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United States v. Escobar

United States District Court, D. Nebraska

March 8, 2016

UNITED STATES OF AMERICA, Plaintiffs,
v.
CARLOS ESCOBAR, AND SANTOS RAMIREZ-MORALES, Defendants.

          FINDINGS RECOMMENDATION AND ORDER

          CHERYL R. ZWART, Magistrate Judge.

         The defendants have moved to suppress the evidence seized and all post-arrest statements made on September 7, 2015. (Filing Nos. 49 & 51). Defendants claim the search of their vehicle violated the Fourth Amendment, and their post-arrest statements must be suppressed as fruit of this Fourth Amendment violation, and as obtained in violation of their Fifth Amendment rights.

         FACTUAL FINDINGS

         On September 7, 2015, the Grand Island Police Department ("GIPD") arrested an individual (hereinafter the "CI") on charges of possession of methamphetamine. At the time of his arrest, officers found over $9, 000 on the CI's person. The CI was interviewed at the Grand Island Law Enforcement Center by Investigator Richard Conrad and Sergeant Jerry Atwell, both of whom are assigned to the Central Nebraska Drug and Safe Streets Task Force.

         During his interview, the CI admitted he was involved in the distribution of methamphetamine and stated he was expecting to receive drugs from his two main suppliers that day. The CI identified the suppliers as "Jose" and "Carlos." The CI was willing to cooperate with the GIPD and complete these previously scheduled buys. GIPD offered nothing in exchange for the CI's cooperation: The CI stated he wanted to be a "good citizen."

         Using a speaker phone with officers listening, the CI contacted Jose first and arranged to meet him at a Goodwill parking lot.[1] As Conrad proceeded to the Goodwill parking lot to apprehend Jose, he was informed by Officer Belleci (who remained with the CI) that Jose switched the meeting location to the Walgreens located seven blocks from the Goodwill. Conrad went to the Walgreens location.

         Once at Walgreens, Conrad observed Jose's vehicle, a blue-green Chevy pickup as previously described by the CI. And Conrad recognized Jose Gonzales-Legarda from previous criminal investigations. Conrad approached the vehicle and asked Gonzales-Legarda whether he had drugs in the vehicle. Gonzales-Legarda admitted he had drugs, and officers found methamphetamine in a bag on the front seat.

         Conrad thereafter returned to the law enforcement center. The CI showed Belleci and Conrad text messages on his phone. He informed the officers that the messages were from his second supplier, Carlos, who had sold methamphetamine to the CI on several prior occasions. One text message read "mom is on her way and wants to meet you." The CI explained that "mom" was code for an individual named Frank, a person the CI met when Frank accompanied Carlos the night before. Frank was transporting drugs from Colorado, and the CI had planned to purchase methamphetamine from Frank when Frank arrived from Colorado on September 7, 2015. Frank was scheduled to arrive between 7:00 and 8:00 p.m.

         The CI called Carlos to confirm the transaction. Carlos asked the CI to meet him at his apartment or a hotel to conduct the transaction. At the officers' direction, the CI stated those locations would not work. Carlos next wanted the CI to meet him at a Casey's store. Carlos instructed the CI to bring $8, 000 as payment for one pound of methamphetamine. Carlos would then drive to the south Wal-Mart, pick up the methamphetamine from Frank and bring it back to the CI. But at the officers' direction, the CI proposed meeting both Carlos and Frank at the south Wal-Mart. Carlos agreed, stating he would be in a red pickup, Frank would park next to his pickup, and the CI should park on the opposite side of Carlos' pickup.

         Officers attempted to gain a positive identification of Carlos and his vehicle before the meeting by surveilling the address Carlos had provided as his residence. Investigator Joshua Berlie located the red pickup. After researching its license plate, Berlie identified the truck as associated with Carlos Escobar, and he retrieved a photo of Escobar from the computer system. (Filing No. 76 at CM/ECF pp. 79-81). Berlie recognized Escobar and the truck from previous drug investigations.

         Frank was running behind. Officers set up surveillance units at the Wal-Mart around 2:30 a.m. When the red truck arrived, Investigator Berlie, who was located in a parked vehicle nearby, recognized the vehicle and its driver, Carlos Escobar. (Filing No. 76 at CM/ECF pp. 82, 90). A short time later, a silver sedan with a driver and one passenger arrived at the Wal-Mart and parked on the passenger side of Escobar's red truck.

         Escobar and the occupants of the silver sedan left their vehicles and entered the Wal-Mart. Sometime later, Escobar exited the store, went to his vehicle, and sat in the driver's seat. Morales, who had driven the sedan, came out next and stood by the driver's side of his vehicle. The passenger came out last carrying a Wal-Mart bag, and when he arrived at the vehicle, he placed that bag in the sedan from the front passenger side. The officers then moved in and detained the three men. Sergeant Atwell opened the door of the sedan and retrieved a Wal-Mart bag from the front passenger seat. The bag contained a yellow shirt wrapped around a cellophane-wrapped brick of methamphetamine.

         The suspects were arrested and were taken to the GIPD station to be booked and interviewed. Officers Pedersen and Visnaw, who speak Spanish, conducted the interviews.

         Escobar was interviewed first. The officers asked Escobar biographical information including his name, address, and date and place of birth prior to informing him of his Miranda rights. After receiving his rights, Escobar ...


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