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United States v. Martinez

United States District Court, D. Connecticut

December 6, 2019



          Michael P. Shea, U.S.D.J.

         On June 27, 2019, a grand jury returned an Indictment charging fifteen individuals with various drug and firearm offenses. ECF No. 21. The only charge in the Indictment against Defendant Julio Martinez is Count Seventeen, which charges him with conspiracy to unlawfully possess firearms by a felon, in violation of 18 U.S.C. § 371. Id. at 10-11.[1] Martinez has moved to suppress evidence observed during a stop and search of his person on April 22, 2019. ECF No. 126. The Court held a two-day evidentiary hearing on the motion to suppress on November 14, 2019 and November 27, 2019. Based on the evidence presented and for the reasons set forth below, the motion to suppress is granted in part and denied in part.


         At the evidentiary hearing, the Court heard testimony from five Government witnesses (FBI Special Agent David Carney, FBI Special Agent Adam Schepis, Detective Jeffrey Moody of the Hartford Police Department, Detective Mark Rinaldi of the Hartford Police Department, and Detective Abhilash Pillai of the Hartford Police Department) and two Defense witnesses (Erik Eichler, an investigator for defense counsel, and Eva Perez, the manager of the store where the stop and search occurred). Based on that testimony, the exhibits admitted into evidence, and the representations of counsel, I make the following findings of fact.

         A. Intercepted Phone Calls

         All five Government witnesses are officers with the Northern Connecticut Violent Crimes Gang Task Force (the “Task Force”), a collaboration between the FBI, Connecticut State Police, the Hartford and East Hartford Police Departments, and the Connecticut Department of Corrections. November 14 Hr'g Tr. at 3-4. In March 2019, the Task Force initiated wiretaps on four target telephones associated with co-Defendant Ricardo Reyes, who the Task Force suspected was affiliated with a gang and who had prior felony convictions, including a 2006 conviction for dealing firearms without a license. November 14 Hr'g Tr. at 5-7. At the hearing, the Government introduced line sheets from the Government's wiretap, transcribing calls made or received by Ricardo Reyes on “target telephone 2” between April 18, 2019 and April 22, 2019. Id. at 7-9 (describing the process for creating line sheets). Between April 18 and April 22, the Government intercepted multiple calls and text messages between Reyes and a telephone number later identified as that of co-Defendant Carlos Soto[2] which suggested that they were planning a firearm transaction. On the calls, Reyes and Soto refer to “toys, ” which SA Carney testified is slang for firearms. E.g. Gov't Ex. 1 (Soto stated on April 18, “Yo what up with um, remember that dude to get . . . the thing the toy.”); Gov't Ex. 3 (Reyes texted, “Yo my man ready ur boy wants them toys.”); November 14 Hr'g Tr. at 13. They also discuss pricing and a “buck right on top, ” which SA Carney interpreted as a $100 service fee for the transaction. See Gov't Ex. 1 (Soto stated, “he wants a buck right on top” and asked, “the one you got that shit was how much you paid for that. That shit was like two, two seventy five, ” to which Reyes responded, “yea like two something plus the buck.”); November 14 Hr'g Tr. at 13. In the calls, Reyes also refers to an individual he needs to contact regarding the firearms transaction. Gov't Ex. 2 at 1-2 (Reyes tells Soto, “I wait for my man to pick up . . . he gotta . . . get to . . . an internet connection . . . for me to call him but you gotta let me know . . . when you peoples available . . . how much he got to spend because remember we working with his price.”). The Task Force believed, based on these calls, that Reyes was “facilitating” and Soto was “middling” a firearms transaction involving a straw purchaser and an undisclosed end-buyer, and that the end-buyer was willing to pay a $100 fee on top of the cost of the firearms. Id. at 16.

         After intercepting the text message from Reyes at 12:23pm on April 22 stating, “Yo my man ready, ” the Task Force assembled a team of about twelve officers to surveil Reyes and the suspected firearms transaction. Id. at 17-18. They located Reyes in a vehicle on the afternoon of April 22 and began following him as he drove from Hartford to New Britain, Connecticut, where they observed him meeting with an individual later identified as Soto. Id. at 18, 23. Although they did not know Soto at the time, they suspected this meeting might be connected to the anticipated firearms transaction because “New Britain's not an area where Reyes would usually be, ” and the meeting took place on Arch Street, which was mentioned in the intercepted calls regarding the gun deal. November 14 Hr'g Tr. at 25; Gov't Ex. 5 (Reyes asking Soto, “where you at you on Arch?”). Soto called Reyes at 12:24pm, and Reyes said “I need to know how much bread he got, what he want, I'm going to look for him the cheapest that we can get it. . . . and if theres something left over then I'll bring it back to him if not then he'll get the receipts. . . . he go grab them right now.” Gov't Ex. 4. SA Carney testified that “bread” referred to money, and that the mention of “receipts” suggested that Reyes would use a third-party purchaser who had a license to purchase the firearms legally. November 14 Hr'g Tr. at 20-21. Reyes then called Norman Klosek, who the Task Force believed was going to serve as the third-party purchaser, and told him, “we about to do business . . . you going to make something nice today alright.” Gov't Ex. 4. At the time the Task Force Officers intercepted Reyes's call to Klosek, they had not yet identified Klosek. Ten minutes after the initial call, however, Klosek texted his street address in Enfield to Reyes. Gov't Ex. 6. Within “[p]robably no less than 10 minutes” after intercepting the street address, Task Force Officers linked it to Norman Klosek and determined, after checking a database, that Klosek had purchased 45 registered firearms within the past six months. November 14 Hr'g Tr. at 27-29.

         The Task Force surveillance then followed Reyes as he drove to Enfield, CT, where he picked up Klosek, and then to the Newington Gun Exchange, a firearms retail store. November 14 Hr'g Tr. at 31-32. Task Force officers observed Klosek enter the Newington Gun Exchange, and one Detective entered the store undercover to monitor Klosek's activities. Id. at 34. The Detective saw Klosek at a display case and in the process of purchasing a gun, and then other officers saw Klosek leave the store with a black plastic bag in hand and return to Reyes's vehicle. Id. at 34-35. After Reyes drove away, Task Force officers entered the Newington Gun Exchange and verified that Klosek had just purchased two firearms: a 9mm pistol and a .380 pistol. Id. at 36-37.

         B. Observations at 339 High Street

         Task Force officers then followed Reyes's vehicle to Hartford and on towards New Britain, CT. Id. at 37. At 5:03pm, Soto called Reyes, and Reyes stated, “I got them already . . . Get over there to T house . . . just make sure homes got the whole EIGHT.” Gov't Ex. 11. SA Carney testified that he believed Reyes was telling Soto and the end-buyer to meet him at “T house, ” and that the end-buyer needed to pay $800. Id. at 38, 40. Soto also stated, “I'm going to tax them to[o], ” suggesting that Soto was going to add an additional service fee. Id. at 39. At 5:50pm, Soto called Reyes and stated he was “already here at T house, I'm about to go up the stairs in thirty seconds.” Gov't Ex. 12. Reyes asked, “What are you going to do he there, ” and Soto replied, “I'm about to tell him to pull up.” Id. At 5:58pm, Reyes called Soto, stating that he was “in the back.” Gov't Ex. 13. Detective Abhilash Pillai, an officer with the Hartford Police Department and assigned to the Task Force, testified that he observed Reyes arrive at 339 High Street, pull into a driveway, exit his vehicle, holding the same black plastic bag that Klosek was carrying when he left the Newington Gun Exchange, and enter 339 High Street through a back door. November 14 Hr'g Tr. at 73-74.

         About 10 minutes after Reyes arrived at 339 High Street, Detective Pillai observed a blue pickup truck arrive at 339 High Street. Id. at 75, 78. A man later identified as Julio Martinez exited the truck and walked to the rear of the building. Id. “[M]oments later, ” Detective Pillai saw the front door of 339 High Street open for a few seconds, during which time he saw Soto holding the black plastic bag and Reyes standing in a small hallway. Id. at 75-76. The door closed. Martinez then returned to the front of the building. Detective Pillai saw the front door open again and saw Soto inside the entrance. He then saw Martinez enter the front door. Id. at 76. Less than two minutes later, Detective Pillai saw Martinez exit the front door, talking on his cell phone. Id. at 77, 80. Detective Pillai also testified that the front pocket of Martinez's hooded sweatshirt appeared to be weighted down. Id. at 77. Both SA Carney and FBI Special Agent Adam Schepis testified that they recall hearing that observation over the Task Force team's radio. Id. at 49 (SA Carney testified, “What was transmitted over the radio is Mr. Martinez's hoodie his front pocket was weighted down.”); id. at 94 (SA Schepis testified, “I remember someone said that they believed his shirt looked like it was sagging, which led us to believe that he may have had a firearm.”). Detective Pillai then saw the blue pickup truck return and saw Martinez enter the vehicle. Id. at 77. Based on these observations and the other information known to them at the time, SA Carney testified, the Task Force believed that Martinez was the end-buyer of the firearms transaction and that he now had possession of at least one of the two firearms Klosek had purchased that afternoon. Id. at 49-50. The Task Force decided to try to intercept Martinez with the suspected firearm(s), so officers followed the blue pickup truck to a nearby grocery store, Compare Foods. Id. at 50, 64.

         C. Terry Stop and Search of Julio Martinez

         At Compare Foods, SA Carney saw Martinez exit the blue pickup and observed that his sweatshirt pocket appeared weighted down, id. at 50, although this observation was not included in the report he later prepared concerning the events of that day, id. at 66. SA Carney saw Martinez enter the store, and SA Carney entered the store along with Detective Moody, Detective Rinaldi, and SA Schepis. Id. at 50-51. The officers met Martinez as he was exiting the store, in a vestibule area of the store. Id. at 51-52. Based on their suspicion that Martinez had at least one firearm on his person, the officers put him in handcuffs and performed an “emergency quick sweep of his person.” Id. at 52. Specifically, SA Schepis testified that he grabbed Martinez's left arm while Detective Moody grabbed the right arm. SA Schepis took a cell phone “and some other stuff” out of Martinez's hands and placed the items on top of some nearby bags of food. Id. at 97; see also Id. at 111. Detective Moody put Martinez in handcuffs while SA Schepis performed “a very quick cursory search on the small of Mr. Martinez's back to see if there was a firearm there.” Id. SA Schepis initially testified that he did not recall searching or patting down any other part of Martinez's body other than the small of the back. Id. at 99. Later, after viewing security camera footage of the incident that was presented at the hearing, SA Schepis testified that it appeared from the video that he had put his hand inside the front pocket of Martinez's hoodie, though he did not “have an independent memory of that.” November 27 Hr'g Tr. at 71; see also Def. Ex. 30.

         Detective Moody also testified that he performed a “[q]uick pat-down for weapons” on Martinez's “[w]aistband area and legs” after Martinez was handcuffed, but did not find any weapons or other items. November 14 Hr'g Tr. at 111-12. Detective Moody recalled that Martinez had “his phone and some money” in his hands when the Officers handcuffed him, and that SA Schepis placed the items on sacks of food. Id. at 111. Detective Rinaldi testified that he did not participate in any pat-down of Martinez but entered the main part of the store to assist SA Carney, who had also entered the main part of the store. When he returned to the vestibule area, Detective Rinaldi learned that Martinez was going to be released, so he “counted his money in front of him before turning it back over so there was no discrepancies of any money being missing or anything.” November 14 Hr'g Tr. at 124. He testified that the money was “separated” into “two separate stacks or pile[s], ” and that “[t]here was $650, which was he said came off his person and then additional [$]200 which [had been] clenched in his hand.” Id. at 124-125 (testifying that there were ten $20 bills “from his hand” and that the “rest of the money”-twenty $20 bills and five $50 bills-was “[f]rom his person”). Detective Rinaldi did not recall how he learned that one stack of money had come “from [Martinez's] person.” Id. at 125, 129-30. At the conclusion of the evidentiary hearing, counsel for the Government conceded “that the $650 comes out of Mr. Martinez's pocket, ” based on what was written in the Task Force report of the incident, “other independent testimony and memories of some of the agents, ” and the ATM records from Compare Foods showing a $200 transaction shortly before the stop.[3] November 27 Hr'g Tr. at 97-98.

         While Schepis and Moody were handcuffing Martinez, SA Carney proceeded into the store “to make sure that there was no other individual that he could have had a hand-to-hand transaction with” and to ask store staff where Martinez had gone inside the store. Id. at 53. SA Carney did not see any other customers, and learned from a store employee that Martinez had only accessed the ATM. Id. When he returned to the vestibule, SA Carney noticed some cash, a cell phone, and an ID on top of some bags of food. Id. at 54. The phone was ringing, and the screen was visible, displaying the number that was calling. Id. SA Carney saw that the incoming call was from the same number Ricardo Reyes had been calling throughout the day-i.e., Carlos Soto's phone number. Id. at 54-55. Around this same time, Task Force Officers stationed at 339 High Street observed Soto out in front of the building, on his phone and looking up and down the street. Id. at 56. About ten minutes after stopping Martinez, the officers released him and returned all personal property to him, including the phone, all cash, and the Id. Id. at 56-57.

         D. Motor Vehicle Stop of Ricardo Reyes

         Back at 339 High Street, Officers observed Reyes exiting the building, carrying the black plastic bag Officers had observed earlier, and entering his vehicle. Id. at 57. Officers followed Reyes's vehicle, and the Task Force decided to conduct a motor vehicle stop in order to intercept the firearms they believed he was carrying in the black plastic bag. Id. at 57-58. In coordination with the Task Force, New Britain Police effected a traffic stop and recovered the two firearms that Klosek had purchased earlier from the Newington Gun Exchange: a 9mm pistol and a .380 pistol. Id. at 58-59. At the Task Force's direction, police seized both weapons. Id. at 59.


         Martinez moves to suppress “any evidence which the government may seek to introduce at trial including law enforcement testimony regarding the observations of Martinez at 339 High Street and the observations of the items searched by the police at the Terry stop of Martinez.” Mot. to Suppress, ECF No. 126 at 13. He argues both that the officers did not have a valid basis to perform a Terry stop and that the search of Martinez's pockets “exceeded the limited frisk of the outside of the clothing envisioned under Terry.” Id. at 10. Following the evidentiary hearing, counsel for Martinez clarified his argument, asserting that if the Terry stop was unconstitutional, all observations about Martinez's cell phone and cash should be suppressed. He also argued that, if the Court were to find that the Terry stop was constitutional but that any search of Martinez's pockets was not, the officers' observation of the $650 should be suppressed.

         I find that the Government had reasonable suspicion to perform the Terry stop of Martinez, but I agree that the search of his pockets exceeded the limits of such a stop.[4] Therefore, I grant the motion to suppress the officers' observations of $650 as the fruit of an illegal search. With respect to all other observations of Martinez at 339 High Street and in the store vestibule, including the screen of his cellphone and the $200 of cash in his hand, the motion to suppress is denied.

         A. Observations of Martinez ...

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