United States v. Lozano

1

UNITED STATES OF AMERICA v. ANGEL LUIS LOZANO, Defendant.

No. 2:23-CR-00034-GZS

United States District Court, D. Maine

October 31, 2023

ORDER ON MOTION TO SUPPRESS

GEORGE Z. SINGAL, UNITED STATES DISTRICT JUDGE.

Before the Court is the Motion to Suppress (ECF No. 54) filed by Defendant Angel Luis Lozano. On September 18, 2023, the Court held an evidentiary hearing on the Motion. Following that hearing, both sides submitted supplemental filings (ECF Nos 72 & 73). Having considered all of the submissions and admitted evidence, the Court now DENIES the Motion.

I. FACTUAL FINDINGS

In May 2022, a task force of state and federal law enforcement was investigating the distribution of large amounts of methamphetamine in Maine when they received a tip that an individual named Mandy Shorey was participating in said distribution. (9/18/23 Tr. (ECF No. 71) (hereinafter “Tr.”), PageID # 201.) As part of their investigation, the FBI arranged for a series of undercover controlled buys from Shorey. (Id., PageID # 202.)

After conducting two smaller controlled buys in July 2022 and September 2022, the undercover officer arranged for the purchase of two pounds of methamphetamine from Shorey on November 10, 2022. (Def. Ex. 2, PageID # 4-5.) On that day, the undercover officer was equipped with audio and video recording equipment as well as $14,000 in prerecorded buy currency. (Tr., PageID # 203.) The transaction was scheduled to occur in the evening at 125 Sherwood Street in Portland, Maine, which was a short term rental property.

Multiple officers were set up to conduct surveillance of this planned transaction. After watching both Shorey and the undercover officer separately arrive and enter 125 Sherman Street, the officers watched a white Chrysler arrive and park in front of the residence. (Def. Ex. 2, PageID #s 5-6; Tr., PageID # 203.) A male then emerged from the residence and interacted with this Chrysler. (Tr., PageID # 203.) After that, the male went back into 125 Sherman Street. Once he was inside the residence, Shorey delivered two packages to the undercover agent. (Id., PageID # 204.) These two packages were later tested and determined to be approximately two pounds of pure methamphetamine. (Id., PageID # 204 & 206-07; Gov't Exs. 2A & 2B.) Law enforcement surveilled the Chrysler as it left Sherman Street and observed it travelling southbound on the interstate. (Tr., PageID # 203.) They also subsequently determined that the white Chrysler was owned by a rental car company and, on the day of the transaction, had been rented from a location in Lawrence, Massachusetts, to an individual named Angel Lozano with a listed address in Lowell, Massachusetts. (Tr., PageID #s 204-06; Gov't Ex. 1.)

Utilizing an encrypted messaging application, agents then arranged for another controlled buy of two pounds of methamphetamine from Shorey. (Tr., PageID # 208.) This transaction was set for the night of January 26, 2023, at the same location, 125 Sherman Street (Id., PageID # 208.) All told, there were twenty law enforcement officers involved in surveilling this controlled buy with three to four officers set up to conduct surveillance on Sherman Street. (Id., PageID # 208; Def. Ex. 2.) Special Agent Grimes was conducting overall operations management from a vehicle located approximately half a mile away from 125 Sherman Street. (Tr., PageID #s 209 & 236.)

All of the surveilling officers, along with Agent Grimes, were in communication using an application called Zello, which allows for the recording of communications.^[1] (Id., PagelD # 216.)

The undercover agent was also outfitted with one-way audio recording equipment, which was monitored in real time. (Id., PageID # 209.) After parking his vehicle outside 125 Sherman Street just after midnight, the agent entered the residence with $16,000 in prerecorded currency, which was the agreed-upon price. (Id., PageID #s 208-09.) After the undercover agent entered 125 Sherman Street, two vehicles arrived at the same time. (Id., PageID # 210.) The first vehicle, a silver Honda SUV with a single driver, pulled directly in front of 125 Sherman Street. (Id., PageID # 210.) The second vehicle, a black Dodge Charger, then pulled past the residence, turned around, and parked within eyesight of the Honda with its lights off. (Id., PageID #s 210-11.) Both vehicles were registered in Massachusetts to owners located in Lawrence and Milton respectively. (Gov't Ex. 4B at 842.) The surveilling agents immediately expressed concern that the Dodge was conducting counter surveillance. (Id., PageID #s 211 & 222; Gov't Ex. 4B at 843.)

At that point, Shorey exited 125 Sherman Street and briefly got into the front passenger seat of the Honda. (Tr., PageID #s 212-13; Def. Ex. 2.) She then returned to the residence and reemerged minutes later carrying a backpack. (Tr., PageID # 213.) She then again interacted with the Honda and its driver. (Id.) After she returned to the residence, the Honda turned around and departed from 125 Sherman Street with the Dodge following in the same direction. (Id., PageID #s 213-14.) All told, the Honda and Dodge spent approximately ten minutes stopped on Sherman Street. (Gov't Ex. 4B, at 842-43.) Upon departing, both vehicles headed in tandem towards Interstate 295. (Id., PageID # 214 & Gov't Ex. 4B.)

Back inside the residence, Shorey provided the undercover agent with approximately 420 grams of methamphetamine. (Tr., PageID # 214 & Gov't Ex. 3.) Meanwhile, agents continued to surveil the Honda and the Dodge, which had both exited the interstate and were driving on Washington Avenue. (Tr., PageID # 223.) At approximately 12:35 AM, both vehicles were seen pulling up to gas pumps at ¶ 7-Eleven.^[2] (Gov't Ex. 4B at 844.) While at this location, one male in a mustard-colored hoodie associated with these vehicles entered the 7-Eleven. This individual also accessed the interior of both vehicles while they were parked at the gas pumps. (Gov't Ex. 4B at 846.) He then got into the Dodge Charger. At approximately 12:42 AM, both vehicles departed the 7-Eleven and headed back toward the interstate making six to seven turns on various side streets in tandem. (Tr., PageID # 228; Gov't Ex. 4B at 845.) As the vehicles traveled south on the interstate, Agent Grimes was compiling all of the surveillance. (Tr., PageID #s 231.) Based on all of the information then available, Agent Grimes determined there was sufficient probable cause to stop both the Honda and the Dodge. (Id., PageID # 232.) He communicated that determination to the entire team at 12:50 AM on January 27, 2023. (Gov't Ex. 4B at 847.) In doing so, Grimes designated the Honda as the “primary” target based on his assessment that the distribution to Shorey had taken place in the Honda. (Tr., PageID # 254 & Gov't Ex. 4 at 847.)

Based on Agent Grimes' probable cause determination, Sergeant Pappas, along with several other FBI officers, conducted a traffic stop of the Dodge.^[3] (Tr., PageID # 232.) Upon stopping the vehicle, law enforcement determined that the vehicle had two occupants, the driver and a front seat passenger. The front seat passenger was identified as Defendant Angel Lozano. (Id., PageID # 233.) Lozano was placed under arrest.^[4] (Id., PageID # 233.) Upon searching the Dodge in connection with this arrest, police found and seized the prerecorded $16,000 from the car's glove box, which was located in front of the passenger side where Lozano had been seated. (Id., PageID # 233.)

II. DISCUSSION

Defendant now asks the Court to suppress all of the evidence and statements obtained on January 27, 2023, as a result of the stop and search of the Dodge Charger. Under the automobile exception to the Fourth Amendment's warrant requirement, probable cause that evidence of a crime is within an automobile justifies a warrantless search of that vehicle. See United States v. Balser, 70 F.4th 613, 619 (1st Cir. 2023) (“[A]ll the police need to search or seize a car is ‘probable cause to believe that contraband is within the particular vehicle.'”) (quoting United States v. Simpkins, 978 F.3d 1, 6 (1st Cir. 2020)). “[P]olice have probable cause when the totality of the circumstances suggests that there is a fair probability that contraband or evidence of a crime will be found in the particular vehicle.” Balser, 70 F.4th at 619 (cleaned up).

When a probable cause determination is based upon the observations and information of multiple officers, courts employ the “collective knowledge doctrine.” Id. Under this doctrine, the existence of probable cause can be determined by: (1) imputing the knowledge of a directing officer to the officer who makes the seizure, which is considered “vertical” collective knowledge, and/or (2) “aggregating information” known by all of the officers, which is considered “horizontal” collective knowledge. Id. As the First Circuit has acknowledged, these two categories of collective knowledge are not “mutually exclusive.” Id. at 619-20 (quoting United States v. Chavez, 534 F.3d 1338, 1345 n.12 (10th Cir. 2008)).

Here the record evinces the use of both horizontal and vertical collective knowledge. With twenty officers surveilling this January 2023 controlled buy, Agent Grimes was able to determine that the Dodge had arrived on Sherman Street with the Honda. Officers then watched Shorey interact with the Honda twice including entering the Honda with a backpack. After that, the Dodge left in tandem with the Honda. Both vehicles then stopped at the same gas station together and one individual accessed the interiors of both vehicles. Then, both vehicles headed south together. All of these actions were notably taking place late on a Thursday night in January, a time when it is uncommon to see such coordinated travel by...