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United States v. Castillo Palacio

United States District Court, D. Maryland

December 12, 2019

UNITED STATES OF AMERICA
v.
JAIRO DANIEL CASTILLO PALACIO and MARIO CARRILLO VALLEJO, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE

         Defendant Jairo Daniel Castillo Palacio ("Castillo") has been charged with one count of Alien in Possession of a Firearm and Ammunition, and Defendant Mario Carrillo Vallejo ("Carrillo") has been charged with one count of Alien in Possession of Ammunition, both in violation of 18 U.S.C. § 922(g)(5). Pending before the Court are Castillo's Motion to Suppress Statements, Carrillo's Motion to Suppress Tangible and Derivative Evidence, and Carrillo's Motion to Suppress Statements. The Motions are fully briefed, and the Court held an evidentiary hearing on the Motions on October 22, 2019. For the reasons set forth below, Carrillo's Motions are both DENIED, and Castillo's Motion is GRANTED.

         FINDINGS OF FACT

         At the suppression hearing on October 22, 2019, the Court heard testimony from Officers Evan Milano, Darby Dakkouni, and Mark McGinnis of the Gaithersburg, Maryland Police Department ("GPD"); Sergeant Raul Delgado of the GPD; and Detectives Scott Koogle and Jacque Cowan of the Montgomery County Police Department ("MCPD"). The Court also received as evidence photographs, documents, and video recordings of police interrogations of Defendants. Based on this record, the Court makes the following findings of fact.

         I. The Traffic Stop

         On August 9, 2018 at approximately 5:00 p.m., Officer Mark McGinnis of the Street Crimes Unit of the GPD, driving in an unmarked police vehicle, observed Defendant Castillo walking with another man near an apartment complex on North Summit Avenue in Gaithersburg, Maryland. McGinnis recognized Castillo from a prior police encounter. McGinnis then saw a minivan pull up alongside Castillo and the other man. Both entered the minivan, which then drove off. As McGinnis began to follow the minivan in his unmarked police vehicle, he electronically checked to. see if there were any open warrants against Castillo. While he was following the minivan, McGinnis received a report that Castillo had an outstanding arrest warrant for failure to appear to address traffic violations. McGinnis radioed for assistance from other members of the Street Crimes Unit. Three officers, Officer Milano, Officer Dakkouni, and Sergeant Delgado, responded in separate unmarked police vehicles and joined in the surveillance.

         As McGinnis and the other police vehicles were following the minivan, McGinnis observed the minivan fail to stop at a stop sign before turning right onto Gerard Street. The officers separately observed that the minivan was driving in a suspicious manner in that it was moving at a very slow rate of speed, was impeding traffic, appeared to be driving in circles around the same areas, including in and out of cul de sacs, and made at least one U-turn.

         When the minivan pulled into a parking area and partially into a parking space, such that there was a possibility that the occupants would get out and walk away, the officers decided to stop the minivan. Milano stopped his vehicle behind the minivan, slightly to its left, and the other officers arrived on the scene shortly after. When the minivan driver attempted to back out of the parking space, Dakkouni, who had parked his vehicle nearby and was approaching the minivan on foot, tapped on the rear of the vehicle to get the driver's attention and announced, "Police, police." Suppression Hr'g Tr. I at 45-46. The minivan stopped. Milano then approached the driver's window, showed his police badge, and asked in English and Spanish to see the driver's license. The driver stated that he did not have a license. There were five occupants in the minivan.

         At the same time, McGinnis approached the sliding side door on the driver's side and encountered Defendant Carrillo seated in the middle row seat on the driver's side, with a blue backpack on the floor of the minivan near his left foot, next to the sliding door. Carrillo stood up to get out of the minivan and appeared to be trying to separate himself from the backpack, which he left behind. Because Carrillo appeared nervous and would not look at McGinnis, McGinnis asked Carrillo for permission to conduct a search of his person. After Carrillo consented and he had stepped out of the minivan, McGinnis conducted a pat frisk but found no weapons or contraband. Carrillo was not handcuffed, and McGinnis, who was in plain clothes, had not drawn his firearm. When McGinnis asked Carrillo if the backpack belonged to him, he acknowledged that it did. McGinnis asked Carrillo if he could search or look through the backpack. Carrillo responded by giving permission. As Carrillo stood next to McGinnis, McGinnis opened the backpack and found a knife, a ski mask, two pairs of gloves, binoculars, and a stocking containing five rounds of .357 ammunition. When asked where he obtained these items, Carrillo stated that he had found the backpack in the park. Carrillo also stated that the items in the backpack were items he wore to engage in "parkour," an activity involving physically navigating through outdoor spaces. Throughout this encounter, McGinnis spoke English, and Carrillo responded in a manner conveying that he understood the questions.

         Meanwhile, Dakkouni and Delgado approached the passenger side of the minivan, and one of the occupants opened the sliding door from the inside. Dakkouni observed Castillo, who was seated on the driver's side of the third row of the minivan, move over to the passenger's side of that seat. After the door was opened, both Dakkouni and Delgado smelled an odor of marijuana coming from inside the minivan. Delgado directed Castillo to step out of the vehicle and arrested him on the open warrant. During a search incident to arrest of Castillo's person, the officers found a bag containing marijuana in his front left pocket.

         Based on the odor of marijuana and the marijuana found on Castillo's person, the officers ordered all of the occupants out of the vehicle and conducted a search of the minivan. In the pouch on the back of the middle row seat on the driver's side of the minivan, in which Carrillo had been seated, the officer recovered a handgun. The pouch was directly in front of the location where Castillo had been initially seated at the time of the traffic stop. Officers also found three baseball bats, a machete, a knife, a mask, and a roll of duct tape in the minivan.

         After all of the occupants were out of the minivan, they were directed to sit on the curb. Shortly before the firearm was found, because of talking and movement among the group, the officers handcuffed all of the occupants. After approximately 30 minutes at the scene, both Defendants were transported to the police station and charged with unlawful possession of the firearm recovered from the minivan. Neither Castillo nor Carrillo were given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), at the scene of the traffic stop. McGinnis issued a traffic citation to the driver for failing to stop at a stop sign and for driving without a license.

         II. Carrillo Interrogation

         At the police station following the traffic stop, Sergeant Delgado and Officer McGinnis began an interview of Carrillo. Delgado, who is a fluent Spanish speaker, read Miranda rights to Carrillo in Spanish from a Spanish advice of rights form. Specifically, Delgado asked Carrillo if he could read in Spanish. When he stated that he could, Delgado directed Carrillo to read out loud the heading of the form, which read "Advice of Rights" in Spanish. Carrillo did so. After confirming that Carrillo was not under the influence of any alcohol or medication and determining that Carrillo had attended high school up to the tenth grade, Delgado then read the specific rights directly from the form. He told Carrillo, "I'm gonna read them to you and then we'll initial each line and mark yes, if not we're gonna... talk. OK?" Carrillo Tr. 3, ECF No. 78-1. After reading the right to remain silent, Delgado asked, "Do you understand that?" Id. In response, Carrillo nodded yes. After telling Carrillo that "[a]nything you say can be used against you," Delgado asked, "Understand?" Id. After informing Carrillo that he had the right to an attorney and that if he could not obtain one, an attorney would be made available to him, Delgado asked, "Do you understand that?" Id. After each such question, as seen on the video recording, Carrillo nodded in the affirmative. In addition, after each right was read from the Advice of Rights form, Carrillo put his initials next to the corresponding language on the form. Finally, after reading the rights, Delgado asked Carrillo if he understood everything that had been said. Carrillo nodded in the affirmative.

         III. ...


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