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United States v. Ly

March 5, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
BAO CHAU LY, AND DABONA TANG, AKA "RYAN," DEFENDANTS.



The opinion of the court was delivered by: Honorable Manuel L. Real

[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: DEFENDANT LY'S MOTION TO SUPPRESS

I. INTRODUCTION

On December 19, 2008, the United States filed an indictment against defendant BAO CHAU LY ("defendant") alleging that he (1) conspired with co-defendant Dabona Tang to possess with intent to distribute 3,4-Methylenedioxy- methamphetamine ("MDMA") in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C); (2) distributed MDMA in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3) possessed MDMA with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The indictment stems from an undercover surveillance operation where law enforcement observed defendant deliver a tin box containing 2,000 MDMA pills to co-defendant Dabona Tang, defendant's admission that he purchased and delivered 2,000 MDMA pills earlier that day, and $3,500 seized during a search of defendant's residence.

On February 23, 2009, defendant filed a motion to suppress his admission that he bought and sold 2,000 MDMA pills and the $3,500 found in his residence. Defendant claimed this evidence should be suppressed because: (1) the officers lacked exigent circumstances to conduct a warrantless entry of defendant's home; (2) the $3,500 was found before the search warrant was approved, and defendant's consent to the search was coerced; (3) defendant did not waive his Miranda rights; and (4) assuming that the officers' entry lacked exigent circumstances, defendant's confession and the discovery of the $3,500 were not sufficiently attenuated from the illegal entry to render these fruits of the poisonous tree admissible. Defendant filed no declarations in support of his motion.

On February 23, 2009, the government filed its opposition to defendant's motion to suppress. The government argued that (1) exigent circumstances existed; (2) defendant's consent was not coerced; (3) defendant waived Miranda; and (4) even if there were issues with the entry, the confession and $3,500 were sufficiently attenuated from the entry. In support of its opposition, the government filed the declarations of Montebello Police Officers Keller, Camuy, Jackson, and Hoffman.

On February 23, 2009, this Court held an evidentiary hearing on defendant's motion. The declarations of Keller, Camuy, Jackson, and Hoffman were admitted into evidence as the witnesses' direct testimony, and defendant cross-examined each witness. At the conclusion of the government's case, defendant and his girlfriend, Linda Hang, testified as witness in support of the motion to suppress. The government also called DEA Special Agent Paul McQuay as a rebuttal witness.

The Court has thoroughly reviewed all the papers filed by the parties, heard and evaluated the testimony of the witnesses at the February 23, 2009 hearing and in their declarations, weighed the evidence, and considered the arguments of counsel. For the following reasons, the Suppression Motion is hereby DENIED.

II. RELEVANT FINDINGS OF FACT

The Court makes the following findings of fact after fully considering and weighing the (1) sworn declarations of Montebello Police Officers Steve Keller, Ray Camuy, Steven Jackson, and Sean Hoffman; (2) the direct testimony of Drug Enforcement Agency Special Agent Paul McQuay; (3) the direct testimony of defendant and defendant's girlfriend, Linda Hang; and (4) cross and redirect examination of each witness.

1. This case arose out of a Drug Enforcement Agency ("DEA") and Montebello Police Department ("MPD") investigation of a MDMA distribution conspiracy in Los Angeles County. During that investigation, the DEA and MPD developed a confidential informant ("CI") who agreed to arrange a purchase of MDMA from one of his sources. That source was Dabona Tang.

2. On April 16, 2008, the CI made arrangements to purchase 2,000 MDMA pills from Tang. Before the 2,000-pill transaction, the CI and Tang agreed to an exchange of samples. That day, Tang and the CI met at a 7-11 near Tang's residence and provided samples of the MDMA. Detective Hoffman observed the meeting and transaction at the 7-11. The CI gave Detective Hoffman the samples.

3. On April 22, 2008, the CI and Tang agreed to execute the 2,000-pill transaction. In anticipation of this transaction, officers and agents began an undercover surveillance operation of Tang and his residence. Officers were also in frequent communication with the CI who told them the status of the transaction. Tang told the CI that he didn't have the requested MDMA but he could obtain it from his source before 7:45 p.m.

4. From the time of Tang's admission to the CI that he didn't have the MDMA but would get it by 7:45 p.m., until 7:30 p.m., officers observed that no one entered Tang's residence.

Then, at 7:30 p.m., 15 minutes before Tang's deadline to receive the MDMA, defendant drove up to Tang's residence, carried a tin cookie box large enough to carry 2,000 Ecstasy pills inside Tang's residence, and left empty-handed. Based on this information, the officers reasonably believed that defendant delivered the MDMA to Tang.

5. After observing defendant deliver the drugs, the officers split up the surveillance team in two parts. One team followed defendant back to his house. The other remained at Tang's house.

6. At around 9:30 p.m., Tang left his residence to deliver the MDMA to the CI. Shortly after Tang left his house, officers from the Pasadena Police Department conducted a traffic stop of Tang and obtained consent to search his vehicle. From Tang's vehicle, officers recovered a small tin cookie box filled with ...


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