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United States v. Garcia

United States District Court, W.D. Louisiana, Shreveport Division

February 27, 2018

UNITED STATES OF AMERICA
v.
EMICEL ARTIGAS GARCIA (01) ADALBERTO RAMOS CUELLAR (02)

          HICKS CHIEF JUDGE.

          REPORT AND RECOMMENDATION

          Mark L. Hornsby U.S. Magistrate Judge.

         Introduction

         Before the court are Motions to Suppress (Docs. 39 and 40) filed by defendants Emicel Artigas Garcia (“Artigas”) and Adalberto Ramos Cuellar (“Ramos”). Defendants are charged with conspiracy to commit wire fraud; wire fraud; aggravated identity theft; and possession of 15 or more counterfeit or unauthorized access devices. For the reasons that follow, it is recommended that Defendants' motions to suppress be denied. Facts

         An evidentiary hearing was held in connection with Defendants' motions on December 6, 2017. The evidence at the hearing establishes the following facts. Detective Chad Sepulvado (“Sepulvado”) of the Bossier City Police Department testified that he recently had been inundated with identity theft cases, the majority of which involved the unauthorized use of credit card numbers at a Wal-Mart in Bossier City. Tr. 27. Sepulvado testified that the stolen credit card numbers were usually obtained by the use of skimming devices installed in gas station pumps. Id.

         Because of the uptick in these types of cases, Sepulvado paid a visit to the Wal-Mart and spoke to Robert McElroy (“McElroy”), a Wal-Mart loss prevention associate. Sepulvado spoke with McElroy regarding identity theft, and he advised McElroy how to spot perpetrators of these offenses and to call him if he noticed anything suspicious. Tr. 7. Later that same day, McElroy noticed a Hispanic man at a self-checkout station in Wal-Mart swiping many different credit cards. Tr. 8. McElroy saw the man balling up his many receipts and hiding them in a nearby potato chip rack. Tr. 13.

         McElroy testified that the man had been there for approximately 20 minutes, which McElroy found suspicious, because most customers make a quick purchase at the self-checkout and leave. Tr. 23-24. McElroy called Sepulvado and reported what he had seen. He also described what the man looked like and what he was wearing. Tr. 10. He advised that a second Hispanic man, wearing a black baseball cap, was with the man. Tr. 32.

         McElroy and Sepulvado spoke again by telephone just as the suspicious man was about to leave Wal-Mart. Tr. 14. McElroy informed Sepulvado that the man was exiting the general merchandise doors, wearing a green T-shirt and a ball cap, and he was pushing a buggy containing lawn chairs. Tr. 32. As Sepulvado arrived near those doors of the Wal-Mart, he saw a man meeting that description about 20 yards away from the exit door. McElroy also pointed the man out to Sepulvado. Tr. 15.

         As Sepulvado made contact with the suspect, who later turned out to be Artigas, Sepulvado saw multiple gift card sleeves sticking out of Artigas's front pockets. Based on the information provided to Sepulvado by McElroy, and then seeing the multiple gift cards, Sepulvado believed that Artigas was involved in a credit card skimming operation. Tr. 69. Sepulvado placed Artigas under arrest. Sepulvado then removed Artigas's wallet from his pocket and located Artigas's ID card and numerous credit cards.

         Sepulvado removed a key fob from Artigas's pocket and used the alarm button on the key fob to locate Artigas's vehicle. Sepulvado testified that credit card skimming is a complicated process requiring a number of tools and steps to make it possible. Tr. 39-40. Sepulvado believed that there would be other evidence associated with Artigas's crimes in Artigas' vehicle.

         The key fob allowed Sepulvado to locate Artigas's vehicle. Defendant Ramos was sitting in the passenger front seat of the vehicle with his legs hanging out of the door. In front of Ramos was a black baseball cap sitting on the vehicle's dashboard. Sepulvado removed Ramos from the vehicle and conducted a Terry pat-down. Sepulvado suspected that this person was the man that McElroy told him was with Artigas. Tr. 14.

         During a pat-down of Ramos, Sepulvado removed Ramos's wallet. Sepulvado opened the wallet and found numerous credit cards. Once Defendants were arrested, Artigas' vehicle was impounded. A search warrant was obtained three days later, and additional evidence of criminal activity was found in the vehicle. Tr. 72.

         Motions to Suppress

         Defendants argue that Sepulvado lacked reasonable suspicion or probable cause to detain them and conduct pat-down searches; that the searches of their pockets and vehicle were not supported by a warrant and were per se unreasonable; that using the key fob to search for Artigas's vehicle went far beyond a Terry stop and pat-down for ...


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