United States v. Mendez-Bernal

UNITED STATES OF AMERICA v. HECTOR MENDEZ-BERNAL, et al.

CRIMINAL CASE NO. 3:19-cr-00010-TCB-RGV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION

July 22, 2020

MAGISTRATE JUDGE'S REPORT, RECOMMENDATION, AND ORDER

Defendants Hector Mendez-Bernal ("Hector") and Jose Antonio Mendez-Bernal ("Jose"), jointly referred to as "defendants," are charged in a six-count indictment with conspiracy to import cocaine and heroin, in violation of 21 U.S.C. § 963, importation of cocaine and heroin, in violation of 21 U.S.C. §§ 952, 960(b)(1)(A), and 960(b)(2)(B) and 18 U.S.C. § 2, conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine and heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. [Doc. 1].¹ Hector has filed a motion to suppress evidence, [Doc. 29], a motion to suppress statements, [Doc. 30], and a motion to suppress the warrantlesssearch of his cell phone, [Doc. 31]. Jose also has filed a motion to suppress evidence, [Doc. 32], a motion to suppress statements, [Doc. 33], and a motion for severance and exclusion of out-of-court statements,² [Doc. 34]. An evidentiary hearing was held on the motions to suppress on February 5, 2020. See [Doc. 43].³ After the evidentiary hearing, the parties filed post-hearing briefs. [Docs. 52, 56, & 59].⁴ For the reasons that follow, it is RECOMMENDED that the motion for severance, [Doc. 34], be GRANTED, that Hector's motion to suppress statements, [Doc. 30], be GRANTED IN PART and DENIED IN PART, and that the remaining motions to suppress evidence and statements, [Docs. 29, 31, 32, & 33], be DENIED.

I. STATEMENT OF FACTS

A. Initiation of the Investigation

In October 2018, agents of the Drug Enforcement Agency ("DEA") in Chicago ("DEA Chicago") seized a quantity of heroin hidden in a large, heavy metal cylinder. (Tr. at 7, 21; Gov. Ex. 1 at 2). Prior to the seizure, DEA Chicago had obtained a geo-location warrant for a particular cell phone ("the target cell phone"), and agents had tracked the target cell phone to the location where the cylinder filled with heroin was seized. (Tr. at 7-8). Surveillance and subsequent investigation revealed that the cylinder was delivered by two Hispanic men who possibly were brothers driving a small vehicle, possibly a gray Chevy sedan, with a Mexican license plate. (Tr. at 9, 26, 34, 40-41, 90; Gov. Ex. 5 at 1-2). After the cylinder was delivered, DEA Chicago tracked the target cell phone as it traveled south to the US-Mexico border. (Tr. at 8). Once the target cell phone crossed the border, agents were no longer able to track it. (Tr. at 7-9).

On January 25, 2019, DEA Chicago agents informed their counterparts in Atlanta that the target cell phone was back in the United States and traveling in the direction of Atlanta. (Tr. at 7). As a result, DEA Atlanta agents coordinated with the Georgia State Patrol ("GSP") to attempt to locate the vehicle in which the target cell phone was traveling on Interstate 85, utilizing the description of thevehicle and the two men who had delivered the cylinder in Chicago. (Tr. at 9-10, 45). GSP troopers and DEA agents also were provided a photograph of the cylinder seized in Chicago. (Tr. at 10, 45). Their plan was to develop probable cause for a traffic stop and to obtain authority to search the vehicle to look for a cylinder similar to the one found in Chicago. (Tr. at 11, 38).

B. Identifying Defendants' Rental Vehicle

Because service for the target cell phone was provided by a Mexican cell phone carrier, the geo-location data provided to agents in Atlanta was delayed by about 15 minutes, which increased the difficulty of identifying the suspected vehicle connected with the target cell phone. (Tr. at 11-12). Eventually, GSP Trooper Anthony Munoz ("Trooper Munoz"), a law enforcement officer with training in drug trafficking and criminal interdiction, observed a vehicle in which the target cell phone was believed to be located traveling north on Interstate 85 in Coweta County, Georgia. (Tr. at 39, 44, 48-50, 69). Trooper Munoz was able to see the driver of the vehicle from his vantage point parked on the side of the interstate, and the driver appeared to be abnormally tense. (Tr. at 49). The vehicle, which was a small sedan with a Mexican license plate, was occupied by two Hispanicmen. (Tr. at 49-50).⁵ In Trooper Munoz's experience, it was "maybe once [] every couple of months or six months" that he would see a vehicle with a Mexican license plate on the highway. (Tr. at 90).

Once Trooper Munoz located the vehicle, he followed it for a few miles. (Tr. at 51-52, 70-71). When the vehicle reached a construction zone with a posted 60 miles per hour speed limit, Trooper Munoz paced the vehicle as traveling at between 70 to 75 miles per hour. (Tr. at 51, 73). As a result, Trooper Munoz decided to stop the vehicle for speeding, and after he activated the lights on his patrol car, the vehicle pulled to the right shoulder, but drove for an inordinate amount of time in the emergency lane according to Trooper Munoz before eventually coming to a stop, which he found to be suspicious. (Tr. at 52). Trooper Munoz also noticed that the trunk appeared to be lower than the rest of the vehicle, which further aroused his suspicion. (Tr. at 52-53).

C. The Traffic Stop

After pulling the vehicle over at approximately 5:40 p.m. on January 25, 2019, Trooper Munoz, who does not speak Spanish, determined that the occupants ofthe vehicle could not speak English. (Tr. at 53-54, 70, 82). As a result, he had to utilize a translation application on his cell phone in order to speak with the driver of the vehicle, Jose. (Tr. at 48, 54, 56, 74-75, 84). Due to the cold weather, traffic noise, and the danger of standing on the side of the interstate, Trooper Munoz motioned for Jose to sit in his GSP patrol car with him so they could converse using the translation application. (Tr. at 53-55, 92-93). Trooper Munoz sat in the driver's seat of his patrol car, and Jose sat next to him in the front passenger seat. See generally (Gov. Ex. 4). The passenger in the Nissan, later identified as Jose's brother, Hector, remained seated in the vehicle where it had been stopped. (Id.).

Once inside the patrol car, Trooper Munoz reviewed the car rental paperwork that Jose handed him, and it indicated that Jose had rented the vehicle in Mexico. (Tr. at 59; Gov. Ex. 3). Because the rental car had a Mexican registration with paperwork in Spanish, the traffic stop was extended significantly as Trooper Munoz had difficulty in verifying the information through law enforcement databases. (Tr. at 56). At the beginning of the stop, Trooper Munoz asked Jose the same basic questions that he would ask any other driver pulled over for speeding. (Tr. at 57). As part of Trooper Munoz's routine questioning, he asked Jose about his travel plans. Jose told Trooper Munoz that he had driven from Mexico to Houston and stayed with his brother Hector for a few hours and that they wereon their way to see their cousin in Atlanta for two days before returning to Mexico. (Tr. at 57-58; Gov. Ex. 10 at 5-10). Jose was unable to provide Trooper Munoz with his cousin's address in the Atlanta area. (Tr. at 57, 105; Gov. Ex. 10 at 5-10).

Jose's answers to the questions posed about his travel and destination further heightened Trooper Munoz's suspicion that the brothers might be involved in narcotics trafficking. (Tr. at 57-58). As a result, Trooper Munoz asked Jose if he was carrying anything illegal in the car. Jose said, "No," and he offered to allow Trooper Munoz to search the vehicle. (Gov. Ex. 10 at 10-11). Trooper Munoz ultimately decided to give Jose a warning for speeding, but he had difficulty reading the information on the driver's license and vehicle registration because it was in a foreign language. (Gov. Ex. 10 at 11-14, 20, 23). Once he completed processing the documentation and preparing the warning for speeding, Trooper Munoz also printed a Spanish language consent to search form and presented it to Jose for his review. (Tr. at 59). Jose declined to sign the form, but told Trooper Munoz that he still could search the rental vehicle. (Tr. at 59-60, 85, 94-95; Gov. Ex. 10 at 23-25).⁶

D. Search of the Vehicle and Conversation with Defendants

Jose and Trooper Munoz then exited the patrol car, (Tr. at 61; Gov. Ex. 10 at 25), and Trooper Munoz began the search of the vehicle after asking Hector to step out of the vehicle, (Tr. at 61). While the vehicle was searched, Jose and Hector stood or sat, unrestrained, outside of the rental vehicle along the shoulder of the interstate.⁷ (Gov. Ex. 4 at 37:00-1:18:32). Eventually, Trooper Munoz found in the trunk a large, metal cylinder similar to the metal cylinder seized by DEA Chicago as depicted in the photograph he had been provided prior to the traffic stop. (Tr. at 61-62). In the meantime, other law enforcement officers had arrived at the scene, and a GSP K-9 handler subsequently deployed his narcotics detection dog during the search of the vehicle. (Tr. at 78, 150-52). The dog alerted to the scent of narcotics on the metal cylinder. (Tr. at 78, 88-89, 150-51, 153; Gov. Ex. 4 at 52:30-53:24).

After the search, Trooper Munoz, with translation provided by DEA Task Force Officer ("TFO") Nermin Cultarevic ("TFO Cultarevic"), informed Jose andHector that they were not under arrest but were being detained. (Tr. at 62-63; Gov. Ex. 4 at 54:20). Up to that point, law enforcement officers had used no physical force on either of the defendants, had not threatened them, had not displayed their weapons, and neither one had been restrained at the roadside. (Gov. Ex. 4 at 3:20-54:20). Even after law enforcement officers told Jose and Hector that they were being detained, they did not physically restrain them in any way as the brothers remained on the shoulder of the interstate until they were placed in the back seat of a patrol car to...