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United States v. Colin

United States District Court, W.D. Texas, San Antonio Division

October 29, 2019

UNITED STATES OF AMERICA,
v.
JESUS MORENO COLIN

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         On this day came on to be considered Defendant's motion to suppress (Dkt. No. 51) and motion to sever (Dkt. No. 52).

         Background

         Prior to June 27, 2019, law enforcement officers were investigating Jose Manuel Trevino, a co-defendant in this case. A number of undercover transactions took place. During those transactions Trevino referred to his source of supply as “Vato.”

         On June 27, David Camacho, a DEA Task Force Officer acting in an undercover capacity, arranged to purchase a quantity of drugs from Trevino and they arranged a pickup at Trevino's residence on Madrid Street. At approximately 12:43 p.m., Agent Camacho drives to the residence on Madrid Street with audio and video running. Trevino calls Agent Camacho and asks where he is and Agent Camacho states he is nearby. Agent Camacho and Trevino also discuss that “Vato” would be dropping by the Madrid residence. Agent Camacho relays this information to other officers on the team.

         At 12:45, Agent Camacho arrives to the location, notes the presence of a silver SUV with its engine running, and begins to identify to other officers those whom he sees at the Madrid residence front yard, including a male wearing a red cap. Minutes earlier, DEA Group Supervisor Eric Putnam saw a male wearing a red cap exit a silver SUV and proceed to the residence carrying a plastic bag.

         Trevino thereafter enters Agent Camacho's vehicle carrying a plastic bag.[1] Agent Camacho inspects the bag containing heroin, and then states that he is going to retrieve the payment monies from the trunk of his car. At 12:47, Agent Camacho exits the vehicle, delivers a prearranged signal, and a number of law enforcement officers converge on the scene. Gunshots are heard on the video, and at 12:50, an officer announces “all clear.” Trevino and Moreno Colin and all persons in the front yard of the Madrid residence are handcuffed and detained to preserve evidence and for officer safety. As soon as Trevino is handcuffed, he proceeds to tell officers that the male wearing the red cap is “the guy you want, ” that he was the source of supply, and that he was there to collect monies. A female found at the scene, co-defendant Brenda Sanmiguel, also made the same comments upon her arrest.

         Defendant Moreno Colin was interviewed at the premises and Mirandized. The interview was conducted in English. Agent Camacho testified that Moreno Colin understood and spoke English “very well” and that he relayed he had been living in the United States since he was a teenager. During this five-minute interview Moreno Colin was calm and cooperative. Agent Camacho asked him who he was, what he was doing there at the residence, and whether he supplied Trevino with any illegal narcotics. Moreno Colin stated he was at the house “advising a friend” and denied supplying drugs to Trevino. Agent Camacho asked for consent to search Moreno Colin's vehicle, and consent was given. Moreno Colin stood nearby as the search was conducted and at no time requested that the search be stopped. A duffle bag with clothes, an identification card, and other items were found. Inside the duffle bag there was also a red ledger. The ledger contained names, prices, and slang terms for methamphetamine and heroin.

         Motion to Suppress

         Defendant argues that there was no probable cause for the search of his vehicle and that he did not provide consent for the search. Finally, he argues that even if consent was given for search of the car, no consent was given for a search of the ledger, and once the ledger was found either additional consent was necessary for the ledger to be opened or a search warrant was required to read the contents. The Government contends that probable cause existed for the search of the car (relying upon the automobile exception to the warrant requirement) and consent was given for the search.

         Analysis

         The automobile exception provides that “where there was probable cause to search a vehicle ‘a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.' Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999).” United States v. Deleon, 689 Fed.Appx. 278, 279 (5th Cir. 2017). Here probable cause existed because prior to the June 27 arrests and search, Agent Camacho was told by Trevino that his source of supply was “Vato.” On June 27, Agent Camacho is told by Trevino that “Vato” would be dropping by the Madrid residence. DEA Group Supervisor Putnam sees a male with a red cap exit a silver SUV with a plastic bag in hand and walk to the Trevino residence. The car's engine remains turned on. Thereafter, Trevino walks to Agent Camacho's vehicle with a plastic bag containing heroin.

         “It is well settled that warrantless searches of automobiles are permitted by the Fourth Amendment if the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime. Whether an officer has probable cause to search a vehicle depends on the totality of the circumstances viewed ‘in light of the observations, knowledge, and training of the law enforcement officers involved in the warrantless search.'” United States v. McSween, 53 F.3d 684, 686 (5th Cir. 1995) (internal citations omitted). Under the “collective knowledge doctrine, ” the officer conducting a stop, search, or arrest based on probable cause need not “know all of the facts amounting to probable cause, as long as there is some degree of communication between the arresting officer and an officer who has knowledge of all the necessary facts.” United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007); see also United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999).

         In the alternative, the Court finds that Moreno Colin voluntarily gave consent for the search of his vehicle. The Government must prove Moreno Colin voluntarily consented to the search by a preponderance of the evidence. The Fifth Circuit applies the following test to determine voluntariness: “(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and ...


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