United States v. Salemi-Nicoloso

353 F. Supp. 3d 527
CourtDistrict Court, N.D. Mississippi
DecidedNovember 28, 2018
DocketNO. 1:18-CR-70
StatusPublished

This text of 353 F. Supp. 3d 527 (United States v. Salemi-Nicoloso) is published on Counsel Stack Legal Research, covering District Court, N.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Salemi-Nicoloso, 353 F. Supp. 3d 527 (N.D. Miss. 2018).

Opinion

Debra M. Brown, UNITED STATES DISTRICT JUDGE

This criminal case is before the Court on Javier Alejandro Moline-Borroto's motion to suppress, Doc. # 64; which was joined by Daniel Gustavo Pena-Morales, Doc. # 65; Valentine Sybreg Castro-Balza, Doc. # 68; Pavel Isaac Burgos-Coronado, Doc. # 69; Kevin Carlos Delgado-Mata, Doc. # 71; Joseph Nicole Vergara-Moran, Doc. # 72; and Cesar Augusto Salemi-Nicoloso, Doc. # 86.

I

Procedural History

On June 20, 2018, Javier Alejandro Moline-Borroto, Daniel Gustavo Pena-Morales, Valentina Sybreg Castro-Balza, Pavel Isaac Burgos-Coronado, Kevin Carlos Delgado-Mata, Joseph Nicole Vergara-Moran, and Cesar Augusto Salemi-Nicoloso, were named in a five-count indictment charging: (1) possession of device making equipment *533with intent to defraud, in violation of 18 U.S.C. § 1029(a)(2) and § 1029(a)(4) ; (2) possession of a scanning receiver with intent to defraud, in violation of 18 U.S.C. § 1029(a)(2) and § 1029(a)(8) ; (3) possession of 15 or more unauthorized access devices with intent to defraud, in violation of 18 U.S.C. § 1029(a)(2) and § 1029(a)(3) ; (4) aiding and abetting each other to use and attempt to use the access devices to fraudulently obtain more than $1,000 in goods, services, and moneys; (5) and conspiracy to use such devices to fraudulently obtain such goods, services, and moneys. Doc. # 25.

On September 4, 2018, Moline-Borroto filed a motion to suppress all physical evidence and statements collected from a May 18, 2018, traffic stop. Doc. # 64. Pena-Morales, Castro-Balza, Burgos-Coronado, Delgado-Mata,1 Vergara-Moran, and Salemi-Nicoloso all joined the motion.2 Docs. # 65, # 68, # 69, # 71, # 72, # 86. The Government responded in opposition to the motion on September 14, 2018. Doc. # 73. Moline-Borroto filed an untimely reply on October 26, 2018. Doc. # 87. On November 5, 2018, Pena-Morales, Vergara-Moran, and Burgos-Coronado joined the reply. Docs. # 88, # 89, # 90.

An evidentiary hearing on the motion was held November 7, 2018. At the conclusion of the hearing, the Court took the motion to suppress under advisement.

II

Standard of Review

"The proponent of a motion to suppress has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights." United States v. Iraheta , 764 F.3d 455, 460 (5th Cir. 2014). Where evidence has been obtained through a warrantless search and seizure, "the government bears the burden of proving, by a preponderance of the evidence, that the search and seizure were constitutional." United States v. McKinnon , 681 F.3d 203, 207 (5th Cir. 2012). In conducting a suppression hearing, a court is not bound by the Federal Rules of Evidence. Fed. R. Evid. 104(a) ; see United States v. Posado , 57 F.3d 428, 435 (5th Cir. 1995) ("We have consistently held that the rules of evidence are relaxed in pretrial suppression hearings.").

III

Factual Background 3

At approximately 11:50 p.m. on May 18, 2018, Mississippi Highway Patrol troopers Gregory Bell, Matthew Minga, Andrew Beaver, and Steven Jones established a driver's license safety checkpoint on the northbound lane of United States Highway 45 alternate in Lowndes County, Mississippi. At the checkpoint, the officers stopped oncoming vehicles, checked driver's licenses and insurance, and made sure that every *534occupant of a car was wearing a seatbelt. Over the ensuing eighteen minutes, the officers stopped seven cars at the checkpoint. In order, respectively, the cars were stopped for approximate times of eighty seconds, thirty-seven seconds, thirty-four seconds, four seconds, twelve seconds, forty-five seconds, and eighteen seconds.

A. Initial Stops of the Defendants

At 12:08 a.m. on May 19, a Toyota RAV4 driven by Moline-Borroto, with Burgos-Coronado and Castro-Balza as passengers in the backseat, pulled into the checkpoint. Approximately thirty seconds after the RAV4 entered the checkpoint, a Volkswagen Jetta driven by Pena-Morales, with Vergara-Moran as a passenger, pulled into the checkpoint.

Minga approached the RAV4 and asked Moline-Borroto for a license and proof of insurance. Moline-Borroto provided Minga a temporary Florida driver's license and stated that the vehicle was a rental. After Minga asked Moline-Borroto who the passengers in the rear seat were, Moline-Borroto spoke to the passengers in Spanish and rolled down the rear windows. Burgos-Coronado provided a temporary Florida driver's license and Castro-Balza provided a Venezuelan passport which was missing an entry stamp.

Bell felt the seating arrangement was a "little strange" because, in his experience, "when there's an open front seat in a vehicle and there's a male passenger in there, usually the other male[ is] sitting up front." Bell testified that the seating arrangement, combined with the time of night and the absence of an entry stamp on Castro-Balza's passport, raised a concern that Castro-Balza was a victim of human trafficking or was otherwise being held against her will. At that point, Bell began to question Moline-Borroto about the car's travel plans so he could "better see what[ was] going on with that situation."

Bell testified that he asked Moline-Borroto: (1) where he was coming from and Moline-Borroto responded, "Mississippi;" (2) where he began his trip and Moline-Borroto responded, "Florida;" (3) to specify which part of Florida he was coming from and Moline-Borroto responded, "Miami;" (4) what was his destination and Moline-Borroto responded, "the hotel;" (5) what was his final destination and Moline-Borroto responded, "Memphis;" and (6) what the occupants of the vehicle were planning to do in Memphis and Moline-Borroto responded that they were going to visit his uncle from Venezuela.

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Cite This Page — Counsel Stack

Bluebook (online)
353 F. Supp. 3d 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-salemi-nicoloso-msnd-2018.