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United States v. Rico-Duron

United States District Court, E.D. Kentucky, Central Division, Lexington

December 10, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
EDUARDO RAFAEL RICO-DURON, Defendant.

OPINION AND ORDER

KAREN K. CALDWELL, District Judge.

This matter is before the Court on Defendant Eduardo Rafael Rico-Duron's motion to suppress evidence obtained during a search prior to his arrest (DE 21). On September 30, 2014, the Court held a suppression hearing and heard testimony from Detective Byron Smoot and Sergeant James Ensminger of the Lexington Police Department. For reasons stated below, the Court will deny Rico-Duron's motion to suppress.

I. BACKGROUND

Throughout 2013 and into early 2014, the Lexington Police Department, in conjunction with the Drug Enforcement Administration, conducted an investigation into a large-scale conspiracy to traffic narcotics in and around Fayette County. ( See DE 41 Suppress Hr'g Tr. at 8, 41.) This investigation culminated in several arrests on April 3, 2014. Rico-Duron's co-defendants, Maria Elena Rico-Deleon and Edgar Javier Herrera-Carajal, were arrested off Richmond Road in Lexington, Kentucky after attempting to purchase twenty-eight kilograms of cocaine. (DE 41 Suppress Hr'g Tr. at 40-42.) During their arrest, law enforcement officers confirmed that Rico-Deleon and Herrera-Carajal lived at 2408 Prescott Lane-an address that officers had previously identified in connection with the conspiracy to traffic narcotics. (DE 41 Suppress Hr'g Tr. at 41.)

Fearing that yet-unknown individuals associated with the alleged conspiracy may enter the residence to remove evidence, Detective Smoot and Sergeant Ensminger traveled to 2408 Prescott Lane to conduct surveillance. (DE 41 Suppress Hr'g Tr. at 9, 42.) Detective Smoot arrived at the residence before Sergeant Ensminger. (DE 41 Suppress Hr'g Tr. at 11.) Upon arrival, Detective Smoot observed Rico-Duron exiting the residence "carrying a[n] Abercrombie & Fitch bag with a green towel sticking out of the top of the bag. He was also on the cell phone talking." (DE 41 Suppress Hr'g Tr. at 11.) Detective Smoot also noted that, despite heavy rain, Rico-Duron "had no raincoat, nothing to cover his head and just continued to walk and look[ ] back at my vehicle." (DE 41 Suppress Hr'g Tr. at 14.) Suspicious, Detective Smoot followed Rico-Duron. (DE 41 Suppress Hr'g Tr. at 15.)

The residence is located in an enclosed, eyehook-shaped neighborhood with only one entrance and exit, yet Detective Smoot observed Rico-Duron travel a circuitous route-in heavy rain without protection-"around that whole neighborhood." (DE 41 Suppress Hr'g Tr. at 16-18.) Detective Smoot also noticed that Rico-Duron remained on his cell phone and repeatedly looked back over his shoulder while circling the neighborhood. (DE 41 Suppress Hr'g Tr. at 15-18.) Despite everything Detective Smoot observed, he was instructed not to contact Rico-Duron until Sergeant Ensminger arrived as back-up. (DE 41 Suppress Hr'g Tr. at 15.)

When Sergeant Ensminger arrived, he parked his car and approached Rico-Duron. (DE 41 Suppress Hr'g Tr. at 43.) Sergeant Ensminger "had [his] badge on [his] belt and said, I am a police officer, I would like to talk to you.'" (DE 41 Suppress Hr'g Tr. at 43.) Rico-Duron complied. (DE 41 Suppress Hr'g Tr. at 44.) Sergeant Ensminger and Detective Smoot spoke with Rico-Duron in English. (DE 41 Suppress Hr'g Tr. at 19-21, 44-46.) English is not Rico-Duron's native language; however, both officers remarked that Rico-Duron was responsive to questions in English and understood their conversation. (DE 41 Suppress Hr'g Tr. at 21, 45-46.)

During their conversation, Sergeant Ensminger noticed a bag containing-what in his experience he knew to be-marijuana protruding from Rico-Duron's left coat pocket. (DE 41 Suppress Hr'g Tr. at 46.) Sergeant Ensminger informed Rico-Duron that he saw the bag, and Rico-Duron confirmed that the bag did, in fact, contain marijuana. (DE 41 Suppress Hr'g Tr. at 46.) Sergeant Ensminger then removed the bag and asked for Rico-Duron's consent to search his person and the Abercrombie and Fitch bag. (DE 41 Suppress Hr'g Tr. at 46.) Rico-Duron consented. (DE 41 Suppress Hr'g Tr. at 47.) The Abercrombie and Fitch bag contained two.25 caliber automatic handguns; 21 grams of marijuana; 5 grams of cocaine; a set of digital scales; cash in the amount of $12, 895.00; and a vest with the letters "DEA" imprinted on it. (DE 41 Suppress Hr'g Tr. at 22.) The officers then arrested Rico-Duron. (DE 41 Suppress Hr'g Tr. at 49.)

II. DISCUSSION

Rico-Duron asserts that the officers did not have reasonable suspicion to conduct an investigatory stop, that the contraband in his pocket was not in plain view, and that he did not consent to a search of his person. (DE 45 Def.'s Mem. at 6, 12.) Accordingly, Rico-Duron contends that all evidence seized should be suppressed.

A. Terry Stop

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." U.S. Const. amend. IV. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court articulated that a police officer may, however, conduct a brief investigatory stop of a person if the officer has a reasonable, articulable suspicion that the person may be involved in criminal activity. 392 U.S. at 30-31. Reasonable suspicion is a less demanding standard than probable cause, but "[t]he officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch' of criminal activity." Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (quoting Terry, 392 U.S. at 27). But reasonable suspicion may rely on the totality of the circumstances, including the defendant's location and behavior. United States v. Sokolow, 490 U.S. 1, 9-10 (1989).

Here, the officers had reasonable suspicion to stop Rico-Duron. Before stopping to talk with Rico-Duron, the officers knew the following facts: (1) Rico-Duran exited a residence associated with an alleged large-scale drug-trafficking conspiracy; (2) where the large-scale conspiracy had an unknown number of members; (3) shortly after two co-defendants were arrested attempting to purchase twenty-eight kilograms of cocaine; (4) carrying a large bag; (5) without any protection from pouring rain; (6) while walking aimlessly; and (7) repeatedly exhibiting nervous and evasive behavior. These specific, articulable facts give rise to reasonable suspicion. See, e.g., Wardlow, 528 U.S. at 124 (holding that an individual's location is a "relevant contextual consideration in a Terry analysis" and that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion"); Sokolow, 490 U.S. at 8-9 (noting that an individual's noticeably abnormal behavior ...


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