United States v. Rivera

UNITED STATES OF AMERICA, v. BENJAMIN MELENDEZ RIVERA, Defendant.

Crim. No. 17-611-1 (ADC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

February 28, 2020

OPINION & ORDER

Before the Court is defendant Benjamín Meléndez-Rivera's ("defendant") motion to suppress. ECF No. 207.¹ The government responded in opposition. ECF No. 210. The Court held an evidentiary hearing on the matter on August 22, 2019. ECF No. 224. For the following reasons, the motion to suppress is DENIED.

I. Background

Defendant is charged with one count of conspiracy to interfere with commerce by robbery, 18 USC 1951, two counts of interference with commerce by robbery, 18 U.S.C. 1951-2, two counts of possession and discharge of firearms in furtherance of a crime of violence, 18 U.S.C. 924(c)(1)(A(iii) and 924 (j), and two counts of being a prohibited person (convicted felon) in possession of a firearm, 18 U.S.C. 922 (g)(1). ECF No. 26. The charges arise from events thattook place in March and October 2017, and include the robbery of an armored vehicle on March 30, 2017 at a Banco Popular in Añasco which resulted in a shoot out and the death of two bystanders and the wounding of an armed vehicle guard.

Defendant seeks to suppress the statements obtained by Federal Bureau of Investigation ("FBI") agents after execution of search warrants on defendant's residence, cell phones and vehicle arguing that he was interrogated in a custodial situation as defined in Miranda and without being duly advised of his constitutional rights at the beginning of the interview. See ECF No. 207. He further contends that he did not waive his Miranda rights voluntarily and knowingly when he signed the waiver during the interview with FBI agents. Id. The government holds that defendant was not subject of a custodial interrogation, that during the interview he was repeatedly advised that he was free to leave, was not under arrest and later voluntarily waived his Miranda rights. ECF No. 210. The parties recount vastly different versions of the facts as they pertain to the circumstances surrounding the interview by FBI agents, especially as to whether defendant was wearing handcuffs at the time, was involuntarily taken to the agent's vehicle, was advised that he was free to leave and not under arrest, and defendant's signing of the waiver of his Miranda rights.

The Court conducted an evidentiary hearing on August 22, 2019. During the evidentiary hearing, the Court heard testimony from FBI Special Agent Luis A. Feliciano ("Agent Feliciano"); FBI Special Agent Guillermo González ("Agent González"); defendant's next-door neighbor, Luz Ramos-Vázquez ("Luz"); defendant's wife, Zoraida Ayala Vázquez ("Zoraida");and defendant, about the facts surrounding the execution of the search warrant and defendant's interview with FBI agents.

II. Findings of Fact

On November 8, 2017, approximately 25-30 federal and state agents from various agencies, including the Drug Enforcement Agency ("DEA"), the FBI and Puerto Rico Police Department ("PRPD"), arrived around 4:30 a.m. at defendant's residence to execute search warrants for his residence, cell phones, and vehicle (a red Chevrolet Silverado pickup). Agents Feliciano and González testified about their experience in the preparation and execution of the search warrant.

a. Agents Feliciano's and González's testimony

Agent Feliciano has been an FBI Special Agent for approximately 22 years, 8 of those as part of the San Juan SWAT team.² He explained that being a SWAT team member is a voluntary duty which involves training on conducting entries on residences where subjects show a high propensity for violence and access to weapons. He has been involved in close to 50-100 search warrants as an FBI agent. Throughout his tenure, his assignments ranged from police corruption investigations to violent crimes, criminal organized crime, counterterrorism, and domestic terrorism. He is currently the program manager of the domestic terrorism operations unit at the FBI's headquarters in Washington D.C. Agent Feliciano was in Puerto Rico in November 2017 as part of a task force sent after the passing of Hurricane Maria to provide humanitarian and civic assistance. He assisted the Western Regional Office of the FBI in any ongoing investigations, including the investigation into the armored truck robbery that took place on March 30, 2017. Agent Feliciano was assigned as team leader in the execution of the search warrants for defendant's residence, cell phones and vehicle on November 8, 2017. Agent Feliciano's role as team leader garnered the responsibility of ensuring the perimeter of defendant's residence was secure and avoiding anyone from coming in or leaving the perimeter to ensure their safety while law enforcement did their job, namely, breach and secure the residence.

Agent Feliciano explained that entry into a residence operates based on a search or arrest warrant. Agents must first have a positive breach of the residence, to be able to see inside the residence and avoid any harm to the agents from potentially armed and dangerous occupants. A positive breach can be performed busting down a door or window. Once there is a positive breach, agents enter the premises and handcuff the occupants, who are placed in an area where they can be observed until the residence is cleared and secured, ensuring there is no threat inside the residence. If the occupants are not subject of an arrest, after the residence is cleared, they are uncuffed and extracted from the residence. The residence is then turned in to the FBI Evidence Response Team who take over the scene and execute the search.

Agent González has been an FBI Special Agent for the past 10 years and is currently the supervisor for the Ponce Regional office. He has worked in the investigation of violent crimes(bank robberies and armed car robberies), crimes against children, kidnappings, and public corruption. He has participated in no less than 20 search warrants. On November 8, 2017, he was the on-scene commander for the execution of the search warrant on defendant's residence, cell phone and vehicle. Agent González was tasked with overseeing the whole operation and ensuring that procedures were followed. Before the execution of the search warrants, Agent González knew defendant was the object of multiple investigations regarding violent armored car robberies.

Prior to the intervention on November 8, 2017, the team met at the Old Naval Base in Vega Baja for briefing. During the briefing, agents received a synopsis of the case, discussed the logistics of approaching the residence and were warned about the dangerousness of the situation and potential propensity for violence from the occupants, this considering the robbery setting that led to the issuance of the search warrants. Agent González noted that agents were told to "approach the house with caution as the persons residing in the house were considered armed and dangerous." The DEA SWAT team was set to breach and enter the residence and secure the location before the FBI Evidence Response Team conducted the search of the residence, cell phones and vehicle.

The area surrounding defendant's residence was blocked during the execution of the warrants from approximately 4:30 a.m. until noon. According to Agent Feliciano, once the perimeter was set, the DEA SWAT team breached and secured the residence albeit he did not visually witness the actual breach. Agent González testified that he observed first hand whenthe DEA SWAT team conducted what he described as a dynamic entry;³ they approached, announced their presence, breached the main entry door and glass,⁴ and entered the residence.⁵ Once inside the residence, they detained and secured the persons inside. Agent González testified that during this process, the occupants of the residence were handcuffed, based on standard procedure. He explained that this ensured the safety of the occupants and agents while the residence was secured, i.e. confirm that there are no weapons or threat to the agents or the occupants.

When Agent González initially saw the occupants - including defendant - they were brought outside of the residence, handcuffed, to an area in the carport between the white SUV and the red Silverado pickup parked in the carport. The occupants were standing up. He observed when the occupants were uncuffed by agents. The DEA SWAT agents then handed the scene over to the FBI to conduct the search warrant. At that time, Agent González conducted a walk through of the residence.

Similarly, after the residence was cleared, Agent Feliciano received a tour of the residence. Agent Feliciano described that after touring the residence, he exited the residence and saw defendant and various occupants standing in front of the residence's carport and none ofthem were handcuffed. At that time, Agent Feliciano and Special Agent Jarrett Marion approached defendant and asked if they could speak to him. Defendant responded in the affirmative. Agents Feliciano and Marion then asked defendant if they could speak in Agent Feliciano's car, an unmarked four-door sedan parked approximately 30-50 meters west of defendant's residence. Defendant agreed.

Agents Feliciano, Marion and defendant walked to Agent Feliciano's car.⁶ Agent Feliciano sat next to defendant in the back seat of the sedan. Agent Feliciano noted that defendant was not wearing handcuffs. He also explained that he and Agent Marion carried only their concealed weapons in their hip holsters⁷ and were not wearing body armor or holding long guns - those were secured in the trunk of the sedan after the residence was cleared. Before starting the interview, Agent Feliciano told defendant that the interview was voluntary, that he could stop the interview and he was free to leave, that he was not in custody, and offered him a bottle of water during the interview.

Agents Feliciano and Marion asked defendant about the occupants in his residence at the...