Opinion
Case No. 05-20162-CR-UNGARO-BENAGES.
June 20, 2005
ORDER DENYING MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS
THIS CAUSE is before the Court upon Defendant Jesus Alberto Rodriguez's Motion to Suppress Physical Evidence and Statements ("Motion"), filed on April 22, 2005. [DE #58]
THE MATTER was referred to the Honorable John J. O'Sullivan, United States Magistrate Judge ("Magistrate Judge"). A Report and Recommendation ("RR") was filed May 18, 2005 recommending the Defendant's Motion be denied. [DE #70] Defendant filed Objections to the RR. [DE #77]
THE COURT has considered the motion, the pertinent portions of the record, and is otherwise fully advised in the premises. The matter is ripe for disposition.
By way of background, on February 16, 2005, Defendants Mariano Cardoso, Rafael Sanchez, Jesus Rodriguez, and Jesus Alberto Rodriguez were arrested during the course of an anti-drug operation carried out by officers of the City of Miami Police Department and agents of the Drug Enforcement Administration. Criminal Complaint. [DE #6] On March 1, 2005, Defendant Jesus Alberto Rodriguez was charged by indictment with the following three counts: (1) conspiracy to possess with the intent to distribute a controlled substance, in violation of 21 U.S.C. § 846; (2) possession with the intent to distribute five hundred grams or more of cocaine, in violation of 21 U.S.C. § 841(b)(1)(B); and, (3) intentional possession of a controlled substance, in violation of 21 U.S.C. § 844. Indictment. [DE #33]
In the instant Motion, Defendant moves to suppress the physical evidence that the government seized from his person and a motor vehicle at the time of his arrest, the statements he gave to the law enforcement agents and items found in his residence after he consented to a search of the premises. For the reasons stated below, the Court denies Defendant's Motion.
I. Factual Background
Pursuant to the undersigned's referral, the Magistrate Judge held an evidentiary hearing on this matter on May 16 and 18, 2005. [DE #68, 69] At the hearing, police officer Roberto Soler ("Officer Soler"), and DEA agent Chaoun Whetstone ("Agent Whetstone") testified for the United States. The defense called Wilfredo N. Leon ("Leon"). After listening to the witnesses and considering the parties' arguments, the Magistrate Judge found that the testimony of Officer Soler and Agent Whetstone was more credible than Leon's testimony. More specifically, the Magistrate Judge found as follows:
1) On December 3, 2004 an undercover Miami Police officer met with co-defendants Cardoso and Sanchez and paid them $1,500.00 for two ounces of cocaine. RR, at 1. During the drug transaction, Cardoso stated that he usually met his cocaine supplier in the area of 27th Avenue and 4th Street, in Southwest Miami. Id. at 2.
2) After the drug deal, police officers followed Cardoso to his home, located at 2979 S.W. 4th St, in Miami. Id. There, the officers observed a red Tahoe vehicle and, after running a search of its tag, the officers determined that the car belonged to Defendant Jesus Alberto Rodriguez. Id. The officers then obtained a driver's license picture of Defendant Jesus Alberto Rodriguez. Id.
3) On February 16, 2005, the undercover officers agreed to pay Cardoso and Sanchez $20,000.00 for two kilograms of cocaine. Id. The transaction did not take place, but the officers arrested Cardoso and Sanchez. During the arrest, the officers seized a cellular telephone from Cardoso. Additionally, Cardoso gave consent to search his residence.
4) The officers went to Cardoso's house to search the premises. While there, Cardoso's cellular phone rang. The caller I.D. reflected the name 'Padrino'. A police officer answered the phone and pretended to be co-defendant Cardoso. A brief conversation ensued in which the caller showed interest in selling cocaine but there was some dispute about the place and terms of payment and the caller hung up. A few minutes later, 'Padrino' called again and a deal was struck; 'Padrino' agreed to deliver the cocaine to Cardoso's home, where he expected to be paid in cash. Id. at 2-3
5) The officers remained in the Cardoso's residence awaiting the arrival of 'Padrino.' After about fifteen minutes, the red Tahoe previously seen by the officers at Cardoso's house pulled into the driveway. The officers saw three people exit the car. Id. Two of them moved in the direction of the sidewalk. Id. The third walked toward the house. From the driver's license picture, the officers recognized this third individual approaching the house as Defendant Jesus Alberto Rodriguez. Id. at 3
6) At this point, the police officers stepped outside the house and approached the two individuals who were on the sidewalk. At the same time, other officers started moving towards Defendant Jesus Alberto Rodriguez. Upon seeing the officers, Defendant Jesus Alberto Rodriguez changed direction and tried to walk away from the house. Id. The police officers who had stopped the first two individuals in the sidewalk, frisked them for guns. Id. The officers found that one of the individuals was carrying a gun, a fully loaded .38. Then, one of the officers, yelled "gun, gun!" Id. Other officers rapidly seized Defendant Jesus Alberto Rodriguez and handcuffed him. Their search of his person produced a small amount of cocaine and their search of the Tahoe yielded a kilogram of the same substance. Id.
7) Subsequent to his arrest, Defendant Jesus Alberto Rodriguez was presented with a "consent to search" form authorizing the officers to enter and search his residence. Id. Defendant Jesus Alberto Rodriguez read the form aloud in the presence of the officers, stated that he understood it and signed it. Id. The officers went to Defendant's home and found more drugs, as well as drug trafficking paraphernalia. Id. at 4. Also, Defendant Jesus Alberto Rodriguez was read his Miranda rights, signed a Miranda rights waiver form and then gave statements to the officers. Id. Later, the police identified Defendant Jesus Alberto Rodriguez's companions in the vehicle as Jesus Rodriguez, Sr., the Defendant's father, and Wilfredo N. Leon. The officers also established that 'Padrino' was Jesus Rodriguez, Sr.'s nickname.
Based upon these findings, the Magistrate Judge recommends the Motion be denied in its entirety.
II. Legal Standard
The Fourth Amendment requires that all 'searches and seizures' be based upon probable cause. When the constitutional validity of an arrest is challenged, it is the function of the court to determine whether the facts available to the arresting officers at the moment of the arrest support a finding of probable cause. Beck v. Ohio, 379 U.S. 89 (1964). Probable cause exists where the facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. United States v. Waksal, 709 F.2d 653, 658, n. 8 (11th Cir. 1983). Where there is at least minimal communication between different officers, the collective knowledge of the officers determines probable cause. United States v. Astling, 733 F.2d 1446, 1460 (11th Cir. 1984). While probable cause requires only a probability or substantial chance of criminal activity, mere suspicion is not enough. United States v. Ingrao, 897 F.2d 860, 862 (7th Cir. 1990). Probable cause exists when under the totality of the circumstances there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). An arrest without a warrant is constitutionally valid if, at the moment the arrest was made, the officer had probable cause to make such an arrest. Beck, 379 U.S. at 91.
Additionally, it is well established that a district court will not disturb a magistrate judge's credibility determination unless the transcript of an evidentiary hearing provides an articulable basis for the reversal. In United States v. Raddatz, 447 U.S. 667 (1980), the Supreme Court held that a district court is not required to rehear witness testimony when accepting a magistrate judge's credibility finding. See Id. at 675-76. The Court also stated, "we assume it is unlikely that a district court would reject a magistrate's proposed findings on credibility when those findings are dispositive and substitute the judge's own appraisal; to do so without seeing and hearing the witness or witnesses whose credibility is in question could well give rise to serious questions which we do not reach." Id. at 681 n. 7. Courts have carved a narrow exception to this general rule, the "rare case" where "there . . . [is] found in the transcript an articulable basis for rejecting the magistrate's original resolution of credibility and that basis . . . [is] articulated by the district judge." United States v. Marshall, 609 F.2d 152, 155 (5th Cir. 1980).
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
III. Analysis
As a preliminary mater, the Court finds that this is not the "rare case" discussed in Marshall. The undersigned has thoroughly reviewed the transcript of the evidentiary hearings on and finds that it provides no basis to reject the magistrate judge's credibility findings. In light of the facts established by the Magistrate Judge, the Court will now address the issues raised by Defendant Jesus Alberto Rodriguez.A. Probable Cause
Defendant Jesus Alberto Rodriguez argues that the Magistrate Judge's recommendation is in error because there was no probable cause to arrest him and, accordingly, the subsequent searches of his person, his car and his apartment were violations of the Fourth Amendment's constitutional protection against unreasonable searches and seizures. Def's Objections, at 7-8. Defendant heavily relies on United States v. Diaz-Lizaraza, 981 F.2d 1216 (11th Cir. 1993), and argues that it is a case factually similar to the one at bar that demands the suppression of the evidence obtained subsequent to his arrest. The Court finds that Defendant's arguments are unconvincing and that his reliance on Diaz-Lizaraza is misplaced.
In Diaz-Lizaraza, the defendant (Diaz) and co-defendant Frank Posada were arrested after Posada took delivery of two kilograms of cocaine from an undercover agent. Diaz drove Posada to the meeting place, but Posada and the agent then drove to the final transaction site in the agent's car, and Diaz drove off alone in the other direction. Diaz was arrested in a nearby convenience store parking lot shortly after Posada was arrested. Diaz challenged his arrest but the court found that the agent had probable cause to arrest Diaz because the agent had recognized Diaz's voice from an earlier telephone conversation setting up the sale, and the beeper the agent called to set up the meeting was found in the truck Diaz was driving. Id. at 1219-20 1224-25.
Defendant argues that, unlike in Diaz-Lizaraza, there was no probable cause for his arrest because none of the facts stated by the agents at the evidentiary hearing, when analyzed individually, link him to criminal activity. Defendant emphasizes that in Diaz-Lizaraza the arresting agent could point to one single fact to find probable case: that prior to the arrest the agent recognized the defendant's voice as the one of the person with whom he had had a telephone conversation discussing a drug transaction. See Def.'s Objections, at 7. In the case at bar, Defendant argues, the agents never spoke with him nor had any information that linked him to criminal activities prior to his arrest. Id. at 8. Finally, Defendant states that he was arrested before the officers discovered the gun and therefore it could not provide probable cause. Id.
The Court rejects Defendant's argument. First, Defendant ignores that before arresting him the officers: (1) were informed that a drug dealer was supplying drugs in the location where Defendant was finally arrested; (2) had located Defendant's car in that area; (3) had identified Defendant as the car's owner; (4) were in possession of a cellular phone belonging to an individual who had just been arrested for drug dealing; (5) answered two calls to the arrestee's cellular phone from an individual who offered to sell them drugs; (6) closed a deal to buy drugs from the caller who agreed to deliver cocaine to the arrestee's residence; (7) minutes later, observed Defendant approaching the place of delivery; (8) identified Defendant when he approached the house, (9) tried to approach Defendant but he walked away; and, (10) found a loaded gun in the possession of a Defendant's companion. These events and observations plainly suffice to establish probable cause for the Defendant's arrest.
Second, the undersigned finds Defendant's analysis to be flawed. The Constitution does not require the Court to look at any single fact but at the totality of the circumstances. Gates, 462 U.S. at 238. Thus, the Court must consider "the totality of the circumstances — the whole picture." United States v. Cortez, 449 U.S. 411, 417 (1981). As the Supreme Court wrote in Cortez, explaining the concept of probable cause,
[It] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers.Id., at 418. In sum, "for probable cause to exist, . . . an arrest must be objectively reasonable based on the totality of the circumstances." Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). "This standard is met when the facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (internal quotation marks omitted). "Although probable cause requires more than suspicion, it does not require convincing proof, and need not reach the [same] standard of conclusiveness and probability as the facts necessary to support a conviction." Lee, 284 F.3d at 1195 (internal quotation marks and citations omitted) (alteration in original). Thus, a finding of probable cause requires a more holistic view than what Defendant advocates. See United States v. Fouche, 776 F.2d 1398, 1403-04 (9th Cir. 1985) (overruled on other grounds) (stating that "clothing description contributed to probable cause even though clothing not unusual; sweating and apparent nervousness also contributed to probable cause even though day was hot; if viewed alone, these factors were insignificant, but important in the totality to link arrestee to robbery"). Probable cause could be a single act or many and in the present case there is little question that the police had probable cause to suspect that Defendant was in the process of committing a crime when he pulled into Cardoso's driveway at the appointed time, after successive calls agreeing to deliver cocaine, and following a pattern of conduct that the officers considered common in drug dealings. As the officers testified at the hearing, drug dealers "[usually are armed be]cause they don't want to get ripped-mean taking the dope away from them. . . . [and they don't go alone to deliver their merchandise] they usually come with somebody else to show force." Transcript of Officer Soler's Testimony, at 28-29. [DE #74] "An experienced narcotics agent may testify about the significance of certain conduct or methods of operation to the drug distribution business, as such testimony is often helpful in assisting the trier of fact understand the evidence." United States v. Griffith, 118 F.3d 318, 321 (5th Cir. 1997) (citing United States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995) In conclusion, the undersigned finds that the officers had several objective reasons to believe that they were in the presence of ongoing criminal activity, that the drug dealers could be armed and violent, and therefore that there was probable cause for the Defendant's arrest.
Since the custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment, a search incident to the arrest requires no additional justification. United States v. Robinson, 414 U.S. 218, 235 (1973). In fact, a full search incident to a lawful arrest is not only a "reasonable" search under the Fourth Amendment, it is also an exception to the warrant requirement. Id. Therefore, in the instant case, the search of Defendant's person and the vehicle after his arrest were valid.
B. Consent Search.
Defendant moves to suppress the evidence found at his place of residence. Def's Motion, § 3, at 1. He argues that "any purported consent to search [his] home was involuntary . . ." Id. The Magistrate Judge recommended that the Court find the search valid, as a product of Defendant's voluntary consent. RR, at 6. The voluntariness of consent must be judged in light of the totality of the circumstances. Schneckloth v. Bustamante, 412 U.S. 218, 227 (1973). If the circumstances in the instant case indicate that Defendant willingly consented, he should not be able to suppress the search now. The undersigned has reviewed the record and finds that Defendant read and signed a consent form that acknowledged his right not to consent to the search. The consent form expressly advised the Defendant that
1) he had the right to decline to give consent; 2) that anything found during the search could be used against Defendant in a court of law; 3) he had the right to consult with any person before giving up his right to refuse consent; and 4) authorized the police to conduct a complete search of his residence and vehicles under his control.
Government Exhibit #7. Defendant placed his initials on the form four times, signed at the bottom, and wrote his address (3641 NW 18th Terrace) and the time (1:47 PM). In his Objections, Defendant does not oppose the Magistrate Judge's recommendation on this issue and the Court, after examining all the surrounding circumstances, finds that Defendant's consent was "the product of an essentially free and unconstrained choice." United States v. Garcia, 890 F.2d 355, 361 (11th Cir. 1989).
C. Post-Miranda Statements.
Finally, in his Motion Defendant states that "any and all statements purportedly made by Defendant, including those made as a consequence of his purported waiver of his Miranda rights, were coerced and involuntary as the fruit of an illegal arrest in violation of the Fifth Amendment to the United States Constitution." Def.'s Motion, § 4, at 2.
As to whether his statements were coerced, the Court must undertake a two-part inquiry. United States v. Sims, 719 F.2d 375, 378 (11th Cir. 1983) (per curiam). First, the Court must decide whether the law enforcement officers complied with the requirements of Miranda v. Arizona, 384 U.S. 436 (1966); if so, then the court must determine if the confession was voluntary. Sims, 719 F.2d at 378. Since Defendant does not argue that his Miranda rights were violated, the Court focuses solely on the voluntariness of his confession. The determination of whether a confession is voluntary depends on "whether, under all of the surrounding circumstances, the statement was the product of the accused's 'free and rational' choice." United States v. Vera, 701 F.2d 1349, 1364 (11th Cir. 1983).
In the instant case, the record shows that Defendant was given a standard City of Miami Police Department Constitutional Rights Waiver Form that enumerates a defendant's Miranda rights. Government Exhibit # 8. The Defendant read this form out loud, stated that he understood it, and signed it. Transcript of Officer Soler's Testimony, at 44. Additionally, Defendant agreed to speak with the agents about the drugs and did not request an attorney. Id. There are no contrary facts in the record. Accordingly, the undersigned concurs that Defendant's interview and post-arrest statements were voluntary. Thereby, it is hereby
ORDERED AND ADJUDGED that the Defendant's Motion to Suppress is DENIED.
DONE AND ORDERED.