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United States v. Salemi-Nicoloso

United States District Court, N.D. Mississippi

November 28, 2018




         This criminal case is before the Court on Javier Alejandro Moline-Borroto's motion to suppress, Doc. #64; which was joined by Daniel Gustavo Pena-Morales, Doc. #65; Valentine Sybreg Castro-Balza, Doc. #68; Pavel Isaac Burgos-Coronado, Doc. #69; Kevin Carlos Delgado-Mata, Doc. #71; Joseph Nicole Vergara-Moran, Doc. #72; and Cesar Augusto Salemi-Nicoloso, Doc. #86.

         I Procedural History

         On June 20, 2018, Javier Alejandro Moline-Borroto, Daniel Gustavo Pena-Morales, Valentina Sybreg Castro-Balza, Pavel Isaac Burgos-Coronado, Kevin Carlos Delgado-Mata, Joseph Nicole Vergara-Moran, and Cesar Augusto Salemi-Nicoloso, were named in a five-count indictment charging: (1) possession of device making equipment with intent to defraud, in violation of 18 U.S.C. § 1029(a)(2) and § 1029(a)(4); (2) possession of a scanning receiver with intent to defraud, in violation of 18 U.S.C. § 1029(a)(2) and § 1029(a)(8); (3) possession of 15 or more unauthorized access devices with intent to defraud, in violation of 18 U.S.C. § 1029(a)(2) and § 1029(a)(3); (4) aiding and abetting each other to use and attempt to use the access devices to fraudulently obtain more than $1, 000 in goods, services, and moneys; (5) and conspiracy to use such devices to fraudulently obtain such goods, services, and moneys. Doc. #25.

         On September 4, 2018, Moline-Borroto filed a motion to suppress all physical evidence and statements collected from a May 18, 2018, traffic stop. Doc. #64. Pena-Morales, Castro-Balza, Burgos-Coronado, Delgado-Mata, [1] Vergara-Moran, and Salemi-Nicoloso all joined the motion.[2] Docs. #65, #68, #69, #71, #72, #86. The Government responded in opposition to the motion on September 14, 2018. Doc. #73. Moline-Borroto filed an untimely reply on October 26, 2018. Doc. #87. On November 5, 2018, Pena-Morales, Vergara-Moran, and Burgos-Coronado joined the reply. Docs. #88, #89, #90.

         An evidentiary hearing on the motion was held November 7, 2018. At the conclusion of the hearing, the Court took the motion to suppress under advisement.

         II Standard of Review

         “The proponent of a motion to suppress has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.” United States v. Iraheta, 764 F.3d 455, 460 (5th Cir. 2014). Where evidence has been obtained through a warrantless search and seizure, “the government bears the burden of proving, by a preponderance of the evidence, that the search and seizure were constitutional.” United States v. McKinnon, 681 F.3d 203, 207 (5th Cir. 2012). In conducting a suppression hearing, a court is not bound by the Federal Rules of Evidence. Fed.R.Evid. 104(a); see United States v. Posado, 57 F.3d 428, 435 (5th Cir. 1995) (“We have consistently held that the rules of evidence are relaxed in pretrial suppression hearings.”).

         III Factual Background[3]

         At approximately 11:50 p.m. on May 18, 2018, Mississippi Highway Patrol troopers Gregory Bell, Matthew Minga, Andrew Beaver, and Steven Jones established a driver's license safety checkpoint on the northbound lane of United States Highway 45 alternate in Lowndes County, Mississippi. At the checkpoint, the officers stopped oncoming vehicles, checked driver's licenses and insurance, and made sure that every occupant of a car was wearing a seatbelt. Over the ensuing eighteen minutes, the officers stopped seven cars at the checkpoint. In order, respectively, the cars were stopped for approximate times of eighty seconds, thirty-seven seconds, thirty-four seconds, four seconds, twelve seconds, forty-five seconds, and eighteen seconds.

         A. Initial Stops of the Defendants

         At 12:08 a.m. on May 19, a Toyota RAV4 driven by Moline-Borroto, with Burgos-Coronado and Castro-Balza as passengers in the backseat, pulled into the checkpoint. Approximately thirty seconds after the RAV4 entered the checkpoint, a Volkswagen Jetta driven by Pena-Morales, with Vergara-Moran as a passenger, pulled into the checkpoint.

         Minga approached the RAV4 and asked Moline-Borroto for a license and proof of insurance. Moline-Borroto provided Minga a temporary Florida driver's license and stated that the vehicle was a rental. After Minga asked Moline-Borroto who the passengers in the rear seat were, Moline-Borroto spoke to the passengers in Spanish and rolled down the rear windows. Burgos-Coronado provided a temporary Florida driver's license and Castro-Balza provided a Venezuelan passport which was missing an entry stamp.

         Bell felt the seating arrangement was a “little strange” because, in his experience, “when there's an open front seat in a vehicle and there's a male passenger in there, usually the other male[ is] sitting up front.” Bell testified that the seating arrangement, combined with the time of night and the absence of an entry stamp on Castro-Balza's passport, raised a concern that Castro-Balza was a victim of human trafficking or was otherwise being held against her will. At that point, Bell began to question Moline-Borroto about the car's travel plans so he could “better see what[ was] going on with that situation.”

         Bell testified that he asked Moline-Borroto: (1) where he was coming from and Moline-Borroto responded, “Mississippi;” (2) where he began his trip and Moline-Borroto responded, “Florida;” (3) to specify which part of Florida he was coming from and Moline-Borroto responded, “Miami;” (4) what was his destination and Moline-Borroto responded, “the hotel;” (5) what was his final destination and Moline-Borroto responded, “Memphis;” and (6) what the occupants of the vehicle were planning to do in Memphis and Moline-Borroto responded that they were going to visit his uncle from Venezuela. At that point, Bell asked Moline-Borroto for his uncle's name; Moline-Borroto paused and answered, “Jesús.” When Bell asked for a last name, Moline-Borroto paused again and provided a single name, which Bell testified he could not remember. Bell then asked, “what was his mother or father's maiden name?” After Moline-Borroto “paused as if he didn't understand, ” Bell asked what his uncle's profession was, to which Moline-Borroto responded that his uncle was a “business owner.” Bell then asked for Moline-Borroto's occupation, and Moline-Borroto responded he was in construction. Bell asked how long they were planning on staying in Memphis and Moline-Borroto responded, “ten to fifteen days.” Finally, Bell asked Moline-Borroto if he was taking a vacation, and Moline-Borroto responded that he “just took off.”

         During Bell's conversation with Moline-Borroto, Jones, who had been listening to the interaction, approached the Jetta. Jones asked Pena-Morales to provide a driver's license and proof of insurance and to state where he was coming from and where he was going. Pena-Morales provided Jones a Venezuelan passport and Vergara-Moran provided a temporary Florida's driver's license. Doc. #64-1 at 18. Pena-Morales “was speaking pretty broken English” but Vergara-Moran was translating for him. As translated by Vergara-Moran, Pena-Morales stated that they were heading to Tupelo, Mississippi.

         During his conversation with Pena-Morales, Jones observed the Jetta had a Florida registration and concluded that “the dynamics of the vehicle were pretty similar, Venezuelan passport and Florida's driver's license.”

         Bell then asked Moline-Borroto if he was traveling with anyone. After a brief pause, Moline-Borroto responded that he was traveling with the occupants of the vehicle behind him. Jones and Bell then asked the same question to Pena-Morales, who responded that he and Vergara-Moran were traveling alone. Based on these inconsistent answers, which occurred less than five minutes into the stop of the RAV4, and the fact that Miami and Memphis are both “source cities, ” Bell suspected the occupants were engaged in narcotics smuggling and asked the cars to pull into the highway's median area.

         B. The Searches

         After the cars pulled over, Bell obtained two consent to search forms from his vehicle. Bell told Moline-Borroto that he was going to request a consent to search and then walked over and provided a form to Pena-Morales. According to a translator at the evidentiary hearing, the consent form, which was in Spanish, stated:

In order to cooperate with the investigation that's being conducted by the Highway Patrol of Mississippi, I____, give my voluntary consent to highway officer ____ and other people who may assist him in searching the vehicle___. I am totally aware that this may include all of its contents and/or load in the vehicle, luggage, electronic devices, cavities, and/or modifications that may have been made to the vehicle after market. I understand perfectly that all of this is totally voluntary on my part and that I am giving my consent under no threat, promise, or any act of coercion, either mental or physical, on the part of the highway official. Additionally, I understand that I have the right to reject this voluntary search and/or stop the search at any time that I may wish so.

         Bell left Minga to attempt to explain the consent form to Pena-Morales. Bell then returned to Moline-Borroto, provided him a consent form, and attempted to explain the form to him in English. Moline-Borroto seemed not to understand Bell's explanation, so Bell used a smartphone translation application to request consent to search. Eventually, Moline-Borroto told Bell he could “look wherever.”

         Pena-Morales signed the consent form but Vergara-Moran filled out the form's vehicle information.

         Bell, who was also a K-9 Officer, then walked his drug dog, Apollo, around both vehicles to conduct an open air sniff test. During his sniff, Apollo alerted near the trunk of the RAV4. Apollo did not fully alert on the Jetta. Apollo did, however, exhibit an “obvious change of behavior” by the Jetta's right passenger door.

         The officers searched the RAV4 and discovered items allegedly related to a credit card skimming scheme in a Wal-Mart bag placed under luggage and in a spare tire wheel well. Other items, including marijuana, were found during a subsequent search of the Jetta. The officers also found the RAV4 rental agreement, which reflected that Pena-Morales rented the vehicle.

         IV Analysis

         The Fourth Amendment to the United States Constitution “requires that searches and seizures be reasonable.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). When a defendant's Fourth Amendment rights have been violated, the fruit of the poisonous tree doctrine requires suppression of “all evidence derived from the exploitation of [the violation], unless the Government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation.” United States v. Jaquez, 421 F.3d 338, 341 (5th Cir. 2005). “Where evidence is found as a result of an illegal seizure, it must be suppressed even where it was not found as the result of an illegal search.” United States v. Thibodeaux, 276 Fed.Appx. 372, 381 (5th Cir. 2008) (collecting cases).

         In this case, the automobiles were searched after the defendants were seized at the checkpoint. Therefore, as discussed in more detail below, the motion to suppress implicates two distinct issues: (1) whether the searches of the vehicles were reasonable; and (2) if the searches were reasonable, whether the justifications for the searches arose while the defendants were properly seized. In this regard, the Government contends that the searches of the vehicles were justified by the automobile exception to the warrant requirement and by consent. Doc. #73 at 7- 8. The Government ...

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