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United States of America v. Evens Claude

January 16, 2013

UNITED STATES OF AMERICA
v.
EVENS CLAUDE



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

On June 6, 2012, a grand jury returned a Superseding Indictment charging defendant Evens Claude with two counts of conspiracy in violation of 18 U.S.C. § 371, seven counts of uttering counterfeit currency in violation of 18 U.S.C. § 472, two counts of access device fraud in violation of 18 U.S.C. § 1029(a)(2), eight counts of aggravated identity theft in violation of 18 U.S.C. § 1028A, two counts of bank fraud in violation of 18 U.S.C. § 1344, and one count of aiding and abetting in violation of 18 U.S.C. § 2. Presently before the Court is defendant's Motion to Suppress Statements and Evidence. The Court conducted an evidentiary hearing and heard oral argument on the motion on December 20, 2012. For the reasons set forth below, the Court grants in part and denies in part defendant's Motion to Suppress Statements and Evidence.

II. BACKGROUND

On June 28, 2011, Johvany Marquez attempted to purchase diamond earrings worth $1,139 and a bracelet worth $2,999.99 from the Zales Jewelry Store at the Montgomery Mall in North Wales, Pennsylvania. (Tr. at 15; 23.) Mr. Marquez was accompanied in the store by Omar Laboy, who acted as an interpreter for Mr. Marquez; a third person, Jodaro Claude, remained outside the store with his young son. (Tr. at 50-51; 55.) Mr. Marquez attempted to use the name, Social Security Number, address, and date of birth of Illuminada Alvarado to access a line a credit at Zales to purchase the merchandise. (Tr. at 15; 50.) This line of credit had been previously accessed on June 23, 2011. (Tr. at 22.) The sales clerk rejected the transaction, and Mr. Marquez left the store without the merchandise. Police Officer Todd Walter was then notified of the incident. (Tr. at 15-16.)

Officer Walter and mall security personnel met Mr. Marquez, Mr. Laboy, and Jodaro Claude at the lower mall level of the adjoining Macy's store. (Tr. at 16.) Officer Walter and mall security kept the suspects at Macy's until a store clerk from Zales could come to identify them. (Tr. at 52-55.) The store clerk identified Mr. Marquez as the person who attempted to use Ms. Alvarado's identification and Mr. Laboy as the interpreter for Mr. Marquez. (Tr. at 54-55.) The store clerk did not identify Jodaro Claude as being involved in the incident. (Tr. at 55.) Although Mr. Marquez could speak some English, Officer Walter used a mall maintenance worker as an interpreter in his questioning of Mr. Marquez. (Tr. at 20-21.) Officer Walter testified that he "had no question" about what Mr. Marquez was saying through the interpreter and that Mr. Marquez appeared to understand his questioning. (Tr. at 21; 64-65.) Officer Walter had used the mall maintenance worker in this capacity on prior occasions, but, because he "doubt[ed]" the maintenance worker was trained to interpret, he said he could not judge whether the maintenance worker had interpreted properly. (Tr. at 55-56.)

During the questioning, Mr. Marquez admitted using Ms. Alvarado's identification to attempt to make a purchase at Zales. (Tr. at 16.) He stated that Jodaro Claude's brother "E" had sent him the information in a text message.*fn1 (Tr. at 16-17.) Although Mr. Marquez showed Officer Walter the cellphone on which the text message had been received, the battery on the cellphone was dead, and Officer Walter was unable to read the text message at that time. (Tr. at 17.) Mr. Marquez also stated that "E" had driven him, Mr. Laboy, Jodaro Claude, and Jodaro Claude's son to the mall. (Id.)

Jodaro Claude confirmed to Officer Walter that his brother "Evens" drove them to the mall. (Tr. at 17-18.) Jodaro Claude stated that he did not know the last name of his brother and did not know where his brother was at the time he was questioned. (Tr. at 18.) He said that his brother lived in the Boston, Massachusetts area but was in Pennsylvania for a funeral. (Tr. at 25-26.) Jodaro Claude also stated that his brother was going to pick him up from the mall. (Tr. at

64.) Officer Walter then asked Jodaro Claude to call his brother to ascertain his location. (Id.) Jodaro Claude called phone number 215-900-3738, which was associated with the contact "E" in his cellphone, and handed it to Officer Walter. (Tr. at 18-20.) Officer Walter spoke with a male on the cellphone but was unable to get information regarding the male's location. (Tr. at 19.)

Mr. Marquez was arrested for his involvement in the Zales incident. (Tr. at 21.) Mr. Laboy was also arrested on an outstanding warrant. (Id.) Jodaro Claude and his son were allowed to leave. (Id.) Officer Walter drove Mr. Marquez to the police station and turned him over for intake and processing. (Id.)

Officer Walter then returned to the mall, where two police officers and mall security personnel were observing Jodaro Claude to determine who would pick him up from the mall. (Tr. at 21-22.) Officer Walter observed Jodaro Claude run down a steep bank from the mall parking lot to Route 309, where a white "Chevy" was stopped in the right turn lane. (Tr. at 23-24.) As Jodaro Claude began to enter the vehicle, Officer Walter pulled up behind the vehicle and turned on his overhead lights. (Tr. at 24.) Officer Walter then approached the driver's side of the vehicle and had defendant exit the vehicle with his license and the rental agreement for the vehicle. (Tr. at 25; 36.) Officer Walter then directed defendant to stand at the rear of his vehicle. (Tr. at 38.) Defendant provided a driver's license with a Brockton, Massachusetts address. (Tr. at 25.) Officer Walter told defendant that he had stopped his vehicle because of the incident at the Zales and asked him if he knew Mr. Marquez or Mr. Laboy and whether he drove them to the mall. (Tr. at 29-30.) Defendant stated that he knew Mr. Marquez and Mr. Laboy but had not driven them to the mall. (Tr. at 29.) Officer Walter then had defendant return to his vehicle while Officer Walter checked defendant's information. (Tr. at 41-42.)

Officer Walter found no issues with defendant's license and rental agreement. (Tr. at 43.) He then returned the documents to defendant and asked him to provide his cellphone number. (Tr. at 27; 44.) Defendant refused to give Officer Walter his cellphone number. (Tr. at 27; 44-45.) Thereupon Officer Walter instructed defendant to "[p]lace [his] cellphone on the dashboard." (Tr. at 45.) Defendant complied and took his cellphone from an area not in plain view. (Tr. at 46.) Officer Walter then used his own cellphone to call the phone number 215-900-3738 that he copied from Jodaro Claude's cellphone. (Tr. at 27.) Officer Walter observed that defendant's cellphone began to vibrate when he dialed the number and ceased to vibrate when he terminated the call. (Tr. at 27; 47.) Officer Walter then allowed defendant to leave without issuing him a traffic citation. (Tr. at 48.)

Officer Walter estimated that the entire stop and investigation took approximately fifteen to twenty minutes. (Tr. at 30-31.) During the stop, a second officer was in a police vehicle with his overhead lights on behind Officer Walter. (Tr. at 34.) Both officers were in uniform. (Tr. at 32.) Officer Walter testified that during his stop and investigation, defendant was not free to leave the scene, although there is no evidence that Officer Walter told defendant of that restriction. (Tr. at 40-41; 44-47.) Officer Walter never informed defendant of his Miranda ...


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