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United States v. Diaz-Delgado

December 10, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANTONIO DIAZ-DELGADO, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is Defendant's Motion to Suppress Evidence and Statements. (Doc. # 10.)

FACTS

On November 25, 2008, the Court held an evidentiary hearing. Robert Von Kaenel, a federal agent with the Drug Enforcement Administration ("DEA") testified that on July 2, 2008, he was working with an informant that had been arrested earlier that same day. Agent Von Kaenel testified that he was present when the informant placed a call to Ricardo Lopez and negotiated a methamphetamine transaction. The informant arranged to meet the Lopez in the parking lot of an Albertsons grocery store and Lopez gave the informant a description of the vehicle he would be arriving in.

Agent Von Kaenel testified that after the meeting was set up between the informant and Lopez, he and other DEA agents established surveillance at the Albertsons parking lot. Agent Von Kaenel testified that he was in his vehicle with the informant and observed a vehicle that matched the description of the vehicle that Lopez was arriving in pull into the parking lot. Agent Von Kaenel testified that the informant placed a call to Lopez from his vehicle in order to confirm whether the vehicle observed was the vehicle that Lopez was arriving in. Agent Von Kaenel testified that agents observed the passenger of the vehicle under observation on his phone after the informant placed the call. Agent Von Kaenel testified that the informant was able to look into the vehicle and identified the passenger of the vehicle as Lopez.

Agent Von Kaenel testified that the DEA requested San Diego Sheriff deputies to assist in the stop of the vehicle. San Diego Sheriff deputies approached and stopped the vehicle. Defendant Antonio Diaz-Delgado was the driver of the vehicle. The deputies discovered methamphetamine in the car.

On August 26, 2008, Defendant was placed into the custody of Immigration and Customs Enforcement ("ICE"). On that same day at 11:45 a.m., Defendant was advised of his Miranda rights by ICE Agent Jesus Robles. Defendant stated that he was a citizen of Mexico and did not possess legal documents that would allow him to reside in the United States. Defendant stated that he entered the United States sometime between February and April of 2007.

On September 24, 2008, the federal grand jury returned an indictment against Defendant charging that he is an alien, who previously had been excluded, deported, and removed from the United States to Mexico, found in the United States without permission to re-enter in violation of Title 8, United States Code, Sections 1326 (a) and (b).

I. Motion to Suppress Evidence

Defendant moves to suppress evidence on grounds that the agents did not observe facts that would support a reasonable suspicion to stop the vehicle Defendant was driving. Defendant contends that all evidence obtained from the illegal stop should be suppressed as fruit from a poisonous tree. The Government contends that there was a reasonable suspicion to conduct a Terry stop of the vehicle.

The Fourth Amendment prohibits "unreasonable searches and seizures" by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1, 9 (1968). The Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot. United States v. Arvizu, 534 U.S. 266, 273 (2002); see also United States v. Cortez, 449 U.S. 411, 417 (1981) ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."). When making the determination whether the officer's action is supported by a reasonable suspicion, the Court should examine the "totality of the circumstances" and determine whether the officer had a "particularized and objective basis" for suspecting legal wrongdoing. Cortez, 449 U.S. at 417-418.

Agent Von Kaenel testified that the informant placed a call to Lopez in his presence and negotiated the methamphetamine transaction, that the informant and Lopez agreed to meet at a certain Albertsons grocery store, and that Lopez provided a description of the vehicle he would be arriving in to the informant. Agent Von Kaenel testified that he and other agents established surveillance at the Albertsons parking lot and that he observed a vehicle pull into the Albertsons parking lot that matched the description of the vehicle Lopez told the informant he would be arriving in. Agent Von Kaenel testified that the informant placed a call to Lopez from his vehicle in order to confirm that the vehicle observed in the Albertsons parking lot was the vehicle that Lopez was arriving in, and that agents observed the passenger in the vehicle under observation on his phone after the informant placed the call to Lopez.

Based upon the totality of circumstances, the Court finds that the information known to the agent provided the agents with a particularized and objective basis to believe the Defendant and Lopez were about to be engaged in criminal activity, that is, a methamphetamine transaction. The Court concludes that the stop did not violate the Defendant's fourth amendment rights and the motion to suppress evidence is denied.

Even if the Defendant is successful in his motion to suppress evidence, the Defendant's identity is not itself suppressible. Once the Government is aware of the Defendant's identity, the Government may rely on his identity, and his criminal and immigration records, in bringing charges against him under Title 8, United States Code, ...


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