United States District Court, D. Massachusetts
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
Defendant, Hector Antonio Cruz-Mercedes, was charged in a
multi-count indictment alleging a conspiracy to obtain income
tax refunds fraudulently from the United States Treasury by
filing materially false income tax forms.
Cruz-Mercedes moved [Dkt. No. 57] to suppress evidence seized
by the Government as a result of what he contends was an
unlawful arrest on June 7, 2012. He also moved [Dkt. No. 60]
in what I will term his Daubert motion - in
recognition that it sought my gate keeper determination
regarding expert evidence under the protocols established by
the Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 578 (1993) - to exclude
the Government's expert testimony relating to
identification of fingerprints found on fraudulent Treasury
checks seized during an automobile search as a result of his
allegedly unlawful June 7, 2012 arrest.
denied his motion to suppress in part and declined in ruling
on the Daubert motion to exclude the
Government's expert fingerprint testimony, Mr.
Cruz-Mercedes entered - with the consent of the Government
and the court - a conditional plea of guilty pursuant to Fed.
R. Crim. P. 11(a)(2).
promised the parties, I provide in this Memorandum a full
written explanation for my brief ore tenus rulings
granting in part and denying in part the motion to suppress
[Dkt. No. 57] and denying the motion to exclude the
government's expert testimony regarding fingerprints
[Dkt. No. 60].
March 2012, the Department of Homeland Security's
Investigation unit (“HSI”) in Boston received
information from a confidential informant (“CI”)
that individuals in New York were filing false tax returns
using Social Security numbers stolen from Puerto Rican
residents. The CI informed HSI agents that the people
involved in the operation were looking for ways to cash
fraudulently-obtained refund checks and, at the direction of
HSI and the United States Secret Service, arranged to meet
with these individuals to assist in cashing the checks.
April and May 2012, the CI met with Odalis Castillo-Lopez in
South Attleboro, Massachusetts on several occasions to pick
up the fraudulently-obtained checks. On two such occasions,
the checks were wrapped in a sheet of paper listing the names
and Social Security Numbers of the individuals to whom the
checks were issued.
a series of recorded telephone calls, the CI arranged to meet
Mr. Castillo-Lopez a fourth time on June 7, 2012 to pick up
approximately $160, 000 in checks in exchange for a payment
of $80, 000. Agents from HSI and the Secret Service planned
to arrest Mr. Castillo-Lopez at that meeting. In anticipation
of doing so, they established surveillance at the meeting
location, a parking lot next to a McDonald's in South
7, 2012, Mr. Castillo-Lopez and another individual, later
identified as the Defendant, arrived at the location in a
white Volkswagen Passat with New York license plates
(“the vehicle”) just after noon. Mr.
Castillo-Lopez was driving; the vehicle was later identified
as being owned by a person named Alma Martinez. Agents
observed both men exit the car and enter the McDonald's.
Special Agents John Soares and Michael Riley of HSI and
Special Agent Fred Mitchell of the Secret Service then
entered the McDonald's. Agents Soares and Mitchell
approached Mr. Castillo-Lopez,  asked him some questions, and
escorted him out of the McDonald's. Mr. Castillo-Lopez
was then arrested and taken to the Boston Field Office of HSI
Riley approached Mr. Cruz-Mercedes in the McDonald's and
had a brief conversation with him. There is no evidence of
record about the content of that conversation, and there is
some dispute about what happened next. Both Agent Soares and
Agent Mitchell testified that Mr. Cruz-Mercedes was escorted
out of the McDonald's by Agent Riley, and that he was
eventually questioned outside, near the vehicle, by Special
Agent Kevin Cronin of HSI. Agent Soares testified that Agent
Riley did not handcuff Mr. Cruz-Mercedes, and that he was not
handcuffed until he was subsequently arrested by Agent
Cronin. However, Agent Mitchell testified that Mr.
Cruz-Mercedes was handcuffed inside the McDonald's,
before being escorted out and Agent Cronin testified that Mr.
Cruz-Mercedes had been placed in custody before being brought
out to the parking lot to talk to him. I am satisfied that,
by the time he was brought to the parking lot, Mr.
Cruz-Mercedes had been taken into custody, irrespective of
whether the initial encounter inside the McDonald's could
be characterized as a “Terry” investigative
was brought out to the parking lot, Mr. Cruz-Mercedes had a
brief conversation with Agent Cronin, during which he
initially identified himself as “Pedro Colon” and
handed over several identification documents, including a
Massachusetts driver's license and a Social Security card
listing his name as Pedro Colon. Agent Cronin, indicating
that he did not believe the Defendant was telling the truth
about his identity, pressed Mr. Cruz-Mercedes further, asking
him if the documents were, in fact, his. In response to this
further investigative inquiry, the Defendant told Agent
Cronin that his name was, in fact, Hector Cruz-Mercedes, and
that he was a native of the Dominican Republic who had
entered the United States unlawfully. Agent Cronin then
formally arrested Mr. Cruz-Mercedes for being in the United
States unlawfully and conducted a search of the Defendant
incident to arrest; that search uncovered two cell phones.
The Defendant was transported to the HSI office for
processing, at which point he was fingerprinted. At no point
during his encounter with law enforcement after being
escorted out of the McDonald's was Mr. Cruz-Mercedes
advised of his Miranda rights.
Search of the Vehicle
both Mr. Cruz-Mercedes and Mr. Castillo-Lopez were taken away
from the parking lot, other agents conducted a cursory search
of the vehicle and concluded that the parking lot was not a
secure location. The vehicle was impounded and brought to the
Government Center Garage in Boston's O'Neill Federal
Building. There, the vehicle was searched more thoroughly by
Agents Soares and Mitchell, who were looking specifically for
the additional Treasury checks that the CI had arranged to
pick up from Mr. Castillo-Lopez. The search uncovered an
envelope tucked into the headliner above the driver's
seat. The envelope contained ten Treasury checks and, as with
two of the earlier check deliveries, a list of names, dates
of birth, and Social Security numbers corresponding to the
payees of the checks.
search also uncovered a bank deposit slip from an account at
Bank of America and a personal check made out to Saw Mills
Auto Sales. The name on the check was “Anna Cruz,
” and the check included her associated address.
Further investigation indicated that this check was
associated with the Bank of America account listed on the
deposit slip found in the vehicle. This was one of the bank
accounts that Mr. Castillo-Lopez had instructed the CI to use
to deposit proceeds from the cashing of the Treasury checks.
point during the investigation, evidence found in the vehicle
was sent to Sergeant John Costa, of the Massachusetts State
Police (“MSP”), to be tested for fingerprints.
Sgt. Costa recovered eight prints, but only one was clear
enough to form the basis of an identification. Sgt. Costa
subsequently matched the latent print to a known print taken
from Mr. Cruz-Mercedes when he was processed by HSI after his
June 7, 2012 arrest.
7, 2012, a Criminal Complaint was issued against Mr.
Castillo-Lopez for Conversion of Government Property and
Money Laundering, in violation of 18 U.S.C. § 641 and
§ 1956 respectively.
August 9, 2012, a Criminal Complaint was issued against Mr.
Cruz-Mercedes for the Deceptive Use of a Social Security
Number, in violation of 42 U.S.C. § 408(a)(7)(B). That
Complaint was based on the fact that Mr. Cruz-Mercedes
initially identified himself to Agent Cronin as Pedro Colon
and produced several identification documents, including a
Social Security Card, with the name Pedro Colon.
Cruz-Mercedes was arrested on August 16, 2012 in Bronx County,
New York and appeared that same day before Magistrate Judge
Peck in the Southern District of New York. Judge Peck
released Mr. Cruz-Mercedes on a $10, 000 bond and ordered him
to appear in this Court on or before August 24, 2012.
Cruz-Mercedes then fled the country and returned to his
native Dominican Republic. Once Mr. Cruz-Mercedes had been
located, the Government arranged to extradite him and he made
his initial appearance in this Court before Magistrate Judge
Cabell on December 1, 2017.
anticipation of trial, Mr. Cruz-Mercedes filed his motion to
suppress all evidence seized in connection with his June 7,
2012 arrest, including Treasury checks taken from the
vehicle. He argued that his arrest was unlawful because it
was unsupported by probable cause and that the complained-of
evidence constituted the fruits of an unlawful seizure
required to be suppressed under the teachings of Wong Sun
v. United States, 371 U.S. 471 (1963). Mr. Cruz-Mercedes
separately filed his Daubert motion to exclude the
testimony of the Government's fingerprint expert
regarding the process of matching his known fingerprints to
the fingerprint discovered on the Treasury checks. The
government's expert had filed a report opining that Mr.
Cruz- Mercedes's fingerprints appeared on at least one
Treasury check seized from the vehicle.
evidentiary hearing on August 29, 2018 regarding both
motions, I heard testimony from Agents Soares, Cronin, and
Mitchell with respect to the motion to suppress, and from
Sergeant John Costa of the MSP and Dr. Alicia Wilcox from
Husson University with respect to the Daubert
motion. Ruling from the bench that day, I denied the
Daubert motion, and directed supplemental briefing
with respect to the motion to suppress.
September 11, 2018, I held the final pretrial conference,
during which I ruled from the bench with respect to the
motion to suppress. As relevant to this Memorandum, I
declined to suppress the underlying fingerprint evidence, but
did suppress statements made by Mr. Cruz-Mercedes to Agent
Cronin beyond his initial self-identification as Pedro Colon.
following day, Mr. Cruz-Mercedes, with assent from the
Government, requested that he be permitted to enter a
conditional plea of guilty, reserving his right to challenge
my determinations regarding the fingerprint evidence. On
September 13, 2018, I accepted the conditional guilty plea.
Judgment dated January 9, 2019, I sentenced Mr. Cruz-Mercedes
to a term of imprisonment of 36 months and one day, followed
by three years of supervised release with standard and
special conditions. I also required restitution in the amount
of $34, 8000, and a mandatory special assessment of $2, 200.
At the same time, I signed a judicial order of removal based
on the stipulation of the parties that would require Mr.
Cruz-Mercedes be deported after his release from Bureau of
Prisons custody. On January 15, 2019, Mr. Cruz-Mercedes
timely filed his notice of appeal.
THE MOTION TO SUPPRESS
Cruz-Mercedes's motion [Dkt. No. 57] to suppress was
directed at all evidence seized as a result of his June 7,
2012 arrest. He argued that his arrest that day, when
effectuated, was unsupported by probable cause and therefore
violated the Fourth Amendment. Consequently, he contended the
fruits of his arrest - including specifically the envelope
containing Treasury checks with any fingerprint alleged to be
his on those checks - should be suppressed.
address this contention in its larger context.
Evidence Found in the Vehicle
motion to suppress, Mr. Cruz-Mercedes argued that the
impoundment, and subsequent search, of the vehicle without a
warrant and without probable cause violated the Fourth
Amendment, and that the fruits of that search - including an
envelope containing ten fraudulently obtained Treasury checks
totaling $75, 808.14, a hand-written list written on the
envelope with the names, Social Security Numbers, and
monetary amounts of the checks, a personal check from payee
Ana Cruz, and a deposit slip from a Bank of America account -
should be suppressed. As a preliminary matter, I was not
persuaded that Mr. Cruz-Mercedes had standing to object to
the impoundment and search of the vehicle. See infra
Section II.A.1. Even if he did have standing, I concluded on
the merits, see infra Sections II.A.2. and B., that
the evidence seized from the vehicle was obtained lawfully
because the vehicle search falls within the scope of one or
more of several enumerated exceptions to the probable cause
and warrant requirements of the Fourth Amendment.
order to have standing to challenge the admission of evidence
seized from the vehicle, Mr. Cruz-Mercedes must be able to
demonstrate that he has “a constitutionally protected
reasonable expectation of privacy” in the vehicle's
contents such that a search of the vehicle would be
“presumptively unreasonable in the absence of a search
warrant.” Katz v. United States, 389 U.S. 347,
360-61 (1967); see also United States v. Salvucci,
446 U.S. 83, 92 (1980); Rakas v. Illinois, 439 U.S.
128, 143 (1979). Unlike other constitutional protections,
“Fourth Amendment rights are personal rights, which . .
. may not be vicariously asserted.” Rakas, 439
U.S. at 123-24 (internal citations and quotations omitted).
“[S]ince the exclusionary rule is an attempt to
effectuate the guarantees of the Fourth Amendment, . . . it
is proper to permit only defendants whose Fourth Amendment
rights have been violated to benefit from the rule's
protection.” Id. at 124 (internal citation
assuming the search of the vehicle was unlawful, then, Mr.
Cruz-Mercedes could object to the introduction of the
evidence found in the vehicle only if he was personally
aggrieved by the search - that is, if he could demonstrate
that he had an objectively reasonable expectation of privacy
in the vehicle that was invaded. See Katz, 389 U.S.
at 361 (Harlan, J., concurring). I conclude he cannot.
“a passenger is seized, just as the driver is, ”
when a vehicle is stopped by law enforcement, his presence in
the vehicle does not automatically give him standing to
object to a subsequent search of the vehicle. United
States v. Symonevich, 688 F.3d 12, 19 (1st Cir. 2012)
(citing Arizona v. Johnson, 555 U.S. 323, 332
(2009)). Under First Circuit precedent, “passengers in
an automobile who assert no property or possessory interest
in a vehicle cannot be said to have the requisite expectation
of privacy in the vehicle to permit them to maintain that the
search did ...