Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Barrera-Barron

United States District Court, Tenth Circuit

August 1, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS BARRERA-BARRON, Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

A grand jury charged Jesus Barrera-Barron and some 50 other defendants with conspiracy to manufacture, to possess with intent to distribute and to distribute 280 grams or more of cocaine base and to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing cocaine. See Second Superseding Indictment (Doc. #402), Count 1. The grand jury also charged Barrera-Barron with (1) two counts of attempted possession with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana, (2) three counts of money laundering, (3) three counts of using a cellular telephone in facilitating a drug offense, and (4) possession with intent to distribute and distribution of five kilograms or more of cocaine and 100 kilograms or more of marijuana. See id., Counts 71-73, 75-79, 81. This matter is before the Court on defendant's Motion To Suppress All GPS Evidence Seized Pursuant To A Court Order Issued February 8, 2012 (Doc. #540) filed March 4, 2013 and defendant's Motion To Suppress Evidence Seized Pursuant To A Traffic Stop Conducted On February 9, 2012 (Doc. #753) filed June 7, 2013. On July 16, 2013, the Court held an evidentiary hearing. For reasons stated below, the Court overrules defendant's motions.

Facts

Based on testimony and exhibits received at the hearing, the Court finds the following facts:

In October of 2010, the United States Drug Enforcement Administration ("DEA") initiated an investigation into the distribution of cocaine by an organization run by Djuane Sykes and his associates, a street gang in Kansas City, Kansas known as "Deuce Deuce." Special Agent Nicholas Wills and Task Force Officer Eric Jones led the investigation which involved the interception of 43 cellular telephones, including multiple roving Title III intercepts on Hector Aguilera. Based on the initial intercepts of three of Sykes's telephones, officers identified multiple layers of sources of cocaine, which was being funneled by various means from Mexico to the Kansas City metropolitan area. From June of 2011 through April of 2012, officers intercepted hundreds of calls.

On February 6, 2012, agents started intercepting conversations between Eduardo Perez-Alcala, who was utilizing Target Telephone #31 and a person initially identified as Unidentified Male (UM) 167.[1] UM167 was utilizing a cellular telephone with International Mobile Subscriber Identity (IMSI) number XXXXXXXXXXXXXXX. The intercepted conversations indicated that UM167 had arrived in the Kansas City area and was waiting to drop off narcotics to Perez-Alcala. In the evening hours of February 7, 2012, agents intercepted additional calls between Perez-Alcala and UM167. The historical investigation and intercepted calls revealed that UM167 was to drop off narcotics to Perez-Alcala and then return to the border area with U.S. currency.

On February 8, 2012, DEA Task Force Officer Kris Rutherford applied for and received a GPS ping order for the cellular phone with IMSI XXXXXXXXXXXXXXX which was associated with UM167. Officer Rutherford began monitoring the results of the GPS ping at approximately 8:00 p.m. on February 8, 2012. The pings showed no results until February 9, 2012, at approximately 1:23 p.m., when they showed a six meter ping at a Petro Stopping Center in Oklahoma City, Oklahoma. In an attempt to coordinate a stop, Officer Rutherford began communicating the GPS data information to law enforcement officers in Oklahoma City.

Before law enforcement officers could locate the phone, GPS pings indicated that the cell phone had moved westbound on I-40 to a Shell gas station near Exit 130. Based on the GPS pings, officers believed that the target phone was in one of nine semi trucks at the Banner Shell Station near El Reno, Oklahoma or with an occupant or recent occupant of one of those vehicles. Beginning around 7:30 p.m. and continuing for some two hours, Canadian County Deputy Jeff Allen followed a total of five trucks as each one left the gas station. He followed two of the trucks to the end of his jurisdiction and did not stop them because he did not observe any traffic violations or other probable cause to stop them. He stopped two other trucks and gave the drivers warnings for traffic violations.

Shortly before 9:45 p.m., Deputy Allen observed defendant's semi truck leaving the gas station. He started to follow the vehicle westbound on I-40. Deputy Allen observed that defendant's vehicle swerved within the lane, crossed over the fog line and shoulder onto the rumble strip (some 12 inches from the fog line), ran down the rumble strip for a short distance and then stayed on the fog line for a "considerable distance." Deputy Allen did not believe that weather was a factor in defendant's failure to maintain his lane. Deputy Allen activated his emergency lights. Defendant continued traveling west until reaching the 125 mile marker, where he finally pulled over and stopped. Deputy Allen testified that he stopped defendant's vehicle because he observed a violation of Oklahoma law which requires drivers to drive as nearly as practicable entirely within a single lane.

Deputy Allen contacted defendant, who had exited the truck, next to the cab of the truck. Deputy Allen asked him if he was traveling alone. After hesitating for a second, defendant replied "yes." Deputy Allen asked defendant for his driver's license, insurance, bill of lading and log book. Deputy Allen thought it was unusual that defendant had to return to the cab to retrieve those items because most drivers expect to be asked for such items from law enforcement and bring them out of the truck. Deputy Allen saw that defendant had to search around the front of his truck to find the documents, which Deputy Allen also noted as being unusual. Deputy Allen noted that defendant appeared very nervous. Defendant's hands appeared to shake to the point that he kept dropping items on the floor of the truck. Defendant finally returned to Deputy Allen's location and Deputy Allen asked him to have a seat in the front seat of Deputy Allen's police car.

After getting into the police car, Deputy Allen again asked defendant for his documents and driver's license. Defendant produced his insurance and log book, but had forgotten his driver's license and bill of lading. Defendant and Deputy Allen returned to the cab so he could retrieve the rest of the documents. While defendant was in the cab, Deputy Allen heard him speaking in Spanish to another person in the vehicle. Deputy Allen again asked him if anyone else was in the vehicle. This time, defendant admitted that his girlfriend was in the sleeper compartment. Deputy Allen asked him to have her step out and have a seat where Deputy Allen could see her. When she complied, Deputy Allen asked for her driver's license. She stated that she did not have one but gave Deputy Allen a Texas ID card indicating that her name was Melissa Franco. Defendant finally found his driver's license and bill of lading and returned to Deputy Allen's vehicle.

While defendant was seated in the police car, Deputy Allen noted that he still appeared to be very nervous. His hands were still shaking to the point he dropped his license twice while trying to hand it to Deputy Allen. As Deputy Allen was going through the documents, through his dispatcher he requested a license and warrant check on both defendant and Franco.

Deputy Allen found defendant's actions and demeanor to be very unusual because of his high level of anxiety, which was uncharacteristic of a professional driver. Deputy Allen informed defendant that he was going to issue him a warning for improper lane use and that it would not appear on his driving record. Lieutenant Jason Glass and his canine partner, Gunner, arrived and walked up to the semi truck. Defendant noticed them and became fixated on them until they were out of sight at the front of the truck.

As Deputy Allen was completing the warning ticket, he asked defendant about his cargo and destination. Defendant said he thought the cargo was fork lifts and machine parts that were going to Santa Rita, New Mexico. Without being asked, defendant went on to advise that he was not present when the cargo was loaded. He said his other driver had called him from Tulsa, Oklahoma and had quit. Defendant had therefore flown from El Paso to Tulsa the day before to pick up the truck and cargo and complete the run. Defendant stated that Franco had come along for the ride. After completing the statement, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.