United States District Court, D. Arizona
G. Campbell United States District Judge
Martin Takatsy and Ariane Gagnon are charged in a First
Superseding Indictment with conspiracy and possession of
cocaine with intent to distribute. Doc. 40. Defendants have
moved to suppress the cocaine seized from their vehicle. Doc.
43. Magistrate Judge John Boyle held a two-day evidentiary
hearing and issued a report and recommendation
(“R&R”) suggesting that the motion be denied.
Doc. 87. Defendants filed objections, the government
responded, and Defendants replied. Docs. 92, 93, 94. The
Court will adopt Judge Boyle's recommendation and deny
the motion to suppress. The request for oral argument is
denied because the matter is fully briefed and supported by
an extensive record, and oral argument will not aid the
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge” on a motion to suppress evidence in a criminal
case. 28 U.S.C. § 636(b)(1). The Court must undertake de
novo review of those portions of the R&R to which
specific objections are made. Thomas v. Arn, 474
U.S. 140, 149 (1985); United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003); see also 28
U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3).
R&R includes proposed findings of fact based on testimony
and exhibits presented at the evidentiary hearing. Doc. 87 at
1-9. Defendants state that they dispute the proposed findings
“as set forth herein” (Doc. 92 at 10), but make
specific objections only to Judge Boyle's findings
regarding testimony by Arizona Department of Public Safety
Trooper Thomas Callister. Defendants assert that Trooper
Callister generally was not credible, and they dispute his
assertion that Defendants committed two traffic violations
before being stopped and that Defendant Gagnon had a
“meltdown” when she was arrested. Doc. 92 at 8.
These factual findings are not significant to the Court's
decision, and the Court will not adopt them. The Court
otherwise accepts the findings of fact in the R&R and
repeats some of them as background for this order. The Court
has confirmed these facts by a review of the hearing
transcripts and exhibits.
Drug Enforcement Administration (“DEA”) informed
Homeland Security Investigations (“HSI”) Senior
Special Agent Chris Foster that 92 kilograms of cocaine and 2
kilograms of heroin were seized in February 2017 from a
vehicle operated by Canadian national Ronald Bannon. Doc. 87
at 2, 11. This prompted Agent Foster to open an investigation
into a suspected Canadian-based narcotics trafficking
organization. Id. at 2.
Foster learned that Bannon traveled with Defendant Martin
Takatsy from Montreal, Canada, to Los Angeles, California, on
February 3, 2017. Id. Bannon rented a minivan in Los
Angeles, listing Takatsy's telephone as the contact
number and setting a return destination of Plattsburg, New
York, which is near the Canadian border. Id. The two
men then traveled together to Las Vegas, Nevada, where
Takatsy purchased a hotel room for Bannon. Id.
Takatsy flew back to Canada from Las Vegas, and Bannon
continued the drive east in the rented minivan. Id.
Law enforcement stopped and searched the vehicle in Arizona
on February 7, 2017, and found the large quantities of
cocaine and heroin. Doc. 73 at 15. These events led Agent
Foster to suspect that Defendant Takatsy was Bannon's
handler in the drug trafficking operation. Id.
27, 2017, Defendants Takatsy and Gagnon travelled to Las
Vegas from Canada. Id. Once there, Gagnon rented a
minivan that was the same make and model as the minivan
Bannon rented in February. Id. The rented minivan
was also to be returned in Plattsburgh, New York.
Id. On May 31, 2017, Gagnon flew back to Canada.
Id. On June 4, 2017, Takatsy returned the van in Las
Vegas and flew back to Canada. Id.
and Gagnon traveled from Montreal to Los Angeles on July 5,
2017. Doc. 87 at 2. HSI Special Agent Mike Garland, who
worked at Los Angeles International Airport
(“LAX”), initiated surveillance of Defendants
upon their arrival. Id. at 3. HSI agents observed
Defendants rent a red Chrysler Pacifica minivan and travel to
a hotel in Santa Monica, California. Id. at 2-4. The
minivan, again, was to be returned in Plattsburgh, New York.
Id. at 2. At approximately 8:00 p.m. on July 5,
Agent Foster called a California state court judge, attested
to a probable cause statement, and secured the judge's
approval for a warrant to place a GPS tracking device on the
minivan. Doc. 87 at 3-4. Agent Garland installed the device
on the minivan. Id. at 4-5.
morning of July 6, Agent Garland presented a paper copy of
the warrant application to the same California judge for
signature. Doc. 87 at 5. The judge signed the warrant, but
mistakenly dated it July 7 and noted that he had approved the
warrant telephonically on the evening of July 6. Doc. 87 at 3
7, HSI agents used GPS tracking data to locate
Defendants' vehicle as it traveled east on Interstate 15
(“I-15”) from Las Vegas. Id. at 3.
Anticipating that the vehicle would travel through Arizona on
I-15, HSI agents contacted Trooper Callister to assist with a
possible traffic stop of the vehicle. Id. HSI agents
told Trooper Callister the vehicle was connected to a
narcotics trafficking organization, but that he would need to
develop his own reasonable suspicion to stop the vehicle and
probable cause to search it. Id. at 4, 6.
Callister positioned himself on the median of I-15 to wait
for Defendants' vehicle. Doc. 86 at 67. After it passed,
he witnessed two alleged traffic violations: following a
semi-truck at an unsafe distance and an unsafe lane change.
Doc. 87 at 6-7. Trooper Callister initiated a traffic stop.
Id. at 7. His initial conversation with Defendants
revealed that Takatsy was driving without a valid
driver's license; the vehicle was a one-way rental to
Plattsburg, New York; and the cost of the rental was $2, 190.
Id. at 7. Trooper Callister also observed that
Defendants were exceptionally nervous, Gagnon was
non-compliant, and neither Defendant could describe their
travel plans with specificity. Id. at 7-8.
Callister brought Takatsy back to his vehicle and issued him
a written warning and citation. Id. at 8. Trooper
Callister asked for consent to search the minivan, Takatsy
declined, and Callister detained him to wait for a
narcotics-detection canine. Id.
Callister returned to the minivan to speak with Gagnon, who
explained that she would like to take her anti-anxiety
medication. Id. Trooper Callister gave her
permission, and she retrieved a single pill from a foil
packet. Id. After she ingested it, Trooper Callister
asked her if she had a prescription for the drug.
Id. She said she did, but claimed she did not
possess it at that time. Id. Trooper Callister
arrested her for possessing a prescription drug without a
prescription. Id. He then searched the vehicle for
illegal drugs and discovered cocaine in duffel bags.
Id. at 8-9.
Defendants' 42-page submission reargues the merits of the
motion to suppress. See Doc. 92. As discussed above,
the Court will consider only Defendants' specific
objections to the R&R.
California Tracking Warrant.
move to suppress the physical evidence on the ground that the
California tracking warrant, which was used to locate
Defendants' vehicle, violated the Fourth Amendment. Doc.
87 at 9-13. Defendants argue that the warrant was not
supported by probable cause and was issued and executed in
violation of California law. Id. The R&R
concludes that the warrant was supported by probable cause
and that alleged state-law violations are immaterial to the
Fourth Amendment inquiry. Id.
assessing the existence of probable cause, “[t]he task
of the issuing [judge] is simply to make a practical,
common-sense decision whether, given all the circumstances
set forth in the affidavit . . . 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). “[T]he duty of a reviewing court is
simply to ensure that the [judge] had a ‘substantial
basis for concluding' that probable cause existed.”
Id. at 238-39 (quoting Jones v. United
States, 362 U.S. 257, 271 (1960) (ellipses and brackets
omitted)). The Court must remember that a “fair
probability” does not amount to “certainty or
even a preponderance of the evidence, ” and must not
“flyspeck” the warrant ...