United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION & ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court on a motion to suppress evidence filed by Defendant Jorge Armando Gomez Macias. (DE 149). Gomez Macias seeks suppression of two forms of evidence which he believes were obtained in violation of his Fourth Amendment rights: (1) references to a Toyota Corolla observed at or near the scene of a controlled narcotics exchange and (2) references to and admission of a key found on a key ring that fit the locks of the residence at 1051 Duval Street, Lexington, KY, 40515. For the following reasons, the motion will be denied.
Gomez Macias was arrested on February 16, 2013 in conjunction with a controlled narcotics transaction conducted by DEA personnel in Lexington, Kentucky. When the agents arrested him, they discovered a key to the residence located at 1051 Duval Street, Lexington, Kentucky, 40515. This is the same residence that the agents followed codefendant Cesar Edgardo Mariscal Felix to after he exchanged $1.8 million in cash for approximately 93 kilograms of a simulated replacement for cocaine. Gomez Macias contends that the officers lacked probable cause to arrest him, and the fruits of his arrest must be suppressed.
The defendant's recitation of the pertinent facts comes from DEA Special Agent Troey Stout's affidavit supporting a search warrant, along with his testimony at the preliminary hearing. In describing why the agents lacked probable cause to make an arrest, Gomez Macias does not dispute any of the relevant facts as told by Sout, but instead argues that these facts are insufficient to support a finding of probable cause. Because the facts at issue for this motion are not in dispute, a hearing is not necessary.
On February 15, 2013, DEA Agents in Lexington, Kentucky were contacted by their counterparts in Oklahoma regarding an individual they arrested in route to a drug transaction in Lexington. The individual had approximately 90 kilograms of cocaine and was scheduled to deliver it to Lexington the following day. After his arrest, the individual agreed to cooperate and DEA agents in Lexington arranged for a controlled transaction where the cocaine would be replaced by a simulated substance.
The next day, on February 16, 2013, the agents used the cooperating individual to arrange the drug transaction, which took place at a parking lot off of Brentwood Court, near Nandino Boulevard and Georgetown Road. According to the affidavit, the cooperating source had previously engaged in two transactions near this area during which he picked up boxes of money in exchange for the contraband he was transporting. The DEA agents secured the cocaine, replaced it with a non-controlled substance, and arrived at the meeting location at approximately 6:07 p.m. At 7:12 p.m., a Toyota Corolla occupied by one person arrived at the scene. The agents could not obtain a license plate from the Corolla.
A truck driven by Mariscal Felix pulled up behind the Corolla, stopped, and then drove past it to park next to the cooperating source's vehicle. According to Stout, it appeared that the Corolla was conducting counter-surveillance, which the agents expected given the large amount of contraband seized from the cooperating source. The agents then observed Mariscal Felix make an exchange with the cooperating source before leaving.
The agents followed Mariscal Felix as he left the scene. The affidavit states that they followed Mariscal Felix's truck, which was being followed by the Corolla. However, the story appears to be a little more nuanced than the affidavit originally described. According to Stout's testimony at the preliminary hearing, the Corolla left the scene a few minutes before the truck, and the agents-without knowing that the Corolla was certainly involved-chose to stay only with the truck. (Preliminary Hearing, Testimony of Troey Stout, DE 27, at 13). As the agents were following the truck, a light-colored Corolla appearing identical to the one observed earlier pulled out into traffic and inserted itself between the agents and Mariscal Felix. ( Id. at 14). The Corolla then drove in tandem with the truck all the way to the residence on Duval Street, where it paused briefly as the truck entered the residence before driving off. ( Id.; Application for Search a Warrant. DE 149-1, at 8).
Again, Gomez Macias does not dispute any of these facts. Nor does the United States appear to disagree with the following: the officers did not initially observe the Corolla's license plate before it first left the scene of the exchange; the officers could not identify the age, gender, build, hair color, or ethnic description of the occupant in the Toyota Corolla first observed; the officers could not identify the car by its exact color other than to say it was light; the first Corolla observed was likely within 100 yards of the initial drug transaction and the light was not very good. Despite this, when the Corolla driven by Gomez Macias pulled out in front of the officers and began driving in tandem with the truck, the agents described it as being almost identical to the one observed at the scene of the exchange.
The crux of the defendant's argument is that he was arrested without probable cause, and any evidence obtained from his unlawful arrest must therefore be suppressed. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where the arrest is in public and there is probable cause to believe that a criminal offense has been or is being committed." United States v. Abdi, 463 F.3d 547, 557 (6th Cir. 2006). Here, the question is whether the agents arresting Gomez Macias had probable cause to believe he was involved with the drug transaction off Brentwood Court.
"Probable cause is a reasonable ground for belief supported by less than prima facie proof but more than mere suspicion." United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). It "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'" United States v. Moncivais, 401 F.3d 751, 756 (6th Cir. 2005) (quoting United States v. Barrett, 890 F.2d 855, 861 (6th Cir. 1989)). In making a probable-cause determination, courts must "examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable... officer, amount to' probable cause." Abdi, 463 F.3d at 557 (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
As a threshold matter, it's not clear on what grounds Gomez Macias seeks to suppress "[a]ll references to a Toyota Corolla at or near the scene of the exchange of purported illegal substances between the cooperating witness and the co-defendant, Cesar Edgardo Mariscal Felix." (DE 149, at 1). The agents have testified both in the preliminary hearing and in their affidavits that they observed a Toyota Corolla at the scene of the controlled drug purchase. Such an observation clearly falls outside the gambit of the Fourth Amendment: the car was seen in public and observed firsthand by law enforcement personnel. No theory of privacy would ...