KAREN L. HAYES, Magistrate Judge.
Before the undersigned Magistrate Judge, on reference from the District Court, is a supplemented motion to suppress [doc. #s 51 & 84] filed by defendant, Vacarra Rogers. For reasons stated below, it is recommended that the motion be DENIED.
On October 8, 2014, agents with the Metro Narcotics Unit ("MNU") began monitoring Ouachita Correctional Center detainee, Vacarra Rogers (a/k/a Vacarra Comanche)'s telephone conversations. In so doing, agents heard Rogers arrange for Kendra Turner to travel to Dallas on October 9, 2014, to retrieve what they believed to be was controlled dangerous substances. Armed with this information, an agent applied for, and obtained, a warrant from a state court judge to place a GPS tracking device on Turner's vehicle.
The tracking device notified the agents as the vehicle left Monroe, Louisiana and traveled to Dallas, Texas, arriving at approximately 2:30 a.m. on October 10, before quickly turning around to return to the Monroe area. At 6:06 a.m, on October 10, 2014, an MNU agent applied for, and obtained, a warrant to search Turner's vehicle for methamphetamine. MNU agents stopped Turner's vehicle as it exited I-20 in Monroe, Louisiana, and brought it to MNU headquarters where it was searched. The search uncovered approximately one pound of methamphetamine hidden in the tire well of the trunk.
On March 26, 2015, a federal grand jury returned a five-count indictment against Vacarra Rogers and three co-defendants, Kevin Honeycutt, Kendra Turner, and Ruby McMillan. One count was directed against Rogers for conspiring to distribute and to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii) and 846.
On July 1, 2015, Rogers, via counsel, filed the instant motion to suppress all evidence obtained in violation of his constitutional rights. Rogers supplemented his motion on October 2, 2015. Following a hearing held on October 16, 2015, the matter is now before the court.
Two witnesses testified at the hearing — Ouachita Parish Sheriff's Deputy Paul Knight, and Rogers' co-defendant, Kendra Turner. In addition, the government introduced all twelve of the exhibits that the court accepted into evidence.
The court summarizes relevant testimony and evidence, as follows,
1. On October 8, 2014, Ouachita Parish Sheriff Deputy Paul Knight received information from Sergeant Mike Goin concerning telephone calls made from the Ouachita Correctional Center ("OCC") which were suggestive of activity involving controlled dangerous substances ("CDS"). Specifically, the OCC inmate telephone system revealed that detainee, Vacarra Rogers, had called Kendra Turner, an associate of his, who, along with Rogers had been arrested on August 2, 2014, pursuant to a controlled buy of methamphetamine, but unlike Rogers, released.
2. Further monitoring of the telephone calls revealed that after Turner left work on October 9, 2014, she intended to drive a 2003 Lexus GS 300 bearing Louisiana license plate number YOE 289 to 870 Valleybrook in Arlington, Texas, and to return on October 10. Records confirmed that as of September 22, 2014, the Lexus was registered to Kendra Turner.
3. Armed with this information, Deputy Knight applied for a search warrant to place a global positioning system ("GPS") tracking device on the 2003 Lexus. In his affidavit, Knight represented that agents had monitored jailhouse calls from Rogers to Turner in which Rogers directed Turner to transport "CDS" from Texas to Monroe. Knight noted that Rogers had instructed Turner on how to avoid law enforcement detection. Further conversations between the subjects indicated that Turner would depart the Monroe area when she left work around 10:00 p.m. Citing his fourteen years of experience as a Ouachita Parish Sheriff's deputy, Knight opined that it was common for individuals involved in CDS distribution in Ouachita Parish to travel to parts of Texas to obtain the CDS.
4. On October 9, 2014, at 4:55 p.m., the Honorable Daniel Ellender, 4th Judicial District Court Judge for the Parish of Ouachita, State of Louisiana, signed a warrant authorizing the "search" of the 2003 Lexus GS 300 by seizing the "routes, direction of travel, information and current vehicle locations for a period not to exceed 30 calendar days." That evening at 7:32 p.m., MNU agents placed a tracking device on the Lexus at Turner's place of employment, thus permitting them to remotely monitor the car's movement.
5. Later that evening, the tracking device revealed that the Lexus entered Interstate 20 apparently in Monroe, Louisiana, and proceeded westbound before exiting at 1:39 a.m. on October 10 in the Dallas area. The car stopped at a location on Valleybrook Drive, and remained there for seven and one-half minutes before departing. After stopping at a convenience store, the car re-entered I-20, eastbound. Deputy Knight remained awake throughout the night monitoring the progress of the vehicle. He notified MNU agents regarding everything that transpired.
6. With this additional data from the tracking device, and after having heard Rogers tell Turner during one of the monitored calls that she should not consent to search the vehicle, Scotty Sadler petitioned Judge Ellender on October 10, 2014, at
7. MNU agents, however, actually stopped Turner's car when it exited I-20
8. MNU agents brought the vehicle and its sole occupant, Kendra Turner, to MNU headquarters where, at 7:05 a.m., a search of the vehicle's trunk uncovered a tupperware bowl wrapped in plastic containing 521 grams of methamphetamine.
9. In his supplement to his motion to suppress, Rogers submitted a sworn affidavit from Kendra Turner, dated September 1, 2015, wherein she averred that (apparently in August and/or September 2014) Rogers had allowed her 17 year old niece to drive the 2003 Lexus to school, but that law enforcement stopped and impounded the car because the five day in-transit tag had expired. According to the towing company records submitted by Rogers, the 2003 Lexus was impounded from September 15-23, 2014. (Invoice; Def. Suppl. Motion, Exh.).
10. Turner testified that Rogers bought the 2003 Lexus from Robert Thomas in Shreveport. Rogers, however, apparently never received title to the vehicle. See Turner Affidavit. Instead, Thomas issued the bill of sale and title to Turner, in her name. Turner then used these documents to register the 2003 Lexus in her name on September 22, 2014. (Turner Affidavit; Registration Information, Gov.'t Exh. 6). The next day, Turner retrieved the car from the towing company. (Invoice). Turner maintains that Rogers had her register the car in her name solely so she could retrieve it from the pound. Turner was not under any illusion that the car was hers. According to the odometer readings from the two towing invoices, the car was driven 1,158 miles between September 23, 2014, and October 9, 2014. Turner stated that she owns and drives a Pontiac G6. Rogers' brother drove the Lexus after Turner secured its release from the pound. Knight testified that neither he, nor his team had reason to believe that Rogers somehow was involved in ownership of the vehicle.
Rogers contends that because of omissions and mistakes in the supporting affidavits, the state court judge inappropriately issued the two warrants for the car, and thus, all evidence seized therefrom must be suppressed.
The Fourth Amendment guarantees "[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. The protections of the Fourth Amendment extend to the states via the Fourteenth Amendment. Dunaway v. New York, 442 U.S. 200, 207, 99 S.Ct. 2248, 2253-2254 (1979) (citation omitted). The courts deter Fourth Amendment violations by excluding evidence obtained as a result of the transgression. See United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (citation omitted).
A key limitation to the foregoing principle, however, is that Fourth Amendment rights may not be vicariously asserted. United States v. Powell, 732 F.3d 361, 374 (5th Cir. 2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1326 (2014) (citing Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961 (1969). That is to say, a "defendant seeking to suppress evidence under the Fourth Amendment must demonstrate that his or her individual rights were violated." Id. (citing Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421 (1978)). Toward that end, the defendant must show that he or she had a legitimate expectation of privacy in the area searched. United States v. Ibarra, 948 F.2d 903, 905 (5th Cir. 1991) (citing inter alia Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561 (1980)). Defendant bears the burden of establishing standing. United States v. Hernandez, 647 F.3d 216, 219 (5th Cir. 2011) (citation omitted).
In determining whether a defendant has a reasonable expectation of privacy sufficient to contest the validity of a search, the court inquires "(1) whether the defendant is able to establish an actual, subjective expectation of privacy with respect to the place being searched or items being seized, and (2) whether that expectation of privacy is one which society would recognize as reasonable." United States v. Finley, 477 F.3d 250, 258-59 (5th Cir. 2007) (citations omitted). Relevant factors include,
Id.
In his original motion, Rogers did not set forth any basis to support a subjective expectation of privacy in the 2003 Lexus. In fact, he did not assert any possessory interest in the car or the drugs seized from the trunk of the Lexus. In Rakas, the Supreme Court confirmed that a car passenger has no legitimate expectation of privacy in the car's glove compartment or trunk where the passenger did not assert a possessory interest in the car or in the property seized. Rakas, 439 U.S. at 148-149, 99 S.Ct. 421 at 433.
In connection with his supplemental memorandum, however, Rogers adduced an affidavit from Kendra Turner, in which she averred that, at Rogers' direction, she signed papers to have the 2003 Lexus titled and registered in her name — for the limited purpose of retrieving the vehicle from the impound lot during Rogers' detention-induced incapacity. Therefore, in effect, the bill of sale from Thomas to Turner (and the subsequent titling and registration of the car in her name) was a simulation.
Louisiana law provides that "[o]wnership is transferred between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid." La. Civ. Code Art. 2456. Louisiana case law also does not require that the certificate of title be transferred to perfect the sale of a vehicle. Biggs v. Prewitt, 669 So.2d 441, 443 (La. App. 1st Cir. 1995) (citations omitted). In addition, an agreement to sell a motor vehicle need not be notarized or reduced to writing. Id. (citations omitted).
Here, insofar as Turner's testimony may support a finding that Rogers purchased the 2003 Lexus from Thomas, and that he retained ownership of the Lexus, Rogers nonetheless does not enjoy standing to challenge the searches at issue.
Rogers did more than cloak Turner with the appearance of legal ownership for the limited purpose of procuring the car's release from the pound. He also authorized Turner, her niece, and his brother to drive the car for an indefinite period. Turner's niece drove the car for an unspecified period before it was impounded on September 15, 2014. Thereafter, between September 23 when the car was released after its initial impoundment, and October 9 when it again was impounded, the car was driven over 1,100 miles. Subtracting the round trip to Valleybrook Drive, Dallas, Texas (which, according to Google Maps, is 582 miles), someone other than Rogers drove the car an additional 500-plus miles. Given the significant use of the vehicle by multiple drivers (on average more than 32 miles per day during the 16 day period), and the transfer of all the normal incidents of ownership to another, Rogers did not retain an expectation of privacy in the vehicle's movement or its trunk that society would recognize as reasonable. See United States v. Bereft, 909 F.2d 111, 116-17 (5th Cir. 1990) (no reasonable expectation of privacy in vehicle when individual has rendered all incidents of ownership to another and disavows any knowledge of or interest in it); Maldonado, supra (no reasonable expectation of privacy where defendant purchased the vehicle but placed title in the name of another individual who was the person driving it and who had accepted consignment of the contraband, and where defendant was not present when the vehicle was stopped and searched).
Even if Rogers had demonstrated a legitimate expectation of privacy in the Lexus and its contents, the court still finds that exclusion is not warranted. The exclusionary rule requires the suppression of evidence that is seized pursuant to a warrant unsupported by probable cause. United States v. Pope, 467 F.3d 912, 916 (5th Cir. 2006) (citation omitted). "[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." Gibbs, supra (citation omitted). Thus, "[e]vidence obtained during the execution of a subsequently invalidated search warrant is not excluded if the officer executing the warrant relied on it in good faith." Id. If this good faith exception applies, then the inquiry ends. Gibbs, supra. The government bears the burden of demonstrating that the good faith exception applies. U.S. v. Gant, 759 F.2d 484, 487 (5th Cir. 1985).
Pursuant to the good faith exception, a reviewing court is obliged to defer to an issuing judge's probable cause determination in signing a warrant unless:
Gibbs, supra (citations and internal quotation marks omitted). If the good faith exception does not apply, the court must consider whether the warrant was supported by probable cause. Gibbs, supra.
Rogers primarily invokes the first qualifier and argues that the good faith exception does not apply because MNU agents misleadingly represented in their warrant applications that Vacarra Rogers had directed Turner to transport "CDS" from Texas to Monroe. Rogers contends that no illicit substances were named in the telephone calls, and instead, only code words such as "tire" were used. However, defendant makes no showing that MNU agents deliberately lied or recklessly disregarded the truth. See United States v. Smith, 609 Fed. Appx. 180 (5th Cir. 2015).
Even if he had made such a showing,
Moreno v. Dretke, 450 F.3d 158, 169-70 (5th Cir. 2006) (internal citations and quotation marks omitted).
Probable cause exists when under the "totality of the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Newman, 472 F.3d 233, 237 (5th Cir. 2006). Furthermore, a magistrate needs only a substantial basis for concluding that a search would uncover evidence of wrongdoing. United States v. Allen, 625 F.3d 830, 840 (5th Cir. 2010) (citation omitted).
The undersigned finds that after redacting the information challenged by defendant, the remainder of the affidavit provides probable cause to support the initial tracking device warrant. See United States v. Namer, 680 F.2d 1088, 1093 (5th Cir. 1982). Omitting the "CDS" reference, the affidavit stated that a detainee (i.e. someone already in prison on another pending charge) directed a female to take a trip to Texas to retrieve "something" from an individual there. The detainee further instructed the female on how to avoid law enforcement detection — a statement that confirms the trip's illicit purpose. The female also is supposed to make the trip in her vehicle, after she leaves work on October 9, 2014. Finally, the affiant explained that it was common for subjects involved in distribution of CDS to travel to Texas to acquire their product.
The (second) search warrant for Turner's car also was supported by probable cause. The supporting application included the same background information from the tracking device application, but added that the vehicle had traveled to Dallas, Texas, arrived there on October 10, 2014, at 2:30 a.m., and briefly stopped at two locations before returning to the Monroe area. See e.g., Maryland v. Dyson, 527 U.S. 465, 465-66, 119 S.Ct. 2013, 2013 (1999) (probable cause to stop and search car where deputy had received tip that driver had gone to New York to buy drugs); United States v. Benard, 680 F.3d 1206, 1210 (10th Cir. 2012) (officers had probable cause to stop and search car based on intercepted phone calls from which they inferred that defendant intended to buy cocaine from a tire store, despite the fact that he sometimes bought actual tires there).
Defendant highlights various irregularities in the warrant application including the fact that rather than being stopped on I-20 westbound in West Monroe, the vehicle actually was stopped in Monroe after exiting I-20 eastbound. Moreover, the application indicated that the agent believed that "methamphetamine" may be found, which defendant contends is evidence that the officers already had searched the car at the time they applied for the warrant. These errors, however, likely represent holdovers from a prior version of the application form that the agents used in another case. Technical errors, of course, do not invalidate a warrant. United States v. Almaguer, 589 F. App'x 285, 286 87 (5th Cir. 2015) (citation omitted). Moreover, because Rogers already was in custody on a charge stemming from the controlled buy of methamphetamine, the officers likely anticipated that the CDS in this instance would be the same as before.
In any event, the agents did not need a warrant to stop and search the car.
As the facts in the warrant application(s) readily demonstrate, the officers had probable cause to believe that Turner's vehicle contained contraband sufficient for them to stop the car and to remove it to headquarters for a safe, thorough search. United States v. Powell, 732 F.3d 361, 373 (5th Cir. 2013) cert. denied, ___ U.S. ___, 134 S.Ct. 1326 (2014) (probable cause to search the vehicle also authorized movement of the car to a safer location to conduct the search) (citation omitted).
In sum, the court discerns no viable Fourth Amendment-inspired challenge cognizable to defendant as a result of the placement of a tracking device on the 2003 Lexus, the subsequent stop and search of the vehicle, or the ensuing discovery of contraband therein.
For the above-stated reasons,
IT IS RECOMMENDED that defendant, Vacarra Rogers' motion to suppress [doc. # 51] as supplemented [doc. # 84], be DENIED.
Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have
Sadler is employed by the Monroe Police Department, and has worked with Knight for the past three to four years. Sadler is an MNU member, was involved in Rogers' prior arrest, and had knowledge of everything in the case.
Matter of Zedda, 103 F.3d 1195, 1204 (5th Cir. 1997) (citations omitted).
