United States District Court, D. Massachusetts
For Ernesto Andujar, also known as Tio, also known as Tiburon, Defendant: James E. McCall, LEAD ATTORNEY, Boston, MA.
For Hector Cabral, Defendant: Edward P. Harrington, Boston, MA.
For USA, Plaintiff: Nathaniel R. Mendell, LEAD ATTORNEY, United States Attorney's Office, Boston, MA; Katherine H. Ferguson, United States Attorney for the District of Masssachussetts, Boston, MA.
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
A one-count superseding indictment charges defendant Hector Cabral (" Cabral" ) and three others with Conspiracy to Possess with Intent to Distribute and to
Distribute Heroin, in violation of 21 U.S.C. § 846. Defendant's motions to suppress (Docket Nos. 84 and 85) were denied, in part, and allowed, in part, by a Court Order entered on April 9, 2013, " with memorandum and order to follow." The Court now publishes the subject memorandum and order. Also pending before the Court is the government's motion to strike defendant's affidavit submitted in support of suppression (Docket No. 110) which is addressed herein as well.
The charges against defendant stem from a DEA wiretap investigation in which an amount of U.S. currency was seized following a traffic stop. The investigation revealed several long standing drug trafficking organizations (" DTOs" ) operating in the Boston area. Agents also learned that these DTOs obtained narcotics from an international cartel, members of which would transport narcotics to Boston via car or truck and then transport proceeds from the sale of those drugs out of Massachusetts.
The portion of the investigation relevant to the instant motion involves intercepted phone calls as well as GPS-monitored vehicles and physical surveillance. On February 14, 2012 agents participating in a joint DEA-state police drug task force (" the joint task force" ) observed defendant meeting with an alleged coconspirator, Bernardo Gomez, outside of a hotel where defendant was staying. The following day, based upon wiretap recordings and location data, agents became aware that Gomez visited the home of another alleged co-conspirator, Ernesto Andujar, in order to pick up cash for the purpose of acquiring drugs from Illinois. Visual surveillance confirmed that Gomez exited Andujar's home carrying a weighted, tan plastic bag that same day.
On February 17, 2012, the date of the stop and search contested by defendant, agents in the joint task force witnessed Gomez hand a weighted, white plastic bag to defendant which defendant took into his hotel. Agents then observed defendant and another individual, Marco Ledesma Benitez, come out of the hotel with their luggage. Defendant put his luggage into his truck and appeared to stuff items into the dashboard area while Benitez crawled underneath the vehicle with what appeared to be the white plastic bag. The two then got into the vehicle, drove away from the hotel and onto an interstate highway.
Based upon those observations as well as intercepted communications and GPS data, the surveillance agents requested a uniformed Massachusetts State Police (" MSP" ) officer to stop defendant's vehicle. Sergeant Charlie Kane, a detective also assigned to the joint task force, relayed these instructions to MSP Trooper Brian McKenna (" Trooper McKenna" ) and further informed him that the agents suspected that Cabral was transporting drug proceeds in " hides" behind the dashboard and underneath the vehicle.
Trooper McKenna stopped defendant's vehicle while traveling southbound on Interstate 95 near Foxborough, Massachusetts at approximately 8 p.m. Two other officers soon responded to the scene. Trooper McKenna asked defendant to get out of the vehicle and patted him down. He then asked defendant a series of questions related to the purpose of his travel while the two stood at the rear of Cabral's truck. In substance, defendant responded that he was returning to Illinois after spending two weeks in Boston.
Trooper McKenna then asked Cabral if he was aware that the section of interstate on which he was traveling was a " drug corridor" and asked if defendant had any drugs, currency or weapons in the vehicle.
Defendant denied that he was transporting any such items and, upon Trooper McKenna's request, purportedly agreed to a search of his vehicle. Trooper McKenna then told defendant he would be using a narcotics detection dog during the search. He also stated that the search would be brief and that, if they did not locate anything, defendant would be free to leave and continue on his way. Defendant was then escorted to one of the other two police cruisers that had arrived and placed in the back seat. Trooper McKenna then separately asked the same questions of the passenger, Benitez, and after receiving substantially similar responses, had Benitez escorted to the backseat of the other police cruiser where he remained separated from defendant.
After both defendant and Benitez were seated in police cruisers, Trooper McKenna and his detection dog searched defendant's vehicle. The dog alerted to the area of the dashboard above the radio, an area identified to Trooper McKenna by the surveilling officers as a ...