United States v. Gomez

199 F.Supp.3d 728

UNITED STATES of America

v.Jorge GOMEZ, a/k/a "Jorge Ulloa," a/k/a "George Gomez," Sandy Gomez, and Carolina Ramon-Baez, Defendants.

15 Cr. 348 (PGG)

United States District Court, S.D. New York.

Signed July 29, 2016

Patrick Egan, Richard Alan Cooper, Shawn Geovjian Crowley, United States Attorney's Office for the SDNY, New York, NY, for United States of America.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, United States District Judge

Defendants Jorge Gomez, Sandy Gomez, and Carolina Ramon-Baez are charged with conspiracy to distribute and possess with intent to distribute crack cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Dkt. No. 1) Sandy Gomez has moved to suppress all physical evidence recovered at the time of his December 7, 2014 arrest, as well as all statements obtained as a result of his allegedly unlawful arrest. (S. Gomez Notice of Motion (Dkt. No. 32) ¶¶ 1-2; seealso S. Gomez Decl. (Dkt. No. 33) ¶ 1) Sandy Gomez has also moved for disclosure of Rule 404(b) evidence, as well as Brady and Giglio material. (Id.¶¶ 3-4) Finally, Sandy Gomez has moved for an order permitting him to make further motions as he deems necessary and join in any motions made by co-defendants. (Id.¶¶ 5-6) Jorge Gomez has moved to join in Sandy Gomez's motions. (J. Gomez Ltr. Motion (Dkt. No. 36))

BACKGROUND

I. SANDY GOMEZ'S DECLARATION

Sandy Gomez has submitted a declaration alleging the following: On the evening of December 7, 2014, he was driving a white GMC Yukon on Interstate 59 in Louisiana. (S. Gomez Decl. (Dkt. No. 33) ¶ 2) Co-defendant Carolina Ramon-Baez was seated in the front passenger seat. (Id.) Although Gomez committed "no traffic violation at any[ ]time," he was pulled over by Louisiana state police. (Id.) After the stop, he "was ordered to exit [the] vehicle and asked for [his] driver's license." (Id.) Gomez "immediately complied with both requests." (Id.) Gomez was questioned about his travel plans (id.¶ 3), and then both officers "enter[ed] the Yukon and searched the entire vehicle without [Gomez's] consent or ... a search warrant." (Id.)

One of the police officers then requested a check of Gomez's driver's license, and "[a]pproximately five to six minutes later, [Gomez] overhead on the radio that [the] license was valid." (Id.¶ 14) After returning Gomez's license, "[one of the officers] immediately began questioning [Gomez] about any past arrests, what the arrest was for, how much jail time [he] received, if [he] had any weapons in the car, if [he] had anything illegal, any large amounts of money, any cocaine, any marijuana, any kind of methamphetamine and if anything was inside the truck that [he] should not have." (Id.) The questioning officer "blocked [Gomez's] path," and another officer stood to the side with his hand on his gun holster. (Id.) Gomez says that he "did not believe [that he] could simply leave without having to push either one of them out of the way or asking them to move." (Id.)

The officer questioning Gomez then "said [that] he was going to search the vehicle real quick to make sure there was nothing there," to which Gomez "responded ‘no.’ " (Id.) The police then provided Gomez with a form, which Gomez says he "was unable to read because it was dark." (Id.) Gomez wrote an "S" where the officer indicated, however. (Id.) The officer then searched the Yukon again. (Id.)

After completing this second search, and "some thirty minutes after ... complet[ing] the check of [Gomez's] driver license," an officer "asked [Gomez] if it was okay to get his dog that was right up the road to come by and do a quick search." (Id.¶ 5) Gomez "did not consent," but the officer "went and got the dog anyway." (Id.) The officer then conducted a canine search of the vehicle. (Id.) Another officer removed luggage from the trunk of the Yukon and searched the luggage. (Id.¶ 6) "The inside of the vehicle was searched again several times." (Id.) During these searches, Gomez's cell phone—which was inside the vehicle—rang. One of the officers "picked up [Gomez's cell phone] and put it inside of his pocket." (Id.¶ 6)

"After standing on the shoulder of the highway for more than forty minutes, [Gomez] was placed in handcuffs and told [that] police believed there was a compartment inside the vehicle ... [with] narcotics." (Id.¶ 7) An officer "questioned [Gomez] about the secret compartment," and "then read [Gomez] Miranda warnings." (Id.) Gomez says that the officer "did not ask ... if [he] understood the warnings."

(Id.) Gomez states that although he "responded to the officer's questions, [he] did not do so knowingly, intelligently and voluntarily." (Id.)

II. JORGE GOMEZ'S AFFIDAVIT

Jorge Gomez has submitted an affidavit asserting the following:

... In early December of 2014[,] I met with a person in New Jersey, who I later learned was a confidential informant [CI] working with the DEA, for the purpose of taking possession of a vehicle.

... I paid that person for the use of the vehicle, and I took custody and control of it. As such[,] I had a possessory interest in it and an expectation of privacy.

... Within days after the vehicle was delivered to me by the CI, it was stopped in Louisiana while being operated by my brother.

(J. Gomez Aff. (Dkt. No. 57) ¶¶ 3-5)

III. EVIDENCE AT SUPPRESSION HEARING

On May 11, 2016, the Court conducted an evidentiary hearing concerning the Defendants' suppression motion. (Suppression Hearing Tr. (Dkt. No. 51) ("Hearing Tr.")) The Government called DEA agent Joseph Dill and Louisiana state trooper Ronald Whittaker, Jr. (Id. at 7, 38)¹ Jorge and Sandy Gomez did not testify at the hearing.

A. Agent Dill's Testimony

Agent Dill's investigation of Defendant Jorge Gomez began in November or December of 2014, after Dill learned from telephone records that a phone used by Jorge Gomez "was in contact with a suspected narcotic trafficker." (Id. at 8-9) Agent Dill also "received information from a confidential source that Jorge Gomez ... was trying to obtain a car with a hidden compartment, also referred to as a trap, for the purpose of using it to pick up a shipment of narcotics." (Id. at 9) In early December 2014, the DEA arranged for a cooperating witness (the "CW") to contact Jorge Gomez and to offer to provide a vehicle with a trap. (Id. at 10-11) Gomez told the CW that he was interested in renting the vehicle, and agreed to meet with the CW. (Id. at 11)

On December 3, 2014, the CW met with Jorge Gomez in a Paterson, New Jersey parking lot. (Id. at 12) At that meeting, the CW showed Jorge Gomez a GMC Yukon that contained a hidden compartment in the back seat.² (Id. at 12; see also GX 18-T) This vehicle was owned by the DEA. (Id.) During this meeting, Jorge Gomez agreed to rent the Yukon for a three day period, at a cost of $1,500. (Id. at 13) The CW instructed Gomez on how to open the trap, and the two discussed the fact that the trap "could hold about 25 to 30 kilograms of narcotics." (Id.) Jorge Gomez told the CW that "the shipment they were going to get was around 25 kilos." (Id. at 13-14) Jorge Gomez then paid $1,500 to the CW. (Id. at 15)

On December 4, 2014, the CW—acting at Agent Dill's direction—called Sandy and Jorge Gomez to determine whether "they were going to use the vehicle for the trip to pick up ... drugs." (Id. at 16) During this conversation, Sandy Gomez expressed concern about the hidden compartment in the Yukon, stating that "he didn't like the way it looked." (Id. at 17; GX 15-T at 2-3) The CW told Sandy Gomez that the "car has been driven a lot and it's never had a problem." (GX 15-T at 3) Shortly after this conversation, the DEA learned—as a result of a GPS transmitter installed on the Yukon—that the vehicle had left New Jersey. (Hearing Tr. (Dkt. No. 51) at 19) The Yukon proceeded to Virginia, and then continued on to New Orleans. (Id. at 19-20) At some point along the vehicle's route, the GPS transmitter failed, but agents physically surveilled the vehicle and identified its occupants as Sandy Gomez and Carolina Ramon-Baez. (Id. at 20-21)

Agent Dill informed agents in New Orleans that the Yukon "was a DEA car that was given to Jorge Gomez, and then later Sandy Gomez, with the purpose of picking up a shipment of narcotics," and requested "assistance with watching the car, and then when we feel that the car had picked up the drugs, to conduct a stop of the car," (Id. at 20) Agent Dill informed the New Orleans agents that the Yukon "had [a] trap in the back seat" that "could hold 25 to 30 kilograms" of narcotics. (Id.)

After arriving in New Orleans, agents observed that the Yukon "made numerous stops" over the course of "about ... a day and a half" and then "started heading north out of New Orleans." (Id. at 21-22) At that point, Agent Dill "instructed [Drug Task Force Officer Michael Patti] that [agents] should conduct a motor vehicle stop on the car." (Id. at 21)

B. Trooper Whittaker's Testimony

"A couple of days before" the traffic stop at issue, agents "asked for the assistance of the [Louisiana state police] criminal patrols unit" in "making a stop of a vehicle ... involved in an active case out of New Jersey." (Id. at 42-43) In addition to informing Louisiana state trooper Ronald Whittaker of the make, model, color, and license plate number of the vehicle, Whittaker was told that (1) the Yukon being driven by Sandy Gomez was owned by the DEA; (2) the vehicle was equipped with a secret compartment or "trap"; and (3) the targets of the investigation had obtained the Yukon from the DEA for the purpose of using it to transport cocaine from New Orleans to New Jersey; and (4) the cocaine would be hidden in the trap of the vehicle. (Id. at 43) Trooper Whittaker was further instructed to perform "[a] walled-off traffic stop," which is "generally a request by another agency to stop a person or a vehicle, but to develop your own probable cause in doing so."³ (Id. at 40, 43)

At about 10:00 p.m. on December 7, 2014, the Yukon passed Trooper Whittaker, who...