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United States v. Gomez

United States District Court, N.D. West Virginia

May 29, 2018




         In this case, the Government alleges that the defendants conspired to commit access device fraud by clandestinely obtaining and using credit and debit card information. Much of the physical evidence of this conspiracy was seized by West Virginia law enforcement officers from a hotel room in Huntington, West Virginia. Pending is the defendants' motion to suppress that evidence, which they claim was obtained in violation of their Fourth Amendment rights. For the following reasons, the Court DENIES the motion (Dkt. No. 108).


         A. Procedural History

         On December 5, 2017, the grand jury returned a six-count indictment naming defendants Meylan Montalvo Gomez (“Gomez”), Yarai Fuentes Quinones (“Quinones”), Naudi Reyes Fernandez (“Fernandez”), Yosan Pons Sosa (“Sosa”), and Lazaro Serrano Diaz (“Diaz”) (Dkt. No. 1). Count One charges that the defendants conspired to commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2). Id. at 1-7. Counts Two through Six charge each of the defendants separately with access device fraud, in violation of 18 U.S.C. §§ 1029(a)(2) and (c). Id. at 8-12. The Indictment also includes a forfeiture allegation. Id. at 13-15. The final defendant, Diaz, made his initial appearance on February 14, 2018 (Dkt. No. 90).

         On March 19, 2018, Quinones moved to suppress the evidence seized from the defendants' hotel room, “including cash, computers, credit cards, money orders, identification cards, cell phones, paperwork, merchandise, and other personal property” (Dkt. No. 108 at 1). Her co-defendants moved to join the motion (Dkt. Nos. 109; 110; 111; 112). The defendants argue that officers' warrantless entry was not justified by consent or exigent circumstances, and that a subsequently obtained search warrant did not cure the illegality of the search (Dkt. No. 108 at 7-13). In its response to the motion, the Government contends that “the sole issue presented is whether the search warrant is valid” (Dkt. No. 114 at 9).

         B. Factual Background

         On March 26, 2018, the Honorable Michael J. Aloi, United States Magistrate Judge, conducted a hearing on the defendants' motion to suppress (Dkt. No. 121). The Government presented testimony from West Virginia State Police Corporal David W. Simmons (“Corporal Simmons”), Cabell County Circuit Court Judge Gregory L. Howard (“Judge Howard”), and West Virginia State Police Trooper Austin Farmer (“Trooper Farmer”), while Gomez and Sosa testified on behalf of the defendants (Dkt. No. 123).

         The Court has reviewed the audio recording of the suppression hearing, as well as the following exhibits: 1) the search warrant affidavit, 2) the search warrant and return, 3) an email sent to Trooper Farmer, and 4) a copy of the signed search warrant. Id. Magistrate Judge Aloi found the testimony of the witnesses credible (Dkt. No. 129 at 3), and no party has challenged his credibility finding. Therefore, the Court takes its recitation of the facts from the evidence adduced at the evidentiary hearing.

         On October 19, 2017, Corporal Simmons received a complaint regarding unauthorized debit card transactions at a convenience store in Morgantown, West Virginia. The next day, he traveled to the store and viewed surveillance video from the time of the transactions. The video showed two females with dark complexions and dark hair arrive in a white Nissan Versa bearing a Maryland registration plate with the first two characters “7C” and the last character “9.” The pair conducted transactions at an ATM inside the store and departed in the same sedan.

         The same day that Corporal Simmons reviewed footage at the convenience store, Senior Trooper P.J. Maidens (“Trooper Maidens”) received another complaint regarding unauthorized debit card transactions at a grocery store and pharmacy in Morgantown, West Virginia. Surveillance video at the grocery store showed two Hispanic females making purchases with the complainant's debit card, accompanied by a Hispanic male, and departing in a white sedan. An employee at the pharmacy advised Senior Trooper Maidens that parties matching that description had made strange purchases and departed in a sedan bearing a license plate that she believed read “TCY3449.”

         Trooper Maidens and Corporal Simmons exchanged information from their respective investigations, and determined that both cases involved the same sedan with Maryland license plate number “7CY3449.” They quickly determined that the vehicle was registered to a car rental company in Laurel, Maryland. Moreover, on October 19, the vehicle had been recorded on a license plate reader traveling southbound on Interstate 79 under ten miles from the locations in question. A subpoena issued to the rental car company was returned on the morning of October 23, indicating that the vehicle had been rented to “Meylan Montalvo-Gomez” on October 18. The subpoena return further indicated that the last known location of the sedan's GPS tracking device was the parking lot of a Holiday Inn in Huntington, West Virginia. Corporal Simmons then discovered that Gomez had been arrested in September 2015 in connection with a counterfeit credit card ring in Lexington, Kentucky.

         With this information in hand, Corporal Simmons contacted Sergeant Barry Wellman (“Sergeant Wellman”), who was stationed in Huntington. After relaying the details of the investigation, Corporal Simmons asked Sergeant Wellman to confirm whether he could locate the white sedan, as well as a black Ford Expedition that the Monongalia County Sheriff's Department suspected was involved in similar fraudulent conduct. Shortly thereafter, Sergeant Wellman advised Corporal Simmons that he had located the suspect vehicles at the Holiday Inn, at which time Corporal Simmons requested that he attempt to locate the suspects' hotel room and make contact.

         After determining that the suspect vehicles were associated with Room 202, Sergeant Wellman and several other officers approached the room, where Gomez, Quinones, Fernandez, and Sosa were sleeping. When Gomez answered the door, the officers pushed their way into Room 202 without requesting consent, pointing their handguns and flashlights at the occupants. The officers requested Gomez's identification and removed the defendants from Room 202. During this time, the defendants observed the officers begin to search their bags and luggage without consent.

         After entering Room 202 and detaining the defendants, Sergeant Wellman contacted Corporal Simmons to advise him that they had located Gomez at the Holiday Inn, and that his team had found cash, credit cards, and computers in the hotel room. Upon learning that Sergeant Wellman had located the suspects, Corporal Simmons decided to finish drafting an affidavit and complaint to obtain a search warrant regarding Room 202 and the suspect vehicles. The four-page, single-space affidavit sets forth the details of the investigation in support of probable cause. As relevant to the defendants' pending motion to suppress, the final paragraph of Corporal Simmons's factual account reads as follows:

18. Upon being granted access to the room by Montalvo-Gomez, Troopers observed in plain view various items suspected in the ongoing Credit Card Skimming and Fraud investigation. Trooper identified all occupants of the room as Meylan Montalvo-Gomez, Yari ...

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