Order Adopting Report and Recommendation — United States v. Francisco Lopez (Document 260)

Summary

This is an Order Adopting Report and Recommendation in United States v. Francisco Lopez, No. 2:24cr287-TES-JTA-2 (Middle District of Alabama), dated the 6th day of January, 2025. Defendant Lopez moved to suppress six kilograms of powder cocaine discovered inside two car batteries in the bed of his truck on June 10, 2024, and objected to the Magistrate Judge's recommendation to deny the motion. The order distinguishes Ybarra v. Illinois, relying on intercepted communications about a cocaine shipment expected on June 10, 2024, a request for the residence's address, and the defendant's arrival shortly afterward. Finding probable cause under the warrant and the automobile exception, the Court adopts the recommendation and denies the Motion to Suppress.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

     Case 2:24-cr-00287-TES-JTA          Document 260        Filed 01/06/25      Page 1 of 8




                      IN THE UNITED STATES DISTRICT COURT
                      FOR THE MIDDLE DISTRICT OF ALABAMA
                              NORTHERN DIVISION

UNITED STATES OF AMERICA                     )
                                             )
v.                                           )       CR. NO.: 2:24cr287-TES-JTA-2
                                             )
FRANCISCO LOPEZ                              )

              ORDER ADOPTING REPORT AND RECOMMENDATION

       Before the Court is the United States Magistrate Judge’s Report and

Recommendation (“R&R”) (Doc. 232) regarding Defendant Francisco Lopez’s Motion to

Suppress (Doc. 132). Defendant’s Motion has been fully briefed, and following a hearing,

the Magistrate Judge recommends that Defendant’s Motion be denied. 1 (Doc. 136); (Doc.

145); (Doc. 232, p. 11). Defendant subsequently filed an Objection (Doc. 249), so the Court

must make a de novo determination of the portions of the R&R to which Defendant

objected. 28 U.S.C. § 636(b)(1)(C).

       In his Motion, Defendant requests the Court to suppress six kilograms of powder

cocaine discovered inside two car batteries from the bed of his truck on June 10, 2024.

(Doc. 132, pp. 1, 5). While the facts are more fully presented in the Magistrate Judge’s

R&R, Defendant challenges the search of his truck parked at 3835 Edgar D. Nixon Avenue

in Montgomery, Alabama. (Id.); (Doc. 249, p. 1); see also (Doc. 232, pp. 2–5). After




1During the hearing, the Magistrate Judge also ordered supplemental briefing by both the Government
and Defendant. (Doc. 173, Hearing Tr., p. 77:6–22); (Doc. 161); (Doc. 170).
    Case 2:24-cr-00287-TES-JTA          Document 260       Filed 01/06/25     Page 2 of 8




Defendant arrived at 3835 Edgar D. Nixon Avenue, law enforcement—who were, with

court authorization, already surveilling the residence due to intercepted wire and

electronic communications—executed a search warrant obtained on June 5, 2024. (Doc.

232, pp. 3–5); see, e.g., (Doc. 156-3, p. 1). Defendant contends that the search warrant

authorizing the search of 3835 Edgar D. Nixon Avenue “including all outbuildings and

vehicles located on the property” did not extend to cover his truck because he was a

temporary visitor and because law enforcement lacked probable cause to search his

vehicle under the automobile exception. (Doc. 249, p. 1); (Doc. 145, p. 1); see, e.g., (Doc.

156-3, p. 1); see also United States v. Tamari, 454 F.3d 1259, 1263 (11th Cir. 2006) (holding a

search valid “so long as th[e] vehicle[] could reasonably contain items the officers are

searching for”).

       In his Objection, Defendant renews his argument that his “mere presence at the

residence did not bring him within the scope of the warrant.” (Doc. 249, p. 2 n.1).

Defendant argues that “an individual’s presence in an area of expected criminal activity,

standing alone, is not enough” to establish probable cause. (Doc. 249, p. 4 (quoting Illinois

v. Wardlow, 528 U.S. 119, 124 (2000))). However, the testimony and evidence in this case

shows that there is much more in play than just a simple “standing alone” inquiry.

Wadlow, 528 U.S. at 124. Relative to this case, “officers are not required to ignore the

relevant characteristics of a location in determining whether the circumstances are

sufficiently suspicious to warrant further investigation.” Id. As the Magistrate Judge



                                              2
    Case 2:24-cr-00287-TES-JTA         Document 260       Filed 01/06/25    Page 3 of 8




explained, and as the Court expounds on below, law enforcement had sufficient facts to

support a finding of probable cause particularized to Defendant.

       Relying on Ybarra v. Illinois, Defendant argues that he “enjoys an ‘individualized

protection [that] was separate and distinct from the Fourth and Fourteenth Amendment

protection possessed by the’ owner of the property.” (Doc. 132, p. 3 (quoting 444 U.S. 85,

91–92 (1968))). Stated differently, he argues that “the fact that ‘police possessed a warrant

based on probable cause to search’ the property where [Defendant] was visiting did not

affect [his] Fourth Amendment rights.” (Id. (quoting Katz v. United States, 489 U.S. 347,

451 (1967))).

       In Ybarra, the Supreme Court held that a warrant to search Aurora Tap Tavern did

not give law enforcement oĜcials any authority “to invade the constitutional protections

possessed individually by the tavern’s customers.” 444 U.S. at 92. Or, as the Eleventh

Circuit puts it, the “search of a person who happened to be at a bar during a search

pursuant to a premises warrant was not subject to a lawful search absent ‘probable cause

particularized with respect to that person.’” United States v. Young, 909 F.2d 442, 444–45

(11th Cir. 1990) (quoting Ybarra, 444 U.S. at 85). The Supreme Court noted that there was

no probable cause to search barra because police oĜcers “did not recognize [him] and

had no reason to believe that he had commiĴed, was commiĴing, or was about to commit

any oěense under state or federal law.” Ybarra, 444 U.S. at 91. Specięcally, the Supreme

Court pointed out that “Ybarra made no gestures indicative of criminal conduct, made



                                             3
    Case 2:24-cr-00287-TES-JTA          Document 260       Filed 01/06/25     Page 4 of 8




no movements that might suggest an aĴempt to conceal contraband, and said nothing of

a suspicious nature to the police oĜcers.” Id. “In short, the [police oĜcers] knew nothing

in particular about Ybarra, except that he was present, along with several other

customers, in a public tavern at a time when the police had reason to believe that the

bartender would have heroin for sale.” Id. However, there are facts in this case that easily

distinguish it from Ybarra. Most obvious is the fact that Ybarra visited a tavern as a

customer, and Defendant visited 3835 Edgar D. Nixon Avenue as a suspected drug

courier. Ybarra, 444 U.S. at 88; (Doc. 170, p. 2); see also n.2, infra. While that’s the most

glaring diěerence between Ybarra and this case, there are other facts demonstrating the

requisite relationship to ęnd that Defendant’s constitutional rights were not violated.

       “[I]n determining whether a search of personal eěects violates the scope of a

‘premises’ warrant, one must consider the relationship between the object, the person[,]

and the place being searched.” Young, 909 F.2d at 444–45 (citing United States v. Micheli,

487 F.2d 429, 431 (1st Cir. 1973)). First, there are intercepted communications that caused

law enforcement “to believe that someone was going to deliver a shipment of cocaine to

[3835 Edgar D. Nixon Avenue] on June 10, 2024.” 2 (Doc. 232, pp. 4, 10). Second, there are

intercepted communications where a woman requested the address of the residence and

was later provided the address along with specific instructions on where to park. (Id. at




2The Magistrate Judge found the testimony of Special Agent Evan Skeldon of the Drug Enforcement
Administration to be credible. (Doc. 232, p. 2 n. 3).


                                              4
    Case 2:24-cr-00287-TES-JTA         Document 260       Filed 01/06/25    Page 5 of 8




pp. 4–5, 10). And third, there is the fact that Defendant, shortly after phone calls

concerning the Montgomery-based address, arrived at 3835 Edgar D. Nixon Avenue with

a female occupant and parked his truck in the yard. (Id.). Taken together, there is a

demonstrable relationship between Defendant, his truck and its contents, and the place

to be searched listed in the warrant issued on June 5, 2024. Young, 909 F.2d at 444–45.

       Ybarra “did not state that the relationship between the person searched, the

warrant[,] and the premises are irrelevant in determining whether a search falls outside

the permissible scope of the Fourth Amendment.” Id. at 445. Instead, “it was the lack of

such a relationship that pointed to a finding of no probable cause in Ybarra.” Id. (emphasis

added). Even though Defendant may not have had a direct affiliation to “the place being

searched” and even though law enforcement may not have had any knowledge

specifically connecting him to the criminal conduct they were investigating regarding

Defendant Jim Carter—the resident occupant of 3835 Edgar D. Nixon Avenue—there is

not a “lack of such relationship” that would support a finding of no probable cause.

Young, 909 F.2d at 444–45; (Doc. 145, p. 2). Again, there are specific facts of someone going

to a specific house at a specific time. Such a connective relationship coupled with the fact

that Defendant—shortly after being provided with details of the house—pulled into the

yard of 3835 Edgar D. Nixon Avenue, gave law enforcement “probable cause

particularized with respect to [him].” Young, 909 F.2d at 445.

       Even if law enforcement couldn’t search Defendant given his status as a visitor to



                                             5
     Case 2:24-cr-00287-TES-JTA              Document 260          Filed 01/06/25       Page 6 of 8




3835 Edgar D. Nixon Avenue, probable cause still existed to search his truck under the

automobile exception. As Defendant argues in his Motion, “search warrants are generally

required,” but “the automobile exception allows for the warrantless search of an

automobile when the ‘[vehicle] is readily movable 3 and probable cause exists to believe

it contains contraband[.]’” (Doc. 132, p. 2 (quoting Maryland v. Dyson, 527 U.S. 465, 467

(1999))). This brings the Court to the second point of Defendant’s Objection.

        Defendant maintains that “law enforcement lacked probable cause to justify the

search” of his truck under the automobile exception. (Doc. 249, p. 3). For that exception

to apply, probable cause must exist and whether it does will depend on whether there

are “objective facts that could justify the issuance of a warrant by a magistrate and not

merely on the subjective good faith of the police officers.” United States v. Ross, 456 U.S.

798, 808 (1982). Good faith is insufficient to reach probable cause—it must be more:

“grounded on facts within [the] knowledge of the [officer], which in the judgment of the

court[,] would make his faith reasonable.” Id. (quoting Carroll v. United States, 267 U.S.

132, 161–62 (1925)) (second alteration in original). Probable cause “is not a high bar,” and

it does not require “the same ‘standard of conclusiveness and probability as the facts

necessary to support a conviction.’” United States v. Babcock, 924 F.3d 1180, 1192 (11th Cir.

2019) (quoting United States v. Dunn, 345 F.3d 1285, 1290 (11th Cir. 2003)). Rather,




3Defendant concedes that his truck was readily movable. (Doc. 173, Hearing Tr., p. 63:18–21); see also (Doc.
232, p. 9 n.15).


                                                     6
    Case 2:24-cr-00287-TES-JTA           Document 260        Filed 01/06/25     Page 7 of 8




probable cause “requires only ‘a substantial chance’ that evidence of criminal activity

exists. Id. (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)); see also (Doc. 232, p. 9);

(Doc. 249, p. 3). Where there are “facts within the collective knowledge of law

enforcement officials” “to cause a person of reasonable caution to believe that a criminal

offense has been or is being committed” probable cause exists. Babcock, 924 F.3d at 1192

(quoting Gates v. Khokhar, 884 F.3d 1290, 1298 (11th Cir. 2018)).

       Defendant points to the fact that his mode of transportation (his truck) was

different from how other suspected drug couriers traveled (by bus from Texas to

Alabama) for their dealings with Defendant Carter. This “fundamental difference,”

Defendant contends, is “at odds” with law enforcement’s “collective knowledge” about

Defendant Carter’s “pattern of conduct” for his operations; and is thus, “at odds” with

supporting a finding of probable cause. (Doc. 249, pp. 3–4); (Doc. 232, pp. 2–3).

Notwithstanding law enforcement’s collective knowledge about other suspected drug

couriers, the address to which they all travel, and their means of travel to Alabama,

Defendant seemingly hopes the Court will overlook droves of facts that underlie this case.

Defendant heavily minimizes the connection of the phone call between Defendant Carter

and his son, Defendant Jimario Thompson, discussing an expected drug shipment on

June 10, 2024, and other communications made that day concerning 3835 Edgar D. Nixon

Avenue. (Doc. 232, pp. 2–4). There is nothing that calls for the level of exactness (truck vs.

bus) that Defendant argues must be present to support a finding of probable cause.



                                                7
    Case 2:24-cr-00287-TES-JTA        Document 260       Filed 01/06/25    Page 8 of 8




Again, there need only be a “substantial chance” of evidence of criminal activity. Babcock,

924 F.3d at 1192.

       To pull a quote from the Magistrate Judge’s R&R, “[c]ollectively, the[]

circumstances [in this case] gave [law enforcement] probable cause . . . . This common-

sense conclusion doesn’t depend on any particular fact taken in isolation; rather, as is

often the case, the whole is . . . greater than the sum of its parts.” (Doc. 232, pp. 10–11

(quoting Babcock, 924 F.3d at 1193)). The overarching issue is whether “the collective facts

would cause a ‘person of reasonable caution’ to believe that ‘a criminal offense has been

or is being committed.’” Babcock, 924 F.3d at 1193 (quoting Khokhar, 884 F.3d at 1298). On

these facts, law enforcement “had probable cause to believe that [Defendant] was guilty

of a crime, and that evidence of the crime would be found [i]n his [truck].” Id. at 1194.

Thus, after a de novo determination of the objected-to portions of the United States

Magistrate Judge’s Report and Recommendation (Doc. 232), it is due to be ADOPTED

and MADE THE ORDER OF THE COURT. The Court DENIES Defendant Francisco

Lopez’s Motion to Suppress (Doc. 132).

       SO ORDERED and ADOPTED, this 6th day of January, 2025.




                                          S/ Tilman E. Self, III
                                          TILMAN E. SELF, III, JUDGE
                                          UNITED STATES DISTRICT COURT




                                             8


File and source

File

260.pdf

Size

143,015 bytes

SHA-256

a17f3370c89f1a2c13e55e48c7fd9acbffd830c19e66cc0e24d0da98ffe1d835

Our copy

260.pdf

Original

No public link identified.