United States v. Lopez

1

UNITED STATES OF AMERICA v. RICARDO LOPEZ, Defendant.

No. 21-CR-60284-RAR

United States District Court, S.D. Florida

May 18, 2023

REPORT AND RECOMMENDATION

JARED M. STRAUSS UNITED STATES MAGISTRATE JUDGE

THIS CAUSE comes before the Court on Defendant Ricardo Lopez’s Motion to Suppress Search of Parcel and Request for Franks Hearing (“Defendant’s Motion”) [DE 77] and the Government’s Motion to Dismiss the Defendant’s Motion to Suppress (“Government’s Motion”). [DE 81].^[1] The Defendant’s Motion seeks to suppress physical evidence stemming from the search of a mail parcel intercepted by law enforcement (“Castro Parcel”) and requests a Franks hearing to address alleged misrepresentations in the affidavit in support of the search warrant authorizing that search. I have reviewed the Defendant’s Motion, the Government’s Motion, and the Government’s Response to the Defendant’s Motion [DE 82].^[2] On May 8, 2023, I held an evidentiary hearing at which the parties presented testimony, evidence and arguments on the Defendant’s Motion. Being fully advised in the premises, I respectfully RECOMMEND that the Defendant’s Motion be DENIED.

I. FINDINGS OF FACT

Based on the testimony and evidence presented at evidentiary hearing on May 8, 2023, including my observations of the demeanor and credibility of the witnesses presented, I make the following findings of fact.

A. Interception of the Castro Parcel

On Thursday, September 9, 2021, Palm Beach County Sheriff’s Office Agent (and United States Postal Inspection Service Task Force Officer) Henry Ramos (“Ramos”) identified a United States Postal Service (USPS) parcel (“Castro Parcel”) addressed to “Auto Body Shop, aka Castro, 149 SE Second St., Bay 1, Deerfield Beach, FL 33441.” (“Delivery Address”). The Castro Parcel listed a return address of “Alex Wright, 1556 Oaisis (sic) St., Phelan, CA 92329.” (“Return Address”). Ramos received an alert about the Castro Parcel based on a “mail cover” he had established based on perceived connection (discussed more fully below) between the Delivery Address and a parcel delivered to an address in West Palm Beach in July 2021 that had contained fentanyl (the “Elder Parcel”).^[3] After receiving the alert, he obtained an image of the Castro Parcel (which is typically created by the post office from which the parcel is mailed). Ramos suspected that the Castro Parcel may contain narcotics or narcotics proceeds based his training and experience^[4] and on the following observations:

1. The handwriting on the labels of the Elder Parcel and the Castro Parcel appeared similar. The Castro Parcel was also packed in a “ReadyPost” box, as was the Elder Parcel. Whereas 90% of the packages Ramos has reviewed are sent in white postal boxes, only approximately 10% are in ReadyPost boxes (although both are available for purchase from the post office).

2. The Return Address on the Castro Parcel was not associated with any actual structure. Ramos entered the Return Address into the “C.L.E.A.R.” database, which uses open source information to identify who is associated with or has used a particular address (for example, by receiving credit cards or other mailings there). Noting that the Return Address appeared to mis-spell the word “Oasis” in the street name, he ran the address with both the street name as written and using the correct spelling of “Oasis.” C.L.E.A.R. found no associations between either version of the Return Address and “Alex Wright,” the name of the purported sender in the return address. Indeed, C.L.E.A.R. did not identify any individual at all associated with the Return Address. Ramos then entered both versions of the Return Address into either Google Maps or Apple Maps. The map application did not locate an actual structure associated with the Return Address; rather it simply showed the middle of a street. Further, while the Return Address included the city of Phelan, California, it listed a zip code that is not associated with that city. Ramos noted that parcels sending drugs through the mail frequently use a fictitious address to mask the sender.

3. The label indicated that the Castro Parcel was actually mailed from zip code 90744, which is approximately 100 miles from the Return Address listed on the parcel.

4. Ramos could not identify anyone named “Castro” associated with the Delivery Address. He ran the Delivery Address in C.L.E.A.R. and did not see any person using that name as a first or last name or any business including that name associated with the Delivery Address. He additionally searched wage and hour reports to see if anyone with the name Castro had been employed at the Delivery Address, but he found no such records.

5. In Ramos’s experience, individuals involved in the trafficking of controlled substances often use the USPS (and specifically Priority Mail Express services) to transport controlled substances and proceeds from the sale of controlled substances because of the service’s speed and reliability, the sender’s ability to track a parcel’s status throughout the delivery process, and the inability of USPS (in comparison to private delivery services) to search parcels without a search warrant. Ramos noted that the use of Priority Mail Express (which entails overnight delivery) leaves a short window between the parcel being put into the mail stream and its delivery within which law enforcement can identify and investigate it. In other words, there is little time for law enforcement to investigate the parcel before causing a noticeable delay that could alert the sender or recipient that something is amiss.

6. The sender of the Castro Parcel paid $128.00 (visible within a red box on the label) to ship it and apparently paid in cash.

7. The Return Address was in California, which Ramos identified as a “known source state for controlled substances” given its proximity to Mexico.

8. While the Castro Parcel was sent by Priority Mail Express, it was not associated with a business account number. Although a business account is not required to send a parcel through Priority Mail Express, using a business account creates a “paper trail” because establishing a business account requires the account holder to submit a copy of a driver’s license and register a phone number. Further, the label on the Castro Parcel was handwritten, whereas parcels sent through business accounts usually use typed labels.

9. The Castro Parcel was heavily taped. In Ramos’s experience, individuals sending controlled substances through the mail heavily tape parcels in order to mask the odor of those substances from drug-sniffing K9s.

B. Canine Wall-E

1. Canine Sniff of the Castro Package

Continuing on September 9, 2021, based on his suspicions, Ramos pulled the Castro parcel from the mail stream, at a U.S. mail facility in West Palm Beach and arranged for a drug detection canine to conduct an “open-air” sniff. Approximately thirty minutes later, Palm Beach County Sheriff’s Office (PBSO) Deputy Cesar Tejada arrived at the facility with his drug-detection-trained canine named “Wall-E.” The Castro Parcel was placed in a row with four or five empty boxes of similar shape and size. The boxes were placed approximately 5-6 feet apart so that their odors or surfaces did not interfere with one another. After Deputy Tejada gave Wall-E his standard command to search (“zuk”), Wall-E walked independently on an extended leash and put his nose around the parcels.^[5]Wall-E “alerted” (through a clear change of behavior) as soon as he put his nose on the Castro Parcel. Wall-E then gave his “final response” by sitting (which is his trained final response). Based on Wall-E’s final response (in addition to the factors described above), Ramos seized the Castro Parcel and sought a search warrant to search its contents.

2. Wall-E’s Training and Reliability

Deputy Tejada began training as a drug-detection canine handler in late 2019 into 2020. He has trained and worked with Wall-E continuously since early 2020 (for approximately three years).^[6] Wall-E is a German Shepherd that PBSO obtained through a broker specializing in purchasing and selling dogs to work as drug detection dogs. Wall-E was approximately 3-4 years old at the time he was purchased. As part of the purchase process, PBSO confirmed with the broker that the dog has not worked with other law enforcement agencies before.

Deputy Tejada and Wall-E attended the Palm Beach County K9 Academy (“K9 Academy”), which is held by PBSO, in 2020, beginning together as soon as Deputy Tejada got Wall-E. The K9 Academy’s instructors are senior PBSO deputies who are certified as canine trainers. The K9 Academy training lasted for 6 months, with either two or three dogs (and their handlers) being trained by one trainer. The program concentrated on training the dogs in obedience and detection.

As part of the K9 Academy, Deputy Tejada and Wall-E went through approximately 420 hours of training. Trainers constantly monitored both Deputy Tejada and Wall-E to evaluate their bonding and Wall-E’s obedience and performance. Wall-E was trained solely to detect narcotics (as opposed to explosives, currency, human bodies, or other substances) specifically cocaine, heroin, methamphetamine, and MDMA. The K9 training is “odor-based,” meaning the trainers teach the dog to identify the odor of the narcotics and reward the dog when he finds the source of the odor. Deputy Tejada described the reward system as “paying” the canine by giving him a Kong chew toy that makes him happy. The training began with hiding narcotics in a small area, bringing Wall-E to the room, giving him the “zuk” command, allowing him to sniff and explore the area, and rewarding him when he changed behavior by sitting at the source of the odor. Eventually, the training...