United States v. Cruz

          ORDER

          David G. Campbell, Senior United States District Judge.

         Defendant Margo Cruz is charged with conspiracy and possession with intent to distribute cocaine. Doc. 1 at 1-2. Four kilograms of cocaine were found in his vehicle after a drug-detecting dog alerted to the vehicle following a traffic stop. Defendant filed a motion to suppress evidence obtained as a result of the stop, which the Court denied. See Docs. 39, 79. Defendant now asserts a second motion to suppress, focused on evidence obtained from a pole camera used to surveil the house of his co-defendant. Doc. 91. The motion is fully briefed, and no party has requested oral argument. Docs. 97, 100. The Court will deny the motion.

         I. Background.

         The facts in this order are based on the briefing by the parties and evidence presented during the hearing on Defendant's first motion to suppress. See Doc. 79.

         On December 19, 2016, Special Agent Kyle Stalder of the Drug Enforcement Administration (“DEA”) was conducting video surveillance of a residence at 5123 East Red Bird Lane in San Tan Valley, Arizona (“the Residence”), by means of a pole camera. The pole camera had been installed after the DEA received information that co-defendant David Gallego-Machado was using the Residence as a “drug and/or drug proceeds storage location.” Doc. 44 at 1-2. The pole camera was located about 25 feet in the air on a power pole, approximately 75 yards from the Residence, across a vacant lot, and focused on the front of the house, including the driveway and garage. The Residence had no fence or landscaping that obstructed a full view of the house. See Doc. 91-1 at 4.

         At approximately 11:01 a.m., Agent Stalder saw a silver Jeep Cherokee registered to Gallego-Machado depart from the residence. Around noon, the Jeep returned, driving in tandem with a white sedan that Agent Stalder thought was either an Infiniti or a Jaguar. The white vehicle had yellow license plates. Agent Stalder could not zoom the camera quickly enough to read the plates, but he had received information that the drug trafficking operation was sending drugs to New Mexico and assumed the yellow plates were New Mexico plates. See Court's Livenote Transcript, July 12, 2019 (“Tr.”) at 10.^[1] The white sedan entered the garage of the Residence and the garage door was closed. After about 11 minutes, the garage door opened and the white vehicle pulled out and left the area. Id.

         Anticipating that the vehicle was headed to New Mexico, Agent Stalder contacted Navajo County Sheriff Office (“NCSO”) Sergeant William Murray and explained that the DEA was surveilling the Residence and a suspicious vehicle just left. Tr. at 12. Sergeant Murray suggested Agent Stalder contact NCSO Deputy Randall Keith, who was on patrol. Tr. at 12. Deputy Keith is part of the NCSO Traffic Enforcement and Criminal Interdiction Unit. Doc. 44 at 3. Agent Stadler contacted Deputy Keith, relayed the information, and sent him a picture of the white vehicle taken from the pole camera. Tr. 20-21; see also Tr. at 40. This communication is not documented in DEA or NCSO reports, but the Court found the testimony of Agent Stalder and Deputy Keith credible on this point.

         At approximately 3:50 p.m., Deputy Keith initiated a traffic stop of the white Infiniti sedan with New Mexico plates that Defendant was driving east on I-40 in the Holbrook area, heading toward New Mexico. After Deputy Keith's drug-detection canine alerted to the trunk of Defendant's vehicle, Deputy Keith searched the trunk and found four vacuum-packed rectangular packages of a white powdery substance in the spare tire compartment. Doc. 44 at 6. Id. Testing revealed that the powdery substance was cocaine. Id.

         Defendant moves to suppress all evidence obtained by use of the pole camera. He argues that the pole camera was installed without a warrant, that he had a reasonable expectation of privacy at the Residence, and that surveillance by the pole camera violated his Fourth Amendment rights. Doc. 91. Because the Court concludes that Defendant had no reasonable expectation of privacy at the Residence, it need not address whether surveillance by the pole camera was otherwise lawful under the Fourth Amendment.^[2]

         II. Defendant Lacked a Reasonable Expectation of Privacy.

         In Minnesota v. Carter, 525 U.S. 83 (1998), a law enforcement officer looked through a gap in the closed blinds of a first-floor apartment and observed a narcotics bagging operation. Id. at 85. Officers detained two males in a vehicle after they left the apartment. A search of the vehicle revealed a firearm, pagers, a scale, and cocaine. Id. A subsequent search of the apartment revealed cocaine residue and additional plastic baggies. Id. at 86. One of three males observed inside the apartment had leased the premises, while the other two had traveled from another state for the purpose of packaging the cocaine. Id. The two males filed a motion to suppress the evidence obtained from the apartment and the vehicle, arguing that it constituted the fruit of an unlawful search by the law enforcement officer who looked through the window without a warrant. Id.

         The Supreme Court explained that “that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable[.]” Id. at 88. Although “an overnight guest in a home may claim the protection of the Fourth Amendment, . . . one who is merely present with the consent of the householder may not.” Id. at 90. The Court reached the following conclusion with respect to the two defendants before it:

Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson [the fellow who leased the apartment], or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in [Minnesota v. Olson, 495 U.S. 91 (1990)] to suggest a degree of acceptance into the ...