United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 129] AND DENYING MOTION TO SUPPRESS
[DKT. NO. 108]
M. KEELEY UNITED STATES DISTRICT JUDGE
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).
FACTUAL AND PROCEDURAL BACKGROUND
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).
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).
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).
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.
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.
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.”
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.
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.
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.
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 ...