United States District Court, D. Arizona
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 ...