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United States v. Mosquera-Castro

United States District Court, M.D. Louisiana

June 21, 2018




         Before 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).

         For the reasons discussed below, the Motion is denied.


         This 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.

         Around 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.

         According 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.

         The 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.

         Once 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.

         As 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.

         Hebert 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.

         The 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.

         During 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.

         After 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.

         Hebert 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 check.

         After 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.

         The 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.

         According 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.

         Fabre 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 understand Fabre.


         a. The Fourth Amendment

         Defendant 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)).

         “While 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”).

         Where, 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. U ...

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