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United States v. Gonzalez

United States District Court, D. Massachusetts

February 2, 2017

UNITED STATES OF AMERICA,
v.
JESUS GONZALEZ, Defendant.

          MEMORANDUM AND ORDER

          DENISE J. CASPER, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Defendant Jesus Gonzalez (“Gonzalez”) has moved to suppress the evidence seized from his arrest, pursuant to an arrest warrant obtained on June 6, 2016, and the evidence seized from the search of his residence pursuant to a search warrant obtained on June 7, 2016. D. 44; D. 45-1 at 65. Having considered the motion (and supporting memorandum and exhibits), D. 44-45, the government's opposition, D. 49, and having heard oral argument on the motion, D. 52, the Court DENIES the motion. Accordingly, the Court makes its findings of fact and legal analysis below.

         II. Findings of Fact

         These findings are based upon the record before the Court including but not limited to the Affidavit of Task Force Officer David J. Spirito (“Spirito”) filed on June 6, 2016 in support of the arrest warrant and criminal complaint for Gonzalez, D. 45-1 at 6-14, and the Spirito affidavit filed on June 7, 2016 in support of the search warrant for Gonzalez's residence at 39 Greenville Street in Haverhill (the “Greenville Street residence”), D. 45-1 at 21-38; the transcript of Gonzalez's detention hearing on June 16, 2016, D. 45-2, and Gonzalez's affidavit, D. 45-3.

         A. The Confidential Witness and Gonzalez

         In November 2015, investigators interviewed a confidential witness (“CW”) who was awaiting trial in New Hampshire for certain drug crimes. D. 45-1 at 9-10. The CW had no other criminal record aside from motor vehicle violations. Id. The CW provided information in an effort to influence his pending criminal charges and indicated that he was willing to testify in future criminal proceedings. Id. As Spirito also disclosed in his affidavit, the CW, while cooperating with law enforcement, continued to purchase certain controlled substances from Gonzalez which were not controlled by, sanctioned by or reported to the law enforcement officers. Id. at 10.

         In the course of his cooperation with agents, the CW stated that he had purchased heroin and other controlled substances from an individual he identified as “G.” Id. The CW described this person as a distributor of oxycodone and heroin and as residing in the Lawrence area. Id. The CW shared a photograph of “G” that he had obtained from a social media website with the agents. Id. Comparison of this photograph with Massachusetts RMV records confirmed that the individual CW identified as “G” possessed a Massachusetts driver's license bearing the name of Jesus Gonzalez. Id. The CW gave the agents the current and previous telephone numbers for Gonzalez and indicated that he had been purchasing oxycodone and heroin from Gonzalez since 2014. Id. He also indicated the Gonzalez frequently changed phone numbers. Id.

         The CW disclosed that he contacted Gonzalez through phone calls and text messages using the telephone number (978) 539-9025 to oxycodone and heroin. Id. The CW allowed investigators to examine and download the contents of his cellular telephone. Id. Examination of the CW's phone confirmed calls and text messages between the CW's phone and Gonzalez's phone number. Id.

         For example, the text messages included an exchange between the CW and Gonzalez following a drug transaction which had occurred on October 17, 2015. Id. at 11. The CW indicated to the investigators that he had agreed to purchase a certain amount of alprazolam pills and heroin from Gonzalez-where an unknown party delivered the drugs on that date- but that he did not receive the correct amounts. Id. The text messages addressed this issue. Id. at 11-12. The text messages also included an exchange regarding the CW's purchase of heroin from Gonzalez on November 19, 2015. Id. at 13. The text exchange included details regarding the 250 grams of heroin to be purchased. Id. The CW's recounting of this transaction was corroborated as the CW had been arrested that same evening in possession of 230 grams of heroin and it was following that arrest that the CW agreed to assist the investigators by making a controlled purchase of narcotics from Gonzalez. Id.

         B. December 2, 2015 Controlled Purchase

         On December 2, 2015, investigators had the CW arrange to purchase 200 grams of heroin from Gonzalez and the investigators observed and recorded all the calls and text messages between CW and Gonzalez regarding the purchase. Id. at 13. During the text exchanges and phone calls to arrange the transaction, Gonzalez, using coded language, asked the CW if he wanted to purchase 300 grams of heroin and he also reminded the CW that he owed him $5, 500 for the 55 grams the CW had previously purchased on credit. Id. at 14, 15-16.

         By phone, the CW and Gonzalez eventually agreed on a time to meet for the purchase and the agents outfitted him with a transmitter and recording device. Id. at 15. The agents provided him with buy money ($7000) and searched the CW's person and vehicle for contraband and weapons, finding none. Id. Agents then established surveillance of the 200 High Street area in Lawrence, the location that the CW had reported was the one that they commonly used to conduct their drug transactions. Id. at 16. The agents were able to monitor the conversation in which Gonzalez told the CW to “come to High” and the CW arrived near 200 High Street. Id. at 16. The CW met with the person he later identified as Gonzalez. Id. at 17 & n.2. While the surveillance agents were able to monitor some of the conversation the CW had with the male, they were unable to see the individual in their surveillance. Id. An agent performing surveillance on the area observed the passenger side of the CW's vehicle open and a male exit and then enter another vehicle and depart. Id. ...


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