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United States v. Santiago-Francisco

United States District Court, N.D. West Virginia, Clarksburg

March 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GUILLERMO SANTIAGO-FRANCISCO, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO SUPPRESS [ECF NO. 29]

          THOMAS S. KLEEH UNITED STATES DISTRICT JUDGE.

         On January 8, 2019, the grand jury returned a one-count indictment against Guillermo Santiago-Francisco (“Defendant”), charging him with Fraud and Misuse of Document, in violation of 18 U.S.C. § 1546(a). Pending before the Court is a motion to suppress evidence [ECF No. 29]. The Court held an evidentiary hearing on the motion on March 20, 2019. At the hearing, counsel for Defendant advised the Court that Defendant is no longer challenging whether Defendant's consent to the search of his home was valid. Therefore, the only issue currently before the Court is the validity of the traffic stop that led to Defendant's indictment. The parties filed supplemental briefing on the traffic stop issue. For the reasons set forth below, the Court finds that the traffic stop was valid and, therefore, DENIES the pending motion to suppress [ECF No. 29].

         I. BACKGROUND[1]

         In October 2018, federal agents from Immigration and Customs Enforcement (“ICE”) and Diplomatic Security Service (“DSS”) conducted an operation in Clarksburg, West Virginia. The operation stemmed from the alleged kidnapping of a 16-year-old girl in a Kroger parking lot. The two suspects in the alleged kidnapping were Daniel Perez (“Perez”) and Juan Carlos De Leon Zanas (“Zanas”).[2] In early December 2018, federal agents had obtained arrest warrants for both men and were conducting surveillance on a home at 901 Tiano Lane, Clarksburg, West Virginia, in which they believed the individuals lived. They also conducted surveillance at El Rey, a Mexican restaurant in Clarksburg, where agents believed the suspects may have been working. As part of the investigation, officers with the Clarksburg Police Department (“CPD”), at the request of federal agents, conducted a traffic stop that led to Defendant's indictment in this action.

         A. Leading up to the Stop

         DSS Special Agent Christopher Holmes (“Holmes”) and ICE Agent Gary Olcott (“Olcott”) were working together on the investigation to find Perez and Zanas. On December 10, Olcott emailed Holmes to let him know he had run the addresses Holmes previously provided. Olcott sent him two names of individuals with prior immigration encounters, Mateo Delunas and Javier Rosario-Azamar (“Rosario-Azamar”), along with photographs of the two men. Holmes then went through still images from his surveillance videos at Tiano Lane and sent Olcott two candidates he thought were very likely matches, one of whom was Rosario-Azamar, a Mexican national believed to have no legal status and a prior history of deportation. He was believed to have reentered the country illegally, a felony offense under 8 U.S.C. § 1326(a). Holmes testified that he was aware of Rosario-Azamar's criminal history prior to the traffic stop at issue.

         On December 11, Holmes conducted surveillance at El Rey. He observed Rosario-Azamar taking out the trash twice. Olcott was in the car with Holmes. Holmes testified that they determined the man was Rosario-Azamar because the photographs matched his description perfectly, and his mustache, in particular, was recognizable. Holmes compared two sets of photographs to the individual he saw at El Rey: those from Tiano Lane surveillance and those provided by Olcott. Holmes also observed a gold Toyota Camry drive to the residence on Tiano Lane that day. At this point, Holmes believed Rosario-Azamar was residing at Tiano Lane.

         B. The Stop

         The next day, Holmes explained to CPD officers that there were several individuals in the home at Tiano Lane who were likely illegal immigrants and targets of an investigation. He asked CPD to conduct a traffic stop. Their goal was to find Perez. CPD officers set up near the residence on Tiano Lane. Holmes advised them that the target vehicle -- a gold Toyota -- would be leaving the residence shortly and that he would contact them via telephone when it was getting ready to leave so that CPD could initiate a traffic stop if appropriate.

         Holmes testified that while watching the residence at Tiano Lane, one individual repeatedly exited the front door, “messed with” the Toyota Camry, and went back inside. Then four men exited the back of the house, walked to the front of the house, and entered the vehicle. Holmes said he could readily identify Rosario-Azamar as one of the men. Holmes was unsure about the identities of the other occupants of the vehicle. The Toyota Camry then drove off. Holmes notified CPD officers and Olcott that the subjects were leaving. A CPD officer sounded his siren, activated his emergency lights, and initiated a traffic stop. Neither the driver nor the other occupants committed any traffic violations.

         Two CPD officers involved in the traffic stop testified that they knew the stop was related to illegal immigration and that federal agents had reason to believe some of the residents at Tiano Lane were in the country illegally. CPD officers did not know any specific details of the case. They did not have information about the nature of the alleged crime or the individuals involved. They were simply assisting in the federal investigation.[3] The officer who initiated the stop testified that he had no prior involvement in the investigation before that day and no history of working with Holmes or Olcott. After the traffic stop, police identified the vehicle's occupants and, ultimately, obtained Defendant's allegedly fraudulent social security card and permanent residence card.

         C. Agent Holmes's Identification of Rosario-Azamar

         Holmes testified that he was able to identify Rosario-Azamar on December 12 based on his surveillance photographs, ICE photographs, and his seeing Rosario-Azamar twice the day before at El Rey. He testified that Rosario-Azamar had a “very apparent” mustache. He also recognized Rosario-Azamar's posture and testified that he was the same individual he had seen the prior day. Holmes admitted he had never heard Rosario-Azamar's name before December 2018 and that he did not know him. He testified that he did not know where Olcott received the photographs of Rosario-Azamar. Holmes did not know Rosario-Azamar's height or weight. He did not obtain fingerprints, DNA, or any other biometrics. He did not employ any facial recognition software.

         When Holmes obtained surveillance videos and a photograph from ICE, he was initially able to compare the two photographs. On December 11, while conducting surveillance at El Rey, he saw Rosario-Azamar twice and got “good clear looks.” On December 12, he saw the same person coming out of the house on Tiano Lane. He was “very confident” that it was the same person at Tiano Lane who was at El Rey and in the photographs. Holmes had seen him personally and in ...


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