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United States of America v. Miguel Angel Solorio

January 27, 2011

UNITED STATES OF AMERICA
v.
MIGUEL ANGEL SOLORIO



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court is the motion (Doc. 290) of defendant Miguel Angel Solorio ("Solorio") to suppress evidence seized during a warrantless search of the vehicle he was operating on May 19, 2010. Solorio argues that officers lacked probable cause, or reasonable suspicion, to engage in the warrantless stop of the vehicle (see Doc. 290 ¶ 5; Doc. 292 ¶ 3), and, therefore, all evidence obtained as a result of that stop must be suppressed. The court held an evidentiary hearing on the motion on December 3, 2010,*fn1 after which the parties filed supplemental briefing. (See Docs. 404, 411). For the reasons that follow, the motion (Doc. 290) will be denied.

I. Findings of Fact*fn2

In the fall of 2009, the Drug Enforcement Agency ("DEA") instituted an investigation of a drug trafficking organization based in Lancaster, Pennsylvania. (Hr'g Tr. at 5). DEA agents obtained court-authorized wiretaps on several telephones. (Id.) From the wiretaps, investigators identified Angel Bonilla and Ismael Bonilla, co-defendants in the above-captioned matter, as sources of supply, or individuals able to provide cocaine, for the Lancaster-based organization. (Id.) DEA agents then developed a confidential informant ("CI") to engage the Bonillas, who were themselves located in the Atlanta Georgia area, in a drug deal. (Id.) The CI negotiated with Angel Bonilla ("Bonilla") to purchase cocaine, initially to be delivered to central Pennsylvania. (Id. at 7). After difficulties developed with delivery of the drugs to Pennsylvania, the CI agreed, under DEA instruction, to travel to the Atlanta area to make the purchase.*fn3 (Id. at 7).

DEA Agent Phil Klemick ("Agent Klemick") and DEA Task Force Officer Mike Neff ("Officer Neff") traveled with the CI to the Atlanta area on May 18, 2010.*fn4

(Id.) During the investigation in Atlanta on May 18 and May 19, 2010, law enforcement agents from the DEA High Intensity Drug Task Force group assisted Agent Klemick and Officer Neff. (Id. at 8-9). Agent Klemick remained with the CI throughout the operation, while Officer Neff and other agents conducted physical surveillance of the activities. (Id. at 23, 32-33). Agents communicated developments in the investigation by radio and cellular phone. (Id. at 9, 14).

On May 19, 2010 the CI exchanged numerous telephone calls and had one meeting with Bonilla. (Id. at 9-10). The CI met with Bonilla at a Walmart in Duluth, Georgia, close to Atlanta. (Id. at 10). Officer Neff viewed the meeting from a position inside the Walmart while Agent Klemick waited for the CI in a vehicle in the parking lot. (Id. at 10, 33). At the conclusion of the meeting the CI reported the details to Agent Klemick: the CI arranged to purchase four kilograms of cocaine from Bonilla;*fn5 Bonilla would pick up the drugs and the drug source, and Bonilla would provide the drugs for the CI's inspection at a nearby hotel. (Id. at 11).

Subsequent to the meeting, officers observed Bonilla leave the Walmart in a Lincoln Navigator, and continued to follow his physical movements. (Id. at 14, 33-34). Bonilla stopped at several locations, but when he left the last location-a Waffle House parking lot-a black Volkswagen Passat and a Ford Explorer traveled in tandem with him to his residence. (Id. at 33-34, 36). Agent Klemick and Officer Neff inferred that one of the cars contained the cocaine and the other contained the source of the cocaine (id. at 19, 35-36)-a common occurrence in drug deals in order to separate the source from the illegal contraband. (Id. at 19, 35-36).

The CI was in telephone contact with Bonilla during the period when officers were observing Bonilla's movements. (Id. at 15). At some point, Bonilla informed the CI that plans had changed. (Id. At 15-16). The source was uncomfortable with the idea of bringing the cocaine to the hotel to inspect, so Bonilla urged the CI to come to Bonilla's residence where the CI could inspect one kilogram in the residence garage, and if satisfied, the other three kilograms would be available. (Id.). Agent Klemick, who remained with the CI, was informed of the development and relayed it to the other agents. (Id. at 10, 15). At approximately 6:06 p.m. the CI telephoned Bonilla and Bonilla indicated that the person he was waiting for was right around the corner. (Id. at 17). At approximately 6:25 p.m. by way of another phone call, Bonilla informed the CI that he was ready and the CI should head towards Bonilla's residence. (Id.)

Officer Neff and Agent Robert Norton from Atlanta ("Agent Norton") were situated outside Bonilla's residence in a position to conduct surveillance. (Id. at 37, 39). Consistent with the reports relayed by Agent Klemick of the CI's phone calls with Bonilla, they observed all three vehicles arrive at the residence around 6:26p.m.. (Id. at 36-37, 54, 56). The Passat parked in a lot approximately thirty (30) yards away from the residence. (Id. 38, 68). Officer Neff and Agent Norton observed several individuals entering and exiting the garage, of which they took a partial video recording. (Id. at 37, 45). At approximately 6:43 p.m. Officer Neff observed the defendant, Solorio, walk from the direction of the Passat into Bonilla's garage. (Id. at 38-39, 55, 56). Officer Neff did not see Solorio exit the Passat as his attention was focused on the garage of Bonilla's residence, however, Solorio and the other individual with Solorio were the only individuals to walk from the area of the Passat during the period of observation. (Id. at 46, 52-53, 56, 62-63,).

Officer Neff reported, and the video corroborated, that Solorio carried a black drawstring backpack with a white Armani Exchange emblem. (Id. at 39). The bag was consistent with the size and shape of a kilogram of cocaine (Id. at 41), so much so that Officer Neff and Agent Norton "joked with each other that that was the kilogram going into the garage at the time." (Id. at 41). Officers further noted that no other individuals entering and exiting the garage of the Bonilla residence carried anything.*fn6 (Id. at 38-39). As a result of the ongoing communication between officers in the investigation, at the time Officer Neff observed Solorio with the backpack at the garage, he was aware that the inspection of the cocaine was to occur at the garage, that the source would be present, and that only one kilogram would be available for inspection.*fn7 (Id. at 40-41).

Officer Neff next observed the Ford Explorer leave Bonilla's residence. (Id. at 42). Moments later, Agent Klemick relayed to Officer Neff that the inspection site had changed to the nearby Studio 6 Motel. (Id.) Two to three minutes later, Bonilla and another individual got in the Lincoln Navigator, pulled out of the parking spot and waited for the Volkswagen Passat. (Id. at 43). The Passat followed the Navigator out of the parking lot and both headed toward the motel. (Id.). Officer Neff observed Solorio in the Passat when it left. (Id. at 47).

At this point, the DEA directed the Gwinnet County Police officers involved in the investigation to stop the two vehicles. (Id. at 44). Officer Neff was the first to arrive at the scene after the stop by the marked police cruisers. (Id.) Solorio was seated in the driver's seat of the Passat, and Officer Neff spotted the black backpack with Armani Exchange emblem between the legs of the front-seat passenger, co-defendant Jesus Mundo Diaz. (Id. at 44, 51-52). Officers searched the bag and discovered ...


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