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United States v. Roman

United States District Court, D. Massachusetts

August 28, 2018

UNITED STATES OF AMERICA,
v.
JAMIL ROMAN, Defendant.

          MEMORANDUM AND ORDER REGARDING MOTION TO SUPPRESS (DKT. NO. 126)

          MARK G. MASTROIANNI UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Jamil Roman (“Defendant”) filed a motion to suppress the fruits of separate searches of his person, business, and residence. Following a Franks hearing, this court granted Defendant's motion as to the search of his business due to material misrepresentations and omissions in the affidavit supporting the warrant (which affidavit also supported the warrant to search Defendant's residence, among others). United States v. Roman, 311 F.Supp.3d 427 (D. Mass. Apr. 18, 2018). Thereafter, the parties presented additional evidence and arguments regarding the searches of Defendant's person and residence. The court now resolves these remaining issues. For the following reasons, the court will deny Defendant's motion as to the search of his person but will grant the motion as to the search of his residence.

         II. Background and Procedural History

         The events at issue here arose out of a separate investigation targeting CS, who eventually became a confidential informant for the government. CS, after being pulled over by law enforcement, informed agents that he possessed, at his business, three kilograms of cocaine obtained from Defendant on behalf of Javier Gonzalez, the head of a drug-trafficking organization. Shortly thereafter, CS provided a detailed statement transcribed by Robert Alberti (an officer with the DEA Task Force), in which CS stated that “Javier had [Defendant] drop the kilos off to me around 712 Boston Road, ” Springfield, Massachusetts, CS's business address.

         After approximately two months of investigation into Gonzalez and Defendant (including the recording of their meetings with CS), DEA Special Agent Scott Smith, assisted by Alberti and DEA Special Agent John McGrath, drafted a search warrant affidavit. The affidavit supported six search warrant applications targeting three individuals. As relevant here, one application sought a warrant to search Defendant's business, TWC Auto Body, located at 56 Jackson Street, Holyoke, Massachusetts; another sought a warrant to search Defendant's residence, located at 21 Walsh Street, Chicopee, Massachusetts. Importantly, the affidavit differed from CS's transcribed statement by alleging that the cocaine transaction between Defendant and CS occurred at Defendant's business (TWC Auto Body) in Holyoke, rather than at CS's business in Springfield.[1] On March 21, 2015, United States Magistrate Judge Kenneth Neiman authorized the warrants. On March 25, 2015, the warrants to search Defendant's business and residence were executed. Prior to the execution of the warrant to search TWC Auto Body, FBI Agent Mark Karangekis searched and arrested Defendant at his Holyoke business. The facts surrounding this encounter are described in Section III.A. below.

         On May 10, 2017, Defendant filed his motion to suppress. Defendant challenged his warrantless search and arrest as well as the existence of probable cause for the warrants to search TWC Auto Body and the residence. In addition, Defendant sought a Franks hearing related to the discrepancy between the affidavit and CS's transcribed statement regarding the location of the cocaine transaction. The court held a hearing on Defendant's motion on September 27, 2017, at which it decided to resolve the Franks issue before addressing Defendant's other arguments.[2] On October 10, 2017, the court concluded that Defendant met his burden to obtain a Franks hearing based not only on the discrepancy regarding the cocaine transaction, but also due to the importance of that allegation in establishing a sufficient connection between criminal activity and TWC Auto Body. See United States v. Roman, 2017 WL 4517963 (D. Mass. Oct. 10, 2017).

         The court then held the Franks hearing-at which Alberti, Smith, and McGrath testified- on multiple days spread out between November of 2017 and January of 2018. On April 18, 2018, the court granted Defendant's motion to suppress as to the search of his business, finding material misrepresentations and omissions in the affidavit, which were made with reckless disregard for the truth, and without which a finding of probable cause would not have been made. See Roman, 311 F.Supp.3d 427. In particular, the court found CS's transcribed statement to be accurate, i.e., that the cocaine transaction between Defendant and CS occurred at CS's business in Springfield, and the affidavit's contrary assertion to be false. Id. at 435-36. The court also found the affidavit's further allegation that CS “relayed” he “would obtain kilogram quantities of cocaine” at TWC Auto Body was false, as there was essentially no evidence to support this assertion. Id. at 436. Among other errors in the affidavit and investigation as a whole, the court additionally found insufficient support “for the proposition that Defendant was an established drug dealer, despite the affidavit's conclusory allegation that ‘[a]gents are aware that [Defendant is] a known cocaine trafficker from Holyoke, MA.'” Id. at 440.

         Following the ruling on the Franks issue, the court held another evidentiary hearing and the parties submitted supplemental briefing on the remaining suppression issues: the warrantless search of Defendant's person and the search of the residence.[3] The court addresses these issues in turn.

         III. Search of Defendant's Person at TWC Auto Body

         Defendant seeks to suppress the fruits of the search of his person. It is undisputed that neither this search nor Defendant's arrest were authorized by a warrant and that both occurred prior to the full search of TWC Auto Body. Moreover, while the search of TWC Auto Body was authorized by a warrant, that warrant has been “voided and the fruits of the search excluded” as a result of the Franks hearing. Roman, 311 F.Supp.3d at 429 (quoting Franks v. Delaware, 438 U.S. 154, 156 (1978)). Thus, it would appear that to the extent the search warrant provided a lawful basis for law enforcement's presence at the business at the time of Defendant's arrest, this justification is no longer valid in the aftermath of the Franks ruling. The court, however, need not resolve this question because the government also contends that TWC Auto Body was open to the public at the time (or at least reasonably appeared to be), providing an alternative lawful basis for law enforcement's presence. The government further argues that probable cause existed to arrest Defendant and he was properly searched incident to his arrest. The court agrees with the government and will therefore deny this portion of Defendant's motion.

         A. Findings of Fact[4]

         On March 25, 2014, four days after the issuance of the search warrants, DEA and FBI agents prepared to execute those warrants. FBI Task Force Officer Mark Karangekis conducted surveillance on Javier Gonzalez and eventually stopped the tractor trailer he was driving and arrested him. Karangekis was then instructed to go to TWC Auto Body in Holyoke to secure the business in preparation for the search warrant execution at that address.

         Defendant, meanwhile, closed and locked TWC Auto Body at 4:55 p.m., five minutes earlier than the regular 5:00 p.m. closing time posted on the door. However, one of Defendant's customers-Ismael Florez, who needed to drop off a check for parts-called and stated that he was working until 5:30 p.m. that day, so Defendant waited for him. When Flores arrived, Defendant unlocked the door and let him inside.

         Karangekis arrived on the scene sometime thereafter, as it was beginning to get dark outside. He opened a door and entered a garage bay to the north of TWC Auto Body in the same building and spoke with individuals who stated they were subleasing that bay from Defendant. Karangekis then proceeded a few bays down to a closed door, the entrance to TWC Auto Body. Upon entering this door, Karangekis did not notice any signs restricting access and, as Defendant had left the door unlocked, he believed it was open to the public. He walked only a couple of feet inside, into a common area of the business, where he saw Defendant meeting with Florez behind a partially partitioned office area. Karangekis asked Defendant to come speak with him, and the two stepped outside, where Karangekis confirmed Defendant's identity, pat frisked him, and found a firearm.[5]Karangekis told Defendant that they had a warrant, which was en route, to search the business. After about ten minutes with Defendant outside, Karangekis called McGrath, who instructed him to arrest Defendant because law enforcement had probable cause to believe he had engaged in drug trafficking. Agents then placed Defendant in handcuffs and searched his person, finding, among other items, two cell phones and $3, 000 in cash. Shortly thereafter, agents searched TWC Auto Body pursuant to the warrant which was invalidated as a result of the Franks hearing.

         B. Analysis

         Before delving into the crux of the matter, the court first makes some preliminary observations in order to properly frame the legal issues for its analysis. 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” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Despite this language, the Supreme Court has held that a warrant is not necessarily required “to make a valid arrest for a felony.” United States v. Watson, 423 U.S. 411, 417 (1976). “[A]lthough a warrant presumptively is required for a felony arrest in a suspect's home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred.” Florida v. White, 526 U.S. 559, 565 (1999); see also Payton v. New York, 445 U.S. 573, 585-90 (1980). And when an officer has probable cause to arrest, the suspect may permissibly be searched incident to that arrest even if the search occurs prior (but close in time) to the arrest, as long as the fruits of the search were “not necessary to support probable cause to arrest.” Rawlings v. Kentucky, 448 U.S. 98, 111 & n.6 (1980); see also United States v. Bizier, 111 F.3d 214, 217 (1st Cir. 1997) (“[W]hether a formal arrest occurred prior to or followed ‘quickly on the heels' of the challenged search does not affect the validity of the search so long as the probable cause existed prior to the search.” (quoting Rawlings, 448 U.S. at 111)).

         Moreover, it is clear that, despite not having the warrant to search TWC Auto Body in hand at the time of his initial intrusion, Karangekis's entry was pursuant to that warrant, which had already been issued and was on its way to the property. See United States v. Bonner, 808 F.2d 864, 468-89 (1st Cir. 1986) (rejecting argument that “the evidence seized should have been suppressed because the search warrant was not in the agents' physical possession at the time of entry”); see also United States v. Cazares-Olivas, 515 F.3d 726, 730 (7th Cir. 2008) (“[W]hatever the most prudent course may be, the fourth amendment does not require officers to have a warrant in hand when searching.”); United States v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987) (“Nothing in the fourth amendment or Rule 41 requires that the search warrant be physically present prior to commencing the search.”). Therefore, assuming the invalidation of the TWC Auto Body search warrant vitiates the legality of Karangekis's entry pursuant to that warrant, the question becomes whether TWC Auto Body was sufficiently open to the public at the time such that the entry was lawful regardless. If so, the government has not infringed upon Defendant's “constitutionally protected reasonable expectation of privacy, ” and thus there was no Fourth Amendment violation, by entering the business. Oliver v. United States, 466 U.S. 170, 177 (1984) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)).

         As intimated, the Supreme Court has recognized an important distinction between the home, a “zone of privacy” entitled to the highest degree of Fourth Amendment protection, on the one hand, and a public place, which enjoys virtually no Fourth Amendment protection, on the other. Payton, 445 U.S. at 586-90. But see Katz, 389 U.S. at 351 (“What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (citations omitted)). While the Supreme Court has explained that “a business establishment or an industrial or commercial facility enjoys certain protections under the Fourth Amendment, ” Dow Chem. Co. v. United States, 476 U.S. 227 335 (1986), it has also made clear that those portions of a business open to the public, at least during normal business hours, are considered public places involving no reasonable expectation of privacy, see Maryland v. Macon, 472 U.S. 463, 469 (1985). As the Court explained in Macon:

Here, respondent did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business. . . . The officer's action in entering the bookstore and examining the wares that were intentionally exposed to all who frequent the place of business did not infringe a legitimate expectation of privacy and hence did not constitute a search within the meaning of the Fourth Amendment.

Id.; see also New York v. Burger, 482 U.S. 691, 700 (1987) (“An expectation of privacy in commercial premises . . . is different from, and indeed less than, a similar expectation in an individual's home.”). In addition, courts have recognized “that some commercial properties are reasonably accorded a greater level of privacy than others, ” depending on the nature of the business. United States v. Bute, 43 F.3d 531, 536-37 (10th Cir. 1994). For example, “a lesser expectation of privacy likely would attach to the showroom of a car dealership than to a law ...


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