Motion to Quash the Search Warrants and Suppress the Evidence — United States v. Justin Robert White Cruz and Peter Anthony Concepcion Cruz (Dkt. 10, D. Guam)
Summary
Filed September 8, 2015 in the District Court of Guam (Criminal Case No. CR-15-00041), this motion by defendant Justin Robert White Cruz, through David J. Lujan of Lujan & Wolff LLP, asks the court under Fed. R. Crim. Proc. 12(b)(3)(C) to quash the search warrants and suppress the evidence seized; Peter Anthony Concepcion Cruz is the co-defendant. The motion says Justin Robert White Cruz is charged with conspiracy to distribute methamphetamine, attempted possession with intent to distribute it and possession with intent to distribute it. It argues, citing United States v. Colon, that authorities lacked reasonable, articulable suspicion to detain the mailed packages, and that the affiant omitted that the confidential informant was cooperating after a controlled substance arrest. Exhibit A is the search warrant affidavit of Deborah L. Epps of the U.S. Postal Inspection Service.
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LUJAN & WOLFF LLP
FILED
DISTRICT COURT OF GUAM
DNA Building, Suite 300
238 Archbishop Flores Street
Hagatna. Guam 96910
Telephone (671) 477-8064/5
SEP 08 2015
^f
Facsimile (671) 477-5297 JEANNE G; QUINATA
CLERK OF COURT.
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE TERRITORY OF GUAM
UNITED STATES OF AMERICA, Criminal Case No. CR-15-00041
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10 MOTION TO QUASH THE SEARCH
vs.
WARRANTS AND SUPPRESS THE
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EVIDENCE PURSUANT TO FED. R. CRIM.
JUSTIN ROBERT WHITE CRUZ and
PROC. 12(b)(3)(C);CERTIFICATE OF
12 PETER ANTHONY CONCEPCION
SERVICE
CRUZ,
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Defendants.
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16 Comes now Defendant Justin Robert White Cruz ("Defendant"), and moves this court,
17 pursuant to Federal Rule of Criminal Procedure ("FRCP") 12(b)(3)(C). to quash the search
18 warrants issued in this case and suppress the evidence seized pursuant to those warrants.
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1. Defendant is charged with Conspiracy to Distribute Methamphetamine (21 U.S.C. §§ 846,
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841(a)(1) & (b)(l)(A)(viii) & 18 U.S.C. § 2) (Count 1), Attempted Possession with Intent to
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22 Distribute Methamphetamine (21 U.S.C. §§ 846, 841(a)(1) & (b)(l)(A)(viii) & 18 U.S.C. § 2),
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23 (Count 2), Attempted Possession with Intent to Distribute Methamphetamine (21 U.S.C. §§ 846,
24 841(a)(1) & (b)(1)(C) & 18 U.S.C. § 2), (Count 3), and Possession with Intent to Distribute
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Methamphetamine (21 U.S.C. §§ 846, 841(a)(1) & (b)(l)(A)(viii) & 18 U.S.C. § 2) (Count 4).
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2. The United States Supreme Court firmly established that first class mail such as letters
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 1 of 12
1 and sealed packages are generally free from inspectionby postal authorities, and may only be
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examined in a manner consistent with the Fourth Amendment to the United States Constitution
{UnitedStates v. Van Leeuwen, 397 U.S. 249 (1970)). In a case where a postal inspector or law
enforcement authorities must have reasonable, articulable, suspicion that a sealed package will
contain evidence of criminal activity before removing, or "detaining", that package for further
7 inspection or investigation (See e.g. United States v. Colon, 386 Fed.Appx 229 (3rd Cir. 2010)).
8 3. In this case, the Court should quash the search warrant in this case because the
9 information available to the postal and law enforcement authorities do notrise to the level of
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reasonable suspicion as define in Colon, supra. First, in the search warrant, the affiant notes that
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the packages originated in a "suspect state" such as California, and that the package was sent in a
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method which allowed tracking of a package. However, the information available, all of which
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came from a confidential informant who was cooperatingwith law enforcement due to his own
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15 controlled substance arrest (a fact that notably affiant did not include in the affidavit in support of
16 the search warrant applications), within the holding in Colon, supra, ends at that point.
17 4. In this case, the remainder ofthe information supporting the application for awarrant to
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open and searchthe package came from information not readily available at the time. First, law
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enforcement agents had no information to indicate a fictitious sender or recipient of the package.
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Indeed, law enforcement agents had no reasonable basis to believe the addressee was fictitious, or
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22 the sender for that matter. Additionally, the affiant in the warrant notes that, consistent with the
23 information from the confidential informant, the package contained markings that would only be
24 visible under black light; which would not be readily apparent from any other package. Finally,
the dates of the times the drug detection canines examined the packages are inconsistent between
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the law enforcement reports and the affidavit in support of one of the warrants. See Affidavit of
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Deborah L. Epps marked as Exhibit "A
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 2 of 12
5. Because there was no reasonable, articulable, suspicion for the law enforcement officers
to detain the packages in this case under the standards articulated in Colon, supra, and because
the affiant made an important omission as to the source of much of the information, Defendant
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MOVES this Honorable Court to QUASH the warrants in this case and suppress any evidence
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seized as a result of the warrants.
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7 Respectfully submitted this 8th day of September, 2015.
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DAVID J. LlfJAN, ESQ
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 3 of 12
CERTIFICATE OF SERVICE
DAVID J. LUJAN. Esq.. hereby certifies that a copy of Defendant Justin Robert White
Cruz MOTION TO QUASH THE SEARCH WARRANTS AND SUPPRESS THE
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EVIDENCE PURSUANT TO FED. R. CRIM. PROC. 12(b)(3)(C) was duly served to the
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following:
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Clyde Lemons
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Assistant U.S. Attorney
UNITED STATES ATTORNEY
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DISTRICTS OF GUAM AND THE NMI
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Dated this 8th day of September, 2015, Hagatna, Guam.
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13 DAVID J. LUJAN, Esq.
Attorney for Justin Robert White Cruz
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 4 of 12
AFFIDAVIT
I, Deborah L. Epps, being duly sworn, depose and say as follows:
A. Background of Affiant
1. I am a federal agent employed with the United States Postal Inspection Service,
currently assigned to the District ofGuam, with fifteen years of law enforcement experience,
duly appointed according to law and acting as such. Part of my responsibilities is the
investigation of controlled substances transported through the U.S. Postal Service, in violation of
Title 21, United States Code, Sections 841 (a) (1), 843(b), and 846. The Drug Abuse Prevention
andControl Act. I have experience investigating violations of illegal narcotics and have
received training relative to criminal investigations and narcotics trafficking from the U.S. Postal
Inspection Service.
2. I have participated in controlled deliveries of contraband and the execution of search
warrants with respect to narcotics and scheduled controlled substances as well as investigations
into narcotics trafficking organizations shippingcontraband to and from Hawaii, California,
Nevada, Arizona, Texas, Oregon, and Washington. I have received formal, informal and on the
jobtraining from U.S. Postal Inspectors, Assistant United States Attorneys, the Drug
Enforcement Administration, and other law enforcement agents who have done extensive work
regarding the investigations into the sales, distribution, and manufacture of controlled
substances, specifically methamphetamine, as well as involving the proceeds from the salesof
controlled substances.
3. All of the facts and information set forth in this affidavit were obtained through
official law enforcement communications.
ttA «>
EXHIBIT "A
Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 5 of 12
JRWCetal 00002
4. I know from my training, knowledge, and experience that the importers and
distributors of controlled substances often utilize the U.S. Postal Service to facilitate the
distribution of controlled substances. Such mail will come from foreign or domestic places of
origin andwill be typically sent by either Express Mail, Priority Mail Express Mail, Priority
Mail, Parcel Select, or First-Class Mail with or without a USPS tracking number.
5. I know from my personal experience and participation in the investigations of
controlled substances sent via the mail, that witnesses, cooperating individuals, and informants
have discussed and explained to law enforcement why the U.S. Mail system is used to facilitate
the delivery of suchcontrolled substances. I have also read officialreports from other law
enforcement officers detailing similar events.
6. The information contained within this affidavit is based upon my personal
observations, training, and on information related to me by otherlaw enforcement officers and
investigators as set forth more fully herein. Because the purpose ofthis affidavitis to set forth
probable cause, your affiant has notset forth each and every fact known to me in connection with
this investigation.
7. Basedon my training, experience, and consultations with other law enforcement
officers experienced in drug investigations, I know thatcertain indicators exist when persons are
using theU.S. Mail systemto sendprohibited controlled substances from one location to
another. Indicators for packages that contain controlled substances and/or the proceeds from
controlled substances include, but are not limited to the following:
a. It is common for senders of controlled substances, and/or the proceeds from the
sales ofthese, to use Express, Priority, Parcel Select and First Class Mail because the substances
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 6 of 12
or proceedsarrive faster and on a predictable date, thereby allowing the senders to keep track of
the shipment or proceeds of controlled substances.
b. When senders mail controlled substances from a particular area/state, the
proceeds from the sale ofthese controlled substances may be returned to the sender. There are
known source states for controlled substances mailed to Guam, (e.g., Hawaii, California,
Arizona, Oregon, Nevada, Texas, Oregon, and Washington), where controlled substances are
typically mailed from. Other major metropolitan areashave also shown to be source states on
rare occasions for different substances.
c. A sender may sometimes mail the package containing controlled substances
from an areadifferent from the return address on the package because either: 1) the return
address is fictitious or associated to a vacant lot or house; and/or 2) the sender is attempting to
\ conceal the actual location that the package was being mailed from in order to avoid detection.
Additionally, there are usually misspellings and mistakes on the label indicative of someone
filling out the address label who is not a resident of the return address (i.e. a "runner" or fictitious
address).
d. Express Mail packages containing narcotics usually contain a "Signature
Waiver," which allows the packageto be left at a location without requiring anyone to sign for
the package. Person to person Express Mail packages rarely contain a signature waiver because
this level of service is usually reserved for very important items that the sender would want to
ensure someone was present for at time of delivery.
e. I know from my training, experience, and discussions with other law
enforcement officers that the following controlled substances are likely to be found during
package interdiction operations: marijuana, methamphetamines, cocaine, LSD, psilocybin
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 7 of 12
^ mushrooms, heroin, opium, MDMA, and the proceeds from the sales ofthese controlled
substances.
f. These packages in many instances contain a fictitious return address; no return
address; an actual address associated to a vacant lot or house; or the return address that is the
same as the addressee's address. These packages are also sometimes addressed to or from a
Commercial Mail Receiving Agency (i.e. UPS Store and Mailboxes Etc). This is done in order
to conceal from law enforcement the identity ofthe person(s) shipping and/or receivingthe
controlled substances.
g. I know from training, experience, and discussions with other law enforcement
officers that these packages sometimes contain information and paperwork related to the sales
and distribution of controlled substances. This paperwork can include, but is not limited to,
\ information on the use and effects ofthe various controlled substances; the price for the
controlled substance; the quality of the controlled substances; information on the actual sender;
and information and instructions for ordering future controlled substances. These packages also
sometimes contain smaller packages that are pre-addressed for mailing to secondary addresses
after they have met their initial destination. This affidavit is not meant to set forth all
investigative knowledge ofthis case, but only those facts necessary to establish Probable Cause.
B. Purpose of Affidavit
8. This affidavit is submitted in support of a request for a search warrant to search a U.S.
Priority Mail Package bearingUSPS Tracking number 9505 5111 2724 5192 4779 51 and
addressed as follows: (See Attachment A).
FROM: TO:
Brenda McDaniels James Sullivan
4747 Limerick Ave. PMB 1101111 Chalan Balako
^J San Diego, CA 92117 Dededo, Guam, 96929
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JRWCetal 00005
Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 8 of 12
The affidavit in support of a search warrant for this package (hereinafter referred to as the
SULLIVAN2 package), is requested to search for the following items believed to be contained in
the SULLIVAN2 package:
a. Controlled substances held in violation of 21 U.S.C. §§ 841 (a) (1), 843(b), and
846.
b. Items of personal property which tend to identify the person(s) in possession,
control, or ownership of the package that is the subject of the search warrant.
c. Proceeds from the sale of controlled substances held in violation of 21 U.S.C.
§§ 841 (a) (1), 843(b), and 846.
C. Relevant Facts Pertaining to the SULLIVAN2 package
9. On or aboutJuly 16,2015, the above-referenced SULLIVAN2 package was received
by the U.S. Postal Service inDededo, and, on July 16,2015, drew the attention ofthisjiffiant as
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containing narcotics. First, this package was sent via Priority Mail(Paragraph 7.a). Secondly,
this package is addressed from a "Source State" (Paragraph 7.b). Additionally, a confidential
source(CS) providedinformation regarding the illegal shipment of narcotics in largequantities,
concealed withinUSPS Priority Mail Large Flat Rateboxes. The narcotics are further concealed
inside work boots and work clothing. Per the USPS Customs Declaration and Dispatch Note -
CP72, contents of the SULLIVAN2 package are listed as, "Wrangler Work Boots, Wrangler
Work Shirts, Wrangler Work Pants". In addition to the above-noted concealment method, the
CS also advised that the mailer marks the narcotics packages with a marker that can only be
detected under black light. The SULLIVAN2 package was placed under a black light and all
four corners of the package showed markings only detectable under the black light.
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JRWCetal 00006
Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 9 of 12
10. On or about July 16,2015, the SULLIVAN2 package was presented for external
examination to drug detection canine controlled by Guam Customs and Quarantine Agency v^
(GCQA) Drug Detection Dog Unit (DDDU). K9 handler Officer Russell Maratita informed me
that his assigned Drug Detection (DD) dog "Gauge," did alertto the presence of narcotics.
Furthermore, this DD dog is trained to detect controlled substances. DD dog "Gauge" was
purchased in July 2010 at the Kasseburg CanineTraining Center at the address of767 Hillsboro
Circle New Market, Alabama 35761 USA and completed the Guam Customs Canine Training
Academy's Basic Canine Narcotic Detection Course in 2010 at the address of 13-16A Mariner
Avenue, Tiyan, Barrigada, Guam 96913. DD dog "Gauge" is capable of detecting Heroin,
Marijuana, Hashish, Hashish Oil,Cocaine, Methamphetamine and Ecstasy. DDdog "Gauge" is
trained systematically on known samples of controlled substances. DD dog "Gauge" is also
trained systematically on various methods of concealment which is inclusive ofbut not limited to
concealment in letters, parcels, wooden crates, metalcontainers, cement objects, styrofoam
coolers, plastic coolers, match boxes, cassette players, lockers, suitcases, various types of
luggage and baggage, vehicles, furniture, and numerous other concealment methods
imaginable. DD dog "Gauge's" positivealerts are at approximately 95%. /
11. The SULLIVAN2 package is further described as bearing USPS Tracking Number
9505 5111 2724 5192 4779 51, with $17.90 in US Postage, and weighing approximately 9
pounds, 6.6 ounces.
12. Because this is an ongoing investigation, it is requested that this search warrant
application and the accompanying affidavit, attachment, and exhibit be sealed until further order
by the Court. It is also requested that the notice requirement be waived for a period not to
exceed thirty (30) days, with leave to apply for an extension before the expiration ofthe time
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 10 of 12
» requested or actually granted by order of the Court. This is in order to better identify both the
sender and recipient without jeopardizing an ongoing investigation.
WHEREFORE, based upon the information contained herein, there is probable cause to
believe the SULLIVAN2 package described in paragraph 8 are evidence and instrumentalitiesof
criminal offenses against the United States, to wit: violations of 21 U.S.C. §§ 841 (a) (1), 843
(b), and 846, in paragraphs 7 a-g.
FURTHER AFFIANT SAYETH NAUGHT.
/i
Deborah L. Epps
US Postal Inspector
United States Postal Inspection Service
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 11 of 12
o ATTACHMENT A
One (1) U.S. Priority Mail Package is further described as a package bearing $17.90 in
US Postage, identified by USPS Tracking Number 9505 5111 2724 5192 4779 51, and addressed
as follows:
FROM: TO:
Brenda McDaniels James Sullivan
4747 Limerick Ave. PMB 1101 111 ChalanBalako
San Diego, CA 92117 Dededo, Guam, 96929
The SULLIVAN2 package weighs approximately 9 pounds, 6.6 ounces, and measures
approximately 12" x 12" x 5.5".
Retail
US POSTAGE PAID
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USPS TRACKING NUMBER
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Case 1:15-cr-00041 Document 10 Filed 09/08/15 Page 12 of 12
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