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United States v. Lujan

United States District Court, E.D. Texas, Sherman Division

December 29, 2017

OMERO LUJAN (9), Defendant.



         Pending before the Court is Defendant Omero Lujan's Motion to Suppress (“Defendant's Motion to Suppress”) [Dkt. 120]. On December 6, 2017, the undersigned conducted an evidentiary hearing and heard oral argument from both the Government and Defendant on the pending Motion to Suppress. After considering the Motion to Suppress, the Government's Response [Dkt. 135], supplemental briefing by the Government [Dkt. 147] and Defendant [Dkts. 148; 149], and all other relevant filings and evidence, as well as the oral argument presented, the Court recommends that Defendant's Motion to Suppress [Dkt. 120] be DENIED.


         I. The Indictment

         On July 12, 2017, Defendant was indicted in the Eastern District of Texas on drug related charges [Dkt. 1]. The original indictment was superseded on August 9, 2017 [Dkt. 49]. In the Superseding Indictment, Defendant is charged with Conspiracy to Possess with the Intent to Distribute and Distribution of Marijuana and Cocaine in violation of 21 U.S.C. 846 [see Dkt. 49]. The Superseding Indictment alleges that “from sometime in 2009, and continuously thereafter up to and including the date of this Superseding Indictment, in the Eastern District of Texas and elsewhere, [Defendant], did knowingly and intentionally combine, conspire, and agree with other persons known and unknown to the United States Grand Jury, to knowingly and intentionally possess with the intent to distribute and distribute 1000 kilograms or more of a mixture or substance containing a detectable amount of marijuana and five kilograms or more of a mixture or substance containing a detectable amount of cocaine” [Dkt. 49 at 1-2].

         II. Motion to Suppress

         Defendant filed the instant Motion to Suppress [Dkt. 120] on October 30, 2017, seeking to suppress “all evidence, both physical and testimonial, obtained or derived from or as a result of the unlawful search, seizure, interrogation, arrest and detention of Defendant which occurred on December 1, 2016, in Midland Texas” [Dkt. 120 at 1]. Therein, Defendant argued that he was unlawfully stopped and detained without a warrant upon leaving his residence. On November 8, 2017, the Government filed its response [Dkt. 135]. On December 6, 2017, the Court conducted an evidentiary hearing, wherein Detective and DEA Task Force Officer Travis Putman (“TFO Putman”), Midland DEA Resident Agent in Charge Eric Castaneda (“RAC Castaneda”), and Defendant's wife Erica Urias, each testified. Defendant admitted two exhibits at Hearing; Defendant's Exhibit 1, is a picture depicting the vehicle Defendant was driving when stopped. Defendant's Exhibit 2, is a Google Map depiction of the route RAC Castaneda and TFO Ryan Stafford (“TFO Stafford”) took in following Defendant [Dkt. 150 at 90, 96]. In light of new arguments raised at Hearing, the Court permitted additional briefing and on December 11, 2017 and December 15, 2017, the Parties filed supplemental briefing [Dkts. 147; 148; 149]. The Hearing Transcript was filed on December 28, 2017 [Dkt. 150]. The underlying facts relevant to Defendant's Motion to Suppress are summarized as set forth below.

         III. The Underlying Facts

         On November 30, 2016, Israel Rey-Carillo (“Carillo”), a co-defendant herein, met with undercover DEA Task Force Officer Pete Castillo (“TFO Castillo”) and a confidential source at a Mexican restaurant in the North Texas area to discuss potential drug transactions [Dkt. 150 at 2-13, 36]. During the course of this meeting, Carillo agreed to deliver five hundred (500) pounds of marijuana and one (1) kilogram of cocaine to the confidential source on the next day, December 1, 2016 [Dkt. 150 at 13].

         Relevant herein, the confidential source had previously reported to Dallas DEA that a large-scale drug trafficking organization headed by Raul Borunda (“Borunda”), another co-defendant, was trafficking marijuana and cocaine from Mexico into the United States [Dkt. 150 at 8-11]. The confidential source further stated that Borunda was using Carillo, a Midland, Texas resident, as a runner or drug courier for the organization [Dkt. 150 at 8-9]. Carillo was alleged to be transporting drugs in his vehicle from the Midland/Odessa area to the Dallas/Fort Worth area [Dkt. 150 at 9-12]. Generally, Carillo would arrive in the Dallas/Fort Worth area in the morning with the drugs; he would pick up drug proceeds and then return to the Midland/Odessa area [Dkt 150 at 10]. The confidential source further averred that the drugs were being stored in various trailers or warehouses in the Midland/Odessa area [Dkt. 150 at 9].

         TFO Putman, who conducted the Dallas DEA efforts, in coordination with Midland DEA, testified that on November 30, 2016, while Carillo met with TFO Castillo and the confidential source, he placed a tracking device on Carillo's vehicle [Dkt. 150 at 14]. The order permitting installation of the tracker was issued on November 28, 2016 by Dallas County District Judge Pat McDowell [Dkt. 150 at 14-15, 25]. GPS data from November 30, 2016 reflected that Carillo's vehicle traveled after the meeting from Dallas/Fort Worth to Midland, Texas [Dkt. 150 at 14-15]. On December 1, 2016, GPS data showed Carillo left his residence in Midland/Odessa, Texas at approximately 5:00 a.m. [Dkt. 150 at 15]. Carillo next visited a residence, located at 9918 South County Road 1136 in Midland County, Texas, which was later identified as Defendant Lujan's residence (“Lujan's Residence” or the “property”) [Dkt. 150 at 15, 18]. Carillo remained at that address for approximately 20 minutes before proceeding to Interstate 20 (or I-20) and heading eastbound towards Dallas/Fort Worth [Dkt. 150 at 15]. Carillo made no other stops prior to traveling towards Dallas/Fort Worth; accordingly, TFO Putman believed Carillo had picked up the marijuana he intended to deliver to the confidential source at Defendant Lujan's residence [Dkt. 150 at 16-17].

         Law enforcement was able to obtain a satellite photo of 9918 South County Road 1136 in Midland County, Texas, and then using a toll analysis of Borunda's cellphone to connect and/or link Defendant Omera Lujan with Borunda and the property [Dkt. 150 at 17-18]. More specifically, testimony was presented that Defendant had sent a wire transfer; and in sending the wire Defendant had provided both identification and his telephone number. The telephone number Defendant provided for purposes of making the wire transfer was also a number in Borunda's phone tolls [Dkt. 150 at 17-19]. TFO Putnam testified this information enabled law enforcement to obtain a copy of Defendant's “actual ID” and to link or connect him to Borunda [Dkt. 150 at 18]. TFO Putnam further testified that the satellite images of the property showed what he described as an “excellent” location for storing narcotics [Dkt. 150 at 17].

         TFO Putman informed TFO Mitch Russell, of the Midland DEA of Carillo's whereabouts and his belief that Carillo was carrying a load of marijuana believed to have originated from Defendant Lujan's residence [Dkt. 150 at 23-24]. TFO Putman also provided TFO Russell with a copy of the satellite image and Defendant Lujan's “actual ID” with his photo and associated address [Dkt. 150 at 18, 23-24] and requested surveillance of the property be conducted. TFO Russell arranged for surveillance to be conducted of Lujan's residence [Dkt. 150 at 18-19, 24].

         On December 1, 2016, at approximately 8:30 to 9:00 a.m., RAC Castaneda and TFO Stafford, acting on information provided from Dallas DEA, went to Defendant's address to surveil it [Dkt. 150 at 72, 76-77]. Surveillance of the property began several hours after Carillo had departed. RAC Castaneda testified, from prior experience, that the rural and remote property, large storage shed, and Sports Utility Vehicle (“SUV”) on the property reminded him of drug stash houses he had encountered while working as DEA agent in South Texas [Dkt. 150 at 72-73].

         Approximately two hours after surveillance of Lujan's residence began (at around 10:05 a.m.), Dallas DEA stopped Carillo outside of Fort Worth [Dkt. 150 at 48]. At or around 10:54 a.m., Carillo signed a written consent form allowing Dallas DEA to search his vehicle [Dkt. 150 at 57-58]; the officers thereafter located approximately five hundred (500) pounds of marijuana in Carillo's truck. During the stop and prior to the discovery of marijuana, Carillo made a series of phone calls to other persons associated with the narcotic trafficking organization, including the confidential source to whom ...

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