Daniel D. Domenico, United States District Judge.
In this criminal case, officers coordinating with a confidential source of information set up a drug deal involving Defendant Aristeo Roacho, Jr. to take place at a certain time and location. Mr. Roacho was ultimately arrested, and the subsequent search of his vehicle uncovered three pounds of methamphetamine and two small bags of cocaine. Mr. Roacho now moves to suppress the drugs from evidence. (Doc. 22.) For the following reasons, the motion is
On August 7, 2019, the government filed a one-count Complaint against Mr. Roacho alleging that he possessed with intent to distribute 500 grams and more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). On August 21, 2019, the government filed a two-count Indictment containing the allegation from the complaint, as well as a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), possession with intent to distribute cocaine, and a forfeiture allegation.
On October 30, 2019, Mr. Roacho filed this motion to suppress. (Doc. 22.) The Court held an evidentiary hearing on December 3, and at Mr. Roacho's counsel's request, continued the hearing on December 20 so she could review recently received discovery.
The facts are taken from the testimony given at the evidentiary hearing, along with documents entered into evidence and filed on the record, including several videotapes. The relevant events all took place on August 5, 2019.
The source of information was caught in possession of metham-phetamine, heroin, cocaine, and firearms. Then, during a recorded interview at a police station, he told agents the names of people he claimed sold drugs and that he had recently bought cocaine from an individual known to him only as "Junebug." He showed agents several text messages sent from Junebug in which the two discussed drug deals. He stated that Junebug drove "a Dodge truck" that was "silver or white."
Before the interview with the source, the agents had been aware of Mr. Roacho, who they believed used the nickname Junebug. They searched the Colorado Springs Police Department's database and learned that Mr. Roacho was a convicted felon and gang member. They also found that he owned a gray 2012 Dodge Durango SUV. They retrieved a booking photo of Mr. Roacho and showed it to the source without a name attached, and the source identified the man in the photo as Junebug. At the suggestion of the agents, and while they watched and listened, the source then set up a drug deal for methamphetamine
While the FBI agents remained with the source at the police station, Colorado Springs Police Department ("CSPD") officers gathered in "jump teams" in unmarked vehicles near the location the source and Junebug had agreed upon, and began conducting surveillance.
Mr. Roacho then headed westbound on 1st Street. CSPD Sergeant Bauer, who was driving an unmarked SUV with his "jump" team, was travelling westbound on East Fillmore Street. FBI Agent Cohen called Sergeant Bauer and told him that they were sure it was Mr. Roacho in the Durango and that they should go ahead and stop him. Sergeant Bauer then turned northbound on Arcadia Street. He intended to perform a "soft block" by pulling in front of Mr. Roacho without making physical contact.
The parties disagree about what happened next. Sergeant Bauer testified that, as he approached the intersection of 1st and Arcadia, he made a wide turn to get in front of Mr. Roacho, but Mr. Roacho slowed down, stopped, and then accelerated quickly and hit the sergeant's car. Sergeant Bauer testified that Mr. Roacho and his passenger looked like they were having fun and had smiles on their faces. By contrast, Mr. Roacho contends that he came to a stop and the deputy hit him head on.
Either way, Mr. Roacho then reversed and started to pull around the sergeant's SUV, but the sergeant turned and drove his front bumper into the rear wheel area of the Durango and pushed it up on a curb, pinning it next to a utility pole. Officers then got out of the SUV and arrested Mr. Roacho and his two passengers. Under both parties' versions of the events, Mr. Roacho's and Sergeant Bauer's vehicles made contact twice—about ten second apart—and Sergeant Bauer never activated his police lights or sirens.
A canine unit then arrived and alerted to drugs in Mr. Roacho's Durango. The police applied for, and received, a state vehicle search warrant for the Durango, where they found three pounds of methamphetamine and a smaller amount of cocaine.
Mr. Roacho argues that the drugs obtained during the search of his Durango must be suppressed. Specifically, he argues:
After obtaining additional discovery from the government, including a videotape of the source's interview with officers, Mr. Roacho filed a supplement to his motion to suppress, arguing that the affidavit submitted in support of the search warrant recklessly disregarded the source's statements regarding Junebug's vehicle and rephrased them to be more in line with the vehicle Mr. Roacho drove. He argues this is a violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The government responds by contending that (1) officers had probable cause to arrest Mr. Roacho for drug crimes before encountering him on August 5, 2019; (2) officers had probable cause to arrest him for several state charges on August 5, 2019 after Mr. Roacho rammed Sergeant Bauer's police vehicle; (3) officers would have inevitably discovered the methamphetamine and cocaine in the defendant's vehicle; and (4) the state vehicle search warrant affidavit established probable cause to search the defendant's vehicle. The government argues the alleged discrepancies between the source's interview and the content of the warrant affidavit fail to raise any material issues.
The Court agrees with the government that officers had probable cause to arrest Mr. Roacho before and throughout their encounter with him. Though precisely when Mr. Roacho was "seized" for Fourth Amendment purposes is somewhat ambiguous, see Brower v. Cty. of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), that question need not be resolved here.
The "question whether probable cause exist[s] in light of the—so defined— factual record does not require proof beyond reasonable doubt. It does not even require the suspect's guilt to be more likely true than false. Instead, the relevant question is whether a `substantial probability' existed that the suspect committed the crime." Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011) (internal citations omitted); see also Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (Probable cause is a "fair probability that contraband or evidence of a crime will be found in a particular place."). This is a case-specific determination. Reviewing courts should consider the totality of the circumstances, including, in a case involving an informant, the informant's veracity, reliability, and the basis of his knowledge. Gates, 462 U.S. at 214, 103 S.Ct. 2317.
Here, Mr. Roacho questions the reliability and sufficiency of the source's information, which he says couldn't support more than an officer's "hunch" that he had drugs. But the record shows that the officers had plentiful reasons to believe the source and verified much of it before making the arrest. According to Agent Cohen and the affidavit submitted in support of the vehicle search warrant, the source was familiar with many different types of illegal drugs, the tradecraft of large-volume drug dealers, the street prices of drugs, and the equipment used in drug sales. The source identified phone numbers as belonging to other drug-supply sources, and those phone numbers linked to open drug investigations. The source also showed law enforcement text messages from several
Agent Cohen and the affidavit further affirm that the source informed investigators that Junebug would be at a certain location, at a certain time, with illegal drugs. The later-filed affidavit does not detail how the source knew this information, though the basis for this belief is well-documented. At the direction of FBI agents, and as they watched and listened, the source set up a drug deal with Mr. Roacho over the phone. As Agent Cohen testified:
(Doc. 54, at 28:24-29:5.) The specifics of the deal—quantity, location, price, and timing—were made definite through these communications.
Mr. Roacho does not seriously dispute that, if believed, this information was adequate to give the officers probable cause to believe he was committing a crime. Instead, he gives four reasons the source should not have been believed. First, he points out that the source was providing information in the hope that it would help mitigate likely consequences of his own criminal activity. see United States v. Avery, 295 F.3d 1158, 1168 (10th Cir. 2002) ("Second, magistrate judges, courts have observed, often know, even without an explicit discussion of criminal history, that many confidential informants suffer from generally unsavory character and may only be assisting police to avoid prosecution for their own crimes." (internal citation removed). This is undoubtedly true. And in some circumstances the benefits potentially flowing to confidential sources can be a reason to question the source's veracity— though not necessarily sufficient to disregard it entirely. See, e.g., United States v. Morin, 188 F. App'x 709, 712 (10th Cir. 2006) (An "affidavit informed the state court judge Granger had purchased methamphetamine from Morin in the past. Combined with the judge's presumed background knowledge about confidential informants, the information in the affidavit was sufficient to alert the court Granger was a drug user who may have been cooperating with police for self-serving reasons.").
But in these circumstances, where the source was predicting what the target would do in the near future, not blaming the target for some past crime, the incentive works in the opposite direction: to bolster the source's credibility. If the source was motivated by a possible deal— contingent on helpful, veracious information—he had a strong incentive to tell the truth. Where the information provided by a source is easily and quickly testable, it is only "self-serving" to provide accurate information.
Mr. Roacho contends that the source's identification of him was tainted because agents only showed him a booking photo of Mr. Roacho. It is true that this might be inadequate if this were a witness identification case and the circumstances were impermissibly suggestive. United States v. Sanchez, 24 F.3d 1259, 1261 (10th Cir. 1994). But this was not a lineup asking the source to decide who had committed the crime; it was an effort to make sure two aliases, Roacho and Junebug, corresponded to the same person. Had the suggestive power of using only Mr. Roacho's photo caused the source to identify Mr. Roacho when Junebug was actually someone else, then that other Junebug, not Mr. Roacho, would have arrived in precisely the agreed upon place at the agreed upon time.
Mr. Roacho also submits that the source is less credible because of the source's own criminal history. This argument is unconvincing, particularly because it was the source's criminal proclivity that made his ability to arrange the drug deal with Mr. Roacho possible. This is hardly unusual for confidential sources, and while it is not irrelevant, under the totality of the circumstances it does not overcome the many factors supporting probable cause. See Avery, 295 F.3d at 1168; Morin, 188 F. App'x at 712. Mr. Roacho says officers did not adequately account for the possibility that the source was under the influence of drugs at the time he was relaying information to them. This is not consistent with the record. Agent Castro and others had significant experience with individuals who were under the influence and did not believe the source to be so. The videotaped interview does not suggest any impairment.
Finally, Mr. Roacho argues that the discrepancy between the source's description of Junebug's vehicle and the actual vehicle driven by Mr. Roacho should have undermined any belief in the source. The Court disagrees. The source stated that Junebug drove "a Dodge truck" that was "silver or white." Then Agent Cohen, not the source, asked whether Mr. Roacho "still had a Dodge Ram," which is a pickup truck, and the source agreed. As it turned out, Mr. Roacho drove a gray Dodge Durango SUV.
None of these minor discrepancies is material enough to undermine the source's credibility. Notably, many people in common parlance either do not distinguish between trucks and SUVs or consider SUVs to be a sub-class of trucks. Carani v. Meisner, No. 08-CV-02626-MSK-CBS, 2010 WL 3023805, at *5 (D. Colo. July 30, 2010) ("Mr. Lindquist, who corroborated that a woman driving a truck or SUV drove by
The totality of the circumstances surrounding the source's information supports Agent Cohen's testimony that he was credible. He provided detailed and provable information, much of which was either consistent with information already known or was verified prior to the stop. The source had no reason to lie, and in fact had significant incentives to provide law enforcement with accurate and useful information. There was at least a substantial probability—based on the information provided by the source and coupled with the other information already known about Mr. Roacho—that when Mr. Roacho pulled into the arranged meeting place, he possessed significant amounts of illegal narcotics. Officers possessed probable cause to make an arrest.
Mr. Roacho contends that even if they had adequate cause to stop him, officers violated his rights by crashing into him (1) as he was preparing to stop at a stop sign, and (2) again as he moved to pull around Sergeant Bauer. The parties sharply dispute whether in fact this is what happened, or whether, as the government contends, it was Mr. Roacho who crashed into Sergeant Bauer's vehicle. As noted below, neither of the collisions amounts to unconstitutionally excessive force in these circumstances
The relevant evidence includes the testimony of Sergeant Bauer, as well as his body-worn camera videotapes, and Sergeant
The defense emphasizes that Sergeant Bauer's vehicle was unmarked, had tinted windows, and that the officers did not have "Police" or other identifying information displayed in a way that would have been visible to Roacho. The defense also points to the testimony of Mr. Roacho's brother, Diego, who was a passenger in the Dodge. He testified that the Dodge was slowing to the stop sign when it was suddenly struck by what turned out to be an unmarked police vehicle. He denied that any of them were laughing and said he was surprised and that they had no warning or idea that it was a police vehicle.
The Court finds that Sergeant Bauer did not intentionally cause the initial collision. First, Sergeant Bauer's testimony on that point is credible. While certain aspects of the video evidence are inconclusive (such as precisely where on the road the collision occurred, and whether someone looking in could have recognized the occupants as law enforcement), it is largely consistent with his testimony and the report of Officer Waters. It shows Sergeant Bauer getting the go-ahead to make the stop, beginning to drive to the designated spot, then colorfully expressing his surprise when the trail vehicle is not as close as expected. The collision occurs at or near the end of his turn, and, while not terribly violent, it was strong enough to shut off the engine of Sergeant Bauer's vehicle. Notably, at no time does Sergeant Bauer tell those in his vehicle that he's going to crash into Mr. Roacho or warn them to brace themselves. Second, the defense did not significantly undermine this testimony and evidence. Even if, as he testified, Diego Roacho was not texting at the time of the collision (though he had been just before), he would, as a passenger, have naturally been less attentive to the surroundings, including approaching vehicles. So, while the Court does not disbelieve Diego's testimony, it does discount it somewhat.
More importantly, nearly all the defense argument on this point is focused on explaining that Mr. Roacho would not have known it was a law enforcement vehicle approaching him and thus would have had no reason to strike the vehicle as part of an attempt to drive away. This, however, is undermined by several facts, including that Mr. Roacho was in possession of significant amounts of narcotics and, since the source did not show up at the agreed time and place, he likely suspected he had been set up. The government supplied testimony that their targets often know what kinds of vehicles law enforcement teams drive, and such a vehicle drove in front of Mr. Roacho moments after his planned drug deal failed to transpire. Mr. Roacho very well could have known or at least suspected what was happening. Based on the entirety of the evidence, the Court is persuaded that Mr. Roacho caused the initial collision. It therefore could not be excessive force on the part of Sergeant Bauer.
As for the second collision, the government acknowledges that Sergeant
Even so, Mr. Roacho argues that this second crash involved constitutionally excessive, even "deadly," force. (Doc. 34, at 6.) To determine the reasonableness of a seizure, courts "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). Proper application of this standard "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
The facts and circumstances here do not support Mr. Roacho's contention that this amount of force was excessive. Sergeant Bauer was reasonable in fearing that Mr. Roacho posed an immediate threat to the safety of the officers or others. He had, as the court found above, already crashed into a law enforcement vehicle. He was, as he has conceded, attempting to leave the scene. Sergeant Bauer testified that he knew Mr. Roacho was likely headed towards a busy thoroughfare, where any attempt to stop him would have been infinitely more dangerous.
Further, while an intentional car crash certainly can amount to deadly force, having reviewed the evidence, there is no indication that the second, intentional collision here "create[d] a substantial likelihood of causing death or serious bodily injury" to anyone. Scott, 550 U.S. at 382, 127 S.Ct. 1769 (assuming, without deciding, or expressly adopting that test, that officers had used deadly force). Both vehicles were moving at relatively low speeds, the Durango's airbags did not deploy, and everyone walked away without serious injury— though one passenger complained that his arm hurt. The videos show minor to moderate damage to the vehicles (which was at least partly the result of the initial, higher speed collision). Considering the severity of the crimes at issue, the Court's finding that Mr. Roacho posed an immediate threat to the safety of the officers and others, and that he was actively resisting arrest or attempting to evade arrest by flight, this use of force was reasonable under the circumstances.
Mr. Roacho concludes by arguing that, absent the evidence obtained as a result of the officers' allegedly illegal conduct, there is insufficient information to sustain the state magistrate judge's probable cause finding. He submits that three categories of facts should be excised from the warrant affidavit: (1) the information provided to the officers by the source; (2) that, despite no emergency lights being activated, Mr. Roacho recognized the people in the unmarked SUV as police and he attempted to flee the scene after being struck the first time; and (3) the positive alert from the drug dog.
Beginning with the first, the Court has already explained why the source's information was sufficient to establish probable cause and could be reasonably relied upon by the officers. But Mr. Roacho also argues that the source's identification of his car, at least as it is described in the search warrant, is falsely represented and violates Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
Second, as noted above, the evidence of Mr. Roacho's flight was not unconstitutionally obtained. The Court is convinced Mr. Roacho knew who he had just run into,
Finally, the positive alert from the drug dog is not fruit of the poisonous tree. "To suppress evidence as the fruit of [an] unlawful detention, [the defendant] must make two showings: [i] that the detention did violate his Fourth Amendment rights; and [ii] that there is a factual nexus between the illegality and the challenged evidence." United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) (internal quotations omitted). Mr. Roacho has made neither showing. Nor has he undermined, by cross examination or written argument, the procedural accuracy of the subsequent canine alert. Sergeant Donovan's canine partner is certified to detect cocaine or crack, heroin, methamphetamine, and MDMA. The dog gave three positive alerts on the Durango.
Officers had probable cause to arrest Mr. Roacho before encountering him on August 5, 2019. They also had independent probable cause to seize him after he collided with a police vehicle. And neither collision amounted to excessive force. The positive alert of drugs from the canine unit was not fruit of the poisonous tree. The Court will not excise any material from the search warrant affidavit, which established probable cause to search the Durango. The evidence retrieved was legally obtained. Mr. Roacho's motion to suppress (Doc. 22) is
