United States District Court, D. Minnesota
James S. Alexander and Thomas Calhoun-Lopez, Esqs., United States Attorney's Office, for Plaintiff.
Philip G. Leavenworth, Esq., Leavenworth Law Office, for Defendant Kevin Max Arballo.
Michael W. McDonald, Esq., for Defendant Ivan Arballo.
REPORT AND RECOMMENDATION
STEVEN E. RAU, Magistrate Judge.
The above-captioned case comes before the undersigned on Defendant Kevin Max Arballo's ("Kevin Arballo") Motion to Suppress Evidence Acquired by Means of Illegal Search and Seizure [Doc. No. 55] and Supplemental Motion to Suppress Evidence Acquired by Means of Illegal Search and Seizure [Doc. No. 67], and Defendant Ivan Arballo's Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Doc. No. 44] (collectively, "Motions to Suppress"). This matter has been referred for the resolution of the issues raised in the Motions to Suppress pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and District of Minnesota Local Rule 72.1. For the reasons stated below, this Court recommends denying the Motions to Suppress.
On September 24, 2014, a grand jury indicted Kevin Arballo and Ivan Arballo (collectively "Defendants") with one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Indictment) [Doc. No. 24 at 1-2]. At a pretrial motions hearing on November 26, 2014, this Court heard testimony from Agent Jeffrey P. Thul ("Agent Thul") and Agent Jeff Hanson ("Agent Hanson"). (Minute Entry Dated Nov. 26, 2014) [Doc. No. 68]; (Ex. & Witness List) [Doc. No. 69]. The Court received into evidence Government's Exhibit 1, a copy of a search warrant issued for the search of Room 145 at the AmericInn in Bloomington, Minnesota, and Defendants' Exhibit 1, a copy of the training log for the drug detection dog that was involved in this case. (Ex. & Witness List).
At the request of the parties, the Court ordered supplemental briefing. (Minute Entry Dated Nov. 26, 2014 at 2). Ivan Arballo submitted his supplemental brief on December 23, 2014, and Kevin Arballo submitted his supplemental brief on December 24, 2014. (Def.'s Mem. of Law, "Mem. in Supp.-Ivan") [Doc. No. 78]; (Def.'s Mem. in Supp. of Mot. to Suppress Evidence Acquired by Means of Illegal Search and Seizure, "Mem. in Supp.-Kevin") [Doc. No. 79]. The Government responded on January 7, 2015. (Gov't's Resp. to Def.'s Mem. in Supp. of Mot. to Suppress Evidence, "Gov't's Resp.-Kevin") [Doc. No. 83]; (Gov't's Resp. to Def.'s Mem. in Supp. of Mot. to Suppress Evidence, "Gov't's Resp.-Ivan") [Doc. No. 84].
Prior to the arrest of Kevin Arballo and Ivan Arballo, investigators with the Dakota County Drug Task Force executed a search warrant of a hotel room in Brooklyn Center, Minnesota. (Tr. at 17). Clinton Patrick Barton ("Barton") occupied the hotel room. (Id. ). During the search, investigators found "[a]pproximately one and a half pounds of methamphetamine." (Id. ). Barton revealed to investigators that the methamphetamine was his, and that he had received the drugs earlier that day from "[t]wo [younger] Hispanic males." (Id. at 17-18). Barton cooperated with law enforcement. (Id. at 18).
Law enforcement and Barton developed a plan of cooperation. (Id. ). This plan "included [Barton] contacting the individuals" from whom he had received the methamphetamine to set up a meeting. (Id. ). At the meeting, Barton could pay the individuals "money that he owed them" for the methamphetamine he previously obtained, and also obtain "additional methamphetamine." (Id. ). Barton owed $19, 000 for the methamphetamine he obtained previously, as the drugs were "fronted." (Id. at 19, 33). That is, Barton was provided with drugs and would pay the individuals after selling the drugs. (Id. at 19). Fronting is "a common practice, especially in larger scale drug deals." (Id. at 18-19).
Agent Thul, who is a police officer for the City of Eagan and a detective assigned to the Dakota County Drug Task Force, worked with Barton. See ( id. at 18, 36). Based on Barton's description of the individuals from whom he had obtained methamphetamine, Agent Thul observed similarities between his investigation of Barton's suppliers and a case he had worked on within the previous month. (Id. at 39). The previous case involved two Hispanic individuals, and an individual that a previous informant referred to as "the boss.'" (Id. ). The "boss" resided in Mexico but had "guys up here" in Minnesota. (Id. ). Likewise, Barton informed Agent Thul he received drugs from two Hispanic individuals in Minnesota and had been "talking to a boss in Mexico." (Id. at 18, 39). The similarities were further demonstrated when Barton "provided [Agent Thul] with a phone number for the boss in Mexico and it was the same phone number that the previous informant had given [Agent Thul] for the boss in Mexico on the previous case." (Id. at 39). The informant in the previous case told Agent Thul that in past dealings, if he showed up with money, drugs would be provided. (Id. at 41). Barton told Agent Thul that he believed that if he showed up to meet the individuals with money, they would give him more drugs because "that's the way it's worked in the past." (Id. ).
Law enforcement conducted several controlled calls with Barton. (Id. at 19). In the first call on August 19, 2014, Barton called one of the individuals from whom he had previously purchased methamphetamine and told the individual that "he just had to collect a little bit more money and that he would be ready to meet with the individuals the following day." See ( id. at 19, 22). The next day, Barton placed another call to the individual. (Id. at 20, 22). Barton told the individual that he was in West St. Paul, Minnesota, and stated that he had to pick up "the last little bit of money." (Id. at 20). Shortly thereafter, Barton called the individual for a third time and told him that he was "ready to meet." (Id. ). A meeting at a Menards parking lot in West St. Paul was arranged. (Id. ). In the phone calls, Barton asked the individual for additional drugs, "claim[ed] he ha[d] raised all the money that he owe[d] for fronted drugs, " and at one point told the individual, "your guy, " referring to the "boss, " said Barton could "get two or three next time." See ( id. at 33, 34). The individual did not make a commitment to bring additional drugs to Barton. (Id. at 33).
Before the Menards meeting, Barton met law enforcement at a West St. Paul location. (Id. at 21). Officers conducted a search of Barton's person and vehicle, "looking for any money, contraband or weapons" and did not find any such items. (Id. ). Agent Thul provided Barton with "simulated money" to take to the meeting, which was placed in "a manila envelope." (Id. ). In addition, Barton was equipped with a transmitting device so that agents could hear audio inside Barton's vehicle. (Id. at 20-21).
Agent Thul and other law enforcement followed Barton to the Menards parking lot and set up "several vehicles in the area" for surveillance. (Id. at 20-21, 23). Barton was parked in the back area of the parking lot and received a call from the individual, who had arrived in the Menards parking lot in a red pickup truck. (Id. at 23-24). The individual told Barton that he was in a different area of the parking lot. (Id. ). Agent Thul heard this information through Barton's audio transmitting device. (Id. at 24). Barton drove to the individual's location in the parking lot and parked next to the truck. See ( id. ). Agent Thul maintained surveillance of Barton's vehicle, slowly following Barton to the new location in the parking lot. (Id. ).
A Hispanic male carrying a black duffel bag, later identified as Kevin Arballo, exited the truck. (Id. at 24-25, 27). Agent Thul saw Barton park his vehicle and saw Kevin Arballo enter Barton's vehicle. See ( id. at 24). Once in the vehicle, Kevin Arballo asked Barton "how much money [was] in the envelope" and Barton told him it was "all there." (Id. ). Agent Thul then "signal[ed] for agents to move in and make the arrest" because he "was concerned that [Kevin Arballo would] open up the envelope and realize there was no money in it." (Id. ). Agents approached the vehicle, ordered Kevin Arballo out of the vehicle, and "he was handcuffed without incident.... Barton was... arrested at that time to maintain his informant status for the time being." (Id. at 25).
Agents believed that a second suspect was present, but they had not witnessed another individual exit the truck. (Id. at 25, 28). Agents reviewed Menards surveillance video of the encounter, which showed another Hispanic male, later identified as Ivan Arballo, exit the "driver's seat [of the truck] and proceed into Menards." (Id. at 27-28). The video also showed Kevin Arballo, carrying a black bag, exiting the front passenger seat of the truck, and entering the front passenger seat of Barton's vehicle. (Id. at 27). Using video cameras inside Menards, agents located Ivan Arballo near the north exit of the store and placed him under arrest. (Id. at 28, 29).
Although the timing is unclear from the evidence submitted to the Court, at some point after Kevin Arballo was apprehended, agents searched Barton's vehicle. (Id. at 25). Agent Thul noticed a black duffel bag on the front passenger-side floorboard. (Id. at 26). The duffel bag "had not been in the vehicle" when agents searched Barton's vehicle prior to the Menards meeting. (Id. at 26, 27). Agent Thul searched the duffel bag, in which he found "a lot of clothes" and "two cellophane wrapped packages of a crystal substance" that was later confirmed to be methamphetamine. (Id. at 26).
Kevin Arballo and Ivan Arballo were transported to the West St. Paul Police Department. (Id. at 29). Based on Agent Thul's previous case, he knew it was common for individuals involved in this drug trafficking organization to use hotels in Bloomington, Minnesota. (Id. ). An agent contacted the Bloomington Police Department and, through its "crime alert system, " sent faxes to all Bloomington hotels looking for rooms rented in the name of Kevin Arballo or Ivan Arballo. See ( id. at 29-30). In response, a manager at the AmericInn in Bloomington called Agent Thul and "advised [him] that Ivan Arballo had rented a hotel room at her hotel that day." (Id. at 30). The room rented by Ivan Arballo was Room 145. See ( id. at 30, 46).
Agents requested the assistance of Agent Hanson and his canine partner, Marley. See ( id. at 45). Agent Hanson and Marley were asked to conduct a dog sniff at the AmericInn. (Id. ). After reaching the area surrounding Room 145, Agent Hanson "present[ed] multiple things to [Marley] through a hand gesture, " such as "outlets, fire extinguisher boxes, [and] door seams, " including the door seam for Room 145. (Id. at 45-46). Agent Hanson "present[ed] the door just like... all the doors or any other objects" that he wanted Marley to check. (Id. at 46). Marley "alerted to the presence of a narcotic" at Room 145. (Id. ). Agent Hanson testified that Marley's behavior constituted "an absolute alert, " as opposed to other behaviors that may demonstrate "interest." (Id. at 47).
By the evening of August 20, 2014, agents obtained a state search warrant to search Room 145 at the AmericInn. (Id. at 30); (Gov't's Ex. 1). Agent Thul signed the search warrant affidavit and recounted the events that took place in the Menards parking lot earlier that day, including the discovery of methamphetamine in the duffel bag in Barton's vehicle, and described Marley's alert outside Room 145. (Gov't's Ex. 1 at 4-5). Agents executed the search warrant and located, among other items, documents in Ivan Arballo's name, a "large amount of U.S. currency, and two packages of methamphetamine, " weighing ...