United States District Court, D. Vermont
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 ...