Opinion
CRIMINAL 02-0247(JAG)
July 8, 2003
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the court is a motion to suppress filed by co-defendants Luis Mercado-Pagán and Sylvia Rodríguez-Durán. They moved for a hearing under Franks v. Delaware seeking to attack the veracity of statements given by a Puerto Rico narcotics agent to a state judge in support of his request for the search warrant that was ultimately executed in co-defendants' apartments. After consideration of the evidence presented at the hearing and the memoranda submitted by the parties, it is my recommendation that co-defendants' motion be GRANTED.
438 U.S. 154(1978).
1. FACTUAL AND PROCEDURAL BACKGROUND
On June 13, 2002, a municipal judge of the Commonwealth of Puerto Rico sitting in Mayagüez, issued a warrant authorizing the search of apartment number 105, Building Q, and apartment number 102, Building K, both located at "Villas del Deportivo" Apartment Complex in Barrio Joyudas, Cabo Rojo, Puerto Rico. Respectively, the above-mentioned apartments are owned and rented by co-defendants Mercado-Pagán and Rodríguez-Durán.
The warrant, based solely on the affidavit of narcotics agent Luis R. Rodríguez-Molina — badge no. 14745 — was executed on June 14, 2002. The search of both apartments revealed the presence of approximately 172 marihuana plants and a .38 caliber Smith and Wesson revolver. Co-defendants were arrested.
On June 20, 2002, co-defendants were indicted by a grand jury siting in this district. The indictment charges each with aiding and abetting and unlawfully and intentionally possessing with intent to manufacture and distribute 172 marihuana plants in violation of U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The indictment also charges the co-defendants with aiding and abetting each other and knowingly and unlawfully possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 921(a)(3).
The co-defendants filed a motion to suppress and moved for aFranks' hearing in order to challenge the truthfulness of the statements contained in agent Rodíguez-Molina's affidavit. The motion to suppress was referred to me for disposition on November 7, 2002. (Docket No. 45.) I granted the request for a Franks hearing on November 8, 2002. (Docket No. 46.) The hearing was held on February 7, 13, and 27, 2003. The government was represented by Assistant United States Attorney Lynn Doble-Salicrup. Co-defendant Mercado-Pagán was represented by Juan Acevedo-Cruz, Esq., and co-defendant Rodríguez-Durán was represented by Arturo Negrón-García, Esq.
II. ANALYSIS A. The Standard Under Franks v. Delaware:
The Fourth Amendment of the United States Constitution states that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seizecu
U.S. Const. amend. IV. The Supreme Court's decision in Franks v. Delaware, 438 U.S. 154(1978), established for the first time, the right of a criminal defendant to a hearing to attack under the Fourth Amendment, the statements contained in an affidavit submitted in support of a request for a search warrant. Indeed, a Franks hearing "is primarily a vehicle for challenging a warrant by impeaching the affiant."United States v. Adams, 305 F.3d 30, 36 n. 1 (1st Cir. 2002). InFranks, the Court held that a defendant is entitled to a hearing to challenge the truthfulness of statements given in support of a search warrant "if he [or she] makes a substantial preliminary showing that (1) a statement in the affidavit was knowingly and intentionally false, or made with reckless disregard for the truth; and (2) the falsehood was necessary to the finding of probable cause. United States v. Strother, 15 318 F.3d 64, 69 (1st Cir. 2003) (citingFranks v. Delaware, 438 U.S. at 171-72). Only when such a preliminary showing is made is the defendant entitled to a hearing. If at the hearing, the defendant successfully establishes by a preponderance of the evidence the allegations of perjury or reckless disregard, and, in the event that, with the false statements set to one side, the remaining contents are insufficient to establish probable cause, the warrant must be voided and the fruits of the search excluded. Franks v. Delaware, 438 U.S. at 156.
As noted, there are two components to any Franks v. Delaware analysis. First, is the threshold showing that a defendant has to make of his entitlement to a hearing. If no such showing is made, then the court needs to go no further and the validity of the warrant and search must be upheld. Second, (assuming a hearing is granted) is the substantive showing that a defendant has to make to establish the falseness of the statements given. Such analysis, however, always begin with a presumption of the validity of the warrant. Franks v. Delaware, 438 U.S. at 171. In the instant case, my discussion is limited to the second prong of Franks, for it has already been determined that the defendants made a preliminary showing of their entitlement to a hearing.
B. Agent Rodríguez-Molina's Affidavit
Agent Luis R. Molina-Rodríguez submitted an affidavit in support of his application for the search warrant at issue here. Said affidavit was submitted to a municipal judge sitting in Mayagüez. Based on the facts alleged by agent Rodríguez-Molina, the judge reviewing the affidavit determined that there was probable cause to search co-defendants' apartments and issued the search warrant. The following are the facts alleged by agent Rodríguez-Molina in support of the search warrant application.
1. Narcotics agent Luis R. Rodríguez-Molina, badge no. 14745, is ascribed to the Drugs and Vice Division of the Puerto Rico Police in Cabo Rojo, Puerto Rico. There, he conducts confidential investigations with respect to drug-trafficking, illegal gambling, illegal firearms, and other criminal activities.
2. On June 7, 2002, agent Rodríguez-Molina received an order from his immediate supervisor, Sargent Edwin Velázquez-Velázquez, to conduct a confidential investigation regarding the possible trafficking of controlled substances in the Joyudas sector of Cabo Rojo, Puerto Rico.
3. Said investigation was prompted by the observations of Stolen Vehicles Division agents who allegedly witnessed some transaction linking co-defendants Mercado-Págan and Rodríguez-Molina to drug trafficking.
4. Co-defendants are residents of Building Q, apartment 105 at the "Villas del Deportivo" apartment complex in Joyudas. They used as their means for transportation a black and beige Ford Bronco, license plate number BOL-587.
5. Upon being assigned to the case, agent Rodríguez-Molina went to the "Villas del Deportivo" apartment complex using a confidential vehicle. However, around 3:30 p.m., and on his way to said apartment complex, the agent spotted the black and beige Ford Bronco at kilometer 15.4 of road 102 as it arrived at the premises of a restaurant called "La Taverna del Pescao." A gentleman later identified as co-defendant Luis Mercado-Pagán, exited the Bronco and approached a white van that was also parked in the parking lot area of the above-mentioned restaurant.
6. Inside the van there was another gentleman described as an overweight, white skin, short, black hair man of approximately 30 years of age and dressed in a sleeveless red shirt.
This individual, with whom co-defendant Mercado-Pagán was allegedly observed twice engaging in illegal drug transactions, has never been identified.
7. The co-defendant immediately proceeded to approach the van, walking toward the driver's side of said vehicle where the unidentified individual waited inside. After a brief greeting, the unidentified individual gave co-defendant Mercado-Pagán a brown paper bag from where he took out a wad of money. After examining it, the co-defendant placed the money back in the brown paper bag and returned to his vehicle. Co-defendant immediately left the premises.
8. Agent Rodríguez-Molina proceeded to follow the co-defendant without being noticed. Co-defendant drove up to "Villas del Deportivo" where he parked the Ford Bronco near the premises of Building Q. He got out of the vehicle and made a call from his cell phone. Immediately thereafter, the agent observed a lady-who was later identified as co-defendant Sylvia Rodríguez-Duran-come out of apartment 105. Co-defendant Mercado-Pagán gave co-defendant RodrÍguez-Dur´n the brown paper bag containing the money and after a brief conversation, the latter went back inside the apartment and the former went downstairs and entered his vehicle.
9. The agent then proceeded to discretely follow the Ford Bronco driven by Mercado-Pagán up to the premises of the parking lot on Building K. There, the agent observed when co-defendant Mercado-Pagán entered apartment 102 at around 3:55 p.m. and remained there until around 4:10 p.m. Mercado-Pagán came out of apartment 102 carrying a black plastic bag that resembled a trash bag, placing it in the black and beige Ford Bronco. He started driving toward the exit of "Villas del Deportivo."
10. Without losing sight of co-defendant, agent Rodriguez-Molina drove up to the premises of "La Taverna del Pescao" where he had previously witnessed the money transaction. It was around 4:25 p.m. when they arrived and the individual driving the white van was still there waiting. Upon arriving, co-defendant Mercado-Pagán parked the bronco next to the van. This time the co-defendant did not exit his car, rather, the unidentified individual stepped out of the van and approached the Bronco from the passenger's side. Said individual opened the passenger door of the Bronco and proceeded to open the black trash bag and to review its contents.
11. Agent Rodríguez-Molina, taking advantage of co-defendant and the unidentified individual's distraction, placed himself in a position close to the two individuals. There, he was able to observe the unidentified gentleman smelling a 10" dear plastic: bag, which contained what in his experience as a narcotics agent, resembled "picadura" of marihuana. The two individuals noticed the presence of the agent and said goodbye to each other in a nervous attitude and left the premises. Shortly thereafter, the agent located co-defendant Mercado-Pagán in Building Q, apartment 105, at "Villas del Deportivo." The agent left and informed his immediate supervisor.
12. As part of the investigation in the case of co-defendants Mercado-Pagán and Rodríguez-Molina, agent Rodríguez-Molina returned to "Villas del Deportivo" on June 11, 2002. Once he arrived at around 8:50 a.m., he noticed the black and beige Bronco and the white van he had both observed on June 7, 2002, parked next to each other at the parking lot area of Building K. He went to the back part of said building and waited there without being notice or creating any suspicion.
13. At around 9:30 a.m., the agent observed the two individuals involved in the June 7, 2002 transaction, exit apartment 102. Co-defendant Mercado-Pagán was carrying, a brown paper bag. The two individuals approached the vehicles and the agent was able to observed when co-defendant Mercado-Pagán took out from the brown paper bag, a smaller 10" dear plastic bag containing what in his experience was marihuana. Mercado-Pagán gave the unidentified individual said smaller plastic bag, but kept the brown paper bag and its remaining contents.
14. Co-defendant Mercado-Pagán then boarded the black and beige Bronco and drove to the parking lot area of Building R, with the agent following him. The agent observed when the co-defendant stepped out of the vehicle carrying the brown paper bag and entered Building Q apartment 105, where he remained. The agent left and informed his supervisor.
15. Based on the above observations, the agent had reason to believe that co-defendants Mercado-Pagán and Rodríguez-Durán were engaged in drug distribution and were storing controlled substances and materials in the premises of Building Q apartment 105 and Building K, apartment 102, in violation of Puerto Rico controlled substances laws.
Upon application for a search warrant and solely based on the statements given by agent Rodríguez-Molina in his affidavit, the municipal judge determined that probable cause existed to search the apartments and issued the warrant. Said warrant was executed on June 14, 2002, revealing the presence of approximately 172 marihuana plants, one Smith and Wesson .38 caliber revolver, and $25,610 among other things.
C. The Suppression Hearing
The co-defendants argue that the testimony of agent Rodríguez-Molina deserves no credibility. It is their contention that the agent provided false statements in his affidavits because as they put it: "It certainly strains credulity that on the only two occasions that PRP Agent [Rodríguez-] Molina allegedly conducted a one (1) hour surveillance, he was `fortuitous' enough to have `observed' the two drug transactions which were solely the basis for his affidavits in support of the search warrant in the instant case." (Co-defendants Supplemental Memorandum, Docket No. 78, at 16, emphasis omitted.) They submit that the statements in the affidavit and that were the sole basis for the issuance of the warrant, "were fatal and deliberate to include false information . . ." (Id. at 18, emphasis omitted.) In short, they challenge the veracity of all the information submitted by the agent to the municipal judge.The government submits on the other hand that co-defendants have failed to comply with the requirements of Franks v. Delaware, It is the government's contention that co-defendants failed to rebut the fact that throughout the suppression hearing, agent Rodríguez-Molina was able to identify the co-defendants, establish his observations as to 3narcotics transactions taking place, and consistently testified as to the location where the narcotics were obtained. (Id.) The government further claims that the defendants presented the testimony of a biased witness and that there is no evidence that agent Rodríguez-Molina had any interest in the outcome of the case so as to lie in order to prejudice the co-defendants. Finally, according to the government, no evidence has been presented to rebut the observations made by the agent on June 11, 2002.
The issue presently before the court is whether the co-defendants established by a preponderance of the evidence that the affidavit prepared by agent Rodríguez-Molina was perjured or made with reckless disregard for the truth. See United States v. Barnett, 989 F.2d 546, 556 (1st Cir. 1993). If so, then the court needs to determine if the affidavit, without the false materials, is still supported by probable cause. Id. At the suppression hearing held before me on February 7, 13, and 27, 2003, the co-defendants called Mr. Norman Morell and co-defendant Rodríguez-Molina. The government presented the testimony of narcotics agent Luis R. Rodríguez-Molina.
Mr. Morell is a resident of Cabo Rojo and a mechanical contractor doing business as Facility Management Company. Co-defendant Mercado-Pagán "does some part-time 28 contract work, electrical work" in Mr. Morell's boat. (Tr. at 4-5.)
Based on my examination of the testimony and evidence presented at the suppression hearing, I find that the co-defendants have established by a preponderance of the evidence that the statements contained in the affidavits of agent Rodríguez-Molina were false. Consequently, the suppression of all the evidence seized and its fruits thereof is warranted.
1. Mr. Norman Morell:
The testimony of Mr. Morell is key in establishing the falsity of the agent's sworn statement. At the hearing, Mr. Morell testified that he is self-employed as a mechanical contractor in the western area of Puerto Rico. (Tr. at 4.) His relationship with co-defendant Mercado-Pagán is described by him as a small relationship. (Id.) Mr. Morell has known co-defendant Mercado-Pagán or "Nuni" — as co-defendant is also known — since 1973 because his wife went to school with "Nuni." (Id.) Since 1989, they got much closer because Mr. Morell purchased a boat in which co-defendant Mercado-Pagán does "some part-time contract work, electrical work" for Mr. Morell. (Tr. at 5.) Recently, Mercado-Pagán had been working in Mr. Morell's boat often because they were doing a hundred percent rewiring of the vessel. (Id.)
Mr. Morell keeps a daily log (Defendant's Id. A) where he makes annotations of the relevant occurrences each day. (Tr. at 7.) The log represents the basic activities with specific annotations of the work performed. (Id.) It also contains a daily record of the employees working in a particular day. (Id.) The log entries for June 7, 2002 reflect all the employees that were working on Mr. Morell's boat on the day that agent Rodríguez-Molina claims to have witnessed one of the alleged drug transaction. (Tr. at 8.) The June 7, 2002 entries has an annotation next to the name "Nuni" (co-defendant Rodríguez-Molina). (Tr. at 9.) It states that he worked from 10:00 a.m. (which was standard for him) until 3:50 p.m., the time that everybody working at Mr. Morell's boat left that day. (Id.)
The testimony of Mr. Morell established that he specifically remembers June 7, 2002, based on the annotations in his log because he remembers that he was invited to a birthday party at co-defendant's house. (Tr. at 10.) The log states that they all left at 3:50 p.m. and has an annotation that reads "finished, then to Puerto Real for beer." (Tr. at 11.) Mr. Morell remembers that he invited all the employees for a beer. Of all the employees, only co-defendant Mercado-Pagán was able to attend. (Tr. at 12.) Mr. Morell and co-defendant went to a "colmado" near a place called "Pescadería Rosas" and stayed there drinking beer until about 6:00 p.m. (Id.) According to Mr. Morell, both left sometime around six o'clock noting that the birthday party for co-defendant Mercado-Pagán was supposed to start at 7:00 p.m. (Tr. at 12-13.) Mr. Morell in fact attended the party and stayed there until 11:00 p.m. (Tr. at 14.)
The record reflects that co-defendant Mercado-Pagán birthday is June 7. (See 28 Luis F. Mercado-Pagán's birth certificate, Defendants Identification H.)
In short, according to Mr. Morell, his recollection and the annotations found in his log — which he supposedly keeps very accurate-co-defendant Mercado-Pagán worked from 10:00 a.m. to 3:50 p.m. and then went with him for beers until about 6:00 p.m. Even though he claims not to have viewed the co-defendant during the whole time he worked on the boat on June 7, 2002, he has no reason to believe that co-defendant at any time left the premises on that day. (Tr. at 24, 48.) Even in the drive from Puerto Real's "varadero" to the place where they had the beers, Mr. Morell claims that he drove in back of co-defendant without losing sight of him. (Tr. at 39.) Finally, Mr. Morell testified that co-defendant Mercado-Pagán worked from 10:00 a.m. to 3:00 p.m. on June 11, 2002. (Tr. at 18.)
On cross examination, Mr. Morell admitted to having made the "finish, then to Puerto Real for beers for all" annotation with a different pen and not contemporaneously to the event. (Tr. at 27.) His testimony, as well as the log presented, established that that was his normal practice. (Tr. at 27-28, 45-46.) Also on cross examination, Mr. Morell stated that the "finish, then to Puerto Real for beers for all" annotation was not a regular business annotation. (Tr. at 30.) He was able to point, however, to other entries in his log that were non-business related annotations. (Tr. at 41-44.) Mr. Morell was also asked whether he had ever been arrested to which he replied no. (Tr. at 34.) When confronted by the government about an arrest in the state of Rhode Island for the illegal possession of a firearm, he then alleged that he was merely detained but that it was subsequently determined that it was his firearm. (Tr. at 35-37.)
2. Luis Mercado-Pagán:
The testimony of co-defendant Mercado-Pagán established that on June 14, 2002 the Police of Puerto Rico searched his home. (Tr. at 51.) He has resided at "Villas del Deportivo" apartment complex for about five years with his wife, co-defendant Sylvia Rodríguez-Durán. (Tr. at 52). They both reside at Building Q, apartment 105. (Id.)
They were also renting Building, apartment 102, at "Villas del Deportivo." (Id.) The search of said apartments revealed the presence of Marihuana. (Tr. at 53.) Co-defendant Mercado-Pagán also testified that he is the owner of a black and beige Ford Bronco, registration BOL-587, while the white van, license number 582967, is registered to his wife co-defendant Rodríguez-Durán. (Tr. at 54.)
June 7 is a date of particular significance to co-defendant because it is his birthday. (Id.) His testimony was that on June 7, 2002, he was working at the Puerto Real boatyard on Mr. Morell's boat. (Tr. at 57.) He started working that day at 10:00 a.m. and finished working at 4:00 p.m. or before 4:00 p.m. (Tr. at 58.) He picked up his tools and Norman (Mr. Morell) invited him to have a beer because it was his birthday. (Id.) They went to the "little grocery store near Rosa fish shop." (Id.) They stayed there until quarter to 6:00 p.m. more or less. (Id.) Then, he went home. (Tr. at 59.)
Co-defendant Mercado-Pagán denied being at "La Taverna del Pescao" at 3:30 p.m. on June 7, 2002. (Id.) He also denies having conducted a drug transaction with an unidentified individual who was driving a van registered to his wife. (Tr. at 59-60.) He also stated that on June 11, 2002 he was at his apartment before 10:00 a.m. and started working on Mr. Morell's boat at 10:00 a.m. (Tr. at 63.) It usually takes him 15-20 minutes from his apartment to el Varadero at "Puerto Real." (Id.) Additionally, the white van was not working — it had a mechanical problem. (Tr. at 65.) Mercado-Pagán again denies as well having conducted the drug transaction that agent Rodriguez-Molina claims to have witnessed on June 11, 2002 at "Villa del Deportivo," and that he described in detail on the affidavit submitted in support of a search warrant. (Tr. at 65-66.)
Finally, the testimony of Mercado-Pagán established that on June 14, 2002, when the searches were conducted and they were arrested, the agents seized two vehicles: the Ford Bronco registered under co-defendant Mercado-Pagán and the white van registered to co-defendant Rodríguez-Duran. (Tr. at 66.) The Ford Bronco was driven away by an agent, while the van had to be towed because it was not working. (Tr. at 66-67.)
On cross examination, co-defendant was not able to give an estimation of how much money the equipment for the growth of the marihuana plants cost. (Tr. at 85-86.) In addition, on direct examination co-defendant Mercado-Pagán had stated that he and his wife had the marijuana plants as an experiment or invention. (Tr. at 62.) He later changed his answer to state that in reality, they were growing the plants to eventually sell them. (Tr. at 97.)
3. Luis R. Rodríguez-Molina:
At the Franks' hearing, agent Rodríguez-Molina testified that he works for the police of Puerto Rico and has done so for the past 17 years. (Tr. at 99.) He is ascribed to the Drugs and Vice Division of the Cabo Rojo area. (Id.) He has dealt almost exclusively with drug cases during his career and states to have conducted quite a few drug surveillances in his career (over 100). (Tr. at 100.) Agent Rodríguez-Molina also testified that he has conducted between 200 and 300 searches. (Id.) Normally, he carries out two surveillances per case because he feels it is enough. (Tr. at 101.)
The testimony of agent Rodríguez-Molina established, as it did on his affidavit, that on June 7, 2002, he went to "Villas del Deportivo" for the purpose of conducting a surveillance on co-defendant Mercado-Pagán. (Tr. at 103.) As he was driving in his undercover vehicle on road 102, kilometer 50.4, he observed a black and beige Ford Bronco at the parking lot of a business known as "La Taverna del Pescao." (Tr. at 103-04.) On that particular date, the agent testified that it takes about five to ten minutes to get from "Villas del Deportivo" because the roads were in awful condition. (Tr. at 104.) He claims to have arrived at "La Taverna del Pescao" around 3:30 p.m. (Tr. at 105.) There, he observed the same drug transaction described in his affidavit between co-defendant Mercado-Pagán and the unidentified individual that was driving the white van. (Tr. At 105-21.) The surveillance of Mr. Mercado-Pagán ended at 4:30 p.m. more or less on June 7, 2002. (Tr. at 121.)
Next, agent Rodríguez-Molina testified about the June 11, 2002 surveillance of co-defendants. (Id.) His narration of the second drug transaction is also substantially similar to the one given in his affidavit. (Tr. at 122-23.) His testimony further established that because of his experience and his observations on June 7, as well as on June 11, 2002, he believed "there was no reasonable doubt that controlled substance trafficking was going on there." (Tr. at 124.) He submitted the sworn statement at issue here with his observations and applied for a search warrant before a magistrate. (Tr. at 127.)
On cross examination agent Rodríguez-Molina was confronted with the inventory search report made of the white van and admitted that, according to the report, the van had to be towed away. (Tr. at 129.) Additionally, the agent was asked whether of all the surveillances conducted by him during his career all of them had resulted in charges being filed in court. He said yes. (Tr. at 130.) Then he was asked whether it was true that of all those charges, some had been dismissed and some had been sustained to which he replied "they have all been guilty." (Id.) He was asked again whether none of the charges filed in court after he had conducted the surveillance had been dismissed at the initial determination of probable cause (Rule 6). The agent responded that maybe one, but that he did not remember. (Tr. at 131.) He also testified on cross examination that even at the preliminary hearing stage, every time one of his cases had been found to lack probable cause, the government had always taken the case on appeal ("en alzada") and won. (Tr. at 132.)
The agent also testified to have drafted between 200 and 300 sworn statements in support of search warrant applications. (Id.) He stated, however, that in some of his cases, where he conducted the surveillance and submitted a sworn statement for a search warrant, the evidence seized had been suppressed by the court. (Tr. at 133.) In fact he stated, that "in almost all of them, yes, the great majority." (Id.) Finding this statement incredible, counsel for co-defendant Mercado-Pagán had to ask again and this time agent Rodríguez-Molina gave a qualified answer stating that "I can't tell you the exact number but they're quite a lot." (Tr. at 134.) Subsequently, on re-direct by Assistant United States Attorney Doble, the agent stated that only casually the evidence obtained in one of his drug cases had been suppressed. "ln some, not many." (Tr. at 187.)
Also on cross examination, the agent had problems identifying the business where he witnessed the June 7, 2002 drug transaction. (Tr. at 145.) When presented with a photograph he stated that it could be the business but that he was not sure. (Id.) Agent Rodríguez-Molina further stated that the place depicted in the picture did not look like the place where he observed the drug transaction on June 7, 2002. (Tr. at 147.) He stated that it had a similarity, but that he did not know the structure. (Id.)
Agent Rodríguez-Molina also admitted to not having taken any steps other than checking the license plate of the van, to identified the other individual to whom co-defendant Mercado-Pagán allegedly sold the narcotics. (Tr. at 149.) The agent also testified that on June 11, 2002, another agent accompanied him to the surveillance at "Villas del Deportivo." (Tr. at 150.) This agent allegedly stayed in the car and was not able to observe any of the events that agent Rodríguez-Molina reported in his affidavit. (Tr. at 151.) He claims to have told the municipal judge the fact that another agent had accompanied him, but felt it was not necessary to include it in the sworn statement. (Id.)
III. DISCUSSION
The issue of whether the evidence in the instant case must be suppressed turns on credibility. The testimony of Mr. Norman Morell, as well as the testimony of co-defendant Mercado-Pagán, if believed, can only lead to one conclusion, i.e., that the statements submitted by agent Molina to the municipal judge in his affidavit were deliberately false and that the drug transactions he alleges to have witnessed did not take place. In other words, if on June 7, 2002, co-defendant Mercado-Pagán worked from 10:00 a.m. to 3:50 p.m. and then went to have beers with Mr. Morell until close to 6:00 p.m., the drug transaction that agent Rodríguez-Molina allegedly witnessed from 3:30 p.m. to about 4:30 p.m. at "La Taverna del Pescao" and "Villas del Deportivo" could not have taken place.
I credit the testimonies of Mr. Norman Morell and co-defendant Mercado-Pagán not because their story is somehow more credible than that of the agent, but because it is substantially corroborated by reliable, independent facts. The testimony of agent Rodríguez-Molina, on the other hand, suffers from a number of inconsistences. Certain aspects of testimony are incongruent and his credibility is compromised by stereotyped statements and incredible assertions.
First, co-defendant's version that the alleged June 7, 2002 drug transaction never occurred is corroborated, not only by Mr. Morell's version, but by other facts. To begin with, June 7, 2002 is co-defendant's birthday as evidenced by the birth certificate presented at the hearing. Mr. Morell's log also evidenced the hours worked by co-defendant, making the June 7 transaction impossible. The reliability of the log entries is abundantly established by the fact that such log has been kept accurately by Mr. Morell for close to ten years. (Tr. at 6.) Any reservation that one may have about the fact that the "finished, then to Puerto Real for beers for all" annotation is not a regular business entry and was found in a different ink color is cured by the presence of similar annotations throughout his log. Second, even though it is possible that the drug transaction described by agent Rodríguez-Molina on June 11, 2002 occurred, his credibility has already been compromised. Additionally, it seem unbelievable that a person would conduct a drug transaction in broad daylight, in the presence of other individuals, having two apartments available for doing so, Mr. Morell's log established that co-defendant Mercado-Pagán started working at 10:00 a.m. It takes him, according to the conflicting testimony, between 10 and 20 minutes to drive from "Villas del Deportivo" to "Puerto Real." Agent Rodríguez-Molina stated that the surveillance conducted on June 11, 2002 started at 8:50 a.m. but it wasn't until 9:30 a.m. that he witnessed the alleged drug transaction. The agent stayed in the premises until the drug transaction was allegedly completed, and as soon as co-defendant Mercado-Pagán entered Building Q, apartment 105, the agent left no more than three minutes later. (Tr. at 184.) It seems highly unlikely that with that window of time and the conditions of the roads on June 11, 2002, co-defendant could have been able to arrive at Puerto Real on time at 10:00 a.m. Agent Rodríguez-Molina's version of the facts on June 11, 2002 is less credible when he states that another agent, one Pedro Pagán, accompanied him but was not able to observe anything that he reported in his affidavit. He felt that his presence at "Villas del Deportivo" was not worth mentioning in a sworn statement that for other purposes was very detailed.
The fact that the vehicle driven by the unidentified individual was registered to co-defendant Rodríguez-Durán, and had to be towed away because it was disabled, is also key in establishing the falsehood of the sworn statement. Unless the van became disabled sometime between June 11, 2002 and June 14, 2002, when the search warrant was executed, it is impossible that what officer Rodríguez-Molina stated in his affidavit, really occurred.
Agent Rodríguez-Molina's credibility was also affected by a series of inconsistencies. He had trouble and was eventually unable to identify "La Taverna del Pescao," the place where the June 7, 2002 drug transaction took place. He states it could be the place but that it did not look like the place where he witnessed the drug transaction. That it was similar, but that he did not know the structure. He then proceeded to answer questions and identify from the pictures, where he was standing, and where the vehicles where parked.
The court is also troubled by agent Rodríguez-Molina's assertion that of all the cases where charges have been filed after he conducted the investigation, all have been guilty. All of them, according to the agent had survived the initial determination of probable cause (Puerto Rico Rule of Criminal Procedure 6). When followed up on cross-examination, he stated that there could have been one case dismissed at that stage, but he was not sure. Agent Rodríguez-Molina also testified that at the preliminary hearing stage, every time one of the cases investigated by him was dismissed, they were always sustained on appeal (en alzada). With respect to suppression of evidence, the agent also gave conflictive testimony when he stated on cross examination that most of the time, in the great majority of the cases in which he conducted a surveillance and submitted an affidavit in support of a search warrant, the evidence was suppressed by the court. On re-direct, he stated that only casually the evidence in one of his cases had been suppressed. "In some, not many."
I acknowledge that, at least as to the questions on suppression of evidence, the agent may have been confused by the questions posed by co-defendant's counsel. Yet, his testimony was filled with stereotyped statements that simply did not survive surgical cross-examination. While he was exact, precise and repetitive on direct examination, agent Rodríguez-Molina was unsure, cautious, and inaccurate on cross-examination. In sum, the court does not credit his testimony and as such, the co-defendants have established that it is more likely than not, that the testimony provided by the agent in the sworn statement he submitted in support of his application for a search warrant, contained false statements. I find that, purged of these falsities, the affidavit fails to demonstrate probable cause.
It is firmly established that a warrant application must demonstrate probable cause to believe that (1) a particular person has committed a crime (the "commission" element); and (2) that enumerated evidence of the offense will be found at the place to be searched (the "nexus" element).United States v. Beckett, 321 F.3d 26, 31 (1st Cir. 2003). With regard to this nexus element, the task of an issuing magistrate is "`to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Strother, 318 F.3d at 67 (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In examining whether an affidavit demonstrates probable cause to search the premises, the totality of the circumstances must be considered.United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002). Considerable deference must be accorded to the reasonable inferences that the issuing judge may have drawn from the facts attested. Id.
Here, having determined that the affidavit of agent Rodríguez-Molina contained false statements regarding the alleged drug transactions he witnessed, the court is left with no other option but to strike said statements. With the statements set to one side, the affidavit of the agent fails to demonstrate probable cause to search Building Q apartment 105 and Building K, apartment 102. The search that revealed the 172 marihuana plants violated co-defendants' Fourth Amendment rights for the search warrant that authorized said search was not issued upon probable cause. Consequently, the evidence seized should be suppressed. It is my recommendation that co-defendants' motion be GRANTED.
IV. CONCLUSION
After consideration of the testimony and the evidence presented at the hearing and the arguments of the parties, I find that the statements contained in the sworn statement submitted by agent Rodríguez-Molina in support of his application for a search warrant for co-defendant's apartments were false. This, the co-defendants established by a preponderance of the evidence. I also find that once purged of said falsities, the sworn statement was insufficient to establish probable cause. Therefore, it is my recommendation that co-defendants' motion to suppress be GRANTED and that the evidence seized from Building Q, apartment 105 and Building K, apartment 102, be suppressed along with its fruits thereof.
Under the provisions of Rule 510.2, Local Rules, District of Puerto Rico, any party who objects to this report and recommendation must file a written objection thereto with the Clerk of this Court within ten (10) days of the party's receipt of this report and recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such, objections. Failure to comply with this rule precludes further appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985), reh'g. denied, 474 U.S. 1111 (1986); Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988);Borden v. Secretary of Health Human Servs., 836 F.2d 4, 6 (1st Cir. 1987); Scott v. Schweiker, 702 F.2d 13.14 (1st Cir. 1983): United States v. Vega. 678 F.2d 376, 378-79 (1st Cir. 1982):Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st 20 Cir. 1980).