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United States v. Rojas

United States District Court, N.D. Iowa, Western Division

October 3, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
YOIRLAN TOME ROJAS, Defendant.

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

LEONARD T. STRAND, Magistrate Judge.

I. INTRODUCTION

Defendant Yoirlan Tome Rojas is charged by superseding indictment (Doc. No. 29) with two counts of using a counterfeit access device, one count of possession of fifteen or more counterfeit access devices, one count of money laundering and two counts of aggravated identity theft. He filed a motion (Doc. No. 81) to suppress evidence on September 9, 2014. Plaintiff (the Government) filed a resistance (Doc. No. 87) on September 25, 2014. Rojas did not file a reply. The Trial Management Order (Doc. No. 11) assigns motions to suppress to me to conduct any necessary evidentiary hearings and to prepare reports on, and recommended dispositions of, those motions.

I held an evidentiary hearing on September 29, 2014. Assistant United States Attorney Jamie Bowers appeared for the Government while Rojas appeared personally and with his attorneys, Christopher Roth and Paul Forney. The Government presented the testimony of Storm Lake Police Department (SLPD) Officer Matt Younie and Detective Brian Flikeid. The Government also introduced the following exhibits, all of which were admitted into evidence without objection:

Government Exhibit 1 : 11/12/13 Police Squad Car Video
Government Exhibit 2: Buena Vista County application for search warrant for 801 Erie St Apt #8
Government Exhibit 3: Buena Vista County application for search warrant for storage locker
Government Exhibit 4: Two photographs (truck)
Government Exhibit 5: Two photographs (doors with #8)
Government Exhibit 6: Two still images from Wal-Mart surveillance video (11/6/13)
Government Exhibit 7: Four still images from Wal-Mart surveillance video (9/13/13)
Government Exhibit 8: Wal-Mart surveillance video (11/6/13)
Government Exhibit 9: Wal-Mart surveillance video (9/13/13)
Government Exhibit 10: Photograph (aerial view of 1708 Rose Lane)

Rojas called no witnesses but did introduce Defense Exhibit E, a police bulletin, which was admitted into evidence without objection. The motion is now fully submitted.

II. FINDINGS OF FACT

Based on the evidence presented, I make the following findings of fact (additional findings will be included in the analysis of specific arguments as necessary):

On November 6, 2013, SLPD was contacted by an individual in Colorado who reported that his credit card had been used at the Storm Lake Wal-Mart store without his permission. A SLPD officer went to the store, spoke with the store's loss prevention manager and gathered video surveillance evidence and receipts concerning the transaction at issue. The in-store video shows a man in tan Carhart-style coveralls using numerous credit cards to purchase gift cards at two different registers. The parking lot video shows the same suspect driving a two-toned (dark over gray) Chevy truck. The truck has certain distinguishing features, including a dark stripe on the gray portion, a box or tank in the truck bed, adjacent to the cab, a black grill, chrome mirrors and after-market rims. Based on this information, the investigating officer posted a bulletin in the station alerting all SLPD officers to be on the lookout for a Hispanic male suspect driving the Chevy truck. Def. Ex. E. The bulletin included still photos of the suspect and the truck. Id.

On November 12, 2013, SLPD Officer Matt Younie was on patrol and observed a distinctive Chevy truck that appeared to match the truck described in the bulletin. Younie testified he recognized the truck because of several features, including the two-tone paint, the tank or box in the bed of the truck, the chrome mirrors and the wheel rims. At that time he was unable to see the driver of the truck. However, he followed it without activating his emergency lights until the truck pulled into a residential driveway off East 4th Street in Storm Lake. The driver parked the truck two or three car lengths from the street and got out of the vehicle. Younie pulled into the driveway behind the truck and saw that the driver was wearing tan Carhart-style coveralls.

Younie approached the driver and asked for his driver's license. The driver complied. The license identified the driver as defendant Yoirlan Tome Rojas and listed his address as 801 Erie Street, Apartment 8. Younie told Rojas that the truck and a suspect who looked similar to him were implicated in a credit card scheme at Wal-Mart. He then advised Rojas that he would need to come to the police station to answer questions. Rojas asked to speak with his wife for a moment and was permitted to do so. Rojas walked up to the porch of the home and had a brief conversation with a female occupant.

After this conversation, Younie escorted Rojas to the squad car and placed him into the back seat. Younie testified that he did not place handcuffs on Rojas because he was being cooperative. While Rojas was getting into the car, Younie asked him for the address of their current location so he could request a tow for the truck. Rojas initially answered with his own address: 801 Erie Street, Apartment 8. Younie then clarified the question and Rojas stated that the address was 1708 Rose Lane. Younie did not ask additional questions during the drive to the station. Once there, Rojas was placed in an interview room. After being advised of his Miranda rights, Rojas invoked his right to refuse to answer questions. In response to routine booking-process questions, however, he stated that his address was 801 Erie Street, Apartment 8.

After bringing Rojas to the police station, Younie fielded a call from an individual in Michigan who reported that a fraudulent credit card transaction had occurred on September 13, 2013, at the same Storm Lake Wal-Mart store. Younie followed up on the report, contacting the Wal-Mart loss prevention team and obtaining store video and other evidence concerning that transaction.

Meanwhile, SLPD Detective Flikeid arrived at 1708 Rose Lane to view the truck Rojas had been driving. Flikeid walked around the truck, which was still parked in the driveway, and determined it to be the same truck depicted in the Wal-Mart store video associated with the first credit card fraud report. Flikeid ran the truck's license plates and learned that the truck was registered to Rojas at the 801 Erie Street, Apartment 8, address. Based on Younie's encounter and the information gathered so far, Flikeid applied for a warrant to search the apartment at that address.

Flikeid presented an application for search warrant to a state court magistrate late that evening and answered questions posed by the magistrate. The magistrate made several notations on the application, including a note that the address to be searched "is reflected as the address of Yoirlan Tome Rojas on his drivers license and was acknowledged by Yoirlan Tome Rojas as his residence." Gov't Ex. 2 at 11. The magistrate found probable cause to issue the requested warrant and issued it on November 13, 2013 at 12:29 a.m.

Flikeid and Younie, along with other SLPD officers, then went to 801 Erie Street, Apartment 8, to execute the search warrant. The officers noted that the apartment building includes, in a common hallway, storage closets with numbers that correspond to the apartment unit numbers. For example, one storage closest is ...


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