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United States v. Gonzalez

United States District Court, D. Massachusetts

June 12, 2017

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

          ORDER ADOPTING REPORT AND RECOMMENDATION

          George A. O'Toole, Jr. United States District Judge

         The defendant, Ruben Gonzalez, is charged by superseding indictment with one count of conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 and two counts of possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1).

         The defendant has moved to suppress evidence seized without a warrant by law enforcement officers on November 26, 2013, in West Roxbury, Massachusetts (dkt. no. 36). He claims that heroin and cocaine removed from his Toyota Sienna minivan were the fruits of a violation of his Fourth Amendment right against unreasonable searches and seizures and must therefore be suppressed.

         Following a three-day evidentiary hearing, the magistrate judge to whom this matter was referred filed a Report and Recommendation (dkt. no. 318) (“R&R”) recommending that the motion to suppress be denied. Now before the Court are the defendant's objections to the R&R (dkt. no. 324). Having reviewed de novo the objected-to portions of the R&R, and having reviewed for clear error the portions of the R&R to which there is no specific reasoned objection, see 28 U.S.C. § 636(b)(1)(B); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980), I approve and ADOPT the R&R to the extent described herein. The defendant's motion to suppress is DENIED.[1]

         The defendant has raised five specific objections to the R&R:

         First, he objects to the magistrate judge's finding that there was reasonable suspicion in light of the totality of the circumstances that the defendant had engaged in criminal activity at the time law enforcement initiated the investigatory Terry stop of the defendant's van. See Terry v. Ohio, 392 U.S. 1 (1968). The magistrate judge's conclusion that “there was more than reasonable suspicion to stop the Toyota Sienna” (R&R at 22) is amply supported by the record.

         Second, the defendant objects to the magistrate judge's conclusion that the defendant was first seized when he was handcuffed. When he was “seized” is a false issue in this case. A Terry stop is properly characterized in Fourth Amendment terms as a “seizure” because every person thus stopped is temporarily detained pursuant to the officer's authorized investigatory power. See generally W. LaFave, Search and Seizure, § 9.1(c) (5th ed. 2012). That occurred when the law enforcement vehicles prevented the Sienna's forward progress on Shaw Street. Because the preconditions for a Terry stop clearly existed, that “seizure” (as a “stop”) was perfectly legitimate. See, e.g., United States v. Lee, 317 F.3d 26, 31-32 (1st Cir. 2003) (“[A]ctions such as unholstering a weapon and obstructing a vehicle's path do not, as a matter of law, transmogrify an otherwise lawful Terry stop into a de facto arrest.”). The defendant was later arrested, and thus “seized” in that sense, after his aggressive attempt to flee and his physical resistance to the officers, actions which clearly established probable cause to justify the arrest. What constitutes, and accordingly what justifies, a “seizure” is different in the case of a Terry stop from the case of an arrest. See Morelli v. Webster, 552 F.3d 12, 19 (1st Cir. 2009) (distinguishing between temporary detentions, such as investigatory stops, and arrests). The record amply justifies both types of seizure in this case, and each occurred after the necessary conditions were satisfied.

         What has just been said also explains why the defendant's third objection-that the magistrate judge erred in considering the defendant's attempted flight from and physical resistance to law enforcement officers-is without merit. “A Terry stop may lead to probable cause for arrest when ‘the circumstances giving rise to reasonable suspicion' are combined with ‘the developments that unfold[ ] during the Terry stop.” United States v. Dancy, 640 F.3d 455, 461 (1st Cir. 2011) (quoting Lee, 317 F.3d at 32). As in Dancy, “[l]ittle is to be gained by parsing this rapid sequence of events frame by frame. From the start there was reasonable suspicion under Terry justifying an investigative search, ” and “[b]y the end there was more than ample probable cause” for the arrest. Id. at 462.

         Gonzalez also objects to the magistrate judge's conclusion that there was probable cause for the search of the Toyota Sienna pursuant to the automobile exception to the warrant requirement. The question of probable cause to search need not be reached because the contraband was found in plain view in the course of the officers' protective sweep of the van, (Mar. 16, 2015 Tr. of Mot. to Suppress Hr'g - Day One at 16:18-16:25); (Oct. 14, 2016 Tr. of Mot. to Suppress Hr'g - Day Two at 13:2-13:16), which was validly conducted incident to Gonzalez's valid arrest. See Maryland v. Buie, 494 U.S. 325, 334 (1990) (finding protective sweep permitted when rational inferences from articulable facts would warrant a reasonably prudent officer's belief “that the area to be swept harbors an individual posing a danger to those on the arrest scene.”); United States v. Taylor, 162 F.3d 12, 20-21 (1st Cir. 1998) (finding no constitutional violation where officers performed protective sweep of a vehicle based on a reasonable belief that the occupants were dangerous.)

         Fourth, the defendant objects to several factual findings that rest on testimony at the suppression hearing. Generally, the Court will not disturb the credibility determinations of a magistrate judge. See United States v. Hernández-Rodríguez, 443 F.3d 138, 147-48 (1st Cir. 2006) (citing United States v. Raddatz, 447 U.S. 667, 680-81 (1980)). I see no reason to tamper with these assessments of the testimony heard by the magistrate judge during the three-day suppression hearing. They are based on supportable impressions of credibility which the magistrate judge was in the best position to make.

         Lastly, the defendant renews his arguments in response to the government's alternative theories of admissibility. Because both the initial stop and the eventual arrest (and related protective search) were justified for the reasons expressed above, the soundness of those alternative arguments need not be addressed further here.

         I ADOPT the R&R (dkt. no. 318) to the extent described herein and DENY the defendant's Motion to Suppress Items Seized from the Toyota Sienna, MA Registration #58WC57, on November 26, 2013 (dkt. no. 36).

         It is SO ORDERED.

         April 7, 2017

         REPORT AND RECOMMENDATION RE: DEFENDANT GONZALEZ'S MOTION TO SUPPRESS (DOCKET ENTRY # 36)

          MARIANNE B. BOWLER United States Magistrate Judge

         Pending before this court is a motion to suppress (Docket Entry # 36) filed on May 31, 2014. At the conclusion of an evidentiary hearing on October 18, 2016, defendant Ruben Gonzalez (“the defendant”) requested an opportunity to file a post-hearing brief to supplement the brief filed prior to the hearing. Accordingly, this court allowed both parties the opportunity to file post-hearing briefs 14 days after receipt of the final transcript. After allowing the defendant an additional extension of time after the filing of the final transcript, the defendant and the government respectively filed post-hearing briefs on December 1, 2016 and January 9 and 18, 2017. The motion to suppress (Docket Entry # 36) is therefore ripe for review.

         The Superseding Indictment charges the defendant with: (1) a conspiracy “to possess with intent to distribute controlled substances” in violation of 21 U.S.C. § 846; (2) possession “with an intent to distribute a mixture or substance containing a detectable amount of heroin” in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i), and (b)(1)(B)(ii); and (3) possession with an “intent to distribute a mixture or substance containing a detectable amount of cocaine” in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). The Superseding Indictment also includes a drug forfeiture allegation pursuant to 21 U.S.C. § 853.

         The defendant moves to suppress all the evidence seized as a result of a stop and search of a Toyota Sienna that took place on November 26, 2013 on Shaw Street in West Roxbury, Massachusetts. (Docket Entry # 36). Having heard three days of testimony, this court finds the following facts.

         FACTUAL BACKGROUND

         I. Investigation

         In June 2013, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and the Drug Enforcement Administration (“DEA”) began investigating alleged drug trafficking and money laundering activities of certain individuals in Boston and Framingham, Massachusetts. (Ex. 2, p. 3).[1] The investigation utilized a range of resources including physical surveillance, electronic surveillance, and “Global Positioning Satellite” (“GPS”) tracking devices. (Ex. 1, p. 5). As part of the investigation, this court authorized monitoring of multiple cellular devices belonging to the suspects of the investigation. (Ex. 1, pp. 5, 25). On October 23, 2013, investigating agents received court authorization to intercept communications of a cellular device belonging to defendant Roberto Mejia (“Mejia”). (Ex. 1, p. 6).

         Based on intercepted conversations, ATF investigators came to believe that Mejia was in the process of finding a courier to transport narcotics to Massachusetts. (Ex. 1, p. 10). Also based on intercepted calls, ATF investigators believed that Mejia's brother (“the supplier”), who lived in Sinaloa, Mexico, supplied these drugs. (Docket Entry # 141, p. 24). On October 26, 2013, law enforcement officers followed Mejia and a female companion, Jessica Tobin (“Tobin”), as they visited two car dealerships. (Ex. 1, p. 12). A 2007 Chrysler Sebring was purchased with two cash payments and registered to Tobin. (Ex. 1, p. 13). Upon questioning personnel at the dealership after Mejia and Tobin left, the officers were told that the man with Tobin initially refused to give his name but later identified himself as “John.” (Ex. 1, p. 13). Records of the transaction indicate that the vehicle was purchased with two cash payments, $10, 000.00 at 2:08 p.m. and $572.75 at 5:46 p.m., totaling $10, 572.75. (Ex. 1, p. 13). Mejia returned without Tobin to make the second payment and take possession of the car. (Ex. 1, p. 13).

         On October 27, 2013, Mejia telephoned a man that ATF Special Agent John Hayes (“Hayes”) believed to be the supplier. (Ex. 1, p. 14). Hayes also believed that Mejia was discussing a future installation of a hidden compartment in the Chrysler Sebring to transport narcotics. (Ex. 1, p. 14). On October 28, 2013, GPS tracking data from the Chrysler Sebring and Mejia's cellular telephone showed that he was in the Chrysler Sebring heading to Lawrence, Massachusetts, where the vehicle was dropped off at an auto body shop. (Ex. 1, p. 15). Based on information intercepted during telephone conversations, Hayes believed that the secret compartment was installed in the vehicle while at the auto body shop. (Ex. 1, p. 16). On November 3, 2013, GPS tracking data showed that the Chrysler Sebring left Lawrence and traveled to 32 Shaw Street in West Roxbury, Massachusetts, where it was parked in a garage. (Ex. 1, p. 16).

         On November 8, 2013, DEA investigators obtained utility information for 32 Shaw Street, apartment number one, in West Roxbury via an administrative subpoena. (Ex. 1, p. 17). Based on intercepted telephone calls, Hayes believed that Mejia and the individual who applied for utility service at 32 Shaw Street, apartment number one, shared a social relationship. (Ex. 1, p. 17). Additional database records indicate that the utilities at Mejia's residence are registered to that same individual. (Ex. 1, p. 17). Furthermore, physical surveillance and GPS location data showed that Mejia's Nissan Versa was ...


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