UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO, 03-20898-LENARD/SIMONTON
UNITED STATES OF AMERICA, )
Plaintifé, )
vs.
CARLOS REYES,
Defendant. )
MOTION 0 SUPPRESS EVIDENCE BASED UPON UNLAWFUL
WARRANTLESS SEARCH AND SEIZURE IN VIOLATION OF
THE DEFENDANT'S FOURTH AMENDMENT RIGHTS AND
LAW
COMES NOW the Defendant, CARLOS REYES, by and through his
undersigned CJA counsel, pursuant to Rule 12 of the Federal Rules
of Criminal Procedure, and pursuant to the Fourth Amendment to the
United States Constitution, and respectfully moves this Honorable
Court to suppress evidence; to wit: data from GPS devices, data
from cellular telephones, envelopes, pieces of paper and U.S.
currency, as a result of unlawful warrantless searches and
seizures in violation of the Defendant's Fourth Amendment rights,
and in support therefor states as follows:Procedural History
1. The Defendant is charged in Count 1 of the Indictment
with Conspiracy to Bring Aliens to the United States, for the
purpose of commercial advantage or private financial gain, knowing
or in reckless disregard of the fact that such aliens had not
received prior official authorization to come to, enter and reside
in the United States, in violation of Title 8 United States Code,
Section 1324 (a) (2) (B) (44) -
2. The Defendant is charged in Counts 2 through 8 of the
indictment with Attempt to Bring Aliens to the United States, for
the purpose of commercial advantage or private financial gain,
knowing or in reckless disregard of the fact that such aliens had
not received prior officiel authorization to come to, enter and
reside in the United States, in violation of Title 8, United
States Code, Section 1324(a) (2) (B) (ii) and Title 18, United States
Code, Section 2.
Eacts
3. On September 22, 2003 at approximately 7:45 p.m., a 25'
Parker pleasure craft (hereafter referred to as the vessel) --
operated but not owned by the Defendant--was picked up on radar by
the United States Coast Guard (hereafter referred to as USCG).
‘Thevessel was on the high seas--eight (8) miles north of Bimini--in
the direction of Miami. The vessel was traveling at a steady
speed of ten (10) knots. At 8:35 p.m., a USCG cutter made
attempts to raise the vessel on radio and activated its blue
lights. The vessel did not immediately stop and/or respond to the
radio. The vessel did not speed up or attempt to take any evasive
action from
the USCG cutter; instead, the vessel continued on the same heading
and at the same speed. After three (3) minutes of following the
vessel on the high seas, the USCG cutter pulled along side of the
vessel. The USCG cutter's crew members yelled to the vessel and
ordered it to stop. At that time--8:38 p.m.--the vessel promptly
complied with the USCG's directive and stopped.
4. Nine (9) persons--including the Defendant and the co-
Defendant--were located by the USCG aboard the vessel; none were
hiding or otherwise concealed on the vessel.
5. Initial interviews by the Government and/or its agents
xevealed that seven (7) of the nine (9) persons aboard the vessel
were Cuban nationals with no documentation to enter the United
States legally.
6. All nine (9) persons--the Defendant, the co-Defendantand the seven (7) alien witnesses--were transferred from the
vessel to
the USCG cutter and then taken to the USCG Sea Buoy located
several miles off the coast of Miami
7, In general, the seven (7) alien witnesses advised the
Government and/or its agents that they had traveled to Bimini from
Cuba, that they wanted to come to Miami, that they got onto a
small boat operated by an unknown individual from Bimini, that
they were just off shore, that they attempted to flag down passing
vessels, that they flagged down the vessel operated by the
Defendant, that they told the Defendant that they were Cuban but
lived in Miami, that they had boat problems, that they needed a
ride back to Miami, that the Defendant brought them onto his
vessel, that the Defendant did not ask them for money, that they
did not pay any money to the Defendant and that they departed for
Miami.
8. Pursuant to post-Miranda questioning, the Defendant
corroborated the statements of the seven (7) alien witnesses and
advised the Government and/or its agents that he and the co-Defendant went to Bimini to fish, that when they got to Bimini
they were flagged down by a group of people who were in a boat
just off shore, that the people told him that they were having
boat problems, that the people told him that they needed a ride
back to
Miami, that the people told him that they were Cuban but that they
had resident status in the United States, that he brought the
people aboard his vessel, that he did not ask the people for
money, that the people did not give any money to him and that they
departed for Miami.
9. The Defendant and co-Defendant were subsequently
arrested and charged with Alien Smuggling; the seven (7) alien
witnesses were subsequently deported to Cuba.
10. A general consent search of the vessel and/or inventory
search thereof revealed that it had modifications completed on its
deck and fuel system fuel tanks and further revealed five (5)
fishing rods/reels with bait on two (2) of them, several
outriggers, a fish net, two (2) gaffs, a tackle box containing
fishing hooks, lures, WD-40 and other fishing equipment, a largecooler containing some ice, several bottles of beer and water and
some doritos, an inoperable VHF-FM radio, thirteen (13) life
preservers, a fire extinguisher, engine parts, engine oil
containers, one (1) satellite phone, two (2) cellular telephones,
three (3) GPS devices, one (1) Glock .40 caliber handgun and ten
(10) rounds of ammunition.
11. The vessel was dry-docked on the secured premises of an
independent contractor, Maule Marina located in North Miami Beach,
Miami-Dade County, Florida, which stores seized vessels that are
to
be used as evidence or subjected to forfeiture proceedings; the
contents of the vessel were secured in a locked warehouse on the
premises.
12. The two (2) cellular telephones and three (3) GPS
devices were transferred to IO James Smith of USCG
IC who,
without a search warrant, obtained certain data therefrom.
13. A few days later, SA Angel Martinez of USCG MIC
received an anonymous telephone call from someone inquiring about
the status of one (1) of the alien witnesses. The anonymous
caller advised SA Martinez that an alien witness named "Carlos"
and other alien witnesses paid money to the operator of the vesseland that the money should be somewhere on the vessel. Based upon
the foregoing anonymous tip, SA Martinez and SA Mackinaw of ASU
responded to the vessel which was in Government custody in dry-
dock at Maule Marina and, without a search warrant, conducted a
second search of the vessel. The agents opened the cushion on the
driver's bench seatback, tore some plastic and ripped out the foam
padding. The agents then removed a plastic zip-lock baggie which
appeared to contain several envelopes. The agents then opened the
baggie and removed the contents: one (1) envelope--marked "2200"
and "Gasolina 300" on one side and "$3500" and "Duny" on the other
side--containing $2,200.00 in U.S. Currency; one (1) envelope-~
marked "5000" on it--containing $5,000.00 in U.S. Currency; one
(1) envelope--marked "5000", "2400", "
20
"2000" and "
1,600"
on it--containing nothing; one (1) piece of paper--marked "Carlos"
and "2400" on it--wrapped around $2,400.00 in U.S. Currency; and
one (1) piece of Bimini Bay letterhead stationary--marked
"Bertha"--wrapped around $2,000.00 in U.S. Currency.
14, A photograph depicting the vessel's bench seatback with
the seat cushion opened, plastic torn and foam padding ripped out
is attached hereto.i Fic
15. The Defendant seeks suppression of the data obtained
from the GPS devices, the data obtained from the cellular
telephones, the three (3) envelopes, the two (2) pieces of paper
and $11,600 in U.S. Currency on the grounds that said evidence was
unlawfully and unconstitutionally seized without search warrants.
Standing
16. The Fourth Amendment prohibits law enforcement officers
from conducting unreasonable searches and seizures.
17. To have standing to challenge a search, a defendant
must manifest a subjective expectation of privacy in the invaded
area that "society is prepared to recognize as reasonable." Rakas
v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1987).
18, "The individual's expectation, viewed objectively,
(mast be) justifiable under the circumstances.” smith v.Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Bd.2d 220 (1979). The
individual challenging the search bears the burdens of proof and
persuasion. United States v. Eyster, 948 F.2d 1196 [11th Cir.
1991).
19. In the instant case, the Defendant borrowed the subject
vessel from a friend who is the registered owner of the vessel;
moreover, the Defendant was the operator of the vessel.
20. In United States v. Miller, 821 F.2d 546 (11th Cir.
1987), the Court held that a driver possessed a legitimate
expectation of privacy in a borrowed car.
21. In United States v. Cooper, 133 F.3d 1394 (11th Cir.
1998), the Court held that a driver possessed a legitimate
expectation in an overdue rental car.
22. Accordingly, by way of analogy, the Defendant--who was
the operator of the vessel he borrowed from a friend--possessed a
legitimate expectation of privacy in the vessel and thus has
standing to challenge the searches and seizures.
The Warrantless Searches of the GPS Devices
and Cellular Telephones to Obtain Data Therefrom
and the Warrantless Second Search of the Vessel
Violates the Fourth Amendment to the U.S. ConstitutionA. Inventory Search
23. An inventory search is not a surrogate for
investigation, and the scope of an inventory search may not exceed
that necessary
to accomplish the ends of the inventory. United States v. Laing,
708 F.2d 1568 (11th Cir.) (per curiam), cert. denied, 464 U.S. 896,
104 S.Ct. 246, 78 L.Ed.2d 235 (1983); United States v. Prescott
599 F.2d 103 (Sth Cir. 1979)? ("Inventory searches must be
limited to effectuation of the recognized purposes for which they
are conducted and they may not be used as a pretext for intrusive
investigatory searches that would otherwise be impermissible
24, Affirming the suppression of evidence seized by police
claiming an inventory search justification, the U.S. Supreme Court
declared that: "The policy or practice governing inventory
searches should be designed to produce an inventory. The
individual police officer must not be allowed so much latitude
that
‘The Eleventh Circuit, in the en banc decision of Bonner v.
City of Prichard, 661 F.2d 1206 (ilth Cir. 1981), adopted as
precedent the decisions of the former Fifth Circuit rendered prior
to October 1, 1981.inventory searches are turned into a purposeful and general means
of discovering evidence of crime." Florida v. Wells, 495 U.S. 1,
110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).
25. Various drug-related conspiracy, aiding and abetting,
and Travel Act offenses were involved in the multi-defendant drug
importation case of United States v. Khoury, 901 F.2d 948 (11th
Cir, 1990).
In Khoury, when defendant Xluver was arrested, his car was
seized by the DEA for forfeiture. The car was impounded. DEA
Agent Simpkins conducted an inventory search of the contents of
the car. Agent Simpkins removed a closed briefcase from the
locked car trunk, took it to his office and inspected its contents
which included a spiral notebook bearing a handwritten legend on
its cover "Kluver 10-1-82."
Agent Simpkins flipped through the pages of the notebook to
identify any items of value that might have been concealed within
its pages. Agent Simpkins determined that it was a diary of some
sort but did not determine that it had evidentiary value.
Subsequently, he further examined the notebook and decided that it
did have evidentiary value.
Defendant Kluver filed a motion to suppress which was denied
by the district court.
aOn appeal, the Eleventh Circuit recognized that Agent
Simpkins’ initial inspection of the notebook was both necessary
and proper to ensure that there was nothing of value hidden
between its pages. However, having satisfied himself that the
notebook contained no discrete items of value and having decided
that the diary entries themselves would have intrinsic value to
Kluver, the
Eleventh Circuit noted that Agent Simpkins had satisfied the
requisites of the inventory search and had no purpose other than
investigation in further inspecting the notebook.
The Court concluded that "
uch a warrantless investigatory
search may not be conducted under the guise of an inventory" and
that “having conducted the inventory search and there being no
exigent circumstances, the investigator was free to request a
warrant from a magistrate if he wished to search further (but he)
did not seek a warrant, however, but continued his search despite
the absence of a valid inventory or exigent circumstances
exception.”
Thus the Court held that "the subsequent search of Kluver's
diary violated his fourth amendment right (and) the district court
committed constitutional error in denying Kluver's motion to
suppress.”
1226. Several years later, in United States v. Cruz, 837 F.
Supp. 1228 (United States District Court for the Southern District
of Florida, 1993), the defendant was charged with narcotics and
firearms offenses.
At the time of his arrest, the defendant was driving a motor
vehicle; a search of the vehicle resulted in the recovery of a
firearm. A subsequent inventory search was then conducted by U.S.
Customs Service Agent and, despite an earlier K-9 alert to the
presence of narcotics in the vehicle, no narcotics were found
during the inventory search. The vehicle was placed in the
custody of a private contractor who again inventoried the vehicle
and found no contraband.
Approximately six (6) weeks later, Special Agent LeGasse of
Customs received a telephone call from a previously reliable
confidential informant who advised that the defendant had
expressed concern as to whether a small quantity of cocaine
secreted in his vehicle had been discovered.
Based upon that telephone call, Agent LeGasse conducted
another inventory search of the vehicle, which revealed a bag
13containing eleven (11) baggies of cocaine powder.
The defendant filed a Motion to Suppress the eleven (11)
baggies of cocaine powder, The District Court recognized that the
existence of exigent circumstances; to wit: the mobility of the
vehicle, ceased to exist upon the seizure of the vehicle. The
Court further concluded that "the government desired to again
search the defendant's vehicle because it felt that information
received from a previously reliable informant would reveal the
presence of contraband therein" and that "clearly the Government
sought to obtain evidence of criminal activity, not merely to
conduct an inventory." The Court ruled that the Government's
claimed inventory of the vehicle was "a pretext for an actual
search of the vehicle" and that such search "required a search
warrant which could have been procured since the officers had a
basis for showing the requisite probable cause for a search
warrant,
B. Consent Search
27. The
scope of a consensual search is determined by the
terms of the actual consent. United States v. Martinez, 949 F.2d
141117 (11th Cir. 1992); United States v, Strickland, 902 F.2d 937
(1ith Cir. 1990); United States v. Blake, 888 F.2d 795 (i1th Cir.
1989).
28. When an individual gives a general statement of consent
without express limitations, the scope of a permissible search is
not limitless. Rather, it is constrained by the bounds of
reasonableness: what a police officer or agent could reasonably
interpret the consent to encompass. United States v. Harris, 928
F.2d 1113 (11th Cir. 1991).
29. In United States v. Strickland, 902 F.2d 937 (11th Cir.
1990), the defendant consented to a search of his vehicle,
including consent to search the trunk and luggage. The Court held
that this did not, however, include permission to slash the
vehicle's spare tire to investigate its contents.
30. In United States v. Elliott, 107 F.3d 810 (10th Cir.
1997), the police officer obtained the defendant's consent to "see
how things were packaged." The Court held that this did not,
however, include permission to unzip and look into bags.
Argqument/Conclusion
15A. Data From GPS Devices/Cellular Telephones
31. The warrantless search of the three (3) GPS devices and
two (2) cellular telephones for the express purpose of obtaining
data therefrom clearly exceeded that necessary to accomplish the
ends of an inventory search; moreover, such a search was nothing
less than a purposeful and general means of discovering evidence
of
erime. Also, said warrantless search clearly exceeded the scope
of the Defendant's general consent to search the vessel and was
unreasonable.
B. Envelopes, Pieces of Paper and U.S. Currency
32. Similarly, the warrantless second search of the vessel-
-which was dry-docked and secured at a marina and which search was
based upon an anonymous tip--clearly exceeded that necessary to
accomplish the ends of an inventory search; moreover, such a
second search was used as a pretext for an intrusive investigatory
search which would otherwise be constitutionally impermissible.
Also, the warrantless second search of the vessel--which involved
ope!
ig the cushion on the driver's bench seatback and removing
16the foam padding:
= the Defendant's
clearly exceeded the scope
general consent to search the vessel and was unreasonable.
WHEREFORE, based upon the foregoing facts and case law,
together with the Fourth Amendment to United States Constitution,
the Defendant, CARLOS REYES, requests that this Honorable Court
suppress the data obtained from the GPS devices, the data obtained
from the cellular telephones, the three (3) envelopes, the two (2)
pieces of paper and $11,600 in U.S. Currency.
Respectfully submitted,
LAW OFFICE OF DAVID ALSCHULER
1503 N.W. 14th Street
Miami, Florida 33125
Telephone: (305) 549-6565
Telefax: (305) 549-6610
DAVID ALSCHULER, ESQUIRE
Florida Bar No. 561266
CERTIFICATE OF SERVICE
a7I HEREBY CERTIFY that a copy of the foregoing Motion was
served upon Jonathan Lopez, Assistant U.S, Attorney, 99 N.E. 4th
Street, 6th Floor, Miami, FL 33132-2111 and upon Anne Lyons,
Assistant Federal Defender, 150 W. Flagler Street, Suite 1500,
Miami, FL 33130 on this day of January 2004.
LAW OFFICE OF DAVID ALSCHULER
1503 N.W. 14th Street
Miami, Florida 33125
Telephone: (305) 549-6565
Telefax: (305) 549-6610
DAVID ALSCHULER, ESQUIRE
Florida Bar No, 561266
18