United States v. Agosto-Pacheco

UNITED STATES, Plaintiff, v. MIGUEL AGOSTO-PACHECO [1], Defendant.

Criminal No. 18-082 (FAB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

August 24, 2020

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is defendant Miguel Agosto-Pacheco ("Agosto")'s motion to suppress evidence obtained by the United States Marshals Service on the date of his arrest. (Docket No. 350.) He argues that this motion to suppress warrants an evidentiary hearing. Id. Agosto also moves to suppress evidence obtained by foreign law enforcement authorities in Colombia. (Docket No. 298.) For the reasons set forth below, the Court GRANTS Agosto's motion for an evidentiary hearing on the motion to suppress evidence obtained when he was arrested. (Docket No. 350.) The motion to suppress the Colombian interceptions is DENIED. (Docket No. 298.)

I. Background

The United States alleges that Agosto served as the "Puerto Rico leader of an international drug conspiracy." (Docket No. 351 at p. 2.) On February 8, 2018, a grand jury returned an indictment charging Agosto, Jerry Hernández-Peña ("Hernández"), Luis Vázquez-Rodríguez ("Vázquez"), Anthony Abreu-Matos ("Abreu"), Luis Ramos-Cordero ("Ramos"), and Juan Tapia-Soto ("Tapia") with conspiring to possess with the intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. sections 846 and 841(a)(1) (count one), and conspiring to import at least five kilograms of cocaine from Venezuela to the United States in violation of 21 U.S.C. sections 963, 952 and 960(a)(1) (count two).¹

The parties have engaged in extensive pre-trial litigation, including two motions to dismiss the indictment, a motion to exclude evidence of prior bad acts, and three motions to suppress. See Docket Nos. 153, 154, 159, 185, 220, 225, 267, 290 300, 306, 313 & 333. The Court denied these motions after several hearings. Id. Trial is continued sine die pursuant to the Second Amended Order Continuing Civil and Criminal Proceedings. See In Re: Corona Virus (COVID 19) Public Emergency, Misc. No. 20-0088 (GAG) ("All civil and criminal proceedings in the District of Puerto Ricorequiring an in-person hearing are continued until Monday, September 7, 2020.").

II. Motion to Suppress Evidence from the July 27, 2018 Search and Seizure

Agosto moves to exclude evidence obtained by federal law enforcement officers on the date of his arrest. (Docket No. 350.)² According to Agosto, this evidence is inadmissible pursuant to the Exclusionary Rule of the Fourth Amendment.

A. The Arrest

Magistrate Judge Silvia Carreño-Coll issued a warrant for Agosto's arrest on January 8, 2018. (Docket No. 5.) According to Agosto, agents from the United States Marshals Service stopped a Toyota Corolla in Toa Baja, Puerto Rico. (Docket Nos. 13, 77 & 350.) An unnamed individual and Agosto sat in the driver's side and front-passenger seats, respectively. Id. at p. 2. The agents arrested Agosto, informing "the other individual that he was free to leave the scene." Id. As this individual drove away from the immediate vicinity, the agents "intercepted him again." Id.Agosto allege that during this second intervention, the agents seized a black bag belonging to Agosto. Id. at pp. 2-3. The bag contained several cell phones, approximately $2,500.00 in United States currency, and other personal effects. (Docket No. 351 at p. 4.) Data extracted from the cellular phones purportedly establish that Agosto communicated with drug-traffickers in Colombia. Id.

According to the United States, the "marshals approached the [Toyota Corolla], requested that the driver and passenger step out of the vehicle, and arrested the defendant." (Docket No. 353 at p. 3.) Immediately after the arrest and before the driver left the scene, "a small backpack belonging to the defendant was [purportedly] seized as well." Id. The United States intends to introduce "all physical evidence (and any derivative evidence) collected from defendants at the time of their detentions and arrests in both 2017 and 2018." (Docket No. 276 at p. 1.)³ Agosto moves to suppress the black bag and its contents, including thecellular phone extractions. (Docket No. 350.) The United States responded, and Agosto replied. (Docket Nos. 351 & 352.)

B. Timeliness

The Court ordered the parties to file pretrial motions no later than March 19, 2019. (Docket No. 129.) Agosto filed the motion to suppress on June 30, 2020, fifteen months after the applicable deadline. (Docket No. 350.) Accordingly, the motion to suppress is untimely.

Pursuant to Federal Rule of Criminal Procedure 12(c)(3), "the Court need not review a motion to suppress that was untimely filed." Fed. R. Crim. P. 12(c)(3); United States v. Sweeney, 887 F.3d 529, 534 (1st Cir. 2018). The Court may, however, excuse "failure to raise a claim by the deadline, a flexible standard that requires consideration of all interests in the particular case." Fed. R. Crim. P. 12, Advisory Comm. Notes. Agosto's motion to suppress raises viable arguments. Moreover, disposition of the motion to suppress will not prejudice the parties. Accordingly, the Court will consider the merits of Agosto's Fourth Amendment challenge.

C. The Fourth Amendment

The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures." U.S. CONST. amend. IV. The Exclusionary Rule is an enforcement mechanism, prohibiting the admission at trial of unlawfully seized evidence to "deter future Fourth Amendment violations." Davis v. United States, 564 U.S. 229, 236-27 (2011) (citation omitted). This court-created remedy "reaches not only primary evidence obtained as a direct result of an illegal search or seizure, . . . but also evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.'" Segura v. United States, 468 U.S. 796, 804 (1984) (internal citations omitted). Consequently, the admissibility of the cellular phone extractions is contingent on the legality of the search and seizure of the black bag inside the Toyota Corolla.

To assert a Fourth Amendment challenge, Agosto must possess "a legitimate expectation of privacy in the place searched or the thing seized." United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009); United States v. Samboy, 433 F.3d 154, 162 (1st Cir. 2005) ("[F]ailure to present evidence with respect to such an expectation prevents a defendant from making a claim for suppression under the Fourth Amendment."). The movant's expectation of privacy must be reasonable pursuant to an objective and subjective assessment. Kyllo v. United States, 533 U.S. 27, 33 (2000) ("[A] Fourth Amendment search does not occur . . . unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society is willing to recognize that expectation as reasonable.") (citation omitted).

The protections enshrined by the Fourth Amendment are "personal [and] may not be vicariously asserted." United States v. Cruz-Mercedes, 379 F. Supp. 3d 24, 35 (D. Mass. 2019) (citing Rakas v. Illinois, 439 U.S. 128, 133-34 (1979)).⁴ Standing is highly contextual, consisting of general guidelines to distinguish permissible police interference from unconstitutional government intrusion. United States v. Almeida, 748 F.3d 41, 47 (1st Cir. 2014). Courts consider the following factors: "ownership, possession, and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case." Id. (quoting United States v. Aguirre, 839 F.2d 854, 856-57 (1st Cir. 1988)).

1. Standing

According to the United States, "even if [Agosto] could successfully assert a possessory interest in the backpack, at the time of the search and seizure the backpack was in a vehicle that did not belong to him and was being driven by another individual." (Docket No. 351 at p. 12.) This proposition presumes that the location of the black bag is dispositive: Agosto's expectation of privacy is purportedly insufficient because he placed his personal belongings inside the Toyota Corolla. A vehicle search is distinct, however, from the search of interior objects. For instance, a passenger may lack standing vis à vis a vehicle, but retain an expectation of privacy in items located in it. See, e.g., United States v. Barber, 777 F.3d 1303, 1305 (11th Cir. 2015) ("Barber had standing to challenge the search of his bag, even if he lacked standing to contest the search of the car."); United States v. Trejo, 135 F Supp. 3d 1023, 1031 (D.S.D. 2015) ("[A] passenger does not lose a legitimate expectation of privacy in his or her bag simply by placing it in the vehicle of another.") (collecting cases).

Precedent cited by the United States only reinforces the motion to suppress. For example, in United States v. Aguirre, police officers arrested the defendant in an apartment complex. 839 F.2d 854, 856-57 (1st Cir. 1988). Subsequently, the officers conducted a warrantless search of an unoccupied vehicle belonging to a third-party. Id. The vehicle contained "a large amount of currency, [and the defendant's] Colombian passport" inside a plastic bag. Id. After holding that the defendant lacked standing to challenge the search of the vehicle, the First Circuit Court of Appeals addressed the defendant's "subsidiary argument" regarding the plastic bag. Id. at 857. The defendant:

offered no evidence that the multiple containers were his, that he had placed the effects within them, that he had stowed the bag(s) in the vehicle, or that any of these actions had been undertaken on his behalf or at his direction.

Id. at 857 n. 4. The Aguirre court emphasized that the "most intimate of documents, if left strewn about the most public of places, would surely not be shielded" by the Exclusionary Rule. Id. "That...