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United States v. Acosta-Barrera

United States District Court, E.D. Michigan, Southern Division

September 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NABOR ACOSTA-BARRERA, ALBERTO FLORES-HERNANDEZ, Defendants.

          MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTIONS TO SUPPRESS (DOCS. 23, 24)

          AVERN COHN, UNITED STATES DISTRICT JUDGE.

         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 seized.

         U.S. Const. amend. IV.

         I. Introduction

         This is a criminal case. Defendants Nabor Acosta-Barrera (Acosta-Barrera) and Alberto Flores-Hernandez (Flores-Hernandez) are charged in a one count indictment with conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The indictment is the result of evidence seized during the execution of a search warrant at 26069 Shirley Lane in Dearborn Heights, Michigan.

         Before the Court is defendants' motions to suppress on the grounds the affidavit accompanying the application for search warrant was not supported by probable case. Particularly, defendants contend that the affidavit fails to establish a nexus between Shirley Lane and criminal (drug) activity. Defendants also seek suppression, as fruits of the poisonous tree, the evidence obtained during the execution of the search warrant (two kilograms of heroin, two kilograms of fentanyl and $57, 980 in cash). For the reasons that follow, the motions are GRANTED.

         II. Background

         A. General

         On May 4, 2018, a judicial officer of the 36th District Court in Detroit authorized a search warrant for the Shirley Lane residence. The application for the search warrant was supported by the affidavit of Detroit Police Officer Nicholas Bukowski. On the same day the search warrant was executed by DEA agents and Detroit Police Task Force Officers. Evidence of drug activity was found and seized.

         The suppression motions are fully briefed and were the subject of two hearings. The papers consist of the following:

Acosta-Barrera's motion (Doc. 23)
Flores-Hernandez's motion (Doc. 24)
The government's combined response (Doc. 28)
The government's supplemental brief (Doc. 32)
The government's second supplemental brief (Doc. 34)
Flores-Hernandez's reply (Doc. 36)
Acosta-Barrera's reply (Doc. 37).

         B. The Affidavit

         The affidavit states in relevant part (with portions relating to Shirley Lane in bold):

         1. This investigation stems from an investigation into Victalino Alvares-Torres, a known drug trafficker.

         2. On November 2, 2017, affiant received a court order requesting locational data for the phone number (517) 617-1320 to identify the holder of the phone based on information from the DEA that this number was contacting a suspected source of heroin in Mexico.

         3. On November 7, 2017, DEA Agent Stachecki located a red Chevy Tahoe that he believed was being utilized by the holder of the target phone. The vehicle was registered to German Heredia, a previously deported criminal alien. At this time, affiant learned that the target phone was registered to Victalino Alvares-Torres.

         4. On November 10, 2017, Agent Stachecki obtained a search warrant authorizing the placement of a GPS device on the Tahoe.

         5. Between November 10 and 13, 2017, the phone and Tahoe were in Chicago, IL; Fort Wayne, IN; and Battle Creek, MI. It was common for the vehicle to make short stops in different areas of these locations, consistent with information about the distribution of drugs in Chicago, IL.

         6. On November 13, 2017, Agent Stachecki witnessed a Hispanic male stop at 198 Graves St., Battle Creek, where he removed a large box form the trunk of the Tahoe and carried it into the location. About five minutes later, he came back out of the location and loaded the box back into the Tahoe and left. Agent Stachecki followed the Tahoe until it was stopped by Michigan State Police. Upon the stop, the driver was identified as Victalino Alvares-Torres. Inside the box was a small air compressor with a hidden compartment containing a large amount of U.S. currency which was seized by the DEA as suspected narcotics proceeds. Torres was released from the scene.

         7. Data from the phone indicated that Torres continued to communicate with numerous numbers outside the U.S. and Mexico, in addition to multiple states within the U.S. Torres communicates with these numbers for a short time before the contact ceases. Based on affiant's training and experience, this type of phone activity is indicative of a narcotics courier who contacts a customer to arrange a transaction. Once the transaction has taken place, the contact ceases.

         8. On May 3, 2018, DEA agents from Chicago completed a traffic stop of a vehicle in which Torres was seen entering drive by an unidentified subject. Upon completion of the stop, DEA agents recovered a bag containing a large amount of U.S. currency. The DEA agents identified driver as Nabor Acosta-Barrera, a Mexican national believed to be in the country illegally. The vehicle Acosta-Barrera was driving was registered to him at 26069 Shirley Lane, Dearborn Heights, MI. The DEA agents seized the currency as suspected narcotics proceeds and searched the remainder of the car finding a MoneyGram along with a ledger outlining several money pickups and relating those pickups to Mexico and a possible recipient's phone number.

         9. According to DEA agents, Alvares-Torres told Agents that he was meeting with the driver of the vehicle (Acosta-Barrera) to drop off money. The agents also informed affiant that the driver, Acosta-Barrera, made an unprovoked statement concerning the DEA agents following ...


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