United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES JUDGE UNITED STATES DISTRICT COURT
the Court is a Motion to Suppress filed by Defendant Aron
Winter Mosquera-Castro (“Defendant”).
(“Motion, ” Doc. 292). The Government opposes the
Motion. (Doc. 353). A Reply was not filed. A hearing on the
Motion occurred on May 17, 2018: Iberville Parish
Sheriff's Deputy and Drug Enforcement Agency
(“DEA”) Task Force Officer Timothy Fabre and
Iberville Parish Sheriff's Deputy Zane Hebert testified
for the Government, and the Defendant presented no witnesses.
The parties also filed post-hearing briefs. (Docs. 388, 389).
reasons discussed below, the Motion is denied.
case concerns the activities of an alleged drug trafficking
organization operating in East Baton Rouge and Ascension
Parishes. In February and March 2016, Fabre intercepted
telephone communications among Jason Muse, Defendant, and
others concerning the trafficking of drugs. According to
Fabre, during the communications, Defendant would
occasionally act as an interpreter for others, albeit with
some “slight” difficulties. Based on those
communications and other surveillance, officers learned that
Defendant would arrive in Baton Rouge to conduct a drug
transaction on or about March 27, 2016.
4 or 5 P.M. on March 27, 2016, Fabre contacted Hebert to
request that he wait on I-10 “in between West Baton
Rouge and Iberville Parish” in his marked patrol car
because officers were conducting surveillance and Hebert
might need to conduct a traffic stop. Fabre provided no
additional information about Defendant at that time. Hebert
contacted his partner, Deputy Mark Cooper, and asked him to
wait there in a separate vehicle.
to Hebert, he got into position around mile marker 145 on
I-10 westbound sometime between 5 and 6 P.M., at which point
he contacted Fabre. Fabre informed Hebert that officers were
engaged in physical surveillance of Defendant (although Fabre
and Hebert both stated that Fabre did not provide
Defendant's name at that time), that Defendant was
engaging in a drug transaction, and that the proceeds of that
transaction would likely return to Texas with Defendant.
Fabre advised Hebert not to stop any other vehicles and that
his “sole purpose” was to stop Defendant, and
Hebert in fact stopped no other vehicles that evening. Fabre
gave Hebert the vehicle's license plate No. and
description and advised that he would contact Hebert again
later. The two were in contact “periodically”
while surveillance was ongoing, and Hebert
“loosely” monitored the surveillance unfolding
via High Intensity Drug Trafficking Area
(“HIDTA”) radio transmissions. On
cross-examination, Hebert confirmed that he waited alongside
I-10 for several hours without fully investigating
Defendant's criminal background, although he knew that
the vehicle that he was waiting for was registered to
Defendant. He stated, however, that he did not know Defendant
would be driving the vehicle. He also testified that the
equipment and software in his vehicle, unlike that available
to his dispatcher, sometimes gives incomplete information
when performing certain criminal background checks.
surveillance team observed the meeting between Defendant and
Muse, after which Defendant returned to a motel where he had
been staying. Defendant stayed there briefly and picked up a
passenger, and the two stopped at a gas station briefly
before getting on I-10 westbound.
officers confirmed that Defendant was headed back toward
Texas, Fabre contacted Hebert again. Fabre stated that this
contact took place “somewhere around” 11:40 P.M.,
while Hebert testified that it took place
“approximately 11:15 to 11:30-ish or maybe a little
before.” Fabre told Hebert that they were heading
“in his direction” and that Hebert needed to
closely monitor the HIDTA radio frequencies. Fabre also said
that, as they reached Hebert's location, Fabre would be
two vehicles in front of Defendant. Fabre told Hebert that
the drug transaction had occurred and that the vehicle to be
stopped would likely contain proceeds of a drug transaction.
Fabre instructed Hebert to “develop his own PC”
and “wait for a traffic stop” before stopping the
vehicle. Fabre testified that he did not wish to compromise
the integrity of the drug investigation by making an arrest
based on the facts underlying that investigation.
Fabre and Defendant passed Hebert, there was a tractor
trailer between Fabre and Defendant, and Fabre was unable to
observe Defendant's driving at that time. Fabre testified
that he passed Hebert around mile marker 145. Fabre stated
that, because traffic was light, the trip from the gas
station to Hebert's location took about fifteen minutes.
testified that he got onto I-10 and began to follow directly
behind Defendant's car. According to Hebert, Defendant
was traveling in the left lane at that time and stayed there
the whole time that Hebert was following him. Hebert also
stated that he observed Defendant cross the white fog line
“several times” during that period. Hebert
testified that he followed Defendant for “approximately
four miles” before initiating a traffic stop.
stop occurred shortly after midnight, around 12:02 A.M.,
although Fabre stated that he did not recall the exact time.
Hebert turned on his emergency lights to initiate the stop,
and his dash cam was activated at the same time. As the dash
cam video begins, Defendant is in the left lane behind a
tractor trailer, and there is also a tractor trailer in the
right lane just ahead of both of them. During
cross-examination, Hebert suggested that the tractor trailer
on the right was overtaking the one on the left, and it did
not look otherwise to him, although he could not definitively
say which tractor trailer was going faster. Hebert also
confirmed that Defendant did not “tap” a fog line
in the video. However, Hebert testified that, in the
“four miles or so” that Hebert had been following
Defendant before the video began, Defendant was in the left
lane with vehicles passing him in the right lane, and he had
not yet reached the tractor trailer that he was traveling
behind in the video. Hebert also testified that, during those
four miles, Defendant crossed the fog line. Hebert testified
that traffic was traveling at about 65 or 70 miles per hour.
the initial minutes of the stop, Hebert explained to
Defendant the traffic violations that he had allegedly
committed, obtained Defendant's identification, and asked
for the vehicle's registration and insurance paperwork.
Hebert also talked to Defendant's passenger after being
told that the vehicle's documentation was in the car,
where she was sitting. The vehicle's documentation
ultimately could not be located, although some expired
documentation was found. Hebert questioned Defendant and his
passenger about their activities and travel itinerary.
Defendant stated that he and his girlfriend were traveling
from Orlando in connection with a Disney World vacation.
this initial contact, Hebert “called in”
Defendant's license number and the vehicle's license
plate number to his dispatcher. He also contacted Fabre and
said that he was going to ask for consent to search. Fabre
told Hebert that, if a search occurred, it should
“focus on the dash, ” as prior surveillance
indicated that the proceeds of the transaction might be
located there. Hebert also contacted Cooper, who was not
present, as it is standard procedure for two officers to be
present for a search. Hebert testified that, while the
license check was pending, Defendant was neither in custody
nor free to leave.
then continued talking to Defendant. After asking a few more
questions about Defendant's itinerary, Hebert said,
“while we're waiting on your information to come
back, along this interstate we got a big problem with people
transporting illegal things inside their vehicles.”
Hebert then asked how much money Defendant was traveling
with, and Defendant advised that there was about $3, 000 in
the seat pocket of the vehicle associated with the Disney
World vacation. Defendant confirmed in response to a question
that he did not have any “large amounts” of
currency, i.e., over $10, 000. Hebert asked,
“can I search your vehicle, ” and Defendant said,
“yeah, sure.” According to Hebert, he did not
raise his voice, threaten Defendant, or make promises to him
in connection with this request, and Defendant said
“yes” without hesitation, appearing to understand
the question. Hebert also did not use his handcuffs or weapon
in connection with the request or during the stop. At the
time when Hebert requested consent, Hebert still had not
received a response regarding his request for a license
Defendant consented, Hebert patted down Defendant. Hebert
also attempted to inform the passenger that Defendant had
consented to a search and asked whether there was anything of
hers that she did not want searched, but he decided to have
Defendant “explain it to her” in Spanish because
she did not speak English very well.
search resulted in a seizure of over $40, 000 located in the
car's dashboard. Hebert testified that Defendant was
cooperative and responsive throughout the encounter but
sometimes exhibited physical signs of nervousness (which were
often not visible on the dash cam video). He also testified
that, during the stop, he and Defendant seemed to have no
trouble understanding each other. Defendant was not issued a
ticket for a traffic infraction as a result of the stop.
to Fabre, following the stop and seizure of the money,
Defendant contacted Muse to inform him that the police had
taken the money and they were in “big trouble”
with their supplier.
also testified that he was present during a later stop of
Defendant and spoke directly with Defendant for an hour or
more during that stop. Fabre said that he encountered no
difficulties communicating with Defendant in English during
that stop, and Defendant never said that he could not
GENERAL LEGAL STANDARDS
The Fourth Amendment
seeks suppression on Fourth Amendment grounds. The Fourth
Amendment guarantees that “[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated.” United States v. Hunt, 253 F.3d
227, 230 (5th Cir. 2001) (quoting U.S. Const. amend. IV).
“The essential purpose of the Fourth Amendment is to
impose a standard of ‘reasonableness' upon law
enforcement agents and other government officials in order to
prevent arbitrary invasions of the privacy and security of
citizens.” Id. (citing Delaware v.
Prouse, 440 U.S. 648, 653-654 (1979)).
in general, on a motion to suppress, the defendant has the
burden of proving, by a preponderance of the evidence, that
the material in question was seized in violation of his
constitutional rights, there are several situations where the
burden shifts to the [G]overnment.” United States
v. Roch, 5 F.3d 894, 897 (5th Cir. 1993). Particularly,
the burden shifts to the Government when a defendant shows
that he was subject to search without a warrant.
Id.; see also United States v. Cardenas, 9
F.3d 1139, 1147 (5th Cir. 1993) (warrantless searches and
seizures are “per se unreasonable unless they fall
within a few narrowly defined exceptions”).
as here, a defendant was subject to a warrantless search, the
Government bears the burden of proving the legality of the
warrantless search by a preponderance of the evidence.