Opinion
CRIMINAL 17-0155CCC
06-17-2019
UNITED STATES of America, Plaintiff v. Mary Angelith FERNANDEZ RUIZ, Defendant
Stuart J. Zander, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff. Edwin Prado-Galarza, Prado, Nunez & Associates, PSC, San Juan, PR, for Defendant.
Stuart J. Zander, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff.
Edwin Prado-Galarza, Prado, Nunez & Associates, PSC, San Juan, PR, for Defendant.
SUPPRESSION RULING
CARMEN CONSUELO CEREZO, United States District Judge
Before the Court is a Motion to Suppress (d.e. 56 ) filed January 31, 2018 by the defendant. The Court has considered the Motion to Suppress (d.e. 56 ), the United States of America's ("USA") Opposition (d.e. 63) filed February 12, 2019; defendant's Memorandum of Law in Support of Motion to Suppress (d.e. 94) filed August 14, 2018; USA's Memorandum of Law in Opposition (d.e. 95) filed August 15, 2018; the Report and Recommendation ("R&R") (d.e. 96 ) on defendant's Motion to Suppress issued by U.S. Magistrate-Judge Silvia Carreño Coll on October 17, 2018; plaintiff's Objection to the R&R (d.e. 98) filed November 9, 2018; defendant's Response to Objection (d.e. 101) filed December 5, 2019; and plaintiff's Reply to Response (d.e. 105) filed February 15, 2019.
The defendant alleges that United States Postal Service ("USPS") agents "lacked reasonable suspicion to stop and question defendant at the post office", "lacked probable cause to arrest defendant", and "improperly elicited her consent [to search] through duress and deceit" (d.e. 56).
DISCUSSION
A. Reasonable Suspicion to Conduct an Investigatory Stop
When a law enforcement officer has reasonable suspicion that a person is engaging in criminal activity, he may conduct an investigatory stop, commonly known as a Terry stop. See Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is "more than an inchoate and unparticularized suspicion or ‘hunch’ " and requires instead that officers "point to specific and articulable facts which, taken together with rational inferences derived from those facts, reasonably show that an investigatory stop was warranted." See United States v. Maguire, 359 F.3d 71, 76 (1st Cir. 2004) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed. 2d 1 (1989) ).
On February 14, 2017, United States Postal Inspector Brendan E. Nally, formerly an intelligence analyst assigned to narcotics investigations, participated in an operation at the Caparra Post Office in Puerto Rico, which was part of an interdiction effort to identify narcotics mailers and outbound narcotics packages. Inspector Nally testified that Puerto Rico is considered a source area for narcotics shipments to the United States. On the day of the events, he acted as an undercover office in the post office lobby. He was notified that a female, the defendant, entered the post office with boxes. He then entered the post office and got in line behind her. When she dropped one of the mailing labels, he picked it up, handed it back, and noticed that the labels for both boxes were express mails for overnight delivery. One box was destined for Buffalo, New York and the other to the Bronx, New York. From his experience, Inspector Nally knew that Buffalo and the Bronx receive a high number of express mail overnight shipments of narcotics from Puerto Rico. He became suspicious and communicated what he had seen to other team members on the interdiction operation.
Agent Angel Rivera Colon also participated in the interdiction on February 14, 2017. Agent Rivera has been a Puerto Rico police officer for 16 years, assigned to the narcotics division, and is a task officer assigned to ICE. At about 11:10 AM, Agent Rivera saw the defendant enter the post office with two boxes. Agent Rivera testified that after defendant was instructed by a postal clerk that she was using incorrect packaging, he saw her trying to pour the contents of one box directly into another box without leaving space between them, one right on top of the other. He found this manner of repackaging suspicious. Agent Rivera then saw defendant take a blue bed sheet package out of one box and place it inside a new box. He found the package of sheets suspicious because "there could be a kilo hidden in there because of the shape of the package because it was similar to the shape of a kilo which is rectangular" (d.e. 82, p. 44, l. 21-24). Agent Rivera next observed an unknown male approach and speak to the defendant. He informed postal inspectors, who spoke to both defendant and the unknown male. Pursuant to a Terry stop, a law enforcement officer may briefly detain a person to ask questions, obtain more information, and conduct a protective search for weapons. Terry, 392 U.S. at 19–20, 88 S.Ct. 1868 "[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
Based on these specific and articulable facts, the United States Postal Service agents had reasonable suspicion to conduct a Terry stop of the defendant. The Court REJECTS the U.S. Magistrate-Judge's specific finding of no reasonable suspicion.
B. Probable Cause to Arrest
There is no bright-line rule demarcating Terry-type interventions from arrests. United States v. Rabbia, 699 F.3d 85, 89-90 (1st Cir. 2012). A Terry detention "transforms into a de facto arrest when a reasonable person, in the suspect's position, would feel the degree of restraint normally associated with formal arrest." United States v. Candelario-Santana, 834 F.3d 8 (1st Cir. 2016) (citing United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994) ). The question is, then, whether "in light of the totality of the circumstances ... a reasonable person in the suspect's position would have understood [his] position 'to be tantamount to being under arrest.'" United States v. Chaney, 647 F.3d 401, 409 (1st Cir. 2011) (quoting Zapata, 18 F.3d at 975 ). Factors include "the location and duration of the stop, the number of police officers present at the scene, the degree of physical restraint placed upon the suspect, and the information conveyed to the suspect." Rabbia, 699 F.3d at 91, as well as the surroundings, duration, and character of the interrogation. United States v. Nishnianidze, 342 F.3d 6, 13 (1st Cir. 2003) (quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987) ).
The actions by the agents initially comported with a Terry stop. United States Postal Inspector Juan Hernández testified that agents told defendant to remain in the post office for questioning, and he briefly spoke to her and to the unknown man who had previously approached her. However, Agent Rivera testified that the defendant was subsequently brought to a private area of the post office by five United States Postal Service Agents, and that he and another agent took defendant's packages. Inspector Hernández testified that these packages were brought to another room where a K-9 lineup was conducted to investigate the presence of drugs. The defendant was not told at any time that she was free to depart and she was not asked for consent to the K-9 lineup.
With these actions, law enforcement exceeded the bounds of a permissible Terry stop and "escalated into a de facto arrest." United States v. Rabbia, 699 F.3d 85, 91 (1st Cir. 2012). See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (police exceeded the limits of an investigative stop where they asked defendant to accompany them to a small police room, retained his airline ticket and driver's license, and did not indicate that he was free to depart). When agents took defendant's packages, they also exceeded Terry's limitation on seizure: agents may only frisk for weapons and seize contraband in plain view or plainly felt during the pat-down. Terry, 392 U.S. at 19–20, 88 S.Ct. 1868 In light of the totality of the circumstances, the Court concludes that a reasonable person in defendant's position would have understood herself to be under arrest at the point when she was brought to the back of the post office by five agents. In order to lawfully effect this arrest and seizure, the agents needed probable cause. The government has the burden of showing that probable cause existed. United States v. Serrano-Acevedo, 892 F.3d 454 (2018). While the government has shown facts supporting reasonable suspicion, they have not shown that agents had information to support probable cause at the time of the arrest and seizure. Therefore, the Court ADOPTS the finding that agents conducted an unlawful arrest and seizure, and that the evidence obtained as a result thereof must be suppressed.
C. Consent to Search
After the K-9 sweep was conducted, defendant was read her Miranda rights and formally arrested. Approximately two hours after she was first approached by agents, the defendant signed consents to search her cell phone and packages. While consent is an exception to the warrant requirement, "[a]n otherwise valid consent may not be sufficient to render a search constitutional if it follows from prior government misconduct." United States v. Benezario, 339 F. Supp. 2d 361, 368 (D.P.R. 2004). Defendant argues that the consents she signed were not sufficiently attenuated from the government's unlawful arrest and seizure, and that evidence discovered as a result must therefore be suppressed. "[T]he government bears the burden of showing that [consent] was sufficiently attenuated from the illegal search." Serrano-Acevedo, 892 F.3d at 460. In making its determination, the Court must consider "temporal proximity, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct." Id. Defendant's consents were signed approximately two hours after when she was first approached by agents. The only intervening circumstances that occurred were her statements and the K-9 search, both of which must be suppressed. The agents' purpose for the arrest and seizure was for further investigation of the defendant. After analysis of each of these factors, the U.S. Magistrate-Judge correctly found that defendant's consents were not sufficiently attenuated from the improper arrest and seizure.
CONCLUSION
Accordingly, the Court AFFIRMS AND ADOPTS the R&R, except as to the U.S. Magistrate-Judge's finding that United States Postal Service Agents had no reasonable suspicion to conduct a Terry stop. Defendant's Motion to Suppress is, therefore, GRANTED. The following evidence is hereby suppressed: all statements made by defendant after her unlawful de facto arrest; evidence of the K-9 sweep; and evidence obtained by searching defendant's cell phone and two packages as a result of signed consents.
SO ORDERED.