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UNITED STATES v. GUITTEREZ

January 23, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
JAVIER GUITTEREZ, Defendant.



The opinion of the court was delivered by: ARMSTRONG

 Defendant Javier Guitterez, an illegal alien residing in this country, is alleged to be a narcotics supplier involved in a large-scale drug distribution operation. Defendant is charged with having committed drug trafficking crimes involving cocaine, methamphetamine, and marijuana, in violation of 21 U.S.C. § 841(a)(1).

 The parties are presently before the Court on defendant's Motion to Suppress Evidence. Specifically, he seeks to suppress evidence seized from a residence located at 1091 Mitchell Way in El Sobrante, California, pursuant to a search warrant issued by Judge Lillian B. Sing of the San Francisco County Municipal Court. *fn1" Judge Sing issued the warrant upon the application and affidavit of Special Agent James Rodriguez of the State of California Department of Justice. Defendant also seeks to suppress all statements and observations made during an allegedly illegal traffic stop made on April 17, 1996. Having read and considered all memoranda filed in connection with this matter, and having heard oral argument on the issues involved, the Court GRANTS defendant's motion, in part, and DENIES the motion, in part. *fn2"

 BACKGROUND

 A. Factual Summary

 1. Defendant's Residence

 Defendant entered the United States illegally from Mexico in 1985. He alleges that from 1985 to 1987 he lived in Southern California, and in Northern California since 1987. In 1993, defendant married Delia Ruvalcaba, a resident alien, with whom he had a child in September 1993. Although there is no evidence relative to whether or where the defendant maintained a residence within this country at the time of the search, Department of Motor Vehicle records revealed that as of August 20, 1993, defendant's address was 1128 D Street, Hayward, California. (Aff. at 13-14.) In addition, defendant's wife disclosed that she resided at 3997 Via Estrella, Martinez, California. (Id. at 12-14.)

 Defendant possesses a California driver's license and has paid sales and use taxes on commodities such as food, clothing, gasoline and other personal items. However, there is no indication that he has ever been lawfully employed in this country, generated any legal income upon which he has paid federal or state income taxes, or otherwise contributed to the national treasury.

 2. Summary of Events

 Prior to his arrest, defendant was surveilled by various law enforcement officers. The search warrant affidavit prepared by Agent Rodriguez sets forth in some detail the events which took place prior to the challenged searches.

 On April 17, 1996, Agent Rodriguez, acting undercover, and with the assistance of a cooperating informant, arranged for the purchase of one kilogram of cocaine from an individual named Raul Torres. *fn3" (Id. at 6-7.) The controlled purchase was to take place at the Birrieria Jalisco Restaurant in San Francisco that same day. (Id.)

 Based on surveillance conducted before, during, and after the purchase, Agent Rodriguez, the affiant, represented to Judge Sing that he "believed" that the defendant delivered one kilogram of cocaine to the Birrieria Jalisco Restaurant prior to the controlled purchase. (Id. at 8, 9, 11, 11A.) The affiant further reported that prior to entering the storage room in which the controlled purchase took place, he observed the defendant seated at a table in the restaurant with Torres, and that Guitterez remained seated at the table when he and the informant exited the storage room and the restaurant. (Id. at 9, 11, 11A.) The affiant indicated that Guitterez remained in the restaurant for approximately nine minutes, during which time the affiant "believed" that Torres delivered to Guitterez the money which he received from Agent Rodriguez during the controlled purchase and that Guitterez then counted the currency. (Id. at 11A.)

 At about 4:27 p.m., surveilling officers observed Guitterez leave the restaurant. (Id. at 11A, 12.) The defendant, accompanied by a child and a Latina woman (later identified as Delia Ruvalcaba), entered a brown Mercury Cougar. (Id.) Surveillance personnel observed the vehicle travel eastbound on the San Francisco-Oakland Bay Bridge and exit in the city of Emeryville. (Id.) In Emeryville, the vehicle pulled into a Shell gasoline station. (Id.)

 At approximately 5:00 p.m., California Highway Patrol ("CHP") Officer Troy Verduzco was contacted by Special Agent Don Van Dorn, one of the surveillance officers, for assistance in making a traffic stop. (Narrative/Supplemental Report, Attachment 1 to Gov't Supp. Mem.) Agent Van Dorn informed Officer Verduzco that an occupant of the Cougar was not wearing a safety belt. (Id.) Officers Verduzco and Scott Lebell then proceeded towards the Emeryville Shell station. At around 5:28 p.m., a few minutes after the Cougar departed the gas station, the officers effected an automobile stop at University Avenue and Frontage Road, based on an alleged traffic violation. (Aff. at 12.)

 Officer Verduzco approached the Cougar from the rear and observed a female adult (Ruvalcaba) seated in the right rear seat next to a child. (Narrative/Supplemental Report.) He observed that neither the child nor the female was wearing a seatbelt. (Id.) Officer Verduzco also observed empty ziplock baggies on the right front seat. (Id.) After advising the defendant of the reason for the stop, Officer Verduzco requested his driver's license and registration. (Id.) Defendant was unable to produce either document. (Id.) The officer then requested the defendant to exit the vehicle, whereupon he conducted a pat down search for safety reasons. (Id.) During the pat search, Officer Verduzco observed a "large wad" of United States currency in defendant's right rear pants pocket and felt "large wads" of United States currency in the two front pockets. (Id.) *fn4"

 The defendant verbally identified himself to the officers as Javier Guitterez, indicated that his date of birth was May 10, 1970, and gave "a residence address of El Sobrante. . . ." (Aff. at 12-13.) Ruvalcaba stated that she lived at 3997 Via Estrella, Martinez, California. (Id. at 13.) The officers did not cite the defendant and he was allowed to leave. (Id. ; Narrative/Supplemental Report.)

 Guitterez, Ruvalcaba, and the child then proceeded to 1640-17th Street # 3 in San Pablo where they entered the apartment. (Aff. at 13.) Within a short time, all three individuals exited the apartment and reentered the Cougar. (Id.)

 At approximately 6:26 p.m., surveillance personnel observed the Cougar arrive at 1091 Mitchell Way in El Sobrante. (Id.) The garage at 1091 Mitchell Way opened and the Cougar pulled into the garage. There is conflicting evidence both within and without the affidavit as to how the garage door was opened. Agent Rodriguez represented in his search warrant affidavit that "[Special Agent] Burns observed GUITTEREZ operate a remote control garage door opener" and enter the garage. (Id.) Later in the affidavit, he represented that "Javier GUITTEREZ and Delia RUVALCABA were observed opening the garage door with a remote garage door opener . . . ." (Id. at 23 (emphasis added).) However, according to Agent Burns, he "saw the vehicle go into the garage by use of what appeared to be a garage door opener and then saw the garage door close . . . ." (Singer Decl. P 18.)

 A 1988 Hyundai automobile was observed parked in the driveway at 1091 Mitchell Way. (Aff. at 13.) A subsequent investigation revealed that the registered owner of the 1988 Hyundai was Gerardo Lizade, 2208 Emeric Avenue, San Pablo. (Id.) The brown Mercury Cougar driven by the defendant was registered to Miguel Angel Martinez, 1404 Emeric Avenue, San Pablo, California. (Id. at 17.)

 On April 18, 1996, the affiant queried the California Law Enforcement Telecommunications System ("CLETS") and the Department of Motor Vehicles ("DMV") database. (Id. at 13.) The affiant ascertained defendant's California Driver's License number was B4522775 and confirmed his date of birth as May 10, 1970. (Id. at 14.) In addition, the affiant's query revealed that defendant's address as of August 10, 1993 was 1128 D Street, Hayward, California. (Id.) The affiant's query of the DMV database also confirmed that Ruvalcaba's address was 3997 Via Estrella Street, Martinez, California. (Id.)

 On April 30, 1996, the affiant applied for and was granted a search warrant for PG&E Utility Subscriber Information. (Id. at 14.) The PG&E records obtained pursuant to that warrant listed Julio Ruvalcaba as the subscriber for 1640-17th Street # 3, the address to which the defendant, Delia Ruvalcaba, and the child travelled immediately after being detained by the CHP officers. (Id. at 15.)

 The PG&E records also revealed that Victor and Marialena Lozaya were the subscribers and payors at 1091 Mitchell Way. (Id. at 15, 17.) The credit for the PG&E account was established by Raquel Ponce. (Id. at 17.) The affidavit reports no information concerning any ownership or other possessory interests in 1091 Mitchell Way and there was no further surveillance or investigation of the residence.

 3. The Search Warrant

 On or about May 2, 1996, Agent Rodriguez submitted the aforementioned affidavit to Judge Sing requesting search warrants for six locations, including the Birrieria Jalisco Restaurant, the apartment at 1640-17th Street # 3 in San Pablo, and the residence at 1091 Mitchell Way in El Sobrante. (Id. at 23-25.) According to defendant, Agent Rodriguez, at Judge Sing's request, augmented the affidavit with handwritten statements. (Id. at 11A, 13.) Judge Sing then issued search warrants for all six locations.

 On May 9, 1996, law enforcement officers, led by Agent Rodriguez, executed the warrant at 1091 Mitchell Way. The officers seized $ 8,152 in cash, documents in the name of the defendant and his wife, and various quantities of cocaine, methamphetamine, and marijuana. Defendant later admitted to Agent Rodriguez his responsibility for the contraband.

 B. Procedural History

 On June 13, 1996, the Government filed a four count Indictment against the defendant. The Indictment charges the defendant with: (1) possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1); (2) possession of methamphetamine with intent to distribute, id. ; and (3) possession of marijuana with intent to distribute, id. In addition to these charges, the Indictment seeks the forfeiture of property which was involved in or traceable to the above conduct. See 21 U.S.C. § 853.

 Defendant Guitterez has filed a Motion to Suppress, pursuant to the Fourth Amendment. He contends that the evidence seized at 1091 Mitchell Way on May 9, 1996 and statements and admissions which he made on and after that date must be suppressed because (1) the affidavit is facially insufficient to support the search warrant, and (2) the affidavit contains false and/or misleading statements and omissions under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). He further argues that all statements and observations made in the course of the April 17, 1996 traffic stop in Emeryville must be suppressed on the grounds that CHP officers who effected the vehicle stop were without authority to do so.

 In opposing defendant's motion, the Government first argues that because Guitterez is an illegal alien, he lacks standing to seek the suppression of evidence under the Fourth Amendment. Alternatively, the government argues that: (1) the affidavit contains sufficient information to support the magistrate's finding of probable cause; (2) the agents executing the search warrant had a good faith belief in the validity of the search warrant under United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984); and (3) the CHP officers had sufficient probable cause and reasonable suspicion to conduct a valid automobile stop.

 On October 16, 1997, the Court denied defendant's motion to suppress on the basis that he failed to demonstrate that he had standing under the Fourth Amendment. In reaching that conclusion, the Court relied on the Supreme Court's decision in United States v. Verdugo-Urquidez, 494 U.S. 259, 108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990) and the Ninth Circuit's opinion in United States v. Barona, 56 F.3d 1087, 1093 (9th Cir. 1995), cert. denied, 516 U.S. 1092, 133 L. Ed. 2d 759, 116 S. Ct. 813 and 116 S. Ct. 814 (1996). The Court construed these cases as standing for the proposition that an illegal alien may seek the shelter of the Fourth Amendment only to the extent that he has developed substantial connections with this country by voluntarily assuming the societal obligations imposed upon "the people of the United States."

 Reviewing the evidence presented by the parties, the Court concluded that the defendant had not met this standard, as he had "failed to establish that he has assumed the complete range of obligations that are imposed on citizens, that he has voluntarily undertaken sufficient obligations of citizenship, or has developed substantial connections with the United States to be considered one of 'the people of the United States'." (Order at 16.) As such, the Court concluded that the defendant lacked standing to raise a Fourth Amendment challenge to ...


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