United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
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.
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.
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.
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. 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.
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
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
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.
Defendant Lacked a Reasonable Expectation of
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.
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