United States v. Ayala-Garcia

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant's Motion to Suppress (Doc. 35) and Magistrate Judge D. Thomas Ferraro's Report and Recommendation (Doc. 73), in which he recommends that the Court grant in part and deny in part the Motion.^[1] Judge Ferraro held three days of hearings on the Motion to Suppress (see Docs. 52, 54, 66). Defendant has objected to portions of the Report and Recommendation (Doc. 74) and the Government responded to those objections (Doc. 79). The Court will adopt the Report and Recommendation in part, and grant the Motion to Suppress in its entirety.

         I. Factual Background ^[2]

         Defendant is charged with one count of Conspiracy to Possess with Intent to Distribute Fentanyl (21 U.S.C. § 846) and one count of Possession with Intent to Distribute Fentanyl (21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vi)). (Doc. 7.) Defendant's arrest and subsequent indictment resulted from a Drug Enforcement Agency High Intensity Drug Trafficking Areas Task Force (“HIDTA”) investigation to locate a white Jeep Liberty. (Doc. 59 at 23-24.) On February 1, 2018, investigators spotted the Jeep Liberty heading northbound on Interstate 19, and followed it to a Food City parking lot. (Id. at 24-27, 72.) At the Food City parking lot, Defendant was seen getting into the Jeep along with a woman and a young girl, and together they rode to a Wal-Mart parking lot a few miles away. (Id. at 73-74.) Then, Defendant drove the Jeep from the Wal-Mart parking lot, by an indirect route along side streets, (Id. at 28, 75) to Araceli Hughes's^[3]home at 5231 S. Via Noche Buena in a nearby subdivision, where he parked it in the garage. (Id. at 11-12.)

         Defendant left the Jeep in the closed garage and, along with his wife and Ms. Hughes (Doc. 59 at 12), departed the house in a silver Chrysler Sebring (Doc. 60 at 9-10, 17). At around 6:00 p.m. that evening, Officers encountered Defendant, his wife, and Ms. Hughes with the Sebring stopped on the side of the road; Officers pulled up next to them to conduct a wellness check.^[4] (Id. at 10-12.) The two women informed the Officers they did not require assistance, and Defendant's wife, after being questioned, stated that she owned the Sebring. (Id. at 12-13.) Defendant's wife and Ms. Hughes also provided the officers with identification; there were no outstanding warrants on either. (Id. at 32-33.) Officers determined that none of the occupants (Defendant, Defendant's wife, or Ms. Hughes) were the registered owner of the Sebring, and proceeded to ask follow-up questions, which the three answered in an evasive manner. (Id. at 13-15, 23.) Without objection, ^[5] the officers conducted a canine sweep and search of the Sebring; nothing of note was found.^[6] (Id. at 17.) Nevertheless, and after remaining with the Sebring and its occupants for one and a half hours (id. at 37), officers handcuffed Defendant, patted him down, and put him in an unmarked law enforcement vehicle; at no point was he Mirandized.^[7] (Id., at 20-21, 55-56.)

         Ms. Hughes, who remained along the side of the road with Defendant and his wife, was separated from the group by two of the five law enforcement officers at the scene. (Doc. 60 at 47-49, 97.) There, separated from her travel companions, she was asked for consent to search her home, to which she agreed. (Id. at 98.) Ms. Hughes was then placed in the back of a squad car and escorted back to her home. (Id. at 98-99.)

         Defendant was later driven to Ms. Hughes' home, where officers were conducting a canine sweep of the garage and later a physical search of the Jeep while it was parked in the garage. (Doc. 59 at 100-01; Doc. 60 at 56-57.) While conducting a canine sweep of the garage, during which the canine did not penetrate the interior of the Jeep Liberty, the canine alerted to a large portion of the Jeep Liberty. (Id. at 80-81.) By the time agents began physically searching the interior of the vehicle, Defendant had been brought to the house and was visible to the agents searching the Jeep Liberty, which was still inside the open garage. (Id. at 105-06.)

         Agents found fourteen packages, or 15.44 kilograms, of fentanyl hidden inside the Jeep Liberty. (Doc. 60 at 107; Doc. 68 at 7-8, 16.) Defendant was asked about the drugs, but informed agents that he knew nothing about them, adding that he did not know what was happening and that he could call the person he was supposed to give “that” to. (Doc. 60 at 108.) Later that evening, Defendant was brought to the Homeland Security Investigations Nogales office; the agent who interviewed him testified that Defendant was Mirandized for the first time upon arrival, at 9:09 p.m.^[8] (Doc. 68 at 23, 36, 41.) While there, a U.S. Border Patrol Agent at the Nogales office sought Defendant's consent to search the contents of his cellphone.^[9] (Id. at 17.) Defendant signed a boilerplate Spanish-language consent form. (Id. at 18.)

         II. The Motion to Suppress & the Report and Recommendation

         Defendant filed a Motion to Suppress (Doc. 35) seeking suppression of “all evidence and statements the government obtained as a result of his unlawful detention, his unlawful arrest without administration of Miranda warning, and of the unlawful search committed on February 1, 2018.” (Doc. 35 at 1.) The Government responded (Doc. 43), and Defendant replied in support of his Motion (Doc. 46). Judge Ferraro held evidentiary hearings on the Motion on January 24, 2019 (Doc. 52), February 6, 2019 (Doc. 54), and February 12, 2019 (Doc. 66). At the conclusion of the third day, Judge Ferraro instructed the parties to submit briefing regarding specifically what evidence the Government intended to offer, and what evidence Defendant sought to have suppressed. (See Doc. 68 at 74-75; Doc. 66.) Defendant's supplemental brief indicates that he specifically seeks suppression of: (1) contraband seized from the Jeep Liberty; (2) any statements or gestures Defendant made on February 1, 2018 while detained along the side of the road with the Sebring and in the driveway at 5231 S. Via Noche Buena; (3) Defendant's Nokia cellphone and any evidence obtained therefrom; and (4) evidence relating to a canine alert on the Sebring. (Doc. 63 at 1-2.) The Government submitted briefs indicating the evidence it sought to introduce (Docs. 62, 64) and a supplemental memorandum supporting denial of Defendant's Motion to Suppress (Doc. 72).

         On March 11, 2019, Judge Ferraro issued a Report and Recommendation recommending that this Court grant the motion to suppress as to: (1) all statements and gestures made while Defendant was detained with the Sebring and in the driveway at 5231 S. Via Noche Buena; (2) evidence obtained from Defendant's Nokia cellphone; and (3) evidence relating to the canine alert on the Sebring. (Doc. 73 at 12.) Judge Ferraro recommends that this Court deny the motion to suppress as to the narcotics discovered in the Jeep Liberty, despite finding that Defendant has standing to contest the search of the Jeep Liberty. (Id. at 10, 12.) Defendant filed an Objection^[10] (Doc. 74) to the Report and Recommendation's conclusion that the contraband seized from the Jeep Liberty should not be suppressed. The Government responded to the Objection (Doc. 79) arguing that Judge Ferraro properly applied the law in finding that evidence seized from the Jeep Liberty should not be suppressed and that, in any event, Defendant has no standing to challenge the search because he conceded that he had no privacy interest in the garage where the Jeep was parked (id. at 6-7).

         A. Unobjected-to Portions of the Report and Recommendation

         Neither Defendant nor the Government has objected to Judge Ferraro's recommendations that this Court (1) grant Defendant's motion to suppress all of Defendant's statements and/or gestures made while Defendant was detained with the Sebring and in the driveway at 5231 S. Via Noche Buena, (2) grant the motion to suppress as to the canine alert on the Sebring, (3) find that Defendant has standing to contest the search of the Jeep Liberty, and (4) grant Defendant's motion to suppress the search of the Nokia cellular phone and the analysis of Nokia cellular phone's content. (See Doc. 72 at 12; Doc. 74.)

         A district judge must “make a de novo determination of those portions” of a magistrate judge's “report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those ...