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States v. Takatsy

United States District Court, D. Arizona

July 2, 2018

United States of America, Plaintiff,
v.
Martin Takatsy, Ariane Gagnon, Defendants.

          ORDER

          David G. Campbell United States District Judge

         Defendants 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's decision.

         I. Legal Standard.

         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).

         II. Background.

         The 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.

         The 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.

         Agent 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.

         On May 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.

         Takatsy 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.

         On the 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 n.3.

         On July 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.

         Trooper 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.

         Trooper 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.

         Trooper 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.[1]

         III. Discussion.

         Much of 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.[2]

         A. California Tracking Warrant.

         Defendants 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.

         1. Probable Cause.

         In 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 ...


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