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United States v. Zarate

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

July 1, 2019

UNITED STATES OF AMERICA
v.
ANTONIO ZARATE (6) BALDOMERO VELASCO CASTRO (5)

          DRELL, JUDGE.

          REPORT AND RECOMMENDATION

          WHITEHURST, MAG. JUDGE.

         Pending before the Court is a Motion to Suppress (Doc. 158), filed by defendant Antonio Zarate (“Zarate”) on January 10, 2019. On February 20, 2019, co-defendant Baldomero Velasco Castro (“Velasco”) filed a Motion to Adopt the motion to suppress filed by Zarate [Doc. 164], which was granted by the Court [Doc. 165]. The government opposed the motion [Doc. 161], and Velasco filed a reply brief [Doc. 189]. The motions were referred to the undersigned for review, report and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court.

         An evidentiary hearing was conducted on March 29, 2019. Testifying for the government were Agent Larry McCook of the Drug Enforcement Administration and Officers John Malveaux and Lam Bui of the Lafayette Sheriff's Department. Additionally, prior to the hearing, the government admitted into evidence, without objection, the body camera video and audio recordings of the traffic stop in question. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, it is recommended that the Motion to Suppress be DENIED.

         I. Factual Background

         The testimony of DEA Special Agent Larry McCook and Lafayette Sheriff's Deputies John Malveaux and Lam Bui provided the following facts:

Special Agent McCook testified that he was and still is the case agent in this matter and has been involved since late 2017 in a joint state and federal investigation of co-defendant Randy Guajardo and his alleged drug trafficking organization. During this investigation, law enforcement developed a confidential source (CS) who communicated with Guajardo daily. According to Agent McCook, numerous telephone calls and text messages among Guajardo, the CS, an undercover officer (UC), and other members of the alleged drug-trafficking organization were intercepted and recorded.

         Agent McCook testified that from March 15, 2018 until March 18, 2018, Guajardo and the CS participated in recorded telephone conversations in which they discussed the transportation of eight kilograms of cocaine from Nashville, Tennessee to Lafayette, Louisiana via bus.[1] Based on Guajardo's conversations and an investigation into the bus schedules, law enforcement were able to identify the actual bus which was being used in the transport. Law enforcement were also able to determine that there may be multiple couriers involved in the delivery.[2] According to Agent McCook, the communications by Guajardo, the UC, the CS, and co-defendant Charles Brown indicated to law enforcement that the bus had been delayed in Mobile, Alabama. The conversations further revealed that Charles Brown and co-defendant Abel Morales had traveled from Houston to Lafayette to accept the delivery of cocaine from the couriers at the Best Western on Evangeline Thruway. Agent McCook testified that law enforcement had determined that Brown was driving a white Dodge Durango, which was observed through surveillance at that Best Western.

         Agent McCook further testified that law enforcement established surveillance at the bus terminal and observed that the bus arrived at the terminal and dropped off approximately 20 passengers. Surveillance officers noticed two individuals, later identified as Zarate and Velasco, engaging in what Agent McCook described as suspicious behavior as they retrieved their bags from the bus and that they were looking around in an attempt to locate someone. He indicated that they briskly walked to meet an individual who was waiting in the parking lot in a black Nissan Maxima registered to an address in Leesville, Louisiana which is located approximately 1 ½ hours away from Lafayette. Agent McCook testified that at the time surveillance was initiated, law enforcement did not notice the Uber sticker in the vehicle. He did note, however, that the driver was waiting outside of his vehicle near the door jam, rather than inside. According to McCook, based on these facts, as well as on the time of the morning and the behavior of the defendants, law enforcement became suspicious that this was a planned meeting place as opposed to an Uber fare.

         McCook testified that they decided to follow the defendants as they left the bus terminal so they could continue to conduct surveillance on them. According to McCook, they also conducted surveillance on other individuals who exited the bus and left the bus station. This action was taken to establish whether they had any involvement.[3]

         During mobile surveillance of the defendants, law enforcement followed the Maxima to a Best Western located on Kaliste Saloom Road in Lafayette. McCook stated that law enforcement observed one of the individuals exit the vehicle, enter the Best Western for a short time, exit the Best Western, and reenter the vehicle. The vehicle then proceeded on its route to the Evangeline Thruway.[4] Law enforcement then observed the Maxima turn onto Evangeline Thruway in the direction of the Northside Best Western which had previously been identified as the place where the couriers were to meet co-defendants Charles Brown and Abel Morales. According to Agent McCook, this action gave them reason to believe that defendants were involved in the drug transaction with co-defendants Guarjardo, Brown and Morales which had been discussed on the wire tap surveillance. Based on these suspicions, Agent McCook authorized a stop of the vehicle.

         Officer John Malveaux testified that at the time in question, he was a member of the Lafayette Metro Narcotics Task Force (LMNTF) Street Team.[5] He explained that he was on duty on the evening of March 16, 2018 and in the early morning hours of March 17, 2018. According to Officer Malveaux, on March 16, 2018, he was briefed by his sergeant that DEA was conducting an operation and that they might need assistance conducting a traffic stop on a vehicle. While still conducting his duties with LMNTF, Officer Malveaux continued to receive updates via radio traffic regarding the operation. Officer Malveaux testified that he was instructed by his supervisor to maintain his location near the bus station and await further updates and instructions. Officer Malveaux testified that he received information that surveillance had been conducted on a black Nissan Maxima which left the bus station with two Hispanic male subjects and that there was a possibility that the vehicle was transporting the large quantity of cocaine which was the subject of the investigation. Officer Malveaux was provided with the license plate of the vehicle and was instructed to follow the vehicle and attempt to stop the vehicle if he observed a traffic violation that developed into probable cause. Officer Malveaux began to follow the vehicle after it turned onto Evangeline Thruway. According to Officer Malveaux, he observed the vehicle cross the center line on two occasions, which is a violation of Louisiana Revised Statute 32:71. Officer Malveaux activated his emergency lights and conducted a traffic stop of the vehicle.

         Upon initiating the stop, Officer Malveaux made contact with the driver and advised him of the traffic violation. According to Officer Malveaux, the driver explained that he may have been adjusting his directions because he was an Uber Driver, and was attempting to find the location that his passengers requested. Officer Malveaux requested the driver's license, registration and proof of insurance. While Officer Malveaux was questioning the driver, K-9 handler Lam Bui arrived at the scene with his K-9. Corporal Ross Sonnier, Sergeant Beau Guidry, and Corporal Fred Payne, who were all members of the street team, also arrived on the scene.

         Officer Malveaux testified that he requested and received consent from the driver to search the vehicle in furtherance of the narcotics investigation. At the time he received consent to search the vehicle, Officer Malveaux had run the driver's license on his mobile data terminal but was still awaiting information from dispatch regarding any outstanding warrants.

         Officer Bui testified that on the night in question, he was also assigned to the operation investigating the alleged transportation of cocaine from another state to Lafayette by two individuals traveling by bus. He, like Officer Malveaux, was assigned to patrol the area near the bus station. Officer Bui confirmed Officer Malveaux's testimony that he assisted after Officer Malveaux conducted a traffic stop of the Maxima. Officer Bui stated that he made contact with a backseat passenger (one of the defendants) and advised him of the reason for the stop and questioned him regarding the purpose of their travel.[6] Following this questioning and while the consentual search of the vehicle was ongoing, Officer Bui requested and received consent from Zarate and Velasco to search their belongings - two black suitcases which had ...


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