United States v. Colon-Torres

1

UNITED STATES OF AMERICA, Plaintiff, v. [1] SIXTO J. COLON-TORRES [2] FELIX A. RAMOS-ROHENA, Defendants.

CRIMINAL No. 20-175 (ADC)

United States District Court, D. Puerto Rico

August 1, 2023

REPORT AND RECOMMENDATION

Giselle Lopez-Soler United States Magistrate Judge

I. Introduction

On May 28, 2020, the Grand Jury returned a two-count indictment charging Defendants Sixto J. Colon-Torres and Felix A Ramos-Rohena with conspiracy to possess with intent to distribute controlled substances (five (5) kilograms or more of cocaine) and possession with intent to distribute controlled substances (five (5) kilograms or more of cocaine) in violation to 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and 846. Docket No. 20.

On October 1, 2020, Defendant Ramos-Rohena filed a motion to suppress. Docket No. 46. Defendant Ramos-Rohena sustains that, on May 7, 2020, he travelled by ferry from Culebra to Ceiba. That upon arrival he and others were ordered to disembark, make a line, and put their bags on the ground in front of them so that a canine could sniff all bags. Id. Defendant Ramos-Rohena further sustains that he was not informed that the search was voluntary, that the only exit was blocked by law enforcement, and that he was unreasonably searched in violation of his rights under the Fourth Amendment. Id. In his declaration under penalty of perjury, Defendant Ramos-Rohena avers that the canine made various unsuccessful attempts at his bag and that it was not until the handler touched the bag that the dog alerted to it. Docket No. 46-1. And that he was not asked for permission to open his bag but rather ordered to do so. Id. The Government opposed. Docket No. 53. Defendant Ramos-Rohena replied. Docket No. 54. On December 11, 2020, Defendant Colon-Torres joined the motion to suppress. Docket No. 61.

The motion was referred to the undersigned for an evidentiary hearing and a Report and Recommendation. Docket No. 71. An evidentiary hearing was held on April 20, 2022, April 28, 2022, and May 6, 2022. The Government called FBI TFO Luis Edgardo Martmez-Rodriguez, PRPD FURA Officer Ishmael Feliciano-Mercado, and FBI TFO Christopher Esteves-Diaz to the stand. The defense called Defendant Ramos-Rohena. Evidence was admitted, including a video recording of the events that transpired on May 7, 2020. The parties submitted post-hearing briefs. After carefully considering the evidence presented during the hearing, the Court recommends that Defendants' motions to suppress be DENIED.

II. Background

The following account is drawn from the evidence, testimonial and documentary, received at the suppression hearing. On May 7, 2020, FBI TFO Luis Edgardo Martmez-Rodriguez received a call from a non-paid informant of the Puerto Rico Police Department. Transcript (“TR”) April 20, 2022 at p. 9 ¶¶ 9-25. The informant told Martmez-Rodriguez that, in a ferry arriving from Culebra to Ceiba, there would be two males-one with red shirt and another with gray shirt, one carrying a blue and black bag and another a black bag-who would be carrying kilos of cocaine. Id. at p. 9 ¶¶ 9-25, p. 13 ¶¶ 6-7. The informant described the two males as dark skinned, one heavy and another thin. Id. at p. 23 ¶¶ 10-12. According to Martmez-Rodriguez, the informant did not give him an exact time of arrival at Ceiba, but the information was “hot”; the ferry was leaving Culebra at the time of the call. Id. at p. 11 ¶¶ 6-8, p. 36 at ¶¶ 3-5. The informant was unpaid. Id. at p. 9 ¶ 9. The informant had previously provided truthful information that had led to three (3) interventions resulting in seizures in the ferry terminal. Id. at p. 10 ¶¶ 1-7, p. 50 ¶¶ 21-24, p. 56 ¶¶ 12-24.

Martmez-Rodriguez testified that he had known the informant for five (5) months prior to the intervention and that the conversation with the informant lasted seven to eight minutes but that he did not inquire as to the basis of his knowledge. Id. at p. 50 ¶¶ 4-20, p. 51 ¶¶ 11-13. Martmez-Rodriguez, who was on vacation on May 7, 2020, called FBI TFO Christopher Esteves-Diaz and provided him with the tip. Id. at p. 11 ¶¶ 10-22. He also called FURA Officer Ishmael Feliciano-Mercado, who was closer to the ferry terminal, and provided him with the tip. Id. Martinez- Rodriguez failed to create a written account of the informant's tip even though a report might have been required. Id. at p. 26 ¶ 9, p. 27 ¶¶ 22-25, p. 43 ¶¶ 17-21.

Feliciano-Mercado testified that, on May 7, 2020, he received a call from Martinez-Rodriguez, who provided the information of the two males as described in the foregoing paragraph. Id. at p. 65 ¶¶ 5-22. Feliciano-Mercado went to the terminal and arrived prior to the arrival of the ferry from Culebra. Id. at p. 65 ¶¶ 23-25, p. 66 ¶¶ 1-6. The crew of the ferry instructed the passengers to disembark. Id. at p. 100 ¶¶ 13-14. Feliciano-Mercado testified that he identified the Defendants “right at the outset” upon disembarking the ferry. TR April 28, 2022 at p. 37 ¶¶ 16-23. Feliciano-Mercado instructed all passengers (approximately 17) to stand in line in front of a back fence and to place their bags on the floor. TR April 20, 2022 at p. 89 ¶¶ 6-19.

Esteves-Diaz testified that, on May 7, 2020, he received a call from Martinez-Rodriguez. TR May 6, 2022 at p. 64 ¶¶ 4-24. According to his testimony, the description of the Defendants that was provided by Martinez-Rodriguez was that of two males of brown skin, one with grey shorts. Id. Esteves-Diaz arrived at the terminal after Feliciano-Mercado. Esteves-Diaz was not in charge of the intervention on that day; he was assisting Feliciano-Mercado. Id. at p. 82 ¶¶ 10-14, p. 89 ¶¶ 12-13. Esteves-Diaz was the handler of K-9 Onyx and he walked Onyx down the line of disembarked passengers to sniff all bags.

K-9 Onyx first alerted to the bag of Defendant Colon-Torres. Government Exhibit 10. Defendant Colon-Torres' bag was blue and black, and he was wearing a gray shirt. TR April 20, 2022 at p. 87 ¶¶ 20-21. Feliciano-Mercado approached Defendant Colon-Torres and informed him that the K-9 had alerted to the bag and asked whether he was the owner of the bag. Id. at p. 77 ¶¶ 4-22. Defendant Colon-Torres informed that he was. Id. Defendant Colon-Torres bent over and opened his bag and, when clothing inside the bag was moved, Feliciano-Mercado identified what in his experience were bricks of packed cocaine. Id. at p. 78 ¶¶ 1-10; TR May 6, 2022 at p. 43 ¶¶ 17-19. Feliciano-Mercado informed Defendant Colon-Torres of his rights and asked him to turn and kneel. TR April 20, 2022 at p. 78 ¶¶ 1-10. K-9 Onyx then alerted to Defendant Ramos-Rohena's bag. Government Exhibit 10. Defendant Ramos-Rohena's bag was black and gray, and he was wearing a red shirt. TR April 20, 2022 at p. 87 ¶¶ 20-21. He confirmed being the owner of the bag, he bent over and opened his bag. Id. at p. 79 ¶¶ 14-25, p. 80 ¶¶ 1-11. Feliciano-Mercado saw the bricks of packed cocaine. Id. Feliciano-Mercado read Defendant Ramos-Rohena his rights and placed him under arrest. Id.

The intervention was recorded in a surveillance video of the ferry. Government Exhibit 10. The video is 10:49 minutes long. As portrayed in the video, the intervention lasted approximately seven (7) minutes- from the time the passengers disembarked the ferry to the time Defendants were placed under arrest. Also, as portrayed in the video, only two (2) agents participated in the intervention up to the time of the arrests and at least one of the agents (Feliciano-Mercado) was not in uniform. Government Exhibit 10; TR April 20, 2022 at p. 73 ¶¶ 13-14; TR of May 6, 2022 at p. 22 ¶¶ 10-22. Both officers were armed but neither took out or brandished their firearm. TR May 6, 2022 at p. 43 ¶¶ 8-13, p. 48 ¶¶ 24-25, p. 49 ¶¶ 1-4. Later that night, both Defendants signed consent forms for the search of their respective bags. Government Exhibits 5-6. Feliciano-Mercado testified that the document was explained in Spanish and that Defendants were both conscious and lucid when they signed. TR April 20, 2022 at p. 82 ¶¶ 13-20, p. 85 ¶¶ 14-16, p. 86 ¶¶ 2-16.

III. Discussion

Defendants moved to suppress all evidence seized on May 7, 2020. Defendants argue that they were seized without reasonable suspicion and that their consent for search of the bags was coerced. Docket No. 46. Defendants question the reliability of K-9 Onyx on May 7, 2020. Docket No. 61. Defendants also argue that the confidential tip provided to law enforcement was not sufficiently reliable to provide the reasonable suspicion necessary for an investigatory stop and that their stop that day constituted a de facto arrest. Docket Nos. 105 and 108.

Were Defendants seized on May 7, 2020? Yes.

The Fourth Amendment prohibits unreasonable searches and seizures in the absence of a warrant supported by probable cause. U.S. Const. amend. IV. A Fourth Amendment seizure occurs when a police officer has restrained the liberty of a citizen through physical force or show of authority. United States v. Camacho, 661 F.3d 718, 725 (1^st Cir. 2011) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)). “To determine whether an officer has restricted an individual's freedom of movement, courts determine the ‘coercive effect of the encounter' by asking whether ‘a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter'”. United States v. Camacho, 661 F.3d at 725 (citations omitted). The Court evaluates the totality of circumstances to determine whether a seizure has occurred. Id.

According to the evidence presented during the hearing, upon arrival at Ceiba and disembarking at the terminal, Defendants (and all other passengers) were instructed by Feliciano-Mercado to stand in line in front of a back fence at the terminal and to place their bags on...