United States v. Gomes
United States v. Gomes
Opinion of the Court
Defendant Leandro Gomes ("Gomes") was indicted for one count of conspiracy to sex traffic a child, in violation of
I. Background
At the Hearing, the government offered the testimony of Detective Michael Iacone and Sergeant Lori Sweeney, both with the Special Victims Unit of the Cranston Police Department, and Officer Brian Corvese, also with the Cranston Police Department. The Court finds the following facts from their testimony.
On April 11, 2017, Detective Iacone received an anonymous tip that two juveniles were possibly involved in prostitution through Backpage.com ("Backpage") advertisements.
Sometime before noon, Detective Iacone texted "H3nny" using the phone number provided on her Backpage advertisement to arrange an "in call" "date" for commercial sex.
At approximately 1:00 p.m., officers observed five individuals, three males and two women, exit 20 Esten Street. (Id. at 33:18-19.) Officer Iacone testified that he identified one of the women as the victim, "NB," by a distinct, upper-chest tattoo that he recognized from her Facebook page. (Id. at 33:20-25, 34:1-9.) After exiting the home, the men began working on a black Nissan Infiniti ("black Infiniti"), with a Texas registration plate, HPC4386.
Once the officers completed the surveillance, they returned to the station where they ran the vehicle's registration plate; information on it could not be gleaned from either the computer database normally used by Cranston Police Department or the Texas Department of Motor Vehicles. (Id. at 41:3-25, 42:1.) Officers also learned that NB was missing from a Department of Children, Youth and Families facility in Newport, Rhode Island, and that the second woman seen exiting 20 Esten Street was Andrea, an 18-year-old female recently released from the Rhode Island Training School. (Id. at 42:2-21.)
Around 1:30 p.m. on April 17, officers re-engaged with NB through text message using a different cell phone number, again trying to solicit a "date" with her. (Id. at 43:22-25, 44:18-20.) Officers successfully arranged an "out call date" for a "two girl special" for $500, which was to occur at an undercover apartment at 825 Pontiac Avenue in Cranston, Rhode Island, where Officer Iacone, Special Agent Donaghy, Detective Lee, and another Homeland Security Agent were positioned. (Id. at 44:9-12, 47:23-25, 48:1-13.) Other state and local police officers surveilled outside the apartment. (Id. at 51:4-7.) While on the way to the apartment, H3nny called the officers twice, once for directions and a second time to inform them she had arrived. (Id. at 49:15-20, 50:1-6.)
Once the officers knew that H3nny was in the vicinity of the undercover apartment, they radioed outside surveillance to look out for a "dark-colored sedan heavily tinted with this Texas plate" or a "black Maxima tinted with Texas Plates." (Id. at 51:16-24; Hr'g 2 Tr. 52:19-21, ECF No. 68.) Sergeant Sweeney surveilled the apartment from an undercover police vehicle parked directly across the street. (Hr'g 2 Tr. 52:22-25, 53:1-8.) He testified that:
[O]nce [Detective Iacone] said that [H3nny and a second female] should be here, I observed a black tinted out what appeared to be a Maxima with Texas plates pass by my location.... I could see the ... front passenger only. The window was completely down. It was a white female, brown hair. She was on the phone. She was kind of looking *725around and then focused to the entrance of the apartment complex.
(Id. at 53:25, 54:1-10.)
Sergeant Sweeney lost sight of the vehicle once it passed. (Id. at 55:1-5.) Soon afterwards, she observed the white female passenger and a second female enter the apartment building, and radioed Officer Iacone to inform him. (Id. at 55:17-18.) Once the two females, one of whom Officer Iacone identified as NB, entered the apartment, they were taken into custody. (Hr'g 1 Tr. 52:10-15.) The other female identified herself as Justine Marzilli, who officers believed was twenty-eight to twenty-nine years old. (Id. at 52:22-25, 53:1-6.) Officers transported both females to the Cranston Police Station, where they were booked. (Id. at 54:7-10.)
After arresting NB and Ms. Marzilli, Officer Iacone radioed outside surveillance units to move in on the black Infiniti. (Id. at 53:21-25, 54:1.) Sergeant Sweeney testified that shortly after the females' arrest, Officer Corvese radioed in that he had located the vehicle idling on Dixwell Avenue, approximately 200 feet from the main entrance of the apartment complex. (Hr'g 2 Tr. 32:12-25, 33:1-6, 56:15-25, 57:1.) Officer Corvese ran the vehicle's registration and learned that it did not match the vehicle. (Id. at 32:25, 33:1-3.) He pulled behind the vehicle and made contact with the driver, Gomes, who was alone and looking down at his cell phone. (Id. at 33:4, 34:4-5, 36:6-9, 37:22-24.) Officer Corvese could not tell what Gomes was doing on his phone, but it was illuminated. (Id. at 37:22-25, 38:1-6, 40:11-19.) Upon Officer Corvese's arrival and at his request, Gomes rolled down the driverside window and provided a valid license, issued in his name.
While at the police station, Ms. Marzilli told Officer Iacone that the juvenile had visited the apartment to engage in commercial sex and that she was there for her protection. (Hr'g 1 Tr. 54:19-21, 55:3-9.) Officer Iacone testified that, later that day the victim asked to retrieve two phone numbers from her cellphone, one for her mother, and another for her "uncle," "Uncle Sincere." (Id. at 56:3-12.) Officer Iacone knew the name Sincere from a previous investigation related to minor sex trafficking.
*726On April 24, Agent Iacone and Agent Donaghy visited the victim, NB, at the Rhode Island Training School. (Id. at 60:7-10.) NB told them how she became involved in prostitution and that Gomes and his co-defendant would take her to multiple locations in Rhode Island, Massachusetts, and New York to have sex for money. (Id. at 60:16-25, 61:1-2.) On May 10, 2017, officers used this information to obtain federal search warrants issued by Magistrate Judge Sullivan for Gomes's iPhone 5. (Id. at 61:6-8, 13-16.)
Gomes was later arrested and charged with four counts of sex tracking a minor. This Motion followed.
II. Discussion
A. Probable Cause to Arrest
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The constitutionality of a search incident to an arrest turns on the constitutionality of the defendant's arrest. See Beck v. Ohio,
"[P]robable cause exists when an officer, acting upon apparently trustworthy information, reasonably can conclude that a crime has been or is about to be committed and that the suspect is implicated in its commission." United States v. Flores,
Here, officers knew at least the following at the time of the arrest: On April 17, officers were present at Cranston apartments as part of an ongoing investigation into prostitution of an underage female, NB. (Hr'g 1 Tr. 52:6-15.) Officers arranged a "date" via text message and phone call with H3nny, where she and another female were supposed to meet at the undercover apartment to engage in commercial sex. (Id. at 46:9-16.) The two females were transported to the apartment for the "date" by a black Infiniti with Texas Temporary Plate HPC4386. (Hr'g 2 Tr. 53:24-25, 54:1-10.) The two females entered the undercover apartment, where police took them into custody. (Id. at 55:17-22.) On both April 12 and 17, officers observed the same car with an identical license plate transport NB to or from two different locations where she had arranged to engage in prostitution. (Hr'g 1 Tr. 51:25, 52:1-5, 69:3-9, 70:12-15.)
In isolation, perhaps Gomes driving a car that dropped two women at an apartment might be unsuspicious. This fact combined with the other circumstances of this case, however, suffices for reasonable suspicion of criminal activity. See Flores,
Admittedly, as Gomes argues, this probable cause determination is somewhat of a close call, and the Court recognizes that the phone conversations between H3nny and the officers on the way to the apartment do not compel the inference that Gomes knew of their criminal activity. Officer Iacone testified that the verbal exchange between the officers and H3nny that Gomes could have overheard while driving only included the address of and directions to the undercover apartment. (Hr'g 1 Tr. 49:12-25, 50:1-3.) Although it is certainly conceivable, there is no testimony to suggest that Gomes, while driving the car, overheard any incriminating information regarding the women's criminal activity.
In addition to the facts described above-Gomes's presence with the women as the dates were arranged; his driving them to the apartment; receiving and following direction sent by text and presumably relayed to him by the women-there is also his untruthful and evasive answers to police questioning. Wesby,
The totality of the circumstances-especially the fact that Gomes was idling 200 feet from the undercover apartment in a *728car linked to underage prostitution-gave the officers probable cause to arrest Gomes for pandering. Because Gomes's arrest was grounded in sufficient probable cause, so too was the officer's search of his person and his vehicle. See generally Beck,
B. Seizure Incident to Arrest
Gomes subsequently moved to suppress the evidence seized from his iPhone 5, arguing that the officers illegally seized his cellphone because they lacked a reasonable belief that it was related to criminal activity. The government argues that the officers had probable cause to believe that Gomes's iPhone 5 was related to criminal activity because cellphones are normally a key tool of any prostitution scheme.
"[T]he search-incident-to-arrest exception permits an arresting officer 'to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction' and to search 'the area into which an arrestee might reach in order to grab ... evidentiary items.' " United States v. Wurie,
Here, Officer Corvese saw Gomes using his cellphone as he approached the vehicle. (Hr'g 2 Tr. 37:22-25, 38:1-6.) Gomes argues that it was not suspicious for him to use his cellphone because phones are readily used in today's society. The Supreme Court, however, has endorsed the government's position, stating, "[c]ell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals." Riley v. California, --- U.S. ----,
C. Inevitable Discovery and Independent Source Exceptions to the Exclusionary Rule
The government also argues that both the inevitable discovery doctrine and the independent source doctrine support the seizure of Gomes's cellphones during his arrest, assuming the unconstitutionality of Gomes's arrest, search, and seizure. Both doctrines are exceptions to the exclusionary rule, which prohibits admitting into evidence tangible material seized during an unlawful search. Flores,
1. Independent Source Doctrine
Under the independent source doctrine, "when evidence or knowledge would have been gleaned even in the absence of the earlier (unlawful) [arrest], such evidence or knowledge should not be excluded." Flores,
[W]hether the officers' decision to seek a warrant was made independent of what they had learned during their earlier (unlawful) entry, and if so, whether the affidavit that they submitted to procure the warrant, when stripped of any knowledge derived from the initial entry, contained enough facts to support a finding of probable cause.
The first question of whether the "officers' decision to seek a warrant was made independent of ... [the] (unlawful) entry" depends on the totality of the circumstances. Flores,
Here, the government argues that the officers' decision to obtain search warrants was independent of the allegedly unlawful search of Gomes's iPhone. Three days after the arrest, officers obtained a state search warrant, but it was fruitless because the iPhone could not be unlocked. (Hr'g 1 Tr. 58:10-13, 59:2-22, 60:4-6.) On May 10, approximately one month after Gomes's arrest, the officers obtained a federal search warrant and were able to unlock the iPhone. (Id. at 61:3-16.) Officer Iacone testified that he would have sought a warrant for Gomes's phone whether or not it was seized at his April 17 arrest because, in human trafficking investigations, evidence of the crime can be obtained from the suspected pimp's cellphone. (Id. at 63:6-11, 64:3-7.)
These circumstances are analogous to Flores, where the officer, after arresting the defendant for drug distribution, knew he would seek a search warrant for the defendant's room because hotel rooms are frequent criminal-activity hubs likely to uncover evidence. Because Gomes was arrested driving a car linked to a criminal investigation that dropped off two females at an apartment to engage in commercial sex, it was reasonable for officers to suspect Gomes of pandering and his phone of containing incriminating evidence. Thus, the officers had probable cause to seize the phone and obtain a warrant to search it.
In addition, the officers' decision to obtain a federal search warrant was based on the strength of the agents' interview with *730the alleged victim three weeks after officers seized Gomes's phone. (Hr'g 1 Tr. 60:16-25, 61:1-8.) This decision was independent of Gomes's arrest. Therefore, the officers' decision to obtain a search warrant was not based on any 'unlawful' search of Gomes's phone. The officers had probable cause to arrest Gomes and lawfully obtain a warrant before searching his iPhone.
The second question is whether "the affidavit that [the officers] submitted to procure the warrant, when stripped of any knowledge derived from the initial [search], contained enough facts to support a finding of probable cause." Flores,
2. Inevitable Discovery Doctrine
Next, the government urges application of the inevitable discovery doctrine to the iPhone seized from Gomes incident to his arrest. The inevitable discovery exception recognizes that, "if ... the evidence ... would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received." Nix,
[F]irst, whether the legal means by which the evidence would have been discovered was truly independent; second, whether the use of the legal means would have inevitably led to the discovery of the evidence; and third, whether applying the inevitable discovery rule would either provide an incentive for police misconduct or significantly weaken constitutional protections.
United States v. Almeida,
It is not appropriate to suppress the information found upon arresting Gomes, searching his person, and seizing his phones, because the discovery of the information on the iPhone was inevitable. Here, Officer Iacone testified the he would have sought a warrant to obtain Gomes's phones even if Officer Corvese had not seized them during Gomes's arrest. (Hr'g 1 Tr. 64:3-7.) The "legal means" the officers used to obtain the federal warrant-the interview with the alleged victim subsequent to her arrest-was truly independent from Gomes's arrest. Before Officer Corvese stopped Gomes and subsequently arrested him, the alleged victim, NB, was already in police custody, and thus the use of NB's interview to obtain the warrant "would have inevitably led to the discovery of the evidence" in Gomes's iPhone. Almeida,
D. Delay in Obtaining a Search Warrant
Gomes argues that the three-day delay in obtaining a search warrant for his cellphones was unreasonable and violated *731his Fourth Amendment rights. The Court disagrees.
"A temporary warrantless seizure supported by probable cause is reasonable as long as 'the police diligently obtained a warrant in a reasonable period of time.' " United States v. Stile, No. 1:11-cr-00185-JAW,
Here, the Court agrees with the government that the three-day delay in obtaining a search warrant was reasonable. Because Gomes's iPhone was seized in a search incident to his arrest for the trafficking of a minor for commercial sex, the Court must balance law enforcement's concerns for preserving evidence against Gomes's privacy interest. Similar to the court in Boudreau, the officers here-as aforementioned-had sufficient probable cause to believe the iPhone contained evidence of the arresting crime. In addition, by waiting to search his phones until they received a warrant three days after its seizure, the officers refrained from violating Gomes's Fourth Amendment rights. Thus, the three-day delay was permissible and did not violate Gomes's Fourth Amendment rights.
III. Conclusion
Having found that sufficient probable cause supported the warrantless search and arrest of Gomes, and the subsequent searches of his cellphones, particularly the iPhone5, were conducted after the officers obtained valid search warrants, the Motion (ECF No. 55) is DENIED.
IT IS SO ORDERED.
Backpage.com was a website used to advertise individuals for the purpose of commercial sex. (Hr'g 1 Tr. 6:6-7.)
An "in call" is when the customer comes to the prostitute's location for sex. (Id. at 19:17-21.)
The vehicle was also described in police reports as a black Nissan Maxima. (Hr'g 1 Tr. 36:4-21.)
Gomes never provided the vehicle's registration. (Hr'g 2 Tr. 37:3-6.)
The name "Sincere" was confirmed as a nickname for Reysean Williams, a co-defendant in this case. (Hr'g 1 Tr. 57: 1-5.)
Indeed, Officer Iacone testified that the incriminating conversation between the officers and H3nny regarding the details of the "date" (a "two girl special" and $500 payment) occurred via text. (Hr'g 1 Tr. 44:9-12.) Previously, however, both parties represented in their papers that this conversation occurred over the phone ten minutes prior to the car arriving at the apartment. (ECF No. 55 3; Resp. 5.) Had this been true, it certainly would have been easier to impute knowledge of the criminal activity to Gomes.
Reference
- Full Case Name
- United States v. Leandro GOMES
- Status
- Published