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United States v. Villapando

United States District Court, D. Maryland

April 5, 2017



          Ellen L. Hollander United States District Judge

         Hector Hernandez Villapando and his sons, Hector Hernandez Barba and Enixae Hernandez Barba, defendants, were indicted on April 19, 2016, on the charge of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. See ECF 26.[1] A Superseding Indictment was filed almost a year later, on March 16, 2017. ECF 91.

         To avoid confusion among the defendants, I shall refer to Hector Hernandez Villapando as “Villapando.” And, I shall refer to Hector Hernandez Barba and Enixae Hernandez Barba by their first names.

         The defendants filed several pretrial motions. At a hearing on March 17, 2017, both evidence and argument were presented. The Court ruled on several of the motions at the hearing (see ECF 98), but three motions remain for disposition. They are described below.

         Hector filed a Motion to Suppress Statements and Tangible Evidence (ECF 41), [2]primarily arising from the warrantless arrest of the defendants and the recovery from Hector of keys to a warehouse in Linthicum Heights, Maryland. Hector also filed a Motion for Relief from Prejudicial Joinder and to Sever. ECF 42. Enixae filed a Motion to Suppress Evidence (ECF 71), challenging a residential search conducted pursuant to a search and seizure warrant issued by a Maryland State judge at 10:45 p.m. on April 8, 2016. The search warrant was based on the Application and Affidavit of Special Agent Ronald Sparrow of the Drug Enforcement Administration (“DEA”). See ECF 71-1; see also ECF 75.[3]

         For the reasons that follow, I shall deny the motions.

         I. Factual Summary[4]

         DEA Special Agents Ronald Sparrow and Susannah Wood were, at the relevant time, assigned to Group 51, HIDTA (High Intensity Drug Trafficking Area), in Baltimore. The DEA received information in August 2015 from a confidential informant (“CI”) with respect to a group of individuals believed to be trafficking large amounts of cocaine into Maryland.

         According to Agent Sparrow, the CI was “found to be reliable and accurate, ” and the information provided by the CI was “independently corroborated.” ECF 75 at 9.

         In connection with the group's drug trafficking, the CI advised the DEA that the group was using a warehouse located at Suite 104, 7110 Golden Ring Road in Baltimore. ECF 75 at 8. Further, the CI stated that shipments of cocaine came every two to three weeks. Id. In addition, the CI reported that the group used a box truck and a cargo van to transport controlled dangerous substances. ECF 75 at 12.

         The business operating from that premises was known as KMKJ Trucking LLC. However, by July 31, 2015, that business had been evicted. ECF 75 at 10. Investigators later identified Unit L, 717 Hammonds Ferry Road, in Linthicum Heights, Maryland, as the warehouse utilized by the individuals previously suspected of drug trafficking at the warehouse on Golden Ring Road.[5]

         After the eviction from the Golden Ring Road location, DEA agents conducted interviews of persons associated with neighboring businesses. One individual (“Source of Information” or “SOI”) reported that he/she had not observed any legitimate business activity at Suite 104. Moreover, the Source of Information indicated that, every two to three weeks, a tractor-trailer arrived at night. Id. at 9. Notably, the SOI entered the vacated premises and saw “large industrial size bags of paprika inside” Suite 104. ECF 75 at 10. According to Special Agent Sparrow, paprika is used to mask the odor of narcotics. Id.

         Bob's Overhead Door was also a business neighbor at Golden Ring Road. An associate at that business (“SOI-2”) confirmed that he/she never saw activity at Suite 104 during the day. Id. SOI-2 also recalled that a forklift had been left at Suite 104. Id. Investigation revealed that the forklift had been sold to “Juan” on February 5, 2015, for cash, and delivered to Suite 104. ECF 75 at 10. According to Agent Wood, forklifts are used to move palettes in which drugs are secreted.

         A 2007 Dodge Sprinter box truck had been parked outside the rear of Suite 104 at the Golden Ring Road location. Id. On August 4, 2015, it was towed by Mc-N-Mc Towing Company. ECF 75 at 10. The DEA agents traced ownership of the vehicle to Villapando. Moreover, Villapando paid storage fees to Mc-N-Mc Towing Company, in cash, between August and December 2015. Id. According to Agent Wood, Villapando, along with the wife of Enixae, eventually retrieved the truck from the towing company. See also ECF 75 at 10-11.

         The DEA obtained a copy of Villapando's driver's license from “Management, ” which “listed” an address for him in Calexico, California. ECF 75 at 11. According to Agent Wood, Calexico is located on the Mexican border and is a known source of drug importation to the United States.

         The CI positively identified a driver's license photograph of Villapando as one of the individual's involved in the distribution of cocaine in Baltimore.[6] ECF 75 at 11-12. In addition, Agent Wood stated that the CI identified a photograph of Enixae. Moreover, investigation revealed that both Villapando and Enixae had been arrested in 2005 in Calexico on drug charges. Id. at 12.

         DEA investigators identified 106 John Avenue in Linthicum Heights, Maryland as “a residence associated with the Hernandez DTO.” ECF 75 at 14. They initiated surveillance of that residence on February 19, 2016. Id. Investigators observed a white 2004 Ford van, Maryland Tag No. 8BW0037 (the “Van”), parked in the driveway of the John Avenue residence. Id. They also saw a “Hispanic female, ” believed to be Enixae's wife, leave the residence on that date and enter the Van. Id. She drove to several banks, a gas station, and also to an apartment building located at 10326 Hickory Ridge Road in Columbia, Maryland. Id.

         A canine scan of the Van was conducted at about 6:20 p.m. on February 19, 2016, by a certified drug detection dog. 14-15. The dog “produced a positive response” for the presence of controlled dangerous substances, including cocaine. Id. at 15.[7]

         The Affidavit recounts that on February 19, 2016, after the positive canine alert, Agent Wood applied for a warrant for a GPS tracking device for the Van. Id. It was approved by Anne Arundel County District Judge Thomas Miller. Id. The device was installed on the Van on February 20, 2016. Id.

         On February 24, 2016, Villapando was observed exiting the Van and entering Apartment 624 at 10326 Hickory Ridge Road. ECF 75 at 16-17. Through the use of the court-authorized surveillance equipment, the Van was also detected on March 2, 2016, travelling from the area of Hickory Ridge Road in Columbia to 106 John Avenue in Linthicum Heights.

         At about 9:00 a.m. on that date, the Van left John Avenue and proceeded to a multi-unit business park warehouse located at 717 Hammonds Ferry Road in Linthicum Heights. ECF 75 at 16. It then proceeded to three banks, before returning to the Hammonds Ferry Road location at 1:17 p.m. Id. At that time, the Van parked in front of Unit L at the warehouse. Id. There was no business name or placard on Unit L, however. Id. at 17. Similarly, Agent Wood testified that, during the investigation, there was no sign of any legitimate business activity at Suite L at the Hammonds Ferry Road location, and black paper was used to cover the window, concealing the inside from public view.

         At about 1:30 p.m. on March 2, 2016, the Van left the warehouse. ECF 75 at 17. Enixae was the driver and Villapando was the passenger. Id. The Van returned to 106 John Avenue. Id.

         Agent Wood testified that a pole camera was installed on March 8, 2016, at the rear of the Hammonds Ferry Road warehouse. No activity of significance was captured by the pole camera until April 6, 2016.

         At approximately 10:30 a.m. on April 6, 2016, a tractor-trailer with the “KMKJ” logo arrived at the warehouse at 717 Hammonds Ferry Road. ECF 75 at 17. The “KMKJ” logo matched the logo seen on vehicles at the Golden Ring Road warehouse. The tractor-trailer was observed backing into the rear bay door of Unit L. Id. Photographs from the pole camera were introduced into evidence at the hearing. See government exhibits 4A-4D. According to Agent Wood, a forklift was used to remove pallets on the truck, and investigators believed the cargo contained cocaine.

         The Van arrived at the warehouse at approximately 11:23 a.m., with two “Hispanic males.” ECF 75 at 17. The Van travelled around the parking lot and warehouse building, “scanning the area.” Id. Agent Wood indicated that the agents believed the two occupants were conducting counter-surveillance of the area. Two individuals exited the Van, believed to be Enixae and Hector. ECF 75 at 17. Both entered Unit L. Id. At approximately 1:30 p.m., the Van left the warehouse and proceeded to 106 John Avenue in Linthicum Heights. Id.

         Agent Wood testified that the distance between the John Avenue residence and the warehouse is only about a mile, which is “significant.” She explained that the close proximity is intended to minimize “exposure” of the stash to police, because the travel distance is so short. See also government exhibits 2, 3 (aerial views of the area, including the warehouse and John Avenue residence).

         Also at around 1:30 p.m., another “Hispanic male” left Unit L, unidentified by name, proceeded to the tractor-trailer parked in the back of the warehouse and directed it out of the lot. ECF 75 at 18. The individual then met the driver of a Chrysler 300 at a bank. Id. The Chrysler was rented by Santana Florencio, Jr., who had a California address. Id. The tractor-trailer returned to the lot at about 3:40 p.m. on April 6, 2016, and backed in at the bay doors. Id. The trailer was “release[d]” and the tractor exited the lot. Id.

         DEA's Group 51 investigators maintained 24-hour surveillance of the warehouse at 717 Hammonds Ferry Road. ECF 75 at 18. This is because, according to Agent Wood, the agents believed drugs had been delivered to Suite L on April 6, 2016. She explained that drug dealers typically wait before taking further action.

         Two days later, on April 8, 2016, at approximately 4:51 p.m., a black Honda with Maryland tag 68805CF arrived at the warehouse and “dropped off a Hispanic male wearing a red sweatshirt, later identified as Hector Hernandez Jr.” Id. at 18. He entered Unit L through the rear door of the warehouse. The Honda left the parking lot. Id. At approximately 6:03 p.m., the Honda returned to the warehouse with Villapando and Enixae, both of whom entered Unit L through the rear door. Id. at 18-19.

         At approximately 6:21 p.m., a “Hispanic male” left the warehouse, entered the Honda, and left the parking lot. Id. at 19. Wood identified the individual as Enixae. In particular, he drove around the lot and the “surrounding area of the warehouse.” Id. at 19. According to Wood, investigators regarded that conduct as suspicious. See also government exhibits 5A-5F (pole camera photos).

         At approximately 6:30 p.m., the Honda proceeded to the front of the warehouse and exited, followed by a silver-colored Ford F- 150, Maryland tag 6CG4330. ECF 75 at 19. Both vehicles left the lot, travelled east on Nursery Road, and “met at a nearby road . . . .” ECF 75 at 19.[8] There, the two individuals in the vehicles were “making contact in the middle of the roadway.” Id. Both vehicles then traveled back to the warehouse “in tandem.” Id. The Honda parked in the lot, and the driver of the Honda entered the warehouse. Id. Wood testified that the driver was Enixae. The Ford F-150 proceeded to enter Unit L through the bay door. ECF 75 at 19. The bay door then closed. Id. A few minutes later, the Ford F-150 drove out of the warehouse. Id. According to Agent Wood, investigators believed that a drug transaction occurred inside the warehouse and that the Ford F-150 contained drugs obtained inside the warehouse.

         Investigators stopped the Ford F-150 when it left the warehouse. Id. The driver, William Frederick Cornish, was asked to exit the vehicle. A Maryland State Police officer and her certified drug detection dog, “Akita, ” conducted a scan of the exterior of the vehicle, which resulted in a positive response to the odor of controlled dangerous substances, which included cocaine. ECF 75 at 19. The dog also alerted to the black Honda. Id. at 20.

         After the drug detection dog alerted to the presence of controlled dangerous substances in the Ford F-150, investigators entered the Ford F-150 and found a large cardboard box in the back seat of the truck. ECF 75 at 20. It contained “31 brick shaped packages of suspected narcotics.” Id.[9]

         According to Wood, investigators also observed Villapando, Hector, and Enixae exit Unit L through the front door. Believing a drug transaction had just taken place, all three men were arrested, without a warrant. In a search of Hector, keys to Unit L of the warehouse were recovered. At the time of the arrest, the arresting officers were unaware of the canine's positive alert to the two vehicles or to the recovery of suspected controlled dangerous substances in the Ford F-150. After the defendants were taken into custody, investigators secured the premises at 106 John Avenue and waited for a warrant to be obtained.

         On the evening of April 8, 2016, Agent Sparrow submitted to a Maryland State judge an “Application And Affidavit For Search And Seizure Warrant” for 106 John Avenue in Linthicum Heights, Maryland. Among other things, Agent Sparrow described the property as a two story single family home. ECF 75 at 4. Further, Agent Sparrow averred that a BG&E utilities subpoena identified Enixae “as the main contact for the residence . . . .” Id. at 20.

         In the Affidavit, Agent Sparrow set forth his extensive law enforcement training and experience with regard to drug trafficking, packaging, distribution, and surveillance. ECF 75 at 6-8. Sparrow asserted that drug traffickers “commonly utilize vehicles to pick up, transport, and deliver drugs” ( 7) and that they transport “drug proceeds to 'stash' locations . . . .” Id. at 8.

         The Affidavit also recounts several occasions when the Van was observed at the John Avenue residence and the Hammonds Ferry warehouse. Sparrow stated that, based on the investigation, he believed that the residence at 106 John Avenue was being used “for the purpose of offloading, concealment, and distribution of CDS shipments . . . .” ECF 75 at 20.

         Anne Arundel County District Court Judge John McKenna signed the search warrant at 10:45 p.m. on April 8, 2016. ECF 75 at 3.

         During a search of 106 John Avenue, pursuant to the warrant, investigators found three large duffel bags in the basement containing large amounts of U.S. Currency, vacuum sealed in plastic bags and marked with monetary amounts on the outside of each plastic bag. Investigators believe that the duffel bags contain about $2.4 million dollars. Additionally, investigators located a drug/money ledger inside of 106 John Avenue, documenting just over $2.4 million dollars in receipts from the sale of illegal drugs. Documents ...

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