United States v. Reyes

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS (Doc. 17)

          Christina Reiss, Chief Judge United States District Court

         This matter came before the court on June 26, 2017 for an evidentiary hearing on Defendant Denny Reyes's motion to suppress physical evidence and statements (Doc. 17). Defendant contends that law enforcement stopped his vehicle without reasonable suspicion of criminal activity and that he was arrested without probable cause. The government opposes the motion, arguing that the totality of the circumstances established both reasonable suspicion and probable cause. After the parties submitted supplemental briefing on June 28, 2017 and July 6, 2017, the court took the motion under advisement.

         Pursuant to a one-count Indictment, Defendant is charged with bringing or attempting to bring aliens into the United States for the purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that they had not received prior authorization to enter the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. The government is represented by Assistant United States Attorney Kevin J. Doyle. Defendant is represented by Assistant Federal Public Defender David L. McColgin.

         I. Findings of Fact.

         On December 29, 2014, a source of information ("SOI") contacted the U.S. Border Patrol ("USBP") in Swanton, Vermont and advised that the SOI was offered and accepted compensation to act as a lookout for USBP activity in the Ballard Road area of Highgate, Vermont. Ballard Road is a rural two-lane road that runs north-south for approximately two miles before it terminates at the United States-Canadian border. There is no port of entry in this remote location and the international border is marked only by a red gate and stone monuments. Approximately seven residences are located along the northern portion of Ballard Road, with hundreds of yards separating each residence. The typical traffic pattern is confined to local vehicular and pedestrian traffic during the day, with even less traffic at night. Ballard Road is a known "hot spot" for contraband and alien smuggling in which numerous arrests and interdictions have taken place. Approximately 1.3 miles south of the border, Ballard Road intersects with Partlow Road which runs east-west.

         Through a series of interviews, the SOI advised USBP that between the hours of 12:00 a.m. and 1:00 a.m. on December 29, 2014, the SOI observed two vehicles and three male subjects at the northern end of Ballard Road in close proximity to the border. After the SOI approached two of the males, they identified themselves as "Danny" and "Angel." The SOI advised that s/he was fairly certain "Danny's" last name began with an "R." The SOI described "Danny" as a black male with a small build and noted that the two vehicles were a black SUV with New York license plates and a dark Volkswagen sedan with Massachusetts plates. "Danny" instructed the SOI that if USBP inquired, the SOI should state that "Danny" and "Angel" were friends visiting the SOI at his/her home at the end of Ballard Road.

         The SOI further reported to USBP that s/he had witnessed "Danny" unlocking the rear hatch of the black SUV and heard what sounded like heavy bags being placed in the back of the vehicle. "Danny" thanked the SOI and paid him/her $160.00. "Danny" asked for the SOI's phone number. In response, the SOI asked "Danny" to provide his phone number instead. "Danny" provided cell phone number (347) 753-3794 and subsequently sent the SOI a photograph of himself standing in front of a black Toyota Highlander with New York license plate number GMH8035. USBP performed a records check and confirmed that the black 2014 Toyota Highlander was registered to Defendant Denny P. Reyes-Rosario, who resides in New York, New York.

         Thereafter, the SOI advised USBP that "Danny" had placed a call to him/her on January 11, 2015 and that, based on a text message s/he received from "Danny, " the SOI believed that "Danny" had made another trip to Vermont and had returned to New York. On January 12, 2015, the SOI placed a recorded call to "Danny's" cell phone. "Danny" confirmed that he had called the previous day, thanked the SOI for helping him, and advised that he wanted to see the SOI and "do a job."

         On January 16, 2015, "Danny" called the SOI and the call was recorded. When asked when he planned to return to Vermont, "Danny" advised in broken English that he thought his friend would call him that day, but he may go the following day instead and that when he returns to Vermont he will come with friends because he needs help. The following day, the SOI placed a recorded phone call to "Danny" in which, among other things, "Danny" asked the SOI to drive around prior to "Danny's" next arrival in Vermont to make sure no one was in the area.

         On January 22, 2015, law enforcement applied for a search warrant to obtain ongoing, real-time location information for thirty days for a target cell phone associated with the phone number "Danny" provided to the SOI. That same day, Magistrate Judge John M. Conroy authorized a search warrant to "ping" the target cell phone for a period of thirty days. Based on the location data derived from the "pings, " on the evening of February 6, 2015, law enforcement located the target cell phone in the Bronx and then tracked it as it moved north on Interstate 87 in New York to the Grand Isle Ferry. The target cell phone then entered Vermont and proceeded north on Interstate 89 in Vermont towards the international border. Once in Vermont, law enforcement followed a black Toyota Highlander with New York license plate number T663935C to which the target cell phone was traced. Law enforcement confirmed through a license plate check that the Toyota Highlander was registered to Defendant.

         As part of the cell phone tracking, Vermont State Police Corporal George Rodriguez was parked in an unmarked police cruiser on the northbound ramp of exit 21 on Interstate 89 conducting surveillance. He observed a black Toyota Highlander with New York plates and distinctive, after-market, blue-tinted headlights. He followed the vehicle to exit 22, the last exit before the international border, and then proceeded to the parking lot of a duty free store where he consulted with a USBP agent who instructed him to proceed to the intersection of Ballard Road and Partlow Road. Corporal Rodriguez arrived at the intersection at approximately 12:30 a.m. on the morning of February 7, 2015. At the time, there was intermittent snowfall, the temperature was freezing, and the roads were slippery. Corporal Rodriguez parked his unmarked cruiser at the intersection so that he could observe all passing traffic.

         During this same time period, six USBP agents wearing night-vision goggles and camouflage concealed themselves in pairs at three locations in a forested area at the northernmost part of Ballard Road, approximately fifty to seventy-five yards from the international border. One of the agents advised by USBP radio that he witnessed four persons cross the border on foot and stand behind an abandoned trailer. Shortly thereafter, USBP Agent Corey Belida witnessed a dark-colored SUV travelling at a high rate of speed northbound with New York plates. He credibly testified that it was "very uncommon" to see a vehicle travelling rapidly on Ballard Road at that time of night, especially with out-of-state plates. When the vehicle reached the end of Ballard Road, it turned around quickly and parked facing south. Another USBP agent radioed that four individuals had emerged from behind the abandoned trailer and were quickly approaching the parked dark SUV. In response, the USBP agents decided to announce their presence by calling out "U.S. Border Patrol" and deploying a "flash bang, " which is a device that emits a loud noise and bright lights for the purpose of surprising, stopping, distracting, and/or temporarily blinding a suspect. In general, individuals tend to freeze and lose their night vision in response to a "flash bang." In this instance, however, three of the individuals moved more rapidly towards the dark SUV while the fourth individual ran back into Canada. The dark SUV, carrying three occupants, then sped away before the passenger doors had fully closed.

         The USBP agents reported by radio that the dark SUV with New York plates was travelling southbound at a high rate of speed on Ballard Road with three individuals who had crossed the border illegally. Corporal Rodriguez heard this communication over his radio and was instructed to stop the vehicle. Other law enforcement officers located south of Corporal Rodriguez were instructed to use spike strips to stop the vehicle if it reached their position.

         Not more than one minute later, Corporal Rodriguez observed a vehicle travelling towards his location at a higher rate of speed than was safe for the inclement conditions. He noticed the vehicle had the same distinctive blue headlights that he had noticed previously on the black Toyota Highlander he had followed in response to the location monitoring of the target cell phone. It was the first vehicle he had observed since taking up his position at the intersection of Ballard Road and Partlow Road. Corporal Rodriguez activated his vehicle's blue lights in order to effect a motor vehicle stop. In response, the Toyota Highlander slowed down without appearing to come to a complete stop. Corporal Rodriguez pulled his cruiser into the southbound lane, causing the black Toyota Highlander to stop approximately twenty to twenty-five feet from his cruiser. Corporal Rodriguez turned on his ...