, Tr. at 137:24-138:2 (Maestas); Call 595 at 1 ("Varela negated and added that he (Varela) is waiting.").
105. Varela told Gonzalez, Sr. that other drug smugglers all charge the same fee to transport drugs. See Jan. 22, 2015, Tr. at 138:2-9 (Maestas); Call 595 at 1 ("Varela told Ramon that they (guys) all charge the same thing.").
106. Gonzalez, Sr. told Varela that, on Sunday, J. Ibarra-Solis had told him that J. Ibarra-Solis wanted Gonzalez, Sr. to come Monday and that he thought it was going to be thirty-six kilograms of cocaine, but that J. Ibarra-Solis just told him that there would only be twenty kilograms. See Jan. 22, 2015, Tr. at 138:2-9 (Maestas); Call 595 at 1 ("Ramon proceeded to tell Varela that on Sunday, he (Jaime) had told him that he (Jaime) wanted for Ramon to come Monday. That Ramon thought it was 36, but that he (Jaime) just told them that there are only 20.").
107. Varela said that it would be good to transport only twenty kilograms of cocaine. See Jan. 22, 2015, Tr. at 139:16-20 (Maestas); Call 595 at 1 ("Varela told Ramon that he's going to call the dude (Jaime), and if he (Jaime) has that, well it would be good to just bring that (20). Varela proceeded to say that twenty (20) is good.").
108. Gonzalez, Sr. said that he would not be able to do it on Thursday night, because he wanted to leave El Paso early in the morning on Friday. See Jan. 22, 2015, Tr. at 139:21-23 (Maestas); Call 595 at 2 ("Ramon said that he won't be able to do it on Thursday night, because he (Ramon) wants to leave early morning Friday.").
109. Varela said he could also not do the shipment, because he was supposed to leave for his vacation in Mexico on Wednesday; Varela added that, if the shipment does not arrive in Albuquerque by Wednesday, he would not be able to receive it. See Jan. 22, 2015, Tr. at 139:23-140:5 (Maestas); Call 595 at 2 ("Varela said that he can't do it either, because as Ramon should recall, Varela was supposed to go to Cancun and it was cancelled because of the hurricane. So now, Varela is going to leave on Wednesday, and if it doesn't arrive by Wednesday, Varela won't be able to receive it.").
110. Varela said that he would call J. Ibarra-Solis to ensure that the shipment made it to Albuquerque in time. See Jan. 22, 2015, Tr. at 140:5-7 (Maestas); Call 595 at 2 ("Varela told Ramon that he was going to call him (Jaime), because it's a must that it gets here to him (Varela).").
111. Later on November 8, 2011, Varela and Gonzalez, Sr. discussed their frustration that they did not know when the cocaine shipment would be ready. See Jan. 22, 2015, Tr. at 141:6-9 (Maestas); Session Number: 760 (Nov. 8 2011) at 27, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 760")("Varela asked if that dude (Jaime) had called him. Ramon negated and told Varela it was just bullshit. Varela agreed and added he was calling him and he (Jaime) didn't answer. Ramon added it was all a lie.").
112. Varela and Gonzalez, Sr. expressed concern that J. Ibarra-Solis or A. Ibarra-Solis had arranged for someone
113. Both discussed further how they looked forward to a good relationship with the Ibarra-Solises, and Gonzalez, Sr. informed Varela that he expected an $8,000.00 transportation fee; Varela agreed. See Jan. 22, 2015, Tr. at 141:11-15 (Maestas); Call 760 at 27 ("Varela told Ramon once they started they would get with it. Ramon affirmed and informed Varela it was going to happen with this fucking man [UNK]. Ramon added he was going to give him about 8[NFI]. Varela affirmed.").
114. Both Varela and Gonzalez, Sr. were so frustrated that they had not yet solidified the upcoming cocaine transport that they said they should agree to do future cocaine transports for the Ibarra-Solises, and then not show up or answer their calls. See Jan. 22, 2015, Tr. at 141:17-22 (Maestas); Call 760 at 27 ("Ramon added that next time they needed someone they were fucked. Varela affirmed. Ramon told Varela they would pay them back. Varela told Ramon they would say yes and not answer their calls.").
115. In a later call on November 8, 2011, it became clear that the cocaine shipment was back on track and that it would be ready for pick up in El Paso the following day. See Jan. 22, 2015, Tr. at 142:12-19 (Maestas); Session Number: 797 (Nov. 8, 2011) at 33, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 797")("Varela asked if the dude (Jaime) had called him. Ramon affirmed and advised had just called him 5 minutes ago. Varela told Ramon he had called and told him (Varela) this man was on his way over tomorrow.").
116. Gonzalez, Sr. stated that J. Ibarra-Solis had told him the drugs would be ready by 3:00 or 4:00 p.m. See Jan. 22, 2015, Tr. at 142:20-22 (Maestas); Call 797 at 33 ("Ramon acknowledged and added Jaime had told him it would be ready by three or four.").
117. Gonzalez, Sr. explained how he had told J. Ibarra-Solis that he would pick up the cocaine at about 4:30 p.m. or 5:00 p.m. See Jan. 22, 2015, Tr. at 142:23-25 (Maestas); Call 797 at 33 ("Ramon told Jaime he would pick it up about 4:30 or 5:00.").
118. Varela asked Gonzalez, Sr. if it would be twenty-three kilograms of cocaine; Gonzalez, Sr. affirmed. See Jan. 22, 2015, Tr. at 142:23-143:21 (Maestas); Call 797 at 33 ("Varela acknowledged and told Ramon if he (Jaime) had told him (Ramon) it was 2,3. Ramon affirmed.").
119. Varela said "that was something" and "told Ramon he (Ramon) could go to Califas/California very comfortably and laughed." Call 797 at 33.
120. On the next day, November 9, 2011, Varela and Gonzalez, Sr. discussed the final arrangements for the cocaine shipment, including where Varela wanted the cocaine to be delivered; Varela said he wanted it taken to Serano, who would then give the cocaine to Chavez. See Jan. 22, 2015, Tr. at 143:3-12 (Maestas); Session Number: 966 (Nov. 9, 2011) at 16, admitted at the Jan. 22, 2015, evidentiary hearing as Government Exhibit 2 ("Call 966").
122. Varela then informed Gonzalez, Sr. that the Border Patrol checkpoint was operational. See Jan. 22, 2015, Tr. at 144:1-3 (Maestas); Call 994 at 22 ("Varela informed Ramon the machine [NFI] was in place.").
123. Gonzalez, Sr. agreed and added that it was "red alert" there. Jan. 25, 2015, Tr. at 144:3-4 (Maestas); Call 994 at 22 ("Ramon affirmed and added it was red alert there [NFI].").
124. Gonzalez, Sr. told Varela that he was aware of the checkpoint and would leave from El Paso with the cocaine at 4:00 a.m. the next morning, when the checkpoint would likely not be operational. See Jan. 22, 2015, Tr. at 145:12-17 (Maestas); Call 994 at 22 ("Ramon told Varela he saw it since he got there [NFI]. Ramon added he would take off at four in the morning. Varela replied that was better. Ramon added why take a risk.").
125. Gonzalez, Sr. is a horse trainer of fairly national recognition. See Jan. 22, 2015, Tr. at 42:10-19 (Maestas, Walz).
126. Varela and Gonzalez, Sr. were part owners of at least one horse. See Jan. 22, 2015, Tr. at 43:6-17 (Maestas, Walz).
127. Video surveillance of Gonzalez, Sr.'s multiple homes did not reveal any criminal activity, and that physical surveillance of Gonzalez, Sr. and A. Gonzalez at a racetrack in Sunland, New Mexico, also did not reveal any criminal activity. See Jan. 22, 2015, Tr. at 42:1051:16 (Maestas, Walz).
128. In addition to the telephone conversations referenced above, Maestas arranged for DEA agents to assist with the investigation by conducting surveillance of Gonzalez, Sr., A. Gonzalez, and others in the El Paso area on November 9, 2011, and November 10, 2011. See Transcript of Hearing (taken January 28, 2015) at 155:8-15 (Gooch), filed March 30, 2015 (Doc. 754)("Jan. 28, 2015, Tr."); id. at 156:13-18 (Gooch); id. at 158:16-25 (Gooch).
129. Douglas Gooch, a DEA Special Agent from the Albuquerque DEA office, was in charge of the surveillance operation in El Paso and supervised five DEA agents from the Albuquerque office and six to eight agents from the El Paso office. See Jan. 28, 2015, Tr. at 156:19-157:18 (Swainston, Gooch).
130. The purpose of the surveillance operation was to seize the cocaine shipment that Gonzalez, Sr. planned to transport from El Paso to Albuquerque. See Jan. 28, 2015, Tr. at 157:19-158:6 (Swainston, Gooch).
131. The surveillance operation began on November 9, 2011 when Maestas called Gooch and told him that, based on intercepted telephone communications, Maestas
132. Gooch and the surveillance team first encountered Gonzalez, Sr. and A. Gonzalez on November 9, 2011, heading south on Interstate 25 towards El Paso at a truck stop just over the border into Texas; Gonzalez, Sr. was driving a white Dodge pickup truck with an attached horse trailer and A. Gonzalez was driving a maroon Dodge pickup without a trailer attached to it. See Jan. 28, 2015, Tr. at 158:16-159:8 (Gooch).
133. Agents continued to maintain surveillance of Gonzalez, Sr. and A. Gonzalez in the El Paso area. See Jan. 28, 2015, Tr. at 158:16-167:5 (Swainston, Gooch).
134. At approximately 8:30 p.m., the agents observed a meeting between Gonzalez, Sr., A. Gonzalez, and two female subjects in a mall parking lot. See Jan. 28, 2015, Tr. at 159:1160:4 (Swainston, Gooch).
135. After the meeting at the parking lot, Gonzalez, Sr. and A. Gonzalez returned to their hotel. See Jan. 28, 2015, Tr. at 160:5-10 (Gooch).
136. At approximately 9:00 p.m., agents observed A. Gonzalez leave the hotel in the maroon pickup, but the agents were unable to maintain surveillance of it. See Jan. 28, 2015, Tr. at 161:15-20 (Gooch).
137. A few minutes later, agents observed Gonzalez, Sr. drive his truck and trailer from the hotel to a storage facility and drive into the storage facility. See Jan. 28, 2015, Tr. at 161:21-162:12 (Gooch).
138. A. Gonzalez' and Gonzalez, Sr.'s hotel was located about a half mile from the storage facility. See Jan. 28, 2015, Tr. at 166:10-14 (Swainston, Gooch).
139. At approximately 9:15 p.m., a blue minivan arrived at the storage facility, pulled up to the front gate and stopped; A. Gonzalez' truck then drove to the front gate to activate the gate, so that the blue minivan could enter the facility. See Jan. 28, 2015, Tr. at 162:13-21 (Gooch).
140. The blue minivan and A. Gonzalez' truck drove back to a storage unit together. See Jan. 28, 2015, Tr. at 162:18-21 (Gooch).
141. At approximately 10:00 p.m., Gonzalez, Sr.'s truck, A. Gonzalez' truck, and the minivan left the storage facility "in tandem." Jan. 28, 2015, Tr. at 162:22-25 (Gooch).
142. The surveillance team never observed A. Gonzalez or Gonzalez, Sr. take any boxes from the storage unit and put them in the trailer. See Jan. 28, 2015, Tr. at 171:18-20 (Walz, Gooch).
143. The surveillance team did not see any action by either Gonzalez, Sr. or A. Gonzalez at the storage site indicating that they were transferring any items from the storage facility to the trailer attached to Gonzalez, Sr.'s pickup. See Jan. 28, 2015, Tr. at 171:20-25 (Walz, Gooch).
144. Throughout the surveillance operation, Gooch and Maestas were in constant communication, and Maestas was giving Gooch instructions based on the telephone conversations that he was intercepting. See Jan. 28, 2015, Tr. at 167:8-16 (Swainston, Gooch).
145. Maestas told Gooch that, based on intercepted telephone conversations, he expected Gonzalez, Sr. and A. Gonzalez to leave El Paso at approximately 4:00 a.m. on November 10, 2011, so Gooch and the surveillance team maintained constant surveillance on Gonzalez, Sr. and A. Gonzalez at the hotel after they went to sleep. See Jan. 28, 2015, Tr. at 167:1-7 (Swainston, Gooch).
146. At almost 4:00 a.m., Gonzalez, Sr. got into the white Dodge pickup with the
147. A. Gonzalez' and Gonzalez, Sr.'s trucks eventually separated, and the surveillance team split up, so that they could follow both vehicles. See Jan. 28, 2015, Tr. at 169:18-23 (Gooch).
148. Although Gooch and other agents followed A. Gonzalez, they eventually let him go without stopping his vehicle. See Jan. 28, 2015, Tr. at 169:24-170:12 (Swainston, Gooch).
149. At the surveillance team's direction, Border Patrol officers later stopped the two female subjects, conducted a search of their vehicle, but did not find any contraband; the officers found hidden compartments in the vehicle, however. See Jan. 28, 2015, Tr. at 175:17-23 (Walz, Gooch).
150. The DEA surveillance team did not participate in the stop or search of Gonzalez, Sr.'s vehicle, because they wanted to protect the DEA's wiretap investigation. See Jan. 28, 2015, Tr. at 170:13-23 (Swainston, Gooch); id. at 196:23-197:4 (Swainston, Lopez).
151. DEA Special Agent Emrich, who worked in the Albuquerque, New Mexico DEA office, asked Angel Lopez, who is a detective with the El Paso Sheriff's Office assigned to the DEA as a Task Force Officer, to obtain the assistance of deputies with the El Paso Sheriff's Office in conducting a "walled-off" traffic stop of Gonzalez, Sr.'s vehicle. Jan. 28, 2015, Tr. at 185:1-9 (Swainston, Lopez). See id. at 206:22-207:14 (Walz, Lopez).
152. A walled-off stop is when officers who are not involved in the wiretap investigation obtain their own probable cause — typically based on a motor vehicle code violation — to conduct a traffic stop on the target vehicle. See Jan. 28, 2015, Tr. at 185:14-24 (Swainston, Lopez).
153. The El Paso Sheriff's Office assigned Almonte and Marquez to conduct the walled-off stop of Gonzalez, Sr.'s vehicle. See Jan. 28, 2015, Tr. at 187:15-24 (Swainston, Lopez).
154. Lopez explained to Marquez that he and Almonte were assisting the Albuquerque DEA office in a wiretap investigation and that the DEA needed the deputies to conduct a traffic stop on a vehicle that was possibly loaded with an unknown amount of cocaine. See Jan. 28, 2015, Tr. at 189:5-15 (Swainston, Lopez).
155. Lopez told Marquez that he and Almonte should find their own probable cause to stop Gonzalez, Sr.'s truck, but did not tell them for what violations to look. See Jan. 28, 2015, Tr. at 200:8-13 (Walz, Lopez).
156. Lopez also informed Marquez that the truck would likely be loaded with drugs, but he did not say anything about obtaining Gonzalez, Sr.'s consent to search the truck. See Jan. 28, 2015, Tr. at 200:14-23 (Walz, Lopez).
157. Lopez also gave Marquez a DEA radio, so he could be in contact with the DEA surveillance team. See Jan. 28, 2015, Tr. at 188:19-189:4 (Swainston, Lopez).
158. At approximately 3:30 a.m., on November 10, 2011, Lopez met Marquez at Gonzalez, Sr.'s and A. Gonzalez' hotel, so that Lopez could point out Gonzalez, Sr.'s vehicle to Marquez. See Jan. 28, 2015, Tr. at 192:14-193:4 (Swainston, Lopez).
159. Marquez and Almonte agreed to park in different locations, so that one of them could intercept Gonzalez, Sr., regardless which direction he traveled from the
160. Lopez stayed at A. Gonzalez' and Gonzalez, Sr.'s hotel, so that he could communicate Gonzalez, Sr.'s location to Marquez and Almonte. See Jan. 28, 2015, Tr. at 193:22-194:6 (Swainston, Lopez).
161. From that point forward, Lopez used the DEA radio to communicate with Marquez, and Marquez communicated with Almonte through the Sheriff's Office radio. See Jan. 28, 2015, Tr. at 194:11-14 (Swainston, Lopez).
162. Marquez gave Almonte a description of Gonzalez, Sr.'s truck and trailer, and told him that a DEA investigation indicated that Gonzalez, Sr.'s truck likely contained illegal drugs. See Jan. 28, 2015, Tr. at 250:16-20 (Swainston, Almonte); id. at 251:22-252:6 (Swainston, Almonte); id. at 253:7-10 (Walz, Almonte); id. at 265:1-10 (Walz, Almonte).
163. When Gonzalez, Sr.'s truck left the hotel, Lopez followed it and relayed its location to Marquez, who then relayed its location to Almonte, who conducted the stop. See Jan. 28, 2015, Tr. at 194:7-196:22 (Swainston, Lopez); id. at 202:18-22 (Walz, Lopez); id. at 226:1-16 (Swainston, Almonte).
164. While he was driving down the road, Almonte was on the left side of Gonzalez, Sr.'s truck, where he observed that there was a paper tag on the truck's left rear window, and he could not make out the paper tag; it also appeared to Almonte that the paper was lifted, obscuring the tag. See Jan. 28, 2015, Tr. at 226:22-227:2 (Swainston, Almonte).
165. Almonte also noticed, while he was driving down the road, that there was no license plate on the truck's rear bumper. See Jan. 28, 2015, Tr. at 227:2-3 (Swainston, Almonte).
166. Almonte thus decided to stop Gonzalez, Sr.'s truck for improperly displaying a temporary, paper registration that was in the left rear window but was rolled and unreadable, thus obscuring any applicable expiration date. See Jan. 28, 2015, Tr. at 226:17-227:19 (Swainston, Almonte).
167. At approximately 4:08 a.m., Almonte turned on his emergency lights on, and Gonzalez, Sr. pulled the truck to the side of the road; then, Almonte exited his vehicle and approached the driver's side of the truck. See Jan. 28, 2015, Tr. at 228:12-22 (Swainston, Almonte).
168. Gonzalez, Sr. was alone in the truck. See Jan. 28, 2015, Tr. at 228:12-22 (Swainston, Almonte).
169. The interior of Gonzalez, Sr.'s truck was very dirty, with clothing and luggage on the rear bench seat, several empty water bottles, uneaten food on the floor boards, and several empty food wrappers and containers. See Jan. 28, 2015, Tr. at 235:19-236:5 (Swainston, Almonte); id. at 298:1-25 (Swainston, Marquez).
170. In Spanish, Almonte asked for Gonzalez, Sr.'s driver's license and insurance card, and advised him that he was stopped for his paper tag not being clearly visible and for having no license plate on the truck's rear bumper. See Jan. 28, 2015, Tr. at 230:4-11 (Swainston, Almonte).
171. Almonte is proficient in Spanish. See Jan. 28, 2015, Tr. at 226:23-24 (Swainston, Almonte).
172. Gonzalez, Sr. "did not say a word," but lifted a New Mexico license plate off the right front seat of the vehicle and showed it to Almonte. Jan. 28, 2015, Tr. at 230:12-14 (Almonte).
173. Almonte advised Gonzalez, Sr. that the license plate belongs on the truck's rear bumper, and asked a second time for Gonzalez, Sr.'s driver's license and
174. Gonzalez, Sr. again did not respond to Almonte and showed Almonte the license plate a second time. See Jan. 28, 2015, Tr. at 230:17-20 (Almonte).
175. After Almonte asked Gonzalez, Sr. for his driver's license and insurance card a third time, Gonzalez, Sr. finally gave them to Almonte. See Jan. 28, 2015, Tr. at 230:21-24 (Almonte).
176. Almonte asked Gonzalez, Sr. to whom the truck belonged, and Gonzalez, Sr. responded that it was his. See Jan. 28, 2015, Tr. at 232:12-14 (Almonte).
177. Almonte asked Gonzalez, Sr. how long he had owned the truck, and Gonzalez, Sr. replied that he had owned it for approximately one month. See Jan. 28, 2015, Tr. at 232:12-15 (Almonte).
178. Almonte then asked Gonzalez, Sr. how long he had owned the horse trailer, and Gonzalez, Sr. responded that he had owned it for two years. See Jan. 28, 2015, Tr. at 232:15-17 (Almonte).
179. Almonte then asked Gonzalez, Sr. to exit the vehicle, because Gonzalez, Sr. was speaking very softly and Almonte could not hear him well. See Jan. 28, 2015, Tr. at 231:17-21 (Almonte).
180. Almonte had difficulty hearing at the January 28, 2015, evidentiary hearing, and had hearing problems at the time that he conducted the stop of Gonzalez, Sr.'s truck. See Jan. 28, 2015, Tr. at 231:22-24 (Swainston, Almonte).
181. Gonzalez, Sr. exited his truck, and walked to the shoulder of the highway on the right back corner of his truck. See Jan. 28, 2015, Tr. at 232:1-3 (Almonte); id. at 233:4-14 (Swainston, Almonte).
182. Almonte asked Gonzalez, Sr. where he was going, and Gonzalez, Sr. replied that he was on his way to pick up a horse at Chamberino Market de Mendon Ranch. See Jan. 28, 2015, Tr. at 233:23-234:14 (Swainston, Almonte).
183. At that time, which was approximately 4:12 a.m., Marquez pulled up to the location at which Almonte had stopped Gonzalez, Sr.'s truck. See Jan. 28, 2015, Tr. at 209:20-21 (Walz, Lopez); id. at 232:4-5 (Swainston, Almonte).
184. Marquez was in a marked patrol car, and he was wearing his full police uniform. See Jan. 28, 2015, Tr. at 234:22-25 (Swainston, Almonte).
185. Almonte advised Marquez why he had stopped Gonzalez, Sr., that he was going to conduct a record check on Gonzalez, Sr. and the truck, and that Gonzalez, Sr. had told him that he was on his way to Chamberino, New Mexico to pick up a horse. See Jan. 28, 2015, Tr. at 232:4-8 (Swainston, Almonte).
186. A record check involves the deputy contacting the Sheriff's Office dispatcher and giving her the license plate number and the individual's driver's license number; if the check comes back negative for outstanding arrest warrants, the deputy proceeds with his or her interview of the driver. See Jan. 28, 2015, Tr. at 237:20-238:3 (Swainston, Almonte).
187. While Almonte was conducting the records check, Marquez had a conversation with Gonzalez, Sr. See Jan. 28, 2015, Tr. at 284:7-10 (Swainston, Marquez).
188. Initially, Gonzalez, Sr. told Marquez that he was going to Chamberino to pick up two mares and a colt that belonged to him. See Jan. 28, 2015, Tr. at 284:15-23 (Swainston, Marquez); Incident/Investigation Report at 9,
189. When Marquez asked where Gonzalez, Sr. was going a second time, however, Gonzalez, Sr. said that he was going to pick up some horses that belonged to the owner of the farm. See Jan. 28, 2015, Tr. at 285:5-13 (Swainston, Marquez); Incident Report at 9 ("Gonzales was asked where he was going and to what farm in Chamberino, NM. Gonzales stated he was going to pick up some horses that belonged to the owner of the farm.").
190. When Marquez spoke to Gonzalez, Sr., Gonzalez, Sr. appeared "a little more nervous than somebody who has just committed a traffic violation." Jan. 28, 2015, Tr. at 285:16-18 (Marquez).
191. Marquez said that Gonzalez, Sr. appeared nervous because "[h]e would point at the truck," "turn and look at it," "rub his face," "really couldn't stand still," and was "shuffling his feet around." Jan. 28, 2015, Tr. at 209:15-18 (Marquez).
192. The records check on Gonzalez, Sr. and his truck ultimately came back negative, indicating that there were no outstanding warrants associated with Gonzalez, Sr. or the truck. See Jan. 28, 2015, Tr. at 238:8-10 (Swainston, Almonte).
193. Although the record check came back negative, Almonte did not give Gonzalez, Sr. back his driver's license or insurance card, but instead placed them in a metal folder in his patrol car. See Jan. 28, 2015, Tr. at 248:11-24 (Swainston, Almonte); id. at 260:10-20 (Walz, Almonte).
194. Gonzalez, Sr. was not free to leave at that point. See Jan. 28, 2015, Tr. at 260:10-20 (Almonte).
195. Based on the information that Almonte had received about the DEA wiretap investigation, what he had observed regarding the truck's lack of license plate, the paper tags, and the condition of the truck's interior, he asked Gonzalez, Sr. if he had anything illegal in the truck; Gonzalez, Sr. said no. See Jan. 28, 2015, Tr. at 239:7-12 (Almonte).
196. Almonte then asked Gonzalez, Sr. if he had any cocaine in the truck, to which Gonzalez, Sr. said no. See Jan. 28, 2015, Tr. at 239:12-14 (Almonte).
197. Almonte asked Gonzalez, Sr. if he any methamphetamine in the truck, and Gonzalez, Sr. said no. See Jan. 28, 2015, Tr. at 239:14-15 (Almonte).
198. Almonte asked Gonzalez, Sr. if he had any heroin in the truck, and Gonzalez, Sr. said no. See Jan. 28, 2015, Tr. at 239:15-16 (Almonte).
199. Almonte asked Gonzalez, Sr. if he had any marijuana in the truck, and Gonzalez, Sr. said no. See Jan. 28, 2015, Tr. at 239:16-17 (Almonte).
200. Almonte then asked Gonzalez, Sr. if he would consent to a search of his truck; Gonzalez, Sr. said yes. See Jan. 28, 2015, Tr. at 239:18-20 (Almonte).
201. Almonte gave Gonzalez, Sr. a consent-to-search form that Gonzalez, Sr. reviewed and signed. See Jan. 28, 2015, Tr. at 241:1-244:10 (Almonte); Consent to Search (dated Nov. 10, 2011), admitted at the January 28, 2015, evidentiary hearing as Government Exhibit 1 ("Consent Form").
202. When Almonte gave the Consent Form to Gonzalez, Sr., Marquez took a couple steps away from Gonzalez, Sr. so that he did not feel intimidated by two officers being right next to him. See Jan.
203. The Consent Form has identical statements in English and Spanish; Gonzalez, Sr. filled out only the Spanish portion. See Jan. 28, 2015, Tr. at 240:16-18 (Swainston, Almonte); Consent Form at 1.
204. Superimposing Gonzalez, Sr.'s statements on the English portion, the Consent Form reads as follows:
Consent Form at 1. See Jan. 28, 2015, Tr. at 241:17-243:22 (Swainston, Almonte).
205. Gonzalez, Sr. took approximately two minutes to read and fill out the Consent Form. See Jan. 28, 2015, Tr. at 244:11-13 (Swainston, Almonte).
206. Gonzalez, Sr. did not have any questions or concerns about the Consent Form before he signed it. See Jan. 28, 2015, Tr. at 244:14-16 (Swainston, Almonte); id. at 288:19-25 (Swainston, Marquez).
207. Gonzalez, Sr. also noted the time that he signed the Consent Form — 4:24 a.m. — in the Consent Form's bottom-right corner. See Jan. 28, 2015, Tr. at 244:4-10 (Swainston, Almonte).
208. Almonte and Marquez also signed the Consent Form. See Jan. 28, 2015, Tr. at 244:1-3 (Swainston, Almonte).
209. When Gonzalez, Sr. read and signed the Consent Form, Almonte's drug-detection dog, Remo, was in Almonte's patrol car. See Jan. 28, 2015, Tr. at 245:12-19 (Swainston, Almonte).
210. Before Gonzalez, Sr. signed the Consent Form, his discussion with Almonte was "conversational, ... low voice tone, and cooperative." Jan. 28, 2015, Tr. at 245:7-11 (Swainston, Almonte).
211. Almonte did not tell Gonzalez, Sr. that he had to sign the consent or "force him to sign the consent in any way." Jan. 28, 2015, Tr. at 245:12-15 (Swainston, Almonte).
212. When Gonzalez, Sr. reviewed and signed the Consent Form, he appeared calm and was mainly silent, except when Almonte asked if he would consent to the search, and Gonzalez, Sr. said "yes." Jan. 28, 2015, Tr. at 245:20-246:2 (Swainston, Almonte).
213. Almonte then retrieved Remo from his patrol unit to conduct the search. See Jan. 28, 2015, Tr. at 246:6-7 (Swainston, Marquez).
214. Because Gonzalez, Sr.'s driver's license and insurance card were still in Almonte's patrol car, Gonzalez, Sr. was not free to leave when he signed the Consent Form or when the search was conducted. See Jan. 28, 2015, Tr. at 262:22-263:1 (Walz, Almonte).
215. While Almonte and Remo were searching Gonzalez, Sr.'s truck and trailer, Marquez asked Gonzalez, Sr. a number of
216. When Marquez asked Gonzalez, Sr. if he had any marijuana, Gonzalez, Sr. looked towards his truck and said "no," while laughing nervously. Jan. 28, 2015, Tr. at 234:5-7 (Swainston, Marquez).
217. When Marquez asked Gonzalez, Sr. if he had any large amounts of currency, Gonzalez, Sr. reached into his pocket and pulled out a handful of change. See Jan. 28, 2015, Tr. at 294:12-16 (Swainston, Marquez).
218. After the search began, Gonzalez, Sr. never said: "Stop doing the search, I revoke my consent." Jan. 28, 2015, Tr. at 244:21-24 (Swainston, Almonte).
219. When Almonte approached Gonzalez, Sr.'s horse trailer with Remo, the dog immediately alerted to the presence of drugs at the rear of the trailer. See Jan. 28, 2015, Tr. at 246:12-15 (Almonte).
220. Remo then alerted several times along the side of the trailer and once at the trailer's nose. See Jan. 28, 2015, Tr. at 246:16-21 (Almonte).
221. Almonte then opened the trailer, but did not see any animals inside; Remo went inside of the trailer's nose and alerted at a compartment that was approximately four feet off of the floor of the trailer. See Jan. 28, 2015, Tr. at 246:22-247:4 (Almonte).
222. At that point, which was approximately 4:26 a.m., Almonte returned Remo to his patrol car and asked Marquez to search the trailer's nose. See Jan. 28, 2015, Tr. at 247:5-248:10 (Swainston, Almonte); id. at 293:16-20 (Swainston, Marquez).
223. Almonte did not tell Gonzalez, Sr. that he could not leave at any time during the search; he also did not put handcuffs on Gonzalez, Sr. at any time during the search. See Jan. 28, 2015, Tr. at 249:25-250:10 (Swainston, Almonte).
224. Marquez ultimately discovered marijuana in the compartment in the trailer's nose, he then handcuffed Gonzalez, Sr., placed him in his patrol car, and read Gonzalez, Sr. his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("Miranda").
225. After Marquez placed Gonzalez, Sr. in his patrol car, he called Lopez and told him that he had discovered marijuana in the trailer attached to Gonzalez, Sr.'s truck. See Jan. 28, 2105, Tr. at 211:1-5 (Walz, Lopez); id. at 297:16-19 (Swainston, Marquez).
226. Lopez then told Marquez to "go back in, because there should be cocaine in
227. Marquez then searched the compartment in the trailer's nose a second time and found a black bag with cocaine inside. See Jan. 28, 2015, Tr. at 297:7-22 (Swainston, Marquez).
228. Marquez transported Gonzalez, Sr. to the detention facility for processing and to do the arrest paperwork. See Jan. 28, 2015, Tr. at 304:18-21 (Swainston, Marquez).
229. While Gonzalez, Sr. and Marquez "were having conversations," and while Marquez was asking Gonzalez, Sr. about some horse trainers, Gonzalez, Sr. told Marquez that "we had stopped him too soon. If we would have waited, we would have gotten the owner at the Pilot in Acton."
230. Gonzalez, Sr. said that "he was a small fish and the other ones would have been a bigger catch." Jan. 28, 2015, Tr. at 305:2-4 (Marquez)(internal quotation marks omitted).
231. Marquez asked Gonzalez, Sr. if he was being followed or being checked on, and Gonzalez, Sr. told Marquez that "he was in communication with somebody else on a push-to-talk phone that was in the truck." Jan. 28, 2015, Tr. at 306:4-8 (Marquez).
232. Marquez asked Gonzalez, Sr. why he had not told Marquez during the traffic stop that he was possibly being followed; Gonzalez, Sr. said that "it was because he was in the unit and there was nobody there." Jan. 28, 2015, Tr. at 306:11-20 (Marquez).
233. Marquez did not take Gonzalez, Sr.'s statements, and he did not have Gonzalez, Sr. sign them. See Jan. 28, 2015, Tr. at 307:4-9 (Walz, Marquez).
234. Marquez also did not record Gonzalez, Sr.'s statements. See Jan. 28, 2015, Tr. at 309:2-5 (Walz, Marquez).
235. After Gonzalez, Sr. was processed at the El Paso County Detention Facility, Alberty Montoya, an El Paso County Sheriff's Office detective, read Gonzalez, Sr. his Miranda rights in Spanish. See Jan. 28, 2015, Tr. at 338:20-22 (Swainston, Montoya).
236. Gonzalez, Sr. signed the Miranda rights form, indicating that he had read his rights and acknowledged them. See Jan. 28, 2015, Tr. at 339:2-11 (Swainston, Montoya); Miranda Warning Form (dated Nov. 20, 2011), admitted at the January 28, 2105, evidentiary hearing as Government Exhibit 3 ("Miranda Form").
237. After signing the Miranda Form, Gonzalez, Sr. said he wanted to speak to an attorney, and Montoya ended the interview. See Jan. 28, 2015, Tr. at 339:19-23 (Montoya).
238. As Gonzalez, Sr. and Montoya were waiting for the judge to arraign Gonzalez, Sr., Gonzalez, Sr. blurted out in Spanish: "Once you're in this business, if you don't do what they tell you to do, even your family is in danger." Jan. 28, 2015, Tr. at 346:3-5 (Montoya).
239. Gonzalez, Sr.'s statement was not in response any questioning. See Jan. 28, 2015, Tr. at 340:15-19 (Swainston, Montoya).
240. Montoya is proficient in Spanish. See Jan. 28, 2015, Tr. at 340:13-14 (Swainston, Montoya).
Gonzalez, Sr. is one of fifteen co-Defendants whom the United States indicted on January 24, 2012, in an indictment which charged the Defendants with: (i) conspiring to distribute controlled substances, in violation of 21 U.S.C. § 846; (ii) distributing fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A); (iii) conspiring to launder money, in violation of 18 U.S.C. § 1957; (iv) structuring transactions to evade reporting requirements, in violation of 31 U.S.C. §§ 5323(a)(1), (d)(1), (d)(2); and (v) using a telephone to facilitate drug trafficking, in violation of 21 U.S.C. § 843(b). See Indictment passim, filed January 24, 2012 (Doc. 2).
Gonzalez, Sr. filed the Motion on August 7, 2014. See Motion at 1. In the Motion, Gonzalez, Sr. asks the Court to suppress any statements made or evidence seized as the fruit of an unconstitutional stop of Gonzalez, Sr.'s truck and an unconstitutional search of his trailer on November 11, 2011. See Motion at 1. Gonzalez, Sr. explains that, to satisfy the Fourth Amendment's requirements, an officer's traffic stop of a vehicle must satisfy two steps: (i) the stop must be justified at its inception; and (ii) it must be reasonably related in scope to the circumstances which justified the stop in the first place. See Motion at 3 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("Terry")). Gonzalez, Sr. asserts that an investigative stop usually must last "no longer than necessary to effectuate the purpose of the stop." Motion at 3 (citing United States v. Lee, 73 F.3d 1034 (10th Cir.1996)). Gonzalez, Sr. says that, once a driver has provided proof that he is entitled to operate the vehicle, "he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning." Motion at 3 (quoting United States v. Morse, 15 Fed.Appx. 590, 594 (10th Cir.2001) (unpublished))(internal quotation marks omitted).
Gonzalez, Sr. points out that there are two exceptions to the general rule that a driver must be allowed to proceed once he or she has provided evidence that he or she is allowed to drive, and an officer has issued any warnings or traffic citations: (i) the officer has reasonable suspicion that the driver is involved in illegal activity; or (ii) the driver consents to further questioning. See Motion at 4 (citing United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999); United States v. W., 219 F.3d 1171, 1176 (10th Cir.2000) (holding that a driver must be permitted to leave after a routine traffic stop if a license and registration check reveal no reason to detain the driver further, the officer has no reasonable suspicion, and the driver has not consented to further questioning)). Gonzalez, Sr. asserts that there is a two-step process to determine if consent is freely and voluntarily given. See Motion at 4. First, the United States "must proffer clear and positive testimony that the consent was equivocal and specific, and freely and intelligently given." Motion at 5. Second, the United States must show that coercion or duress did not give rise to the consent. See Motion at 5 (citing United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996)).
Gonzalez, Sr. contends that the Court should consider several factors to determine if he gave consent voluntarily: (i) the presence of multiple officers; (ii) an officer's
Gonzalez, Sr. argues that there is insufficient information for the Court to conclude that Almonte's initial stop of Gonzalez, Sr.'s vehicle was justified, "as it was 4:00 am and it seems unusual that a stop at this hour would be made for failing to display a proper license tag." Motion at 5. Gonzalez, Sr. asserts that, after Almonte obtained Gonzalez, Sr.'s current registration and permanent license plate, and verified that Gonzalez, Sr. did not have any outstanding warrants, the initial reason for Almonte's stop ended. See Motion at 6. Gonzalez, Sr. contends that, at that point, Almonte should have issued him a citation, given him a warning, or allowed him to leave. See Motion at 6.
Gonzalez, Sr. states that, to continue his detention after the traffic stop's purpose was accomplished, Almonte and Marquez needed to obtain Gonzalez, Sr.'s consent or to have reasonable suspicion of illegal activity. See Motion at 6. Gonzalez, Sr. asserts:
Motion at 6. Gonzalez, Sr. argues that, although Almonte was permitted to take Gonzalez, Sr.'s driver's license and proof of insurance to determine if there were any warrants against him, and, if his license was legitimate, the stop become an impermissible seizure once those searches came back clean and Almonte continued to hold onto those documents. See Motion at 6-7.
Gonzalez, Sr. argues that he did not freely and voluntarily consent to be detained for further questioning or to have his trailer searched. See Motion at 7. Gonzalez, Sr. says that there were "at least" two deputies present, the deputies questioned Gonzalez, Sr. and obtained his consent "at an early hour of the morning and on the side of Interstate 10," there was "a general absence of the public" on the side of the highway at 4:00 a.m., and Almonte did not return any of Gonzalez, Sr.'s documents before obtaining his consent. Motion at 7. Gonzalez, Sr. argues that, because the deputies did not have reasonable suspicion that he was involved in criminal activity, and because they did not obtain his free and voluntary consent to search the trailer, the deputies violated his Fourth Amendment rights to be free from unreasonable search and seizure. See Motion at 7.
The United States responded to the Motion on December 4, 2014. See United States' Response to Defendant's Motion to Suppress, filed December 4, 2014 (Doc. 720)("Response"). The United States asks the Court to deny the Motion for five reasons. First, the United States argues that, based on his wiretap analysis, surveillance activities, and experience, Maestas had probable cause to believe that Gonzalez, Sr. was engaged in illegal drug trafficking. Response at 21. The United States argues that the automobile exception to the Fourth Amendment's warrant requirement permits law enforcement officers who have probable cause to believe a car contains contraband to search the car without obtaining a search warrant. See Response at 22 (citing United States v. Beckstead, 500 F.3d 1154, 1165 (10th Cir. 2007)). The United States contends that, when Almonte stopped Gonzalez, Sr., the DEA had in its possession "all of the intercepted calls and surveillances," and, in particular, "the final calls between Varela and Gonzalez, Sr., that SA Maestas[] reasonably believed would result in the drug transaction that eventually transpired." Response at 22-23.
Second, the United States argues that Almonte had a lawful basis to stop Gonzalez, Sr.'s vehicle and to search his trailer, because of Almonte's reasonable reliance on the DEA's investigation of the Varela DTO. See Response at 21. The United States points out that Lopez instructed Almonte and Marquez that the DEA had an ongoing investigation into the Varela DTO. See Response at 21. The United States maintains that, even if the Court decides that Almonte's stop of Gonzalez, Sr. "was not based on a sufficient motor vehicle code violation," the DEA investigation provided sufficient probable cause for Almonte to conduct the stop. Response at 21 (citing United States v. Whitley, 680 F.3d 1227, 1234 (10th Cir.2012) ("[T]he officer who makes the stop need not have reasonable suspicion that criminal activity is afoot. Instead, the knowledge and reasonable suspicions of one officer can be imputed to another."); United States v. Chavez, 534 F.3d 1338, 1345-49 (10th Cir. 2008) (holding that police officers may rely on the instructions of another law enforcement officer to initiate an automobile stop and conduct a search under the automobile exception, even if the information forming the basis of probable cause is not communicated)). The United States contends that the DEA's investigation also gave Almonte and Marquez probable cause to search Gonzalez, Sr.'s trailer. See Response at 24.
Third, the United States argues that Gonzalez, Sr. gave valid consent for the deputies to search his trailer. See Response at 24. The United States points out that Gonzalez, Sr. "not only consented
Fourth, the United States urges that the DEA had probable cause to arrest Gonzalez, Sr. See Response at 25. The United States asserts that, based on his training, experience, and the evidence collected on the wiretap, Maestas had probable cause to believe that Gonzalez, Sr. was engaged in "an active, fast moving conspiracy to transport drugs from Mexico to New Mexico for distribution, and that Gonzalez, Sr. would be the transporter of the drugs on or about November 10, 2011." Response at 25. The United States contends that, even without the seizure of the drugs, Gonzalez, Sr. "could have been arrested for violation of using a telephone to advance a drug trafficking crime, in violation of 21 U.S.C. § 843(b)." Response at 25.
Fifth, the United States maintains that Gonzalez, Sr.'s post-arrest statements are admissible. See Response at 25. The United States points out that, although Gonzalez, Sr. was in custody when he "blurted out" the statements that he now seeks to suppress, he was not under any express questioning or functional equivalent by any law enforcement officers at the time. Response at 25. The United States argues that, as a result, his statements are admissible. See Response at 25 (citing Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).
Gonzalez, Sr. replied to the Response on January 2, 2015. See Reply Supporting Defendant's Motion to Suppress, filed January 2, 2015 (Doc. 724)("Reply"). Gonzalez, Sr. begins the Reply by attacking the United States' reliance on Maestas' interpretations of the intercepted communications between the Varela DTO's members. Reply at 1-2. Gonzalez, Sr. says that the United States does not provide a description of the parties' coded language and "fails to acknowledge that Defendant never once mentioned drugs in any of the recorded conversations." Reply at 2. Gonzalez, Sr. then reiterates his primary argument from the Motion — i.e., that the deputies ran afoul of the Fourth Amendment when they detained Gonzalez, Sr. longer than was necessary to effectuate the purpose of the traffic stop — and addresses each of the United States' five arguments from its Response. See Reply at 4-8.
First, in response to the United States' argument that Maestas had probable cause to believe Gonzalez, Sr. possessed illegal drugs, Gonzalez, Sr. contends that Maestas "was not involved in the initial traffic stop or the subsequent questioning, search, and arrest" of Gonzalez, Sr. Response at 6. Gonzalez, Sr. urges that, accordingly, whether Maestas had information on which to base probable cause "is immaterial to the inquiry at hand." Reply at 6. Second, in response to the United States' contention that the deputies had a lawful basis to stop and question Gonzalez, Sr. based on the DEA investigation, Gonzalez, Sr. asserts that the United States has provided no evidence that the deputies "had any knowledge of the DEA investigation or of Defendant's alleged complicity in a drug trafficking operation." Reply at 7. Gonzalez, Sr. maintains that, to the contrary, the incident reports from the traffic stop are devoid of such information. See Reply at 7
Third, addressing the United States' assertion that "there was probable cause to believe the vehicle contained drugs," Gonzalez, Sr. says that the United States has not presented any evidence that either Almonte or Marquez had any knowledge of the DEA's investigation of the Varela DTO or Maestas' belief that Gonzalez, Sr. was transporting drugs. Reply at 7. Fourth, in response to the United States' contention that Gonzalez, Sr. voluntarily consented to the search of his trailer, Gonzalez, Sr. says that the United States fails to address the cases that Gonzalez, Sr. cited in the Motion which held that an individual cannot give voluntary consent when officers retain his or her license and registration. See Reply at 7.
Fifth, and finally, Gonzalez, Sr. challenges the United States' assertion that his post-arrest statement was voluntary. See Reply at 7. Gonzalez, Sr. contends that, although the United States relies on Miranda's progeny to support this argument, those cases are all inapposite. See Reply at 7. Gonzalez, Sr. asserts that, because his Fourth Amendment rights were violated, "any evidence obtained as a result of that violation cannot be used by the government, including post-arrest statements, whether made during a custodial interrogation or not." Reply at 7-8 (citing United States v. Baity, No. CR 05-186 JB, 2006 WL 1305035 (D.N.M. Jan. 25, 2006) (Browning, J.)(suppressing evidence and the defendant's statements that resulted from an officer's unconstitutional frisk of the defendant)).
The Court held hearings on the Motion on January 22, 2015, January 28, 2015, and January 30, 2015. Before the United States began its opening statement, the parties discussed whether the Court may use the collective knowledge doctrine to justify the stop of Gonzalez, Sr.'s truck and the search of his trailer. See Jan. 22, 2015, Tr. at 9:9-17:8 (Court, Swainston, Walz). The parties agreed that, generally, courts may use the collective knowledge doctrine to impute reasonable suspicion and probable cause from one officer to another. See Jan. 22, 2015, Tr. at 11:5-14:3 (Swainston, Walz); id. at 15:17-24 (Walz). Gonzalez, Sr. argued, however, that: (i) the DEA's investigation into the Varela DTO did not cultivate sufficient probable cause to justify the stop of Gonzalez, Sr.'s vehicle or the search of his trailer; and (ii) even if the DEA's investigation established probable cause to stop Gonzalez, Sr.'s vehicle and to search his trailer, the United States has not shown a sufficient connection between Maestas and the deputies for the Court to impute the DEA's probable cause to Almonte and Marquez. See Jan. 22, 2015, Tr. at 15:1-16:4 (Walz).
The United States called Maestas to testify at the evidentiary hearing. Maestas testified that, beginning on November 3, 2011, the DEA began to intercept calls between: (i) Varela and J. Ibarra-Solis; (ii) Varela and A. Gonzalez; (iii) Varela and Gonzalez, Jr.; (iv) Varela and Chavez; and (v) Varela and Gonzalez, Sr. See Jan. 22, 2015, Tr. at 30:15-30:7 (Maestas). Maestas said that, based on his investigation, he believed that Gonzalez, Sr. and A. Gonzalez planned to transport cocaine from J. Ibarra-Solis to Varela. See Jan. 22, 2015, Tr. at 31:12-18 (Swainston, Maestas). On or about November 9, 2011,
Maestas also testified that there were no irregularities in Gonzalez, Sr.'s bank accounts or financial records. See Jan. 22, 2015, Tr. at 83:6-9 (Maestas, Walz). Maestas said that the DEA's search of Gonzalez, Sr.'s property did not uncover any money. See Jan. 22, 2015, Tr. at 83:10-21 (Maestas, Walz). Maestas testified that Gonzalez, Sr. is a horse trainer "of fairly national recognition," that video surveillance of Gonzalez, Sr.'s multiple homes did not reveal any criminal activity, and that physical surveillance of Gonzalez, Sr. and A. Gonzalez at a racetrack in Sunland, New Mexico, also did not reveal any criminal activity. See Jan. 22, 2015, Tr. at 42:10-51:16 (Maestas, Walz).
The United States also called Gooch to the stand. Gooch testified that he was in charge of the DEA's surveillance operation in El Paso. See Jan. 28, 2015, Tr. at 156:19-23 (Swainston, Gooch). Gooch explained that he initiated the operation when Maestas called and told him that, based on intercepted telephone communications, he believed that Gonzalez, Sr. was going to pick up a drug load in El Paso on or about November 10, 2011. See Jan. 28, 20115, Tr. at 158:16-20 (Swainston, Gooch). Gooch detailed the DEA's surveillance of Gonzalez, Sr. and A. Gonzalez in and around El Paso, and explained how the surveillance team did not participate in the stop of Gonzalez, Sr.'s truck or the search of his trailer, because they wanted to protect the wiretap investigation. See Jan. 28, 2015, Tr. at 170:13-23 (Swainston, Gooch).
Lopez testified that he worked as a DEA Task Force Officer during the lead-up to the El Paso Drug Seizure. See Jan. 28, 2015, Tr. at 185:1-9 (Swainston, Lopez); id. at 206:22-207:14 (Walz, Lopez). Lopez explained how he enlisted Almonte and Marquez to conduct a walled-off stop of Gonzalez, Sr.'s vehicle, so that the DEA could prevent the cocaine shipment from reaching Albuquerque while protecting the ongoing wiretap investigation. See Jan. 28, 2015, Tr. at 187:15-24 (Swainston, Lopez). Lopez said that he told Marquez that he and Almonte were assisting the Albuquerque DEA office in a wiretap investigation and that the DEA needed them to conduct a traffic stop of a vehicle that would likely be loaded with an unknown amount of cocaine. See Jan. 28, 2015, Tr. at 189:5-15 (Swainston, Lopez); id. at 200:8-23 (Walz, Lopez). Lopez explained how he pointed out Gonzalez, Sr.'s truck to Marquez on the morning of November 10, 2011, and that he gave Marquez a DEA radio to communicate with Marquez throughout the operation. See Jan. 28, 2015, Tr. at 193:7-194:14 (Swainston, Lopez). Lopez also said that Marquez relayed his instructions to Almonte over the Sheriff's Office radio. See Jan. 28, 2015, Tr. at 194:11-14 (Swainston, Lopez).
Marquez said that he relayed a description of Gonzalez, Sr.'s truck to Almonte and told Almonte that the truck likely contained illegal drugs. See Jan. 28, 2015, Tr. at 250:16-20 (Swainston, Almonte); id. at 251:22-252:6 (Swainston, Almonte); id. at 253:7-10 (Walz, Almonte); id. at 265:1-10 (Walz, Almonte). Marquez testified
The parties largely stuck to the briefing in their closings. See Transcript of Hearing (taken Jan. 30, 2015) at 345:1-425:18 (Court, Swainston, Walz), filed March 30, 2015 (Doc. 755)("Jan. 30, 2015, Tr."). Gonzalez, Sr. advanced three arguments. First, he argued that the United States did not develop sufficient probable cause through the DEA's investigation of the Varela DTO to stop Gonzalez, Sr.'s vehicle or to search his trailer. See Jan. 30, 2015, Tr. at 348:17-351:2 (Walz). He contended that it does not appear, listening to the intercepted telephone calls, reading the transcripts, and listening to the testimony of the DEA agents involved in the surveillance operation in El Paso on November 9, 2011, and November 10, 2011, that he was involved in any criminal activity. See Jan. 30, 2015, Tr. at 349:23-351:2 (Walz). Second, Gonzalez, Sr. argued that, assuming that the deputies did not obtain probable cause to conduct the stop and search from the DEA's investigation, his consent to search the trailer was invalid, because the deputies exceeded the traffic stop's permissible scope when they did not return Gonzalez, Sr.'s license and registration after his records check came back clean, and they did not issue him a citation. See Jan. 30, 2015, Tr. at 352:11-353:13 (Walz). Third, Gonzalez, Sr. said that his allegedly nervous behavior and the presence of clothes and food wrappers in his truck did not give the deputies reasonable suspicion to extend the traffic stop. See Jan. 30, 2015, Tr. at 353:13-355:13 (Walz).
When pressed, Gonzalez, Sr. said that the Court can deny the Motion if it finds that the DEA's investigation into the Varela DTO provided Almonte and Marquez probable cause to stop Gonzalez, Sr.'s vehicle and to search his trailer. See Jan. 30, 2015, Tr. at 362:1-12 (Court, Walz). Gonzalez, Sr. also conceded that the traffic stop was lawful, because his registration tag was expired and he was not showing his license plate. See Jan. 30, 2015, Tr. at 369:5-23 (Court, Walz). Gonzalez, Sr. asserted, however, that the deputies exceeded the traffic stop's permissible scope when they continued to hold onto his license and registration after resolving the reasons for the traffic stop — i.e., his expired registration tag and lack of a visible license plate. See Jan. 30, 2015, Tr. at 371:16-20 (Walz). Gonzalez, Sr. said that, from that point forward, the deputies' actions were unlawful. See Jan. 30, 2015, Tr. at 371:21-25 (Walz). The Court asked Gonzalez, Sr. whether it would have made a difference for the deputies to ask for his consent while they were writing out the ticket; Gonzalez, Sr. replied that asking for consent in that scenario would have been permissible. See Jan. 30, 2015, Tr. at 372:1-21 (Court, Walz).
When the United States took the lectern, it stuck to its arguments from the
At the end of the hearing, the Court said that it was inclined to deny the Motion. See Jan. 30, 2015, at 421:6-424:23 (Court). The Court said that it was inclined to think that the DEA's investigation of the Varela DTO cultivated sufficient probable cause to stop Gonzalez, Sr.'s vehicle and to search his trailer, and that Maestas adequately conveyed that information to Almonte and Marquez. See Jan. 30, 2015, Tr. at 421:15-422:10 (Court). The Court explained that, even if the deputies did not have probable cause from the DEA investigation to stop Gonzalez, Sr.'s vehicle, Almonte obtained probable cause to stop Gonzalez, Sr. after witnessing him commit the traffic violations. See Jan. 30, 2015, Tr. at 422:8-12 (Court). The Court said that, either way, the stop was likely lawful. See Jan. 30, 2015, Tr. at 422:11-12 (Court). The Court asserted that the search of Gonzalez, Sr.'s trailer was likely lawful for two reasons: (i) the deputies obtained probable cause for the search from the DEA investigation; and (ii) the deputies obtained Gonzalez, Sr.'s knowing and voluntary consent to search his trailer. See Jan. 30, 2015, Tr. at 422:13-23 (Court).
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Fourth Amendment rights are enforceable against state actors through the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1225 n. 1 (10th Cir.2008) ("[T]he Fourth Amendment applies against state law enforcement officials as incorporated through the Due Process Clause of the Fourteenth Amendment."). "Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness." United States v. Harmon, 785 F.Supp.2d at 1157. See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir.2011) ("[T]he ultimate touchstone of the Fourth Amendment is `reasonableness.'" (quoting Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006))). The Supreme Court of the United States has stated that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted).
"The Tenth Circuit has referred to the test whether a particular search implicates a defendant's Fourth Amendment interests
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court disapproved of labeling the inquiry whether a search implicates a defendant's personal Fourth Amendment interests "as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." 439 U.S. at 133, 99 S.Ct. 421. Dispensing with this label, the Supreme Court noted:
439 U.S. at 138-39, 99 S.Ct. 421 (citations omitted). The Supreme Court emphasized:
439 U.S. at 139-40, 99 S.Ct. 421. In Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), the Supreme Court recognized that Rakas v. Illinois put an end to the Fourth Amendment standing analysis as separate from the substantive Fourth Amendment search analysis:
525 U.S. at 87-88, 119 S.Ct. 469 (citations omitted). The Supreme Court has, thus, noted that the analysis under either approach — the substantive Fourth Amendment doctrine that the rights that the Amendment secures are personal versus the separate notion of "standing" — is the same. Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421.
A court cannot suppress evidence unless the search was a Fourth Amendment search. A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person's property or where the government violates a person's subjective expectation of privacy that society recognizes as reasonable to collect information. See United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 947, 181 L.Ed.2d 911 (2012). "[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." United States v. Jones, 132 S.Ct. at 947 (emphasis in original)(citing Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Soldal v. Cook
"`Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois, 439 U.S. at 133-34, 99 S.Ct. 421 (quoting Alderman v. United States, 394 U.S. at 174, 89 S.Ct. 961). "A district court cannot suppress evidence unless the movant proves that a search implicates personal Fourth Amendment interests." United States v. Jones, 44 F.3d 860, 871 (10th Cir.1995) (emphasis in original). "`[N]o interest legitimately protected by the Fourth Amendment' is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into `the security a man relies upon when he places himself or his property within a constitutionally protected area.'" United States v. Miller, 425 U.S. 435, 440, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (quoting Hoffa v. United States, 385 U.S. 293, 301-02, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)). The Tenth Circuit has, thus, noted that "[a]n illegal search or seizure only harms those with legitimate expectations of privacy in the premises searched." United States v. Jones, 44 F.3d at 871 (citing United States v. Roper, 918 F.2d 885, 886-87 (10th Cir.1990)). Thus, "[t]he proper inquiry" to determine whether a search implicates a defendant's Fourth Amendment interests still depends, after conducting a trespass-based analysis, on "whether the defendant had an expectation of privacy in the place searched and whether that expectation was objectively reasonable." Kerns v. Bd. of Comm'rs, 888 F.Supp.2d 1176, 1219 (D.N.M.2012) (Browning, J.) abrogated on other grounds as recognized in Ysasi v. Brown, 3 F.Supp.3d at 1130 n. 24.
"Official conduct that does not `compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652). The Supreme Court has, thus, recognized that, rather than determining whether law enforcement conduct was a search, it sometimes proves easier to "assess[] when a search is not a search." Kyllo v. United States, 533 U.S. at 32, 121 S.Ct. 2038.
Kyllo v. United States, 533 U.S. at 32-33, 121 S.Ct. 2038. The Supreme Court, thus, articulated the Katz v. United States rule — which Professor Wayne R. LaFave has noted is "somewhat inaccurately stated as the `reasonable expectation of privacy' test," Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(b), at 435 (4th ed., 2004) — which posits: "[A] Fourth Amendment search does not occur ... unless `the individual manifested a subjective expectation of privacy in the object of the challenged
A "reasonable expectation of privacy" is "said to be an expectation `that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" United States v. Jones, 132 S.Ct. at 951. See United States v. Harmon, 785 F.Supp.2d at 1157 ("To decide whether a reasonable expectation of privacy exists, courts consider concepts of real or personal property law...."). In analyzing whether an expectation of privacy is reasonable in the Fourth Amendment context based on property law, "arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas v. Illinois, 439 U.S. at 143 & n. 12, 99 S.Ct. 421. Although ownership or lawful possession is not determinative under the Katz v. United States reasonable-expectation-of-privacy test, it is often a dispositive factor; because the Fourth Amendment is a personal right, a defendant bears the burden of demonstrating "that he gained possession [of the area searched] from the owner or someone with the authority to grant possession." United States v. Arango, 912 F.2d 441, 445-46 (10th Cir.1990).
A defendant maintains a subjective expectation of privacy when he or she "has shown that `he sought to preserve something as private.'" Ysasi v. Brown, 3 F.Supp.3d at 1132 (quoting Bond v. United States, 529 U.S. at 338, 120 S.Ct. 1462). Thus, there is no reasonable expectation of privacy in otherwise private information disclosed to a third party. "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507. The Supreme Court has noted:
United States v. Miller, 425 U.S. at 443, 96 S.Ct. 1619.
The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:
Smith v. Maryland, 442 U.S. 735, 740 n. 5, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Most recently, in United States v. Jones, Justice Sotomayor commented that, given the reality of technology in the twenty-first century, it may no longer be sound to universally hold to the third-party disclosure rule to determine whether a subjective expectation of privacy exists:
132 S.Ct. at 957 (Sotomayor, J., concurring) (citations omitted). The Court notes, however, that, regardless what the Supreme Court decides to do with social media on the internet, only the most ignorant or gullible think that what they post on the internet is or remains private. See United States v. Meregildo, 883 F.Supp.2d 523, 526 (S.D.N.Y.2012) (holding that a person posting to his Facebook profile had "no justifiable expectation that his `friends' would keep his profile private").
Under the second step of Katz v. United States' reasonable-expectation-of-privacy approach, courts must determine "whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable." United States v. Ruiz, 664 F.3d 833, 838 (10th Cir.2012) (United States v. Allen, 235 F.3d 482, 489 (10th Cir.2000)). The Supreme Court has cautioned: "The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). "Determining whether society would view the expectation as objectively reasonable turns on whether the government's intrusion infringes on a legitimate interest, based on the values that the Fourth Amendment protects." United States v. Alabi, 943 F.Supp.2d 1201
Oliver v. United States, 466 U.S. 170, 177-78, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (citations omitted).
The Supreme Court has held that "[o]fficial conduct that does not `compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652). In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court held that the "canine sniff" of a drug-sniffing dog does "not constitute a `search' within the meaning of the Fourth Amendment." 462 U.S. at 707, 103 S.Ct. 2637. The case arose when law enforcement seized the luggage of an airline passenger and transported it to another location, where a drug-sniffing dog could sniff it. See 462 U.S. at 699, 103 S.Ct. 2637. The drug-sniffing dog alerted the officers that drugs were in the luggage, the officers obtained a search warrant, and, upon opening the bags, the officers found over one-thousand grams of cocaine. See 462 U.S. at 699, 103 S.Ct. 2637. While recognizing that a person has a reasonable expectation of privacy in the contents of his or her luggage, the Supreme Court held that the dog's sniff test was not a Fourth Amendment search and emphasized the unique nature of the investigative technique, which could identify only criminal activity:
United States v. Place, 462 U.S. at 707, 103 S.Ct. 2637.
In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See 466 U.S. at 122-24, 104 S.Ct. 1652. A Federal Express employee and supervisor opened a damaged package, and exposed four zip-lock plastic bags containing 6½ ounces of white powder. See 466 U.S. at 111, 104 S.Ct. 1652. They then called the DEA and repacked the contents in the original packaging before they provided the package to the DEA officers. See 466 U.S. at 111, 104 S.Ct. 1652. When the agents arrived, the agents removed the exposed plastic bags from the broken package, opened each of the four bags, and field-tested the white powder, identifying the powder as cocaine. See 466 U.S. at 111-12, 104 S.Ct. 1652. The Supreme Court first held that removal of the plastic bags from the tubes and the agent's visual inspection were not Fourth Amendment searches:
466 U.S. at 120, 104 S.Ct. 1652 (footnote omitted). The Supreme Court noted: "The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express agents and therefore exceeded the scope of the private search, was an unlawful `search' or `seizure' within the meaning of the Fourth Amendment." United States v. Jacobsen, 466 U.S. at 122, 104 S.Ct. 1652. The Supreme Court, relying on United States v. Place, held that the additional digital scan of the white substance was not a Fourth Amendment search, because the test discloses only whether the substance is cocaine and "nothing [else] of special interest":
United States v. Jacobsen, 466 U.S. at 122-24, 104 S.Ct. 1652.
Most recently, where a "dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation," the Supreme Court, again relying on United States v. Place, and also on United States v. Jacobsen, held that "[a]ny intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834.
Illinois v. Caballes, 543 U.S. at 409-10, 125 S.Ct. 834.
In United States v. Alabi, the defendants possessed thirty-one credit and debit cards, "many of them in their own names, several of which had information on the magnetic strips that related to persons other than the Defendants." 943 F.Supp.2d at 1275. The Court reluctantly accepted the defendants' assertion that they "subjectively intended not to disclose this information to a third party — i.e., intended not to use the cards," 943 F.Supp.2d at 1275, but determined that "a privacy expectation in the account information stored on credit and debit cards' magnetic strips — separate and beyond the credit and debit cards themselves — is not objectively reasonable," 943 F.Supp.2d at 1280. The Court explained that the Secret Service's scan of the cards' magnetic strips "reveals only the same information revealed in a private search when the card is used as intended," and, further, that, even if the cards had never been used, the scan "discloses only information known by viewing the outside of the card, or information that the cards and account information are possessed unlawfully...." 943 F.Supp.2d at 1281. Noting the Supreme Court's decision in Rakas v. Illinois, in which the Supreme Court "reasoned that society is not prepared to recognize as reasonable an expectation of privacy in a burglar robbing a summer cabin during the offseason," the Court concluded that society would not recognize "as reasonable a privacy expectation which, at least in contemporary society, would benefit only criminals." 943 F.Supp.2d at 1287.
In Florida v. Jardines, the Supreme Court explained that the Fourth Amendment "establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a search within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'" ___ U.S. ___, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (quoting United States v. Jones, 132 S.Ct. at 950 n. 3). "[A]n actual trespass," however, "is neither necessary nor sufficient to establish a constitutional violation." United States v. Jones, 132 S.Ct. at 951 n. 5 (Scalia, J.)(emphasis omitted)(quoting United States v. Karo, 468 U.S. 705, 713, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)). In determining whether a search has occurred, "[t]respass alone does not qualify, but there must be conjoined with that ... an attempt to find something or to obtain information." United States v. Jones, 132 S.Ct. at 951 n. 5. The Supreme Court has also noted that "[p]hysically invasive inspection is simply more intrusive than purely visual inspection." Bond v. United States, 529 U.S. 334, 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Moreover, the Supreme Court, in Florida v. Jardines, suggested that the trespass-based analysis applies only when the trespass occurs in one of the four places or things listed in the Fourth Amendment:
133 S.Ct. at 1414.
In United States v. Alabi, the Court analyzed whether the Secret Service's digital scan of electronic information contained in the defendants' credit and debit cards' magnetic strips was a Fourth Amendment search under a trespass-based analysis, concluding that it was not, because the Secret Service properly possessed the credit and debit cards, and the additional act of scanning the cards to read the virtual data contained on the strips did not involve a physical intrusion or physical penetration of space. See 943 F.Supp.2d at 1264-65. The Court noted that, "[e]ven if the Supreme Court were to extend the trespass-based analysis for Fourth Amendment searches to virtual invasions, the Secret Service's conduct scanning the thirty-one credit and debit cards still would not amount to a Fourth Amendment search," because the magnetic strip, as opposed to the credit or debit card separately, is not a constitutionally protected area. 943 F.Supp.2d at 1267-68.
943 F.Supp.2d at 1273 (omission in case but not in quoted source)(emphasis in case but not in quoted source).
The Court has noted that, in light of the Supreme Court's recent decisions in Florida v. Jardines and United States v. Jones, both of which Justice Scalia wrote for the majority, and both of which analyze whether government conduct constituted a Fourth Amendment search using the trespass-based approach, "the question arises whether the Katz v. United States reasonable-expectation-of-privacy test is still good law." United States v. Alabi, 943 F.Supp.2d at 1242 (citing Minnesota v. Carter, 525 U.S. at 97-98, 119 S.Ct. 469 (Scalia, J., concurring)). Justice Scalia has consistently criticized this "notoriously unhelpful test":
Minnesota v. Carter, 525 U.S. at 97-98, 119 S.Ct. 469 (Scalia, J., concurring)(emphasis in original) (citations omitted). In both United States v. Jones and Florida v. Jardines, however, Justice Scalia, writing for the majority, never stated that the Supreme Court was substituting the trespass-based analysis for Katz v. United States' reasonable-expectation-of-privacy analysis. Rather, his majority opinions asserted that Katz v. United States' reasonable-expectation-of-privacy analysis added to the trespass-based analysis. See Florida v. Jardines, 133 S.Ct. at 1417 ("The Katz reasonable-expectations test `has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment." (emphasis in original)(quoting United States v. Jones, 132 S.Ct. at 952)). The Court concluded in United States v. Alabi that, "as the Supreme Court now stands, Justices Alito, Breyer, Kagan, Ginsburg, and Sotomayor still adhere to application of the Katz v. United States reasonable-expectation-of-privacy Fourth Amendment analysis, at least as a possible approach alongside of the trespass-based approach." 943 F.Supp.2d at 1243.
In June, 2013, Justice Scalia dissented from the Supreme Court's decision in Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), in which the Supreme Court held that "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure." 133 S.Ct. at 1980. Justice Scalia criticized the majority opinion for analogizing DNA testing to taking an arrestee's photograph by citing to Katz v. United States and pointing out that "we have never held that merely taking a person's photograph invades any recognized `expectation of privacy.'" Maryland v. King, 133 S.Ct. at 1986 (Scalia, J., dissenting). Justice Scalia also pointed out that a person's "privacy-related concerns" in his or her body are weighty:
Maryland v. King, 133 S.Ct. at 1982 (Scalia J., dissenting)(emphases in original) (citations omitted). Justice Scalia also suggested that the Founders would have shared these privacy-related concerns:
Maryland v. King, 133 S.Ct. at 1989 (Scalia J., dissenting). The Court, therefore, concludes that Justice Scalia and the Supreme Court may still rely on a person's privacy expectation when determining whether a search is reasonable for Fourth Amendment purposes, although Justice Scalia may not turn to the expectations prong until after he runs the facts through the trespass prong.
"The Supreme Court requires that a magistrate judge be provided information sufficient to determine the existence of probable cause before he or she issues a warrant." United States v. Romero, 743 F.Supp.2d 1281, 1302 (D.N.M.2010) (Browning, J.)(citing Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)), aff'd, 749 F.3d 900 (10th Cir. 2014). Probable cause requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Burns, 624 F.2d 95, 99 (10th Cir.1980). To establish probable cause to justify a search of a home, an affidavit in support of a search warrant "must contain facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000). "Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched." United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir.1990). The task of the magistrate judge issuing the search warrant
United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006) (unpublished)(quoting Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317). See United States v. Glover, 104 F.3d 1570, 1578 (10th Cir.1997) (finding that, in determining whether an affidavit supports a finding of probable cause, the court must review the affidavit as a whole and look to the totality of the information contained therein). In making his or her determination, the Magistrate Judge "may draw reasonable inferences from the material provided in the warrant application." United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir.1998).
"A reviewing court should accord great deference to a magistrate's determination of probable cause." United States v. Reed, 195 Fed.Appx. at 822. The court's duty is "simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed." Illinois v. Gates, 462 U.S. at 236, 238-39, 103 S.Ct. 2317. This deference is appropriate to further the Fourth Amendment's strong preference for warrants. See Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); United States v. Ventresca, 380 U.S. 102, 105-06, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ("An evaluation of the constitutionality of a search warrant should begin with the rule that the informed and deliberate determinations of magistrates empowered to issue
"The deference accorded a magistrate judge's probable cause determination, however, is not boundless." United States v. Alabi, 943 F.Supp.2d at 1253 (citing United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The court should not defer to a Magistrate Judge's probable-cause determination where there is no substantial basis for concluding that the affidavit in support of the warrant established probable cause. See United States v. Danhauer, 229 F.3d at 1006. Specifically, the court should not defer to a Magistrate Judge's probable-cause determination if it "is a mere ratification of the bare conclusions or `hunches' of others or where it involves an improper analysis of the totality of the circumstances." United States v. Reed, 195 Fed. Appx. at 822 (citing United States v. Leon, 468 U.S. at 915, 104 S.Ct. 3405; Massachusetts v. Upton, 466 U.S. at 734, 104 S.Ct. 2085; Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. 2317).
The Fourth Amendment mandates that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The Supreme Court has explained that the "manifest purpose" of the particularity requirement is "to prevent general searches." Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). "By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison, 480 U.S. at 84, 107 S.Ct. 1013. Moreover, a particular warrant "assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (citations omitted). See Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. 2317 ("[P]ossession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct.").
"Under the automobile exception to the Fourth Amendment's warrant requirement, `police officers who have probable cause to believe there is contraband inside an automobile that has been stopped on the road may search it without obtaining a warrant.'" United States v. Vazquez, 555 F.3d 923, 930 (10th Cir.2009) (quoting Florida v. Meyers, 466 U.S. 380, 381, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984)). "Moreover, `[o]nce the officer[s'] suspicions rise to the level of probable cause, they are empowered to search the entire vehicle, including the trunk and all containers therein that might contain contraband.'" United States v. Vazquez, 555 F.3d at 930 (quoting United States v. Chavez, 534 F.3d at 1345). "Probable cause to search an automobile exists `where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.'" United States v.
The extent to which a search's scope is permissible can expand if probable cause develops during the performance of an otherwise lawful automobile search. See United States v. Carbajal-Iriarte, 586 F.3d 795, 802 (10th Cir.2009) (holding that, even if a defendant's consent did not authorize an officer to "cut open his spare tire, the search [is] nonetheless permissible [if] the officers obtained probable cause to search the tire during the portion of the search to which the defendant did consent"). In United States v. Carbajal-Iriarte, for example, the Tenth Circuit held that the district court did not err in refusing to suppress drugs recovered from the seat of a vehicle after officers cut open the upholstery. See 586 F.3d at 802. The defendant argued that the officers exceeded the scope of his consent when they cut open the upholstery of the seat. See 586 F.3d at 802. The Tenth Circuit stated:
586 F.3d at 802. See United States v. Morales-Zamora, 914 F.2d 200, 205-06 (10th Cir.1990) (finding that it need not "reach the issue of consent because probable cause to search was supplied when the dog alerted to the vehicles" and stating that, under the "vehicle exception to the general rule that searches are reasonable only if conducted pursuant to a valid search warrant," no warrant was necessary for the search of the vehicles to be reasonable under the Fourth Amendment).
"When evidence is obtained in violation of a person's constitutional rights, the government is prohibited from using that evidence in a criminal prosecution of that person." United States v. Villaba, No. CR 13-0664 JB, 2013 WL 4782206, at *27 (D.N.M. Aug. 21, 2013) (Browning, J.)(citing United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ("Under this rule, evidence obtained in violation of the Fourth Amendment cannot
"For the exclusionary rule to apply, the defendant must show, by a preponderance of the evidence: (i) a constitutional violation, and (ii) a causal nexus between the violation and the evidence sought to be excluded." United States v. Villaba, 2013 WL 4782206, at *27 (citing United States v. Torres-Castro, 470 F.3d 992, 999 (10th Cir.2006)). Once the defendant makes this showing, if the prosecutor still desires to proffer the challenged evidence, the burden shifts to the prosecution to establish that an exception to the exclusionary rule applies. See United States v. Torres-Castro, 470 F.3d at 999.
Recognizing that the "sole purpose" of the exclusionary rule "is to deter future Fourth Amendment violations," the Supreme Court has held that evidence will not be excluded where the officer who obtained the evidence through an unlawful search or seizure acted in good faith. Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011). To determine whether the good-faith exception applies, courts must balance the deterrent effect of excluding the evidence against "the substantial social costs generated by the rule." 131 S.Ct. at 2427. The Supreme Court has explained that "[t]he basic insight of the Leon line of cases is that the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue." 131 S.Ct. at 2427. Consequently, "[w]hen the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs." Davis v. United States, 131 S.Ct. at 2438 (citation omitted). By contrast, "[w]hen the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and exclusion cannot pay its way." Davis v. United States, 131 S.Ct. at 2427-28 (citations omitted)(internal quotation marks omitted).
"When a search is conducted pursuant to a warrant that is based on illegally obtained information, a court is not to blindly apply the good-faith exception." United States v. Alabi, 943 F.Supp.2d at 1260. "Instead, the court is to consider the warrant with the illegally obtained information excluded and determine, based on the remaining information, whether probable cause nevertheless existed." United States v. Alabi, 943 F.Supp.2d at 1260. If the remaining content of the warrant affidavit establishes probable cause, the search pursuant to that warrant was appropriate, and the evidence need not be excluded:
United States v. Sims, 428 F.3d 945, 954 (10th Cir.2005). See United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir.1996) ("In our review, we may disregard allegedly tainted material in the affidavit and ask whether sufficient facts remain to establish probable cause."); United States v. Snow, 919 F.2d 1458, 1460 (10th Cir.1990) ("An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was critical to establishing probable cause. If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid."). "The apparent rationale for this rule is that one officer cannot execute a warrant `in good faith' if it contains information that he or a fellow officer obtained illegally." United States v. Alabi, 943 F.Supp.2d at 1260 (quoting United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006)).
In United States v. Leon, the Supreme Court faced the question whether to apply the good-faith exception when a police officer mistakenly thought a warrant, from which he obtained evidence, was supported by probable cause. See 468 U.S. at 905, 104 S.Ct. 3405. The Supreme Court noted that excluding this evidence would not deter police misconduct. See 468 U.S. at 918-19, 104 S.Ct. 3405. The officer had taken all of the necessary steps to comply with the Fourth Amendment and reasonably thought the warrant, and, thus, his search, was valid. See 468 U.S. at 918-19, 104 S.Ct. 3405. The Supreme Court explained that, when a warrant is issued on less than probable cause, the person whose conduct the law wishes to deter is the issuing judge and that excluding the evidence would not have a significantly deterrent effect on judicial conduct. See 468 U.S. at 916-17, 104 S.Ct. 3405. The Supreme Court, thus, concluded that a court need not suppress evidence seized pursuant to a facially valid warrant which later turns out to lack probable cause, as long as police were acting in good-faith reliance on that warrant. See 468 U.S. at 922-23, 104 S.Ct. 3405.
"The Tenth Circuit, therefore, now applies the rule that, in cases where the police obtained a warrant but the affidavit supporting the warrant does not establish probable cause, suppression of the evidence found is inappropriate so long as the officers relied on the warrant in good faith." United States v. Martinez, 696 F.Supp.2d 1216, 1244 (D.N.M.2010) (Browning, J.)(citing United States v. Tuter, 240 F.3d 1292, 1300 (10th Cir.2001); United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir.2000)), aff'd, 643 F.3d 1292 (10th Cir.2011).
United States v. Tuter, 240 F.3d at 1298-99. Furthermore, the Tenth Circuit has explained that, "[u]nder Leon, we presume good-faith when an officer acts pursuant to a warrant unless one of `four contexts'
United States v. Danhauer, 229 F.3d at 1007 (quoting United States v. Leon, 468 U.S. at 922-23, 104 S.Ct. 3405) (citations omitted). See United States v. Perrine, 518 F.3d 1196, 1206-07 (10th Cir.2008). "If any of these situations is present, the good-faith exception should not be applied, and the evidence should be excluded." United States v. Romero, 743 F.Supp.2d at 1316.
In Herring v. United States, officers arrested Herring pursuant to an arrest warrant listed in the Dale County, Alabama, warrant database. See 555 U.S. 135, 137, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). In the search incident to that arrest, officers found drugs and a gun on Herring's person. See 555 U.S. at 137, 129 S.Ct. 695. Herring was then indicted on federal gun and drug-possession charges. See 555 U.S. at 138, 129 S.Ct. 695. It turned out, however, that the warrant under which the officers arrested Herring had been recalled, but the database had not been updated to reflect that recall. See 555 U.S. at 138, 129 S.Ct. 695. Asserting that the evidence found during the search was fruit of an unlawful arrest, Herring sought to suppress it. See 555 U.S. at 138, 129 S.Ct. 695. The district court denied Herring's motion to suppress, and the United States Court of Appeals for the Eleventh Circuit affirmed. See 555 U.S. at 138, 129 S.Ct. 695.
The Supreme Court upheld the Eleventh Circuit's decision, based primarily on the good-faith exception to the exclusionary rule. See 555 U.S. at 140-46, 129 S.Ct. 695. The Supreme Court agreed with the Eleventh Circuit that, although the failure of the police to update the warrant database to reflect the fact that Herring's warrant was withdrawn was negligent, it was not reckless or deliberate. See 555 U.S. at 140, 129 S.Ct. 695. The Supreme Court reiterated its holding from United States v. Leon: "When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted `in objectively reasonable reliance' on the subsequently invalidated search warrant." 555 U.S. at 142, 129 S.Ct. 695 (citing United States v. Leon, 468 U.S. at 922, 104 S.Ct. 3405). Tracing the history of cases applying and declining to apply the exclusionary rule, the Supreme Court distilled a general principle: "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." 555 U.S. at 144, 129 S.Ct. 695. The Supreme Court further explained that "evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional." 555 U.S. at 143, 129 S.Ct. 695. As long as the "police have [not] been shown to be reckless
In Davis v. United States, the Supreme Court confronted the question whether to apply the exclusionary rule when police conduct a search in objectively reasonable reliance on binding judicial precedent. See 131 S.Ct. at 2428. At the time of the officer's search, the Supreme Court had not yet decided Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) — which held that the Fourth Amendment requires officers to demonstrate a continuing threat to their safety that the arrestee poses or a need to preserve evidence related to the crime of the arrest to justify a warrantless vehicular search incident to arrest. See 556 U.S. at 341-48, 129 S.Ct. 1710. The United States Court of Appeals for the Eleventh Circuit had interpreted the Supreme Court's decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), as establishing a bright-line rule authorizing the search of a vehicle's passenger compartment incident to a recent occupant's arrest. See United States v. Gonzalez, 71 F.3d 819, 825 (11th Cir.1996). Although the officers' search incident to the defendant's arrest "was in strict compliance with then-binding Circuit law and was not culpable in any way," it was unconstitutional under Arizona v. Gant. Davis v. United States, 131 S.Ct. at 2428.
The Supreme Court determined that the "acknowledged absence of police culpability dooms [the defendant's] claim." Davis v. United States, 131 S.Ct. at 2428. The Supreme Court explained that "[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield meaningful deterrence, and culpable enough to be worth the price paid by the justice system." 131 S.Ct. at 2428 (citations omitted)(internal quotation marks omitted). The Supreme Court stated: "[T]he conduct of the officers here was neither of these things. The officers who conducted the search did not violate [the defendant's] rights deliberately, recklessly, or with gross negligence. Nor does this case involve any recurring or systemic negligence on the part of law enforcement." 131 S.Ct. at 2428 (citations omitted)(internal quotation marks omitted). The Supreme Court concluded that, "[u]nless the exclusionary rule is to become a strict-liability regime, it can have no application in this case." Davis v. United States, 131 S.Ct. at 2429.
Under the inevitable discovery exception, "illegally obtained evidence may be admitted if it `ultimately or inevitably would have been discovered by lawful means.'" United States v. Christy, 739 F.3d at 540 (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). "The government possesses the burden of proving by a preponderance of the evidence that the evidence at issue would have been discovered without the Fourth Amendment violation." United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir.2005) (citation omitted). In United States v. Owens, 782 F.2d 146 (10th Cir.1986), the Tenth Circuit noted that, for the inevitable discovery exception to apply, there must be a "lawful police investigation [that] inevitably would have discovered" the evidence in question. 782 F.2d at 152. Relying on this statement from United States v. Owens, the Court stated in United
United States v. Christy, 739 F.3d at 540-41.
In United States v. Souza, the Tenth Circuit "set forth the standard for considering whether the inevitable discovery doctrine applies to a warrantless search," United States v. Cunningham, 413 F.3d at 1203, when "there is no exception to the warrant requirement that could serve as a basis for the inevitable discovery exception," United States v. Souza, 223 F.3d at 1203. The Tenth Circuit stated that, "a court may apply the inevitable discovery exception only when it has a high level of confidence that the warrant in fact would have been issued and that the specific evidence in question would have been obtained by lawful means." United States v. Souza, 223 F.3d at 1205. The Tenth Circuit adopted four factors to determine "how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to a warrant":
223 F.3d at 1205. Regarding the second factor, the Tenth Circuit stated:
223 F.3d at 1205-06. The Tenth Circuit noted that a sergeant eventually obtained a search warrant. See 223 F.3d at 1206. Regarding the third factor, the Tenth Circuit stated that, unlike "Cabassa, there is no question ... concerning the inevitability of discovery of the evidence if the police had obtained a search warrant because the package was secured by the officers and there was no chance that it would not still be there when the warrant actually was issued." 223 F.3d at 1206. The Tenth Circuit did not reach the fourth factor, but concluded that, although it was very reluctant to apply the inevitable discovery exception in situations where the government fails to obtain a search warrant and no exception to the warrant requirement exists, in this case the inevitability of discovery of the evidence convince[d] [it] that [the case before it was] one of those occasions when the doctrine should apply.
223 F.3d at 1206.
In United States v. Owens, the Tenth Circuit emphasized the "danger of admitting unlawfully obtained evidence on the strength of some judge's speculation that it would have been discovered legally anyway." 782 F.2d at 152-53. The Tenth Circuit considered whether contraband seized without a warrant could still be admitted under the inevitable discovery doctrine. See 782 F.2d at 152-53. Rejecting the United States' position that the motel maids' routine cleaning of the defendant's room for the next occupant would have revealed the contraband and that, therefore, discovery of the evidence was inevitable, the Tenth Circuit found:
United States v. Owens, 782 F.2d at 153. "United States v. Owens suggests that courts should be realistic, if not skeptical, when assessing the probability that law-enforcement officers would inevitably have uncovered the challenged evidence through an independent investigation." United States v. Martinez, 696 F.Supp.2d at 1244.
In United States v. Cunningham, the Tenth Circuit "appl[ied] the inevitable discovery doctrine, ... because [it was] convinced that without Mr. Cunningham's disputed consent, the warrant to search his house would have been issued and the incriminating evidence would have been discovered." 413 F.3d at 1205. The Tenth Circuit, in addressing the first factor — the extent to which the warrant process had been completed at the time those seeking the warrant learn of the search — stated:
413 F.3d at 1204. Regarding the second factor — the strength of the showing of probable cause at the time the search occurred — the Tenth Circuit stated:
413 F.3d at 1204-05. Regarding the third factor — whether a warrant ultimately was obtained, albeit after the illegal entry — the Tenth Circuit stated: "Moreover, the officers
413 F.3d at 1205 (citations omitted). The Tenth Circuit, therefore, applied the inevitable discovery doctrine. See 413 F.3d at 1205.
In United States v. Christy, the Court applied the four United States v. Souza factors and determined that the inevitable discovery exception applied. Regarding the first factor — the extent to which the warrant process had been completed at the time those seeking the warrant learn of the search — the Court stated: "The deputies did not take any steps to obtain a warrant before entering Christy's residence. The United States concedes that they did not attempt to obtain a warrant before entering Christy's residence.... This factor thus weighs against applying the inevitable discovery exception." 810 F.Supp.2d at 1275 (citations omitted). As to the second factor — the strength of the showing of probable cause at the time the search occurred — the Court concluded:
810 F.Supp.2d at 1276-78 (brackets in original) (citations omitted). Regarding the third factor — whether a warrant ultimately was obtained, albeit after the illegal entry — the Court held:
United States v. Christy, 810 F.Supp.2d at 1278-79. As to the fourth factor — the existence of evidence that the officers jumped the gun because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli — the Court determined:
United States v. Christy, 810 F.Supp.2d at 1279. Consequently, the Court applied the
On appeal, the Tenth Circuit affirmed the Court's decision. See 739 F.3d at 539-544. Addressing the United States v. Souza factors, the Tenth Circuit pointed out that the defendant challenged only the Court's ruling on factors two and four — the strength of the probable cause showing when the unlawful search occurred and whether the officers "jumped the gun" to sidestep the warrant requirement. 739 F.3d at 541. Regarding the second factor — the strength of the showing of probable cause at the time the unlawful search occurred — the Tenth Circuit stated:
United States v. Christy, 739 F.3d at 542. Analyzing the fourth factor — evidence that the officers jumped the gun because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli — the Tenth Circuit explained:
United States v. Christy, 739 F.3d at 543. The Tenth Circuit concluded, therefore, that the Court properly applied the United States v. Souza factors. See 739 F.3d at 542.
"Under the collective-knowledge doctrine — also called the `fellow officer rule' — the knowledge of one officer supporting a search or seizure may be imputed to other law enforcement officers acting in conjunction with the knowledgeable officer." James v. Chavez, 830 F.Supp.2d 1208, 1260 (D.N.M.2011) (Browning, J.)(citing United States v. Hensley, 469 U.S. 221, 232-33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Wilkinson, 633 F.3d 938, 941 (10th Cir.2011)). The collective knowledge doctrine originates from United States v. Hensley, in which the Supreme Court held that evidence uncovered in the police officers' stop of a defendant based on a notice that another state issued about the defendant's outstanding warrant was admissible. See 469 U.S. at
Vertical collective knowledge exists "if one officer actually has probable cause and instructs another officer to act without communicating the information he knows that would justify the action." Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 881 (10th Cir.2014) (emphasis in original). By contrast, horizontal collective knowledge exists "when many officers have pieces of the probable cause puzzle, but no single officer possesses information sufficient for probable cause." Felders ex rel. Smedley v. Malcom, 755 F.3d at 881 (citations omitted)(internal quotation marks omitted). In the latter situation, courts may consider whether officers who are acting together collectively have enough information to support probable cause, provided that the officers actually communicated the information to each other. See United States v. Shareef, 100 F.3d 1491, 1503-05 (10th Cir. 1996) (noting that horizontal collective knowledge only applies if information is shared); United States v. Christy, 810 F.Supp.2d 1219, 1261 (D.N.M.2011) (Browning, J.). Horizontal and vertical collective knowledge are not mutually exclusive doctrines; for example, "the officer who has probable cause may possess that information as a result of communication from other officers." United States v. Chavez, 534 F.3d at 1345 n. 12.
Law enforcement officials must give the Miranda warnings to a person subject to "custodial interrogation." United States v. Hudson, 210 F.3d 1184, 1190 (10th Cir.2000) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602) (internal quotations omitted). A person is in custody if "his freedom of action is curtailed to a degree associated with formal arrest." United States v. Hudson, 210 F.3d at 1190 (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)) (internal quotations omitted). The Court must examine "whether a reasonable [person] in the suspect's position would have understood his situation ... as the functional equivalent of formal arrest." United States v. Hudson, 210 F.3d at 1190 (brackets in original)(internal quotation marks omitted) (citations omitted). The Tenth Circuit has articulated the "[t]wo discrete inquiries ... essential to the determination" of custody: "first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." United States v. Erving L., 147 F.3d 1240, 1245 (10th Cir.1998).
Waiver of a person's Fifth Amendment privilege against self-incrimination must be made "voluntarily, knowingly and intelligently." United States v. Burson, 531 F.3d 1254, 1256 (10th Cir. 2008) (citations omitted). An express statement of waiver is not required; the waiver can be inferred from the defendant's actions and words. See United States v. Nelson, 450 F.3d 1201, 1211 (10th Cir.2006) (citation omitted). "Whether this standard is met `depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" United States v. Burson, 531 F.3d at 1256 (citations omitted). The government generally bears the burden of proving that a valid waiver by a preponderance of the evidence. See United States v. Burson, 531 F.3d at 1256; United States v. Nelson, 450 F.3d at 1210-11.
United States v. Morris, 287 F.3d 985, 988 (10th Cir.2002) (citations omitted). In determining whether a waiver of rights was knowing and intelligent, the Tenth Circuit employs a totality of the circumstances approach. See United States v. Burson, 531 F.3d at 1256-57 (citation omitted). A waiver is knowingly and intelligently made when it is made "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." United States v. Burson, 531 F.3d at 1257 (citations omitted). "In determining whether rights were voluntarily waived, we consider: the suspect's age, intelligence, and education; whether the suspect was informed of his or her rights; the length and nature of the suspect's detention and interrogation; and the use or threat of physical force against the suspect." United States v. Smith, 606 F.3d 1270, 1276 (10th Cir.2010) (citations omitted).
Under Miranda, an interrogation must cease immediately when an "individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent." United States v. McCarthy, 382 Fed.Appx. 789, 792 (10th Cir.2010) (citation omitted). Statements elicited after a defendant invokes this right are inadmissible. See United States v. McCarthy, 382 Fed.Appx. at 792 (citation omitted). To fall within the ambit of this rule, however, a defendant's invocation of his right to remain silent must be clear and unambiguous. See United States v. McCarthy, 382 Fed.Appx. at 792 (citing United States v. Rambo, 365 F.3d 906, 910 (10th Cir.2004)).
The Fifth and Fourteenth Amendments provide the accused a "right to have counsel present during custodial interrogation." Edwards v. Arizona, 451 U.S. 477, 481, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Once an individual subject to custodial interrogation expresses a desire for counsel, that individual is "not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 484-85, 101 S.Ct. 1880. In Miranda, the Supreme Court stated:
384 U.S. at 474, 86 S.Ct. 1602.
The request for counsel must be clear and unequivocal. See Davis v.
In United States v. Lux, 905 F.2d 1379 (10th Cir.1990), the Tenth Circuit affirmed a district court finding that a defendant did not make an unambiguous request for counsel when she asked "how long it would take if she wanted a lawyer and if she would have to stay in jail while she waited for a lawyer." 905 F.2d at 1382. The Tenth Circuit, without elaborating on its reasoning, found that, based upon its "independent review" of the record, with deference to the trial court's findings of fact, the defendant did not make a request for an attorney. 905 F.2d at 1382.
The Court will deny the Motion. Under the collective knowledge doctrine, the DEA's investigation of the Varela DTO gave Almonte and Marquez probable cause to stop Gonzalez, Sr.'s truck and to search his trailer. The Court thus will not suppress the cocaine and marijuana that the deputies discovered in Gonzalez, Sr.'s trailer, and will not suppress Gonzalez, Sr.'s post-arrest statements as the fruit of an unconstitutional search or seizure. If the Court could not impute Maestas' probable cause to the deputies, however, their search of Gonzalez, Sr.'s trailer was unlawful, and the Court would suppress the drugs that they discovered during their search, and Gonzalez, Sr.'s post-arrest statements as the fruit of an unlawful search and seizure.
The Court's analysis proceeds in three steps. First, the Court concludes that Maestas had probable cause to believe that Gonzalez, Sr.'s trailer contained narcotics based on the DEA's investigation of the Varela DTO. Second, the Court holds that — under the collective knowledge doctrine — it may impute Maestas' probable cause to Almonte and Marquez to justify their stop of Gonzalez, Sr.'s truck, and their search of his trailer. Third, because Almonte and Marquez had probable cause to stop Gonzalez, Sr.'s truck and to search his trailer, they lawfully discovered the marijuana and cocaine in his trailer, and Gonzalez, Sr.'s post-arrest statements were not the fruit of an unlawful search or an unlawful seizure. Accordingly, the Court will not suppress the drugs or Gonzalez, Sr.'s statements.
Gonzalez, Sr. argues that Maestas did not develop sufficient probable cause through the DEA's investigation of the Varela DTO to stop Gonzalez, Sr.'s vehicle or to search his trailer. See Jan. 30, 2015, Tr. at 348:17-351:2 (Walz). Gonzalez, Sr. has not disputed that Varela and J. Ibarra-Solis were actively involved in drug trafficking. Instead, he asks the Court to conclude that it was a mere coincidence that he was mentioned during those calls, and that, because he has trained horses for Varela, he had "a legitimate reason to contact him and discuss various matters with him." Jan. 30, 2015, Tr. at 348:20-21 (Walz).
Through the DEA's investigation into the Varela DTO, Maestas developed probable cause to believe that Gonzalez, Sr. was trafficking drugs. "Probable cause is a matter of probability, not certainty. Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." United States v. Gutierrez, No. CR 07-1014 JB, 2008 WL 2397668, at *32 (D.N.M. Jan. 4, 2008) (Browning, J.) (citation omitted)(internal quotation marks omitted). Maestas' probable cause was based on: (i) his interpretation of intercepted telephone calls between various members of the Varela DTO from November 3, 2011, to November 10, 2011; and (ii) the DEA surveillance operation's corroboration of those calls by observing Gonzalez, Sr.'s activities in El Paso.
First, the intercepted telephone calls indicate that Gonzalez, Sr. planned to transport a large quantity of illegal drugs from El Paso to Albuquerque on or about November 10, 2011. See United States v. Beltran, 11 Fed.Appx. 786, 787 (9th Cir. 2001) (unpublished)("We see no reason why the district court could not rely on [the agent's] interpretations [of intercepted conversations] to find probable cause."); United States v. Carr, No. CR 07-40034 JAR, 2007 WL 2253200, at *4 (D.Kan. July 31, 2007) (finding that "cryptic or coded conversations can support a finding of probable cause"); United States v. Feola, 651 F.Supp. 1068, 1096 (S.D.N.Y.1987) (holding that the agents' interpretations of intercepted telephone calls "properly contributed to a finding of probable cause"). The DEA intercepted over twenty telephone calls between November 3, 2011, and November 10, 2011. Many of those calls mention specific amounts — like twenty, thirty, or forty — but never connect those amounts to a particular item. See Call 11 at 4 ("Varela said that sometimes he would have a pile, and he would ask them for 30 or 40, and they would tell him not to worry because there was more coming, and for Varela to receive it, then send whatever (money)."); Call 491 at 22 (noting that J. Ibarra-Solis told Varela "that he had promised him that he would have a 2,0[NFI] there [NFI] on Tuesday."); Call 795 at 31 ("Varela advised that at least those 4 [NFI] are there and that he (Jaime) should tell his brother [NFI] to give Varela some 15[NFI] at least to do something...."). Varela used this code in his conversations with: (i) J. Ibarra-Solis, see Call 293 at 3 ("Varela asked UM471 how many total there are. UM471 said that all together there are about 35 or 40.... Varela asked if there are at least 30. UM471 said that like 35 or 40 for sure."); (ii) Gonzalez, Jr., see Call 418 at 12 (explaining that Varela told Gonzalez, Jr. that the Ibarra-Solises "have 45 right now, and they want for Varela to bring them [NFI]"); Call 895 at 5 ("Gonzalez Jr.
Maestas interpreted these figures as kilograms of cocaine. See Jan. 22, 2015, Tr. at 96:15-97:3 (Maestas). Gonzalez, Sr. has not offered a lawful interpretation of these calls, and the Court has not been able to come up with one — for example, that the individuals were all discussing transporting thirty or forty horses or thirty- to forty-kilogram horses. See Jan. 22, 2015, Tr. at 97:13-18 (Maestas). There is no indication that Varela and J. Ibarra-Solis regularly transported horses or other lawful items across the Mexico-United States border together. Gonzalez, Sr. has not explained why Varela and J. Ibarra-Solis would have so many conversations in such a short period of time about transporting horses, how many horses they could transport at a single time, when those horses could be transported, who could transport them, and who would receive the horses on Varela's behalf. That Varela and J. Ibarra-Solis had so many conversations about these issues and were so concerned about them is more consistent with them planning a shipment of illegal drugs across the border than with them planning a shipment of lawful items. It would also be strange for Varela to joke about being sent to jail for transporting forty-five horses, as he did in a November 6, 2011, telephone call with Gonzalez, Jr. See Call 457 at 17 ("Varela agreed and added those 45[NFI] were there [NFI] and added he didn't know what he was going to do. Varela added he might have to go alone.
Contrary to Gonzalez, Sr.'s contentions, the intercepted telephone conversations do not indicate that he was planning only to transport or to train Varela's horses. A November 6, 2011, telephone call between Varela and Gonzalez, Sr. is instructive. During that call, Varela
Call 329 at 11.
It is possible that this conversation is about whether Gonzalez, Sr. could transport or train Varela's or some other individual's horses, but there are a few problems with that interpretation. Throughout this conversation, Varela and Gonzalez, Sr. refer to forty-five, thirty-two, or sixteen with the singular pronoun "it" rather than "them," which suggests that they were describing a quantity of a single item — i.e., cocaine or marijuana — rather than multiple horses. It would also be strange for Gonzalez, Sr. to be able to transport thirty-two — or even sixteen — horses in a single trip. There was no testimony about how many horses the average horse trailer holds, but the Court would find it hard to believe that the average horse trailer pulled by a pick-up truck can hold such a large number of horses at one time. Most problematic for Gonzalez, Sr.'s position, however, is that he mentions "burn[ing] themselves" from "crossing and crossing," and that, if "one of those falls ... they would lose a shit load of money." Call 329 at 11. If Gonzalez, Sr. was transporting horses — or other lawful items — for Varela or others, he would have no reason to be concerned about anyone getting "burn[ed]" from "crossing" — presumably, the Mexico-United States border — having a load "fall[]" or "los[ing] a shit load of money." Call 329 at 11. On the other hand, if Gonzalez, Sr. was involved in a shipment of illegal drugs, he would likely be concerned that more shipments would make it more likely that law enforcement would intercept a load, seize it, and cause them to lose "a shit load of money." Call 329 at 11.
A November 9, 2011, telephone call between Varela and Gonzalez, Sr. also undercuts Gonzalez, Sr.'s argument. That day — a day before Gonzalez, Sr. and A. Gonzalez picked up the drug shipment — Varela informed Gonzalez, Sr. that "the machine was in place." Call 994 at 22. Gonzalez, Sr. "affirmed and added it was red alert there," and later said that "he saw it since he got there." Call 994 at 22. Gonzalez, Sr. then told Varela that "he would take off at four in the morning" and then added: "[W]hy take a risk?" Call 994 at 22. Maestas interpreted this conversation as Varela and Gonzalez, Sr. talking about an active Border Patrol checkpoint between Albuquerque and El Paso, and that Gonzalez, Sr. planned to leave El Paso at 4:00 a.m. in the hopes that the checkpoint would not be active at that time. Gonzalez, Sr. has offered no lawful explanation for this conversation, and the Court cannot come up with one. If Gonzalez, Sr. were only transporting horses, it is unclear about which "machine" he is talking that is on "red alert." It is also unclear what "risk" about which he would be worried that he could avoid if he left at four in the morning. If Gonzalez, Sr. was only transporting horses, there was no reason for him to have these concerns. For these reasons, the Court concludes that Maestas' interpretation of the intercepted telephone calls supported a finding a probable cause.
Second, the DEA's surveillance operation confirmed Maestas' interpretation of the intercepted telephone calls as setting up a plan for Gonzalez, Sr. to transport a large quantity of illegal drugs from El Paso to Albuquerque. Based on the intercepted telephone calls, Maestas determined that Gonzalez, Sr. would pick up a drug load in El Paso on approximately November 10, 2011, and transport it to Albuquerque. See Jan. 28, 2015, Tr. at 158:16-20 (Swainston, Gooch). On November
Gonzalez, Sr. correctly points out that the surveillance team did not see him "loading the trailer, touching any boxes" or openly carrying illegal drugs. Jan. 30, 2015, Tr. at 350:24-351:2 (Walz). That Gonzalez, Sr. went to a storage facility in El Paso at 9:00 p.m. to pick up some unidentified items and then headed back to Albuquerque at 4:00 a.m. the following day, however, undercuts Gonzalez, Sr.'s story that he was transporting or training horses for Varela. It is unlikely that Varela kept his horses in storage facilities, especially in the amounts that he was discussing with Gonzalez, Sr. over the telephone. If he did keep his horses in the storage facility, there is no reason for Gonzalez, Sr. and A. Gonzalez to transport those horses in the middle of the night. Gonzalez, Sr.'s actions are more consistent with the plan set forth in the intercepted communications: Gonzalez, Sr. would travel to El Paso, pick up illegal drugs, and transport them back to Albuquerque at 4:00 a.m. to avoid the Border Patrol checkpoint.
"Probable cause is a flexible common-sense standard." United States v. McKenzie, No. CR 08-1669 JB, 2010 WL 1795173, at *15 (D.N.M. April 13, 2010) (Browning, J.) (citations omitted)(internal quotation marks omitted). A finding of probable cause rests not on whether particular conduct is "innocent" or "guilty," but on the "degree of suspicion that attaches" to the United States' evidence. Illinois v. Wardlow, 528 U.S. 119, 128, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Probable cause "does not demand any showing that such a belief be correct or more likely true than false," but instead requires only that "the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime." United States v. McKenzie, 2010 WL 1795173, at *15 (citation omitted)(internal quotation marks omitted). Although it is possible that the intercepted telephone communications set forth a plan for Gonzalez, Sr. to transport horses or to train horses for Varela, and it is possible that Gonzalez, Sr. and A. Gonzalez travelled to a storage facility in El Paso at 9:00 p.m. and left for Albuquerque at 4:00 a.m. the following day all for lawful reasons, Maestas — an experienced DEA agent — interpreted the telephone calls and Gonzalez, Sr.'s and A. Gonzalez' actions in El Paso as setting forth and executing a plan to transport illegal drugs. After reviewing all of the intercepted
Other courts have found that officers established probable cause in similar circumstances. See, e.g., United States v. Ramirez, 60 Fed.Appx. 130, 132 (9th Cir. 2003) (unpublished)(finding that officers had probable cause where they believed the defendant was involved in the delivery of cocaine because they had intercepted a series of drug-sale-related telephone calls, witnessed the defendant's arrival and departure, noted that these events coincided with the placement of relevant telephone calls, and observed the defendant depart in the direction indicated that his boss indicated); United States v. Ridge, 329 F.3d 535, 540-41 (6th Cir.2003) (holding that officers were justified in stopping defendant's vehicle where they had intercepted a telephone call that "Danny's on the way with the money," they had been informed that Danny cooked methamphetamine, and they observed a van arriving approximately twenty minutes later); United States v. Lee, No. CR 06-125(9), 2007 WL 1567098, at *11-12 (E.D.Tex. May 29, 2007) (holding that federal agents' knowledge, provided by intercepted calls, that truck drivers in tractor-trailers were utilized as couriers to distribute narcotics, coupled with agents' observation of duffle bags being placed in truck with call afterwards confirming "everything was cool," provided sufficient probable cause to believe defendant was transporting cocaine); United States v. Wright, 171 F.Supp.2d 1195, 1202 (D.Kan. 2001) (concluding that traffic stop was justified where officers had reason to believe defendants were transporting drugs based on intercepted telephone calls and surveillance leading up to the traffic stop). Given the relatively low showing required to establish probable cause — "only a probability or substantial chance of criminal activity, rather than an actual showing of such activity," United States v. Rey, 663 F.Supp.2d 1086, 1113 (D.N.M.2009) (Browning, J.) (citation omitted)(internal quotation marks omitted) — the Court concludes that the intercepted telephone calls between the Varela DTO's members and the DEA surveillance operation's corroboration of Maestas' interpretation of those calls is sufficient to establish probable cause that Gonzalez, Sr. was transporting illegal drugs on November 10, 2011.
That Maestas had probable cause to stop Gonzalez, Sr.'s truck and to search his trailer does not end the Court's inquiry, however. The Court must also conclude that there was a sufficient connection between Maestas and the deputies to impute Maestas' probable cause to them under the collective knowledge doctrine. This case implicates only the vertical permutation of the collective knowledge doctrine: it is a situation "where one officer has probable cause and instructs another officer to act, but does not communicate the corpus of information known to the first officer that would justify the action."
The Tenth Circuit has held that officers may use traffic stops as a pretext to intercept drug shipments identified in wiretap investigations. In United States v. Chavez, for example, a confidential informant acting under the DEA's direction sold one kilogram of cocaine to Servando Moreno. See 534 F.3d at 1340. The following day, the DEA agents observed Moreno get into a truck that the defendant, Victor Chavez, drove. See 534 F.3d at 1340. As the DEA surveillance team followed the truck on Interstate 40, a DEA task force officer described the truck to a New Mexico State Police officer, and instructed him to "develop his own probable cause" and to conduct a traffic stop of the vehicle. 534 F.3d at 1341. Regarding the DEA's investigation, the task force officer said only that "the white pick-up was carrying `coke.'" 534 F.3d at 1341. The officer then "pretended that he had stopped Mr. Chavez for failing to turn on his headlights in a safety corridor" — a failure which the officer incorrectly believed violated New Mexico's motor vehicle regulations — searched Chavez' truck and discovered cocaine. See 534 F.3d at 1342. The Tenth Circuit upheld the stop and the search, concluding that the DEA's investigation cultivated probable cause, and that the officer "acted on the strength of the DEA's probable cause" when he stopped and searched the truck. 534 F.3d at 1347. The Tenth Circuit noted that "[d]isguising the stop as a traffic stop was a valid law enforcement tactic calculated to ensure an officer's safety" and "safeguard ... the integrity of the DEA investigation." 534 F.3d at 1348 (citation omitted)(internal quotation marks omitted).
Other Courts of Appeals have upheld the use of walled-off stops in similar circumstances. In United States v. Rodriguez, 831 F.2d 162 (7th Cir.1987), for example, DEA agents gathered enough reasonable suspicion to stop the defendant's car based on a wiretap investigation and physical surveillance. See 831 F.2d at 165. Without conveying any details about the ongoing investigation, the agents asked local law enforcement to conduct a "routine traffic stop" of the defendant. 831 F.2d at 165. Although the United States conceded that the stop was pretextual and designed to protect the DEA's investigation, the United States Court of Appeals for the Seventh Circuit held that the officers properly relied on the DEA's reasonable suspicion that the defendant was transporting drugs. See 831 F.2d at 165. The Seventh Circuit said: "The requesting DEA agent had good grounds for articulable suspicion and the detaining officer had a reasonable basis for believing the request to be well-founded — even though she did not personally know the facts giving rise to the suspicion." 831 F.2d at 166.
This case is not one where two officers independently had information that could provide probable cause, but failed to communicate with each other. If anything, the communication between Lopez, Almonte, and Marquez was even greater than the bare-bones description of a vehicle and its license plate that triggered the application of the collective knowledge doctrine in United States v. Chavez. Emrich — an agent in the Albuquerque DEA office who was in communication with Gooch and Maestas — asked Lopez to obtain the assistance of deputies with the El Paso Sheriff's office to conduct a walled-off stop of Gonzalez, Sr.'s vehicle. See Jan. 28, 2015, Tr. at 185:1-186:10 (Swainston, Lopez); id. at 206:22-207:14 (Walz, Lopez). The El Paso Sheriff's Office assigned Almonte and Marquez to conduct the stop. See Jan. 28, 2015, Tr. at 187:15-24 (Swainston, Lopez). On November 9, 2011, Lopez explained to Marquez that he and Almonte were assisting the Albuquerque DEA office in a wiretap investigation, and that the DEA needed him and Marquez to conduct a traffic stop on a vehicle that was possibly loaded with an unknown amount of cocaine. See Jan. 28, 2015, Tr. at 189:5-15 (Swainston, Lopez). Lopez gave Marquez a DEA radio, see Jan. 28, 2015, Tr. at 188:19-189:4 (Swainston, Lopez), and, later that day, pointed out Gonzalez, Sr.'s vehicle to Marquez at Gonzalez, Sr.'s hotel, see Jan. 28, 2015, Tr. at 192:14-193:4 (Swainston, Lopez).
Throughout the operation, Lopez communicated with Marquez on the DEA radio; Marquez then relayed Lopez' instructions to Almonte through the Sheriff's Office's radio. See Jan. 28, 2015, Tr. at 194:11-14 (Swainston, Lopez). When Gonzalez, Sr. left his hotel, Lopez followed him and relayed his location to Marquez, who then relayed his location to Almonte, who conducted the stop shortly thereafter. See Jan. 28, 2015, Tr. at 194:7-196:22 (Swainston, Lopez); id. at 202:18-22 (Walz, Lopez); id. at 226:1-16 (Swainston, Almonte). The close cooperation between Lopez, Almonte, and Marquez satisfies the Tenth Circuit's relatively low threshold that there be "some communication between the officer or officers with probable cause and the officer who executes the stop or search." United States v. Chavez, 534 F.3d at 1347 n. 13. Beyond that basic level of communication, "the underlying facts constituting probable cause... need not be communicated" to the officers in the field to satisfy the Fourth Amendment. United States v. Shareef, 100 F.3d at 1503 n. 4. See United States
That Maestas did not communicate directly with Almonte and Marquez does not affect the collective knowledge analysis. In United States v. Nafzger, 974 F.2d 906 (7th Cir.1992), FBI Agent Thomas Marquardt had reasonable suspicion to stop the defendant, and relayed that information to a "command post" at the local sheriff's office that sheriff's deputies and FBI agents manned. 974 F.2d at 908. Based on the information from Marquardt, FBI agents told the sheriff's deputies that the defendant was "suspected of being involved in a stolen car ring." 974 F.2d at 908. One of those deputies executed a traffic stop of the defendant's vehicle. See 974 F.2d at 908. Upholding the stop, the Seventh Circuit emphasized that Marquardt "was an active member of the joint FBI state-investigative team," and that "[b]oth Marquardt and the briefing agents were part of a coordinated investigation, and were all in close communication with the command post." 974 F.2d at 914. The Seventh Circuit explained that, because Marquardt developed reasonable suspicion to stop the defendant, "and this suspicion was presumably relayed, via the command post, to the briefing officials, who then relayed it to [the deputy], his stop of the defendant did not violate the Fourth Amendment." 974 F.2d at 914. The Seventh Circuit added that, "[w]here officers are capable of instant communication at any time," Marquardt's presence "should not make any difference, so long as his justified suspicion travelled through reliable channels ... and eventually reached the briefing officials and then [the deputy]." 974 F.2d at 915.
Likewise, it is immaterial that Maestas did not brief Almonte and Marquez directly about Gonzalez, Sr.'s pending drug shipment. Maestas' instructions travelled through reliable channels — Emrich and Lopez — and ultimately reached Almonte and Marquez. When the ultimate aim of the Fourth Amendment is reasonableness, it seems overly formalistic to require the agent or agents with firsthand knowledge of the information providing probable cause to brief the arresting officers directly. So long as the instructions of the agent with firsthand knowledge are communicated through reliable channels — dispatchers, formal briefings, radio broadcasts, or other law enforcement officers — requiring a direct line of communication would be unduly burdensome without providing any commensurate benefits. See United States v. Williams, 429 F.3d 767, 771-72 (8th Cir.2005) ("[W]e also hold that the collective knowledge of the DEA team was sufficient to provide reasonable suspicion to stop [the co-defendant's] vehicle, and such knowledge was imputed to the officer at the scene when he received [another officer's] radioed request."); United States v. Wilson, 894 F.2d 1245, 1254 (11th Cir.1990) ("[W]hen a group of officers is conducting an operation and there exists at least minimal communication between them, their collective knowledge is determinative of probable cause.").
The Supreme Court cases that established the collective knowledge doctrine reinforce this flexible approach. In Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), a county sheriff issued a statewide dispatch relaying the arrest warrant for an
In United States v. Hensley, a law enforcement department issued a "wanted flyer" to other police departments in the area that provided the defendant's description, stated that he was involved in a bank robbery, and asked the other departments to look for him and to, if possible, apprehend him. 469 U.S. at 232, 105 S.Ct. 675. The flyer did not communicate any of the underlying facts that led the department to issue the flyer, however. See 469 U.S. at 226, 105 S.Ct. 675. Although a different police department found the defendant and detained him, the Supreme Court found that the flyer provided a sufficient connection between the departments for the collective knowledge doctrine to apply. See 469 U.S. at 232-33, 105 S.Ct. 675. The Supreme Court reasoned that,
United States v. Hensley, 469 U.S. at 231, 105 S.Ct. 675. The pragmatic concerns that animated the Supreme Court's holding in United States v. Hensley apply with equal force here. In an era when national law enforcement agencies conduct nationwide investigations involving a large number of defendants, confidential informants, undercover officers, and intercepted communications, it makes little sense to require the agents who have firsthand knowledge of probable cause to brief each officer who executes a search or arrest directly. Such an approach would hamstring law enforcement officers when time is often of the essence in apprehending suspects, or in intercepting shipments of weapons or drugs to keep them from reaching the streets. See United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir. 1976) ("[E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information."). So long as agents and officers use reliable channels to communicate their instructions to other officers, and those instructions accurately reach those officers, the collective knowledge doctrine allows courts to impute the directing officers' probable cause to the officers in the field.
Once Almonte and Marquez had probable cause to believe that Gonzalez, Sr.'s trailer contained illegal drugs, the automobile exception to the Fourth Amendment's warrant requirement permitted them to search "the entire [trailer], all containers therein that might contain contraband," without obtaining a search warrant. United States v. Bradford, 423 F.3d 1149, 1160 (10th Cir.2005). See United States v. Sauzamedz-Mendoza, 595 Fed.Appx. 769, 776 (10th Cir.2014) (unpublished)(noting that the automobile exception "has been applied to trailers as well"). Because Gonzalez, Sr.'s trailer could reasonably contain contraband, Marquez and Almonte were entitled to search it. See United States v. Olvera, 178 Fed.Appx. 373, 374-75 (5th Cir.2006) (per curiam)(unpublished)(finding wiretap surveillance and observations of suspect provided agents with probable cause to search vehicle, including any area where contraband could be found). Accordingly, the Court will not suppress the marijuana and cocaine that Almonte and Marquez discovered in Gonzalez, Sr.'s trailer.
In addition to asking the Court to suppress the illegal drugs discovered in his trailer as the fruit of an unconstitutional search and seizure, Gonzalez, Sr. asks the Court to suppress the statements that he made to Marquez and Montoya after he was arrested. See Motion at 7-8. After Gonzalez, Sr. was arrested, Marquez asked him about horse trainers, and Gonzalez, Sr. told Marquez that "[they] had stopped him too soon. If [they] would have waited, [they] would have gotten the owner at the Pilot in Acton." Jan. 28, 2015, Tr. at 304:22-305:25 (Marquez)(internal quotation marks omitted). Gonzalez, Sr. told Marquez that he "was a small fish and the other ones would have been a bigger catch." Jan. 28, 2015, Tr. at 305:2-4 (Marquez)(internal quotation marks omitted). Marquez asked Gonzalez, Sr. if he was being followed or being monitored, and Gonzalez, Sr. told Marquez that he "was in communication with somebody else on a push-to-talk phone that was in the truck." Jan. 28, 2015, Tr. at 306:4-8 (Marquez)(internal quotation marks omitted). Marquez asked Gonzalez, Sr. why he had not told Marquez during the traffic stop that he was possibly being followed; Gonzalez, Sr. said that "it was because he was in the unit and there was nobody there." Jan. 28, 2015, Tr. at 306:11-20 (Marquez)(internal quotation marks omitted). Subsequently, as Gonzalez, Sr. was waiting for the judge to arraign him, he blurted out in Spanish to Montoya: "Once you're in this business, if you don't do what they tell you to do, even your family is in danger." Jan. 28, 2015, Tr. at 346:3-5 (Montoya)(internal quotation marks omitted). Montoya then asked Gonzalez, Sr. if he or his family was in any danger, to which Gonzalez, Sr. responded: "No. I'm just saying." Jan. 28, 2015, Tr. at 340:7-10 (Swainston, Montoya)(internal quotation marks omitted).
In the Motion, Gonzalez, Sr. does not raise any Fifth Amendment challenges to those statements, but argues only that they are "fruit of the poisonous tree[,] because the arrest and comments made were a direct result of the drugs found during the illegal search." Motion at 8. Because the Court has concluded that Almonte and Marquez had probable cause to stop Gonzalez, Sr.'s truck and to search his trailer based on the DEA's investigation of the Varela DTO, any subsequent statements
If the Court could not impute Maestas' probable cause to the deputies, their search of Gonzalez, Sr.'s trailer would have violated the Fourth Amendment. Almonte's initial traffic stop of Gonzalez, Sr. was justified based on witnessing Gonzalez, Sr. commit two traffic infractions. Once Gonzalez, Sr.'s record check came back negative, however, Almonte could not continue holding onto his license and insurance card without reasonable suspicion that he was involved in criminal activity. Because Almonte and Marquez did not have such reasonable suspicion, if the Court could not impute Maestas' probable cause to Marquez and Almonte, it would have to suppress any contraband that the deputies discovered in a subsequent search of Gonzalez, Sr.'s trailer, and any post-arrest statements that he made as the fruit of an unlawful search and seizure.
A routine traffic stop is "a relatively brief encounter" and "is more analogous to a so-called Terry stop ... than to a formal arrest." Knowles v. Iowa, 525 U.S. 113, 116, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (internal quotation marks omitted). The first step in analyzing the reasonableness of a routine traffic stop is determining "whether the officer's action was justified at its inception." United States v. Wilson, 96 Fed.Appx. 640, 643 (10th Cir.2004) (unpublished). "A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Reyes-Vencomo, 866 F.Supp.2d 1304, 1334 (D.N.M. 2012) (Browning, J.) (citations omitted)(internal quotation marks omitted). Almonte was justified in temporarily detaining Gonzalez, Sr., because he saw Gonzalez, Sr. commit two traffic offenses: (i) displaying an expired temporary registration tag; and (ii) failing to have a license plate on his truck's rear bumper.
Gonzalez, Sr. concedes that the traffic stop was lawful, because he committed two traffic violations. See Jan. 30, 2015, Tr. at 369:5-23 (Court, Walz). Although the Incident Report mentions only that Gonzalez, Sr. "display[ed] an expired temporary registration,"
Like a Terry stop, a traffic stop that is lawful at its inception can violate the Fourth Amendment if it "lasts longer than is necessary to effectuate [its] purpose." Rodriguez v. United States, U.S. ___, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) (citation omitted). Ordinarily, "this limits the officer to a request for the driver's license and registration, a computer check on the car and driver, an inquiry about the driver's travel plans, and the issuance of a citation." United States v. Cervine, 347 F.3d 865, 871 (10th Cir.2003). Once the officer completes these tasks, the driver "must be allowed to proceed on his way unless reasonable suspicion exists that the driver is engaged in criminal activity or the driver consents to additional questioning." United States v. Gregoire, 425 F.3d 872, 879 (10th Cir.2005). "[I]f the officer returns the [driver's] license and registration" after completing those tasks, however, "and asks questions without further constraining the driver," the traffic stop "may become a consensual encounter, requiring no reasonable suspicion." United States v. West, 219 F.3d 1171, 1176 (10th Cir.2000). The Tenth Circuit has held that "an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to [him or her]."
Almonte testified that, after obtaining Gonzalez, Sr.'s license and insurance, and asking him a few questions, he left Marquez with Gonzalez, Sr., so that he could run a record check on Gonzalez, Sr. in his patrol car. See Jan. 28, 2015, Tr. at 232:4-8 (Swainston, Almonte); id. at 284:7-10 (Swainston, Marquez). Almonte said that Gonzalez, Sr.'s record check came back negative, indicating that he had no out-standing arrest warrants. See Jan. 28, 2015, Tr. at 238:8-10 (Swainston, Almonte). Rather than returning Gonzalez, Sr.'s license and insurance to him, however, Almonte left them in his patrol car, see Jan. 28, 2015, Tr. at 248:11-24 (Swainston, Almonte); id. at 260:10-20 (Walz, Almonte), and proceeded to ask Gonzalez, Sr. a series of questions — if he had anything illegal, any cocaine, marijuana, methamphetamine, or heroin in his truck, see Jan. 28, 2015, Tr. at 239:7-17 (Almonte). Gonzalez, Sr.
Although Almonte and Marquez could lawfully ask Gonzalez, Sr. questions "during a lawful traffic stop that are unrelated to the stop," their questioning could not extend the length of stop. United States v. Guerrero-Espinoza, 462 F.3d at 1308 n. 6 (emphasis in original). Once Almonte completed the records check, and chose not to issue Gonzalez, Sr. a citation or a warning, the purpose of the traffic stop was complete. Because Almonte did not return Gonzalez, Sr.'s license and insurance at that point, he needed reasonable suspicion that Gonzalez, Sr. was involved in criminal activity to prolong the stop. See United States v. Lopez, 443 F.3d 1280, 1285-86 (10th Cir.2006) (holding unconstitutional an officer's five-minute continued detention of the defendant by failing to return his driver's license after the justification for the initial stop was dispelled); United States v. Gregoire, 425 F.3d at 879 ("In a routine traffic stop, a trooper may request a driver's license, vehicle registration and other required papers, run necessary computer checks, and then issue any warning or citation.... Once those tasks are completed, a driver must be allowed to proceed on his way unless reasonable suspicion exists ..."). As Almonte conceded at the suppression hearing, Gonzalez, Sr. was not free to leave when Almonte continued asking him questions, but failed to return his license and insurance. See Jan. 28, 2015, Tr. at 260:10-20 (Almonte).
The United States argues that Almonte and Marquez had reasonable suspicion to extend the traffic stop, because: (i) Gonzalez, Sr. appeared "a little more nervous than somebody who has just committed a traffic violation," Jan. 28, 2015, Tr. at 285:16-18 (Marquez); (ii) the interior of Gonzalez, Sr.'s truck was dirty: there were clothes and luggage in the back seat, several empty water bottles, uneaten food on the floorboards, and several empty food wrappers, see Jan. 28, 2015, Tr. at 235:19-236:5 (Swainston, Almonte); id. at 298:1-25 (Swainston, Marquez); and (iii) there were a number of inconsistencies between Gonzalez, Sr.'s answers to the deputies' questions, see Jan. 28, 2015, Tr. at 233:23-234:14 (Swainston, Almonte); id. at 284:15-285:13 (Swainston, Marquez). These factors — even when taken together — did not provide Almonte and Marquez reasonable suspicion to extend the stop.
Gonzalez, Sr.'s alleged nervousness does not weigh heavily in favor of finding reasonable suspicion. "The Tenth Circuit has `held consistently that nervousness is of limited significance in determining whether reasonable suspicion exists.'" United States v. Hernandez-Lopez, 761 F.Supp.2d 1172, 1201 (D.N.M.2010) (Browning, J.)(quoting United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir.2010)). "Nervousness is of limited value in assessing reasonable suspicion for two reasons." United States v. Simpson, 609 F.3d at 1147. First, "it is common for most citizens — whether innocent or guilty — to exhibit signs of nervousness when confronted by a law enforcement officer." United States v. Simpson, 609 F.3d at 1147 (citation omitted)(internal quotation marks omitted). See United States v. Santos, 403 F.3d 1120, 1127 (10th Cir.2005) ("[N]ervousness is a sufficiently common — indeed natural — reaction to confrontation with the police that unless it is unusually severe or persistent, or accompanied by other, more probative, grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists."
United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.1992), overruled on other grounds by United States v. Little, 18 F.3d 1499, 1504 n. 5 (10th Cir.1994) (en banc).
Accordingly, "to take into account a suspect's nervousness in any encounter with a law enforcement officer, the officer must have some opportunity from which to determine a baseline behavior, with which the officer can compare the suspect's later nervousness." United States v. Villaba, 2013 WL 4782206, at *36. In United States v. Valles, 292 F.3d 678 (10th Cir. 2002), for example, a DEA agent detained the defendant's luggage after his behavior changed from "very easygoing" to "extreme nervousness" when the agent asked him about his luggage. 292 F.3d at 679. Holding that the defendant's nervousness contributed to a finding of reasonable suspicion, the Tenth Circuit noted that the agent had the opportunity to observe the defendant's behavior before he directed the conversation to the defendant's bags, "thereby giving [the agent] a baseline behavior to which he could compare [the defendant]'s later extreme nervousness." 292 F.3d at 681. The Tenth Circuit found it particularly significant that the defendant's nervousness "greatly impacted his ability to communicate" and that the agent testified that the defendant "wasn't the same guy [he] was talking to thirty seconds prior." 292 F.3d at 681.
Gonzalez, Sr.'s alleged nervousness does not weigh in favor of finding reasonable suspicion, because Marquez never had an opportunity to determine Gonzalez, Sr.'s baseline behavior. Unlike the defendant in United States v. Valles, whose behavior completely transformed when the DEA agent asked him about his bags, there is no evidence that Gonzalez, Sr.'s behavior changed considerably while he interacted with Marquez when Almonte was conducting the records check.
Although "[e]xtreme and persistent nervousness... is entitled to somewhat more weight," United States v. Simpson, 609 F.3d at 1147 (citation omitted)(internal quotation marks omitted), Gonzalez, Sr.'s nervousness was neither extreme nor persistent. Marquez testified that Gonzalez, Sr. "had a certain level of nervousness" that was "a little more nervous than somebody who has just committed a traffic violation." Jan. 28, 2015, Tr. at 285:16-18 (Marquez). Marquez did not find Gonzalez, Sr.'s nervousness significant enough to note it in the Incident Report, however, and Almonte apparently did not notice it at all — Almonte did not mention that Gonzalez, Sr. appeared nervous at any point during his testimony at the suppression hearing. For these reasons, the Court is reluctant to give much weight to this factor in the reasonable-suspicion analysis.
The presence of trash, clothing, and uneaten food in Gonzalez, Sr.'s truck also does not weigh heavily in favor of finding reasonable suspicion. Almonte testified that Gonzalez, Sr.'s truck was "very dirty" — there was "some clothing and luggage on the rear bench seat," several empty water bottles, "uneaten food on the floor boards, and several food wrappers and containers empty in the vehicle." Jan. 28, 2015, Tr. at 235:24-236:4 (Almonte). Almonte testified that the items inside Gonzalez, Sr.'s truck were "indicative of narcotics trafficking, because traffickers like to go from point A to point B[in] ... as short a time as possible without stopping." Jan. 28, 2015, Tr. at 236:22-25 (Almonte). Marquez gave an almost identical explanation why the empty food containers in Gonzalez, Sr.'s truck were suspicious. See Jan. 28, 2015, Tr. at 289:9-15 (Marquez)("[W]hen we find a lot of food wrappers, beverage[s] ..., clothing thrown around, it tells us that this person wants to get from point A to point B as quickly as possible, either because they've already got contraband [or] they're on the way to pick up contraband.").
The Tenth Circuit has held that the presence of trash, fast-food wrappers, and empty food containers in a vehicle does not add much to the reasonable-suspicion calculus, because "a very large category of presumably innocent travelers" possess such items. United States v. Wood, 106 F.3d 942, 947 (10th Cir.1997) ("Remnants from fast-food restaurants can probably be found on the floor of many cars traveling the interstate highways...."). See United States v. Olivares-Campos, 276 Fed. Appx. 816, 823 (10th Cir.2008) (unpublished)("[A]s anyone who travels cross-country on I-70 well knows, fast food exists in overabundance and fuels many long haul drives."). Other circuits agree. See Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir.1995) (noting that fast-food wrappers "have become ubiquitous in modern interstate travel and do not serve to separate the suspicious from the innocent traveler"). Drug traffickers may "like to go from point A to point B[in] ... as short of time as possible without stopping," Jan. 28, 2015, Tr. at 236:22-25 (Almonte), but so do many travelers who are not involved in illegal activities. The Court often travels to Texas and southeastern New Mexico, and regularly eats along the way to save time. Some of the trash from those meals inevitably ends up in the passenger seat or on the floorboard of the Court's vehicle. That Gonzalez, Sr. may have eaten his dinner on the road and not have kept his truck's interior clean does not distinguish him from the average lawful driver. Accordingly, "any suspicion associated with
That there was clothing strewn about the interior of Gonzalez, Sr.'s truck also does not weigh heavily in favor of reasonable suspicion. The United States has not provided — and the Court has been unable to find — a case in which a court found the presence of clothing in a vehicle significant in a reasonable-suspicion analysis. Although an officer's observation that the defendant's amount of luggage is inconsistent with the stated purpose of his or her trip sometimes bolsters a finding of reasonable suspicion, see United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995) (finding lack of luggage suspicious for an alleged two week trip); United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (noting that no luggage in either trunk or back seat on a long-distance trip could be suspicious), the United States has not advanced that argument here. The Court sees no reason why the presence of clothing in Gonzalez, Sr.'s truck — in and of itself — suggests that he was involved in criminal activity. This factor thus provides little support to a finding of reasonable suspicion.
Gonzalez, Sr.'s inconsistent answers to Almonte's and Marquez' questions weigh in favor of finding reasonable suspicion. A defendant's "[i]nconsistent answers to routine questions" from law enforcement officers "may give rise to a reasonable suspicion." United States v. Gutierrez, 2008 WL 2397668, at *26 (citation omitted). See United States v. Turner, 928 F.2d 956, 959 (10th Cir.1991) (finding reasonable suspicion established where defendant claimed to be mechanic but had clean, well-manicured hands, expensive clothes, and a large CD collection; car was not registered to defendant or passenger; and defendant was increasingly nervous throughout the encounter); United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990) (finding reasonable suspicion where defendant had an Illinois driver's license but drove a car with California plates, could not provide registration for the vehicle, and gave inconsistent answers to officers regarding his destination).
Gonzalez, Sr. gave two inconsistent answers to the deputies' questions on two occasions. First, while Gonzalez, Sr. told Almonte that he was on his way to pick up a horse, see Jan. 28, 2015, Tr. at 233:23-234:14 (Swainston, Almonte), he told Marquez that he was on his way to pick up two mares and a colt, see Jan. 28, 2015, Tr. at 284:15-23 (Swainston, Marquez). Second, while Gonzalez, Sr. initially told Marquez that he was going to pick up two mares and a colt that "were his," Incident Report at 9, he later told Marquez that he was going to pick up horses "that belonged to the owner of the farm," Incident Report at 9. Because "[c]onfusion about details is often an indication that a story is being fabricated on the spot," United States v. Santos, 403 F.3d at 1131, this factor weights in favor of finding reasonable suspicion.
None of the factors on which the United States relies would, standing alone, justify the prolonged detention of Gonzalez, Sr. Indeed, the United States acknowledges that, when viewed independently, each of the factors is "completely innocuous." Jan. 30, 2015, Tr. at 397:21 (Swainston). The Tenth Circuit has instructed, however, that the Court "may not ... engage in a divide-and-conquer analysis, evaluating
The Court concludes that, without imputing Maestas' probable cause to Almonte and Marquez, the deputies did not have reasonable suspicion that Gonzalez, Sr. was involved with criminal activity to prolong the traffic stop. Two of the three factors upon which the deputies relied — that the interior of Gonzalez, Sr.'s truck was dirty and that Gonzalez, Sr. appeared "a little more nervous than somebody who has just committed a traffic violation," Jan. 28, 2015, Tr. at 285:16-18 (Marquez) — merit little to no weight in the reasonable — suspicion calculus. While the final factor — the inconsistencies between Gonzalez, Sr.'s statements — weighs in favor of finding reasonable suspicion, the totality of the circumstances is insufficient to meet the reasonable-suspicion standard.
Once the information from the DEA's investigation into the Varela DTO is taken out of the equation, this case presents similar circumstances to those in United States v. Wood. There, the district court upheld an officer's prolonged stop of the defendant based on five factors: (i) the defendant's "unusual" travel plans: he planned a two-week vacation in California, flew there one-way in a commercial airplane, rented a car in California, and then planned to drive the rental car back to Kansas; (ii) the defendant was "extremely nervous" during the traffic stop; (iii) the defendant had prior convictions involving illegal drugs; (iv) the defendant said that he rented the car in San Francisco, California, when he had actually rented the car in Sacramento, California; and (v) the officer saw fast-food wrappers and open maps in the passenger compartment of the defendant's rental car. See 106 F.3d at 946-48. The Tenth Circuit reversed, explaining that, "[a]lthough the nature of the totality of the circumstances test makes it possible for individually innocuous factors to add up to reasonable suspicion, it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation." 106 F.3d at 948 (citation omitted)(internal quotation marks omitted). The Tenth Circuit cautioned that, "[t]o sanction a finding that the Fourth Amendment permits a seizure based on such a weak foundation would be tantamount to subjecting the traveling public to virtually random seizures, inquisitions to obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power." 106 F.3d at 948.
The United States asks the Court to find reasonable suspicion for the deputies to prolong their traffic stop of Gonzalez, Sr. based on a weaker foundation than the Tenth Circuit found insufficient in United States v. Wood. Like the defendant in United States v. Wood, Gonzalez, Sr. made inconsistent statements, appeared nervous during the traffic stop, and had a dirty truck. Unlike the defendant in United States v. Wood, however, Gonzalez, Sr. had no criminal record. Moreover, Gonzalez, Sr.'s inconsistent statements were not any more egregious than the defendant's in United States v. Wood. While the defendant in United States v. Wood misstated where he picked up his rental car, Gonzalez, Sr. misstated how many horses he planned to pick up and to whom they belonged. Especially in light of the fact that Gonzalez, Sr. made his statements
If the Court could not impute Maestas' probable cause to Marquez and Almonte, and the deputies did not have reasonable suspicion to prolong the traffic stop, any subsequent consent that they obtained from Gonzalez, Sr. to search his trailer was invalid.
In addition to arguing that the deputies "lacked reasonable suspicion to further detain" him after the traffic's stop purpose was complete, Gonzalez, Sr. also argues that he did not voluntarily consent to the deputies' search of his trailer. Motion at 8. "Searches conducted pursuant to consent constitute one exception to the Fourth Amendment's search warrant and probable-cause requirements." United States v. Alabi, 2013 WL 2284956, at *42. "A person who is being detained may still give a voluntary consent," so long as the detention was lawful. United States v. McRae, 81 F.3d 1528, 1537 (10th Cir.1996) ("A person who is being detained may still give a voluntary consent."). The United States has the burden of proving valid
Determining whether a party's consent was free and voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Peña, 143 F.3d 1363, 1366 (10th Cir.1998). The Supreme Court and the Tenth Circuit have developed a non-exhaustive list of factors that courts should consider when determining whether a defendant's consent was voluntarily given:
United States v. Sedillo, No. CR 08-1419 JB, 2010 WL 965743, at *12 (D.N.M. Feb. 19, 2010) (Browning, J.) (citations omitted)(internal quotation marks omitted).
If the deputies had reasonable suspicion to prolong the traffic stop, Gonzalez, Sr. voluntarily consented to a search of his trailer under the totality of the circumstances. First, the Court notes that Gonzalez, Sr. signed a consent-to-search form. Superimposing Gonzalez, Sr.'s statements onto the English portion of the form, the Consent Form reads as follows:
Consent Form at 1. See Jan. 28, 2015, Tr. at 241:17-243:22 (Swainston, Almonte). The Consent Form contains Gonzalez, Sr.'s signature, dated November 10, 2011. See Consent Form at 1. The form does not completely resolve the question whether the consent was voluntary, but it is a factor weighing strongly in favor of finding that it was voluntary. See United States v. Romero, 247 Fed.Appx. 955, 961-62 (10th Cir.2007) (unpublished)("Consent is a factual issue to be determined by the totality of the circumstances, not by per se rules. In other words, no one factor — including the execution of a consent-to-search
That two deputies were present when Gonzalez, Sr. consented to the search and that the deputies did not return Gonzalez, Sr.'s driver's license and insurance both weigh in favor of finding that Gonzalez, Sr.'s consent was involuntary. Those factors are not dispositive, however. See United States v. Fuller, 374 F.3d 617, 622 (8th Cir.2004) (concluding that the district court did not clearly err in finding voluntary consent to search where the officer requesting consent was holding the individual's driver's license at the time and three armed police officers were present). Most of the other circumstances also weigh in favor of finding that Gonzalez, Sr.'s consent was voluntary. Gonzalez, Sr. was also not in a private, isolated place when he gave his consent; he was in the full view of the public on the side of the interstate. See United States v. Romero, 743 F.Supp.2d 1281, 1337 (D.N.M.2010) (Browning, J.)(finding that the defendant's consent to search was voluntary, and relying, in part, on the fact that the defendant was not in a private, isolated place when the officers asked for permission to search; rather, the defendant was in full view of the public through the windows of the officer's vehicle). When Gonzalez, Sr. read and signed the Consent Form, Almonte's drug-detection dog, Remo, was in Almonte's patrol car. See Jan. 28, 2015, Tr. at 245:12-19 (Swainston, Almonte). Before Gonzalez, Sr. signed the Consent Form, his discussion with Almonte was "conversational, ... low voice tone, and cooperative." Jan. 28, 2015, Tr. at 245:7-11 (Swasinton, Almonte). Almonte did not tell Gonzalez, Sr. that he had to sign the consent or "force him to sign the consent in any way." Jan. 28, 2015, Tr. at 245:12-15 (Swainston, Almonte). When Almonte gave the Consent Form to Gonzalez, Sr., Marquez took a couple steps away from Gonzalez, Sr. so that he did not feel intimidated by two deputies being right next to him. See Jan. 28, 2015, Tr. at 288:3-18 (Swainston, Marquez). When Gonzalez, Sr. reviewed and signed the Consent Form, he appeared calm and was mainly silent, except when Almonte asked if he would consent to the search, and Gonzalez, Sr. said "yes." Jan. 28, 2015, Tr. at 245:20-246:2 (Swainston, Almonte). There was also no evidence of "physical mistreatment, violence, threats, threats of violence, promises or inducements or deception or trickery." United States v. Romero, 743 F.Supp.2d at 1338.
The Court finds that, under the totality of circumstances, Gonzalez, Sr. voluntarily consented to his trailer's search. See United States v. Herrell, 41 Fed.Appx. 224, 232-33 (10th Cir.2002) (unpublished)(finding that, given the totality of the circumstances, the defendant's consent to search the van and its contents was voluntary where: (i) the defendant signed a written consent form consenting to the search, which informed the defendant that he did not have to sign the form; (ii) although the defendant may not have read the form before signing it, he was within hearing distance when another officer read the form to another person; (iii) there was no testimony that the officer threatened the defendant, used a hostile tone of voice, touched the defendant, or displayed his weapon; and (iv) although the defendant was detained, this factor was not determinative); United States v. Santurio, 29 F.3d 550, 553 (10th Cir.1994) (holding that the district court properly found that the defendant's consent was voluntary where the defendant read the form before he signed it, and the district court found that the officer did not threaten the defendant).
In sum, the Court concludes that Maestas developed probable cause to stop Gonzalez, Sr.'s truck and to search his trailer based on the DEA's investigation into the Varela DTO, and that Almonte and Marquez lawfully stopped Gonzalez, Sr.'s truck and searched his trailer based on that probable cause.
United States v. Austin, 426 F.3d 1266 (10th Cir.2005). The Court finds that United States v. Sauzameda-Mendoza, 595 Fed.Appx. 769 (10th Cir.2014) (unpublished), United States v. Garcia, United States v. Ramirez, 388 Fed. Appx. 807 (10th Cir.2010) (unpublished), United States v. Montes-Ramos, 347 Fed. Appx. 383 (10th Cir.2009) (unpublished), United States v. Olivares-Campos, 276 Fed. Appx. 816 (10th Cir.2008) (unpublished), United States v. Romero, 247 Fed.Appx. 955 (10th Cir.2007) (unpublished), United States v. Reed, 195 Fed.Appx. 815 (10th Cir.2006) (unpublished), United States v. Wilson, 96 Fed. Appx. 640 (10th Cir.2004) (unpublished), United States v. Herrell, 41 Fed.Appx. 224 (10th Cir.2002) (unpublished), all have persuasive value with respect to material issues, and will assist the Court in its disposition of this Memorandum Opinion and Order.
In re Matter of Grand Jury Subpoenas to Sw. Bell Mobile Sys., Inc., 894 F.Supp. 355, 359 (W.D.Mo.1995).
Call 11 at 3.
As Maestas explained, "UM471" is "the call number where that person was first identified, was the monitor's assignment, of that number to that unidentified person. So the first time Jamie Ibarra-Solis was intercepted prior to being identified fully as Jaime Ibarra-Solis, it was called 471." Jan. 22, 2015, Tr. at 105:23-106:4 (Maestas).
Call 11 at 4.
Call 79 at 7.
Call 79 at 7.
Call 117 at 4.
Call 119 at 5.
Call 195 at 17.
Call 218 at 21.
Call 293 at 3.
Call 444 at 14.
Call 444 at 14.
Call 489 at 21.
Call 590 at 10.
Call 795 at 30.
Call 795 at 30.
Call 795 at 30.
Call 795 at 31.
Call 912 at 6.
Call 122 at 6.
Call 688 at 13.
Call 329 at 11.
Call 966 at 16.
Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602.
It is well-settled law in the Tenth Circuit that a trained drug detecting dog's alert, without more, provides law enforcement officers with probable cause to search the vehicle. See United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir.1993); United States v. Carbajal-Iriarte, 586 F.3d at 803 (explaining that the drug detection dog's "positive alert to the drugs in the van provided probable cause"). Once probable cause is found, the entire vehicle may be searched, including containers and its contents. See United States v. Ross, 456 U.S. 798, 799, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
Almonte and Marquez had probable cause to search Gonzalez, Sr.'s trailer based on Remo's alert. When Almonte and Remo approached Gonzalez, Sr.'s trailer, Remo immediately alerted to the presence of drugs at the trailer's rear. See Jan. 28, 2015, Tr. at 246:12-15 (Almonte). Remo then alerted several times along the side of the trailer and once at the trailer's nose. See Jan. 28, 2015, Tr. at 246:16-21 (Almonte). Almonte and Marquez thus had probable cause to believe that there were narcotics in the trailer after Remo alerted. See United States v. Carbajal-Iriarte, 586 F.3d at 802-03 ("Here, the officers had an independent legal basis upon which to proceed because the dog's positive alert to the presence of drugs in the van provided probable cause.").
