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United States v. Bernal

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

November 22, 2017

FLAVIO IBANDA BERNAL, et al., Defendant.



         Defendants Flavio Ibanda Bernal and Laura Perez-Reyes have filed a joint motion to suppress. [Record No. 27] The motion was referred to United States Magistrate Judge Robert Wier for review and issuance of a report and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B). A lengthy evidentiary hearing was conducted on October 16, 2017, and reconvened on October 20, 2017. [Record Nos. 42; 49] Magistrate Judge Wier issued a Recommended Disposition on October 27, 2017, recommending that the defendants' motion be denied. [Record No. 56] The defendants have filed joint objections to that recommendation. [Record No. 58] Having reviewed the record along with the Recommended Disposition and objections, the Court agrees with the Magistrate Judge and will deny the relief requested by Bernal and Perez-Reyes.


         The Recommended Disposition recounts the relevant facts brought out during the evidentiary hearing and which involve the police encounter with the defendants on the evening of July 25, 2017. In summary, law enforcement officers received information from a confidential informant (“CI”) that a shipment of drugs would be coming into the area and a transaction would occur at a McDonald's restaurant located on Stanton Way in Lexington, Kentucky. The courier was expected to arrive between 5:30 p.m. and 9:00 p.m. (approximately) in a vehicle with Illinois license plates. The arrival time was later pushed back after the CI apprised law enforcement of the whereabouts of the supposed courier. Around 9:15 p.m., Bernal and Perez-Reyes, driving a dark Honda Element with Illinois license plates, pulled into the Stanton Way McDonald's parking lot and proceeded inside.

         Following the above-described surveillance, Kentucky State Police (“KSP”) Trooper Lindon was instructed to make contact with the defendants, and he did so as they were leaving the restaurant. KSP Trooper Gabriel, a K-9 unit, arrived in a separate unmarked Tahoe within moments of Trooper Lindon and joined him in the ongoing conversation with the defendants. This conversation lasted for approximately 30 minutes, during which the two KSP Troopers were joined by DEA Task Force Officer Batista, after Trooper Lindon requested that a Spanish speaking officer assist in the communication with the defendants. Bernal purportedly gave oral consent in English, later purportedly confirmed in Spanish when TFO Batista arrived, for Trooper Lindon to search the vehicle.

         The vehicle search did not begin until after Trooper Gabriel deployed K-9 Pluto who conducted an open-air sniff of the vehicle. This occurred approximately 30 minutes after the initial encounter. Pluto positively altered to the presence of narcotic odor near the driver's-side door of the vehicle. Trooper Lindon and Gabriel began searching the vehicle at this time. The Troopers immediately noticed abnormalities and modifications of the inside of the vehicle. However, after an initial inspection, they decided to move on to other areas of the vehicle and come back to the area that appeared modified. After a lengthy search that uncovered no contraband, Trooper Lindon requested additional, nearby officers to assist in the search of the area that the Troopers believed to be modified. Approximately 15 minutes later, the officers discovered a hidden compartment containing a package that tested positive for heroin.

         The defendants assert that there was no reasonable suspicion for an initial detention of the defendants upon their exiting of the McDonald's. They further contend that there was insufficient suspicion (either probable cause or new additional reasonable suspicion) to justify a prolonged detention while waiting for the Spanish speaking officer and canine unit to arrive. [Record No. 58]


         A. Trooper Lindon's Initial Encounter[1]

         An officer may stop a person to briefly investigate suspicious circumstances if he has a reasonable suspicion that criminal activity is afoot. See United States v. Arvizu, 534 U.S. 266, 273 (2002). In other words, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the stop. Terry v. Ohio, 392 U.S. 1, 21 (1968). In addition, “any subsequent detention after the initial stop must not be excessively intrusive in that the officer's actions must be reasonably related in scope to circumstances justifying the initial interference.” United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999), cert. denied, 528 U.S. 1176 (2000). However, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983); see also United States v. Davis, 430 F.3d 345, 353-55 (6th Cir. 2005) (concluding that officers obtained reasonable suspicion “during the stop” to detain the defendant for an additional thirty to forty-five minutes before bringing a drug-sniffing dog).

         “Reasonable suspicion is more than an ill-defined hunch; it must be based upon a particularized and objective basis for suspecting the particular person of criminal activity.” United States v. Shank, 543 F.3d 309, 313 (6th Cir. 2008) (citation, ellipsis, and internal quotation marks omitted). A determination regarding the existence of reasonable suspicion is based on the ‘totality of the circumstances, ' and a reviewing court ‘view[s] the evidence offered in support of reasonable suspicion using a common sense approach, as understood by those in the field of law enforcement.'” United States v. Collazo, 818 F.3d 247, 257 (6th Cir. 2016) (citing United States v. Richardson, 385 F.3d 626, 630 (6th Cir. 2004)). Ultimately, “[r]easonable suspicion requires more than a mere hunch, but is satisfied by a likelihood of criminal activity less than probable cause, and falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012) (citing Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008)). In assessing whether reasonable suspicion justifies a stop, the Court may consider information obtained from an informant. See United States v. Jones, 75 F. App'x 334, 338 (6th Cir. 2003). Looking at the “totality-of-the-circumstances, ” the Court considers the informant's reliability and basis of knowledge. Illinois v. Gates, 462 U.S. 213, 233 (1983).

         Here, the defendants argue that the Magistrate Judge erroneously derived meaning from information provided to law enforcement by the CI. Specifically, they contend that the CI was unreliable because his information was vague regarding several specific details about the vehicle and the courier. This includes the fact that no mention was made: (i) of the color, make, or model of the vehicle; (ii) of the ethnicity, age, or gender of the driver of the vehicle; and (iii) if the driver was traveling alone or with others. However, the defendants omit the fact that the CI was able to provide: (i) the exact date the delivery was scheduled to occur; (ii) the location; (iii) the initial time frame that was later updated to reflect the fact that the arrival time would be pushed back; (iv) the type of drugs being delivered; and (v) the fact that the vehicle would have Illinois license plates. Additionally, as the Magistrate Judge correctly noted, the CI was known and working with the Lexington Police Department and had previously worked with the DEA as a confidential source. Further, the information provided by the CI proved to be reliable. After independent police investigation and surveillance, the vehicle bearing Illinois license plates arrived at the intended destination and near the expected arrival time. See e.g. Alabama v. White, 496 U.S. 325, 331-32 (1990) (crediting an anonymous tipster's accurate prediction of future behavior as bolstering credibility so as to justify a terry stop.)

         The initial encounter by Trooper Lindon was not based solely on a hunch; instead, the officer had reasonable suspicion of illegal drug trafficking activity in light of the “totality of the circumstances.” The CI provided accurate information regarding the location, time, and licensing of the vehicle. Surveilling officers observed the defendants linger inside the McDonald's restaurant for approximately 45 minutes after finishing their meal. It was observed, at least twice, that Bernal stood up from the table, walked over to the window, and looked out in the direction of the vehicle. And Bernal was observed holding a cell phone in his hands as the family was lingering in the restaurant. While this activity - in isolation - would not be unusual, the Court considers the totality of circumstances presented. These actions, taken in conjunction with information provided by the CI, constitutes reasonable suspicion for the initial encounter by Trooper Lindon.[2] See United States v. Urrieta, 520 F.3d 569, 580 (6th Cir. 2008) (“[W]hile any of these facts may not amount to reasonable suspicion on its own, taken together they do.”)

         B. The Duration ...

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