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UNITED STATES v. HODOYAN-PALACIOS

January 20, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
ALFREDO HODOYAN-PALACIOS, Defendant.



The opinion of the court was delivered by: MILLER

 Defendant Alfredo Hodoyan-Palacios ("Hodoyan") moves to suppress statements he made to governmental agents. Plaintiff United States of America ("United States") opposes the motion and argues that Hodoyan's detention was lawful as part of an investigatory detention or, alternatively, that the independent source exception is applicable and the statements need not be suppressed. Having considered the papers submitted, the record before the court, the extensive testimony presented at the time of the hearing, the arguments of counsel, and the applicable authority, the court denies defendant's motion to suppress statements.

 BACKGROUND

 The government submits that a cartel commonly known as the Arellano-Felix drug trafficking organization ("AFO") is believed by law enforcement agencies to be one of the most violent drug trafficking organizations in the Republic of Mexico ("Mexico"). It is claimed the AFO is linked to the murder and bombing of competitors, cooperating sources of information, and the slaying of Mexican Cardinal Juan Jesus Posada. The AFO is known by law enforcement to control the transportation and distribution of illegal narcotics in Northern Mexico and is responsible for the distribution of ton quantities of cocaine and marijuana in the United States.

 DEA agents have had extensive contacts with the Mexican government and confidential sources of information ("CSO") concerning the AFO. The DEA was informed that Emilio Valdez-Mainero ("Valdez") was a high ranking lieutenant with the AFO, that he was in direct contact with brothers Benjamin and Ramon Arellano-Felix, and that he was directly involved in carrying out several assassinations within Mexico.

 On or about September 27, 1996, Mexican officials informed the DEA that Valdez, along with Fabian Martinez-Gonzalez, also reported to be a known AFO assassin, was staying in the exclusive Cabrillo Tower, in the City of Coronado, California. In mid-September 1996, DEA agents met with another CSO who informed the agents that he was told by a high ranking member of the AFO that Martinez-Gonzalez was involved in the ambush and execution of Dr. Ibarra-Santes of the Mexican Federal Judicial Police.

 On September 27, 1996, DEA agents proceeded to the Cabrillo Tower, obtained a positive identification of Valdez and a probable identification of Martinez-Gonzalez. Another CSO indicated that Valdez extensively utilized public telephones in the lobby of Cabrillo Towers, apparently in an effort to evade police detection. On September 29, 1996, DEA agents were provided with a copy of a Mexican arrest warrant for Valdez. The agents continued their surveillance and, on September 30, 1997, obtained an arrest warrant for Valdez.

 Due to Valdez' history of reported assassinations, and agents' knowledge that AFO members are often armed, accompanied by bodyguards when they travel, have resisted law enforcement capture in Mexico, and utilize sophisticated communications systems, agents decided for their own safety and that of the public to perform a "hot stop." In a coordinated effort by the FBI, DEA, INS, and the Coronado Police Department, nearly 40 officers in all, conducted a stop of the vehicle containing Valdez and a second Hispanic male, later identified as defendant Hodoyan. The hot stop occurred at 1:09 p.m. on a major arterial located on the Silver Strand, near the Del Coronado Hotel.

 When the vehicle was stopped, agents noted several cellular phones in the front seat as well as a two-way radio. Given the agents' concern that either Hodoyan or Valdez may have broadcast their detention over the two-way radio, the agents determined that there was a possibility that other AFO members could attempt to rescue Valdez and Hodoyan. In recognition of this threat to their own safety, and that of the public, they agents decided to detain Hodoyan, whose identity had yet to be confirmed, and proceed to the Coronado Police Department ("CPD") for further investigation.

 At approximately 1:25 p.m. Hodoyan and Valdez arrived at CPD. At approximately 1:40 p.m., Hodoyan was processed for identification. Although Hodoyan had identified himself truthfully, he had no picture identification. At approximately 2:00 p.m., DEA agent Gamez responded to a request to assist in processing Hodoyan. When agent Gamez heard Hodoyan's name, he recalled that Hodoyan had been mentioned as an assassin for the AFO. To confirm his recollection, he contacted agent Villareal in Monterey, Mexico. Agent Villareal confirmed that Hodoyan was a reputed assassin for the AFO and informed agent Gamez that he would inquire into the existence of a warrant with the Mexican government. *fn1" Later, agent Villareal advised agent Gamez that Mexican authorities were preparing a provisional warrant for Hodoyan.

 At approximately 2:15 p.m., Hodoyan voluntarily agreed to fingerprinting, was given his Miranda warnings and was placed in a cell pending confirmation of his identify and criminal history. After obtaining a search warrant of the Cabrillo Tower condominium at 2:45 p.m. that day, agents searched the condominium and found documents indicating Hodoyan's undisputed dominion and control over the south-central bedroom of the condominium along with several ounces of marijuana and an AK 47 assault rifle. Agents also located cellular phones and a two-way radio in Hodoyan's bedroom. At around 5:00 p.m. Hodoyan was reminded of his Miranda rights, voluntarily waived those rights, and confessed to possession of the assault rifle and marijuana. It is this confession that Hodoyan seeks to suppress.

 DISCUSSION

 A. The Investigatory Stop

 The Fourth Amendment is not a guarantee against all searches and seizures, but only against unreasonable searches and seizures. In evaluating the ...


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