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United States v. Nunez

United States District Court, S.D. New York

June 6, 2017


          OPINION & ORDER

          KATHERINE B. FORREST, District Judge:

         On January 4, 2017, a grand jury in this District indicted defendant Estibe Morillo Nunez (”Nunez”), charging him with conspiring to distribute, or possess with intent to distribute, cocaine and heroin in violation of 21 U.S.C. § 846. On April 6, 2017, Nunez moved to suppress evidence obtained in violation of his rights under the Fourth Amendment of the U.S. Constitution. (Notice of Motion at 2, ECF No. 15.) In the alternative, Nunez moved the Court to hold an evidentiary hearing to determine whether a suppression of evidence is warranted. (Id.)

         For the reasons set forth below, both Nunez's motion to suppress and motion for an evidentiary hearing are DENIED. The court concludes that the stop and search of Nunez was lawful.

         I. FACTS

         On December 8, 2016, at approximately 10:50 a.m., defendant Estibe Morillo Nunez (”Nunez”), was pulled over by law enforcement as he was driving into the Lincoln Tunnel toward New York City. (Complaint (“Compl.”) at ¶ 9(a), ECF No. 22-1.) A certified narcotics-detection canine handler arrived to inspect the car shortly thereafter.[1] (Id. at ¶ 9(b).) While inspecting the interior of the vehicle, the canine alerted to the back of the passenger seat and to a piece of luggage in the rear of the passenger compartment, indicating the presence of controlled substances. (Id.) The officers conducted a search of the luggage and found two bags of glassine envelopes, two boxes of clear plastic bags, a scale, a box of rubber gloves, an industrial infiltration mask, plastic and glass tubes, and cooking pans. (Id. at ¶ 9(c).) The officers also located and searched a hidden compartment in the passenger seat to which the canine had alerted. (Id. at 9(d).) Within that compartment, the officers found and opened a cardboard box that contained three clear plastic bags with multiple bundles of paper-wrapped substances that appeared to the investigating agent to be individual-use portions of heroin, based on her training and the contents of the luggage. (Id.) The officers located and searched a second hidden compartment in the rear of the vehicle. (Id. at ¶ 9(e).) In the second compartment, the officers found six individually wrapped packages that together weighed approximately six kilograms. (Id. ¶ 9(e).) The officers inspected the packages and found a white, powdery substance that later tested positive for cocaine. (Id. at ¶ 9(e).)

         The facts leading up to the December 8, 2016, stop are as follows. Since about February 2015, the Drug Enforcement Agency (“DEA”) has conducted an investigation of a California and Mexico-based drug trafficking organization (“DTO”) that uses commercial trucks to transport narcotics to various locations throughout the United States, including the New York metropolitan area. (Agent Affidavit in Support of Warrant and Order for Cellphone Location and Pen Register Information executed December 5, 2016 (“Cardona GPS Aff.”) at ¶ 8, ECF No. 22-2.) The DTO recruits drivers who deliver legitimate cargo throughout the country and employs them to stop along the way (often at truck stops) to deliver narcotics to customers in the New Jersey/New York area, and then to transport the sales proceeds back to California. (Id.) Using geolocation information, toll analysis, and common-call analysis, the DEA has identified truck drivers and coordinators involved in this narcotics trafficking and has thereby intercepted numerous DTO shipments. (Id. at ¶ 9.) In 2015, and 2016, these seizures, on separate occasions, included: (a) approximately 30 kilograms of heroin; (b) approximately $500, 000; (c) approximately 30 kilograms of heroin and 32 kilograms of cocaine; (d) approximately 2 kilograms of heroin; (e) approximately 5 kilograms of methamphetamine; (f) approximately 14 kilograms of heroin and approximately 3 kilograms of methamphetamine; (g) approximately 4 kilograms of heroin; and (g) approximately 30 kilograms of cocaine. (Id.)

         Around September 2016, agents with the DEA suspected that a particular commercial truck driver (“Driver-2”) was transporting drugs on behalf of the DTO with a truck (“Truck-2”). (Id. at ¶¶ 13-15.) On or about October 26, 2016, agents of the DEA visually surveilled Truck-2 at a truck stop (“Truck Stop”) near Kearny, New Jersey, in part, by tracking the location of a cellphone used by Driver-2. (Id. at ¶ 15(a).) Agents then witnessed a van pull into the Truck Stop. (Id. at ¶ 15(b).) Then they observed Driver-2 carry a weighted-down white bag from his truck and hand it to the driver of the van. (Id. at 15(b).) After the van left the Truck Stop, law enforcement agents pulled over the van, and, after a consensual search of the vehicle, they discovered four kilograms of heroin in the same white bag that was handed to the driver of the van. (Id. at ¶ 15(d).)

         After the October 26 operation involving Driver-2, DEA agents obtained a warrant for the location data of another driver (“Driver-1”). (See Cardona GPS Aff. ¶ 17-23.) The warrant request was based in part on the fact that Driver-1's cellphone was in contact with the alleged coordinator of the DTO, and Driver-1's cellphone was also in contact with Driver-2. (Id. at ¶¶ 18, 19(a).) The information obtained through tracking Driver-1's cellphone geolocation data led DEA agents to surveil the same truck stop as the October 26 operation on December 8, 2016. (Compl. at ¶ 7(b).)

         On December 8, 2016 at approximately 9:15 a.m., Special Agent Cardona and other agents began surveillance of the Truck Stop and observed the truck associated with Driver-1's cellphone data parked there. (Cardona Depo. at ¶ 6(b).) At approximately 10:30 a.m., Special Agent Cardona witnessed a Chevrolet Suburban (the “Nunez Chevy”) pull up next to the truck. (Id. at ¶ 8(a).) The truck driver retrieved a black bag from the truck and placed it in the back seat of the Nunez Chevy. (Id. at ¶ 8(b).) The Nunez Chevy remained parked at the Truck Stop for approximately two minutes, then departed onto the New Jersey Turnpike heading towards New York City. (Id. at ¶ 8(c).)

         About twenty minutes later, at approximately 10:50 a.m., the Nunez Chevy passed through a toll booth to enter the Lincoln Tunnel into New York City. (Id. at ¶ 9(a).) Shortly thereafter, law enforcement agents stopped the Nunez Chevy and discovered an individual later identified as Estibe Morillo Nunez, the defendant, as the driver. (Id.) As discussed above, shortly thereafter, a certified narcotics-detection canine handler exposed the vehicle to his trained canine for inspection, resulting in the discovery of narcotics and narcotics paraphernalia in the vehicle.


          “The Fourth Amendment protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'” Davis v. United States, 564 U.S. 229, 236 (2011). If a court concludes that a search or seizure violated the Fourth Amendment, it must determine whether to suppress the evidence obtained as a result of that illegal search or seizure. See Mapp v. Ohio, 367 U.S. 643 (1961). The exclusionary rule is “a deterrent sanction, ” Davis, 564 U.S. at 231-32, and “encompasses both the ‘primary evidence obtained as a direct result of an illegal search or seizure' and . . . ‘evidence later discovered and found to be derivative of an illegality, ' the so-called ‘fruit of the poisonous tree.'” Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016) (quoting Segura v. United States, 468 U.S. 796, 804 (1984)).

         As a prudential doctrine, see Davis, 564 U.S. at 236, the exclusionary rule is “applicable only . . . where its deterrence benefits outweigh its substantial social costs, ” as “suppression of evidence . . . has always been our last resort, not our first impulse.” Strieff, 136 S.Ct. at 2061 (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). Because defendant challenges the stop that resulted in the ultimate discovery of the cocaine in defendant's vehicle, the Court discusses the legal principles associated with the issues.

         a. Th ...

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