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United States v. Calderon

United States District Court, D. Montana, Billings Division

November 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCISCO CALDERON and LUIS JAVIER GASPAR, Defendants.

          OPINION AND ORDER

          SUSAN P. WATTERS, UNITED STATES DISTRICT JUDGE.

         Before the Court is a joint motion to suppress evidence (Doc. 38) filed by Defendants Francisco Calderon and Luis Gaspar. For the following reasons, the Court DENIES the motion.

         I. Findings of Fact

         On March 13, 2017, while driving north of downtown Billings, Detective Ken Tuss's attention was caught by a California-plated red Subaru Forester that pulled into a nearby motel. Detective Tuss, an officer with eastern Montana's HIDTA (High Intensity Drug Trafficking Area) task force, knew other HIDTA officers were investigating a California-based cartel whose members frequently used the motel when distributing drugs in Montana. Detective Tuss observed two men, later identified as Francisco Calderon and Luis Gaspar, exit the Forester and enter the motel. Detective Tuss queried the Subaru's license plate and discovered the Forester was registered to a Carlos Moreira-Torres in San Jose, California. The The next day, Detective Tuss relayed the information to fellow HIDTA officer Detective Jamie Schillinger. Detective Schillinger did not recognize the name Moreira-Torres but confirmed that the California-based drug cartel he was investigating operated out of San Jose and frequently used the motel when distributing in Montana. Detective Schillinger, Detective Tuss, and Border Patrol Agent Jonathan Duquette, an agent with the FBI's Transnational Organized Crime task force, decided to conduct surveillance on the motel.

         In the early afternoon, Agent Duquette, sitting in an unmarked police car, observed Calderon and Gaspar exit the motel and walk towards the Forester. Shortly after, a flatbed pickup truck drove into the parking lot and parked a few spaces away from the Forester. Agent Duquette drove around the block to conduct a drive-by surveillance. When the parking lot came back into Agent Duquette's view, he observed Calderon, Gaspar, and a white male speaking near the Forester and flatbed pickup. Agent Duquette continued around the block.

         A minute or two later, Detective Tuss, in another unmarked police car, conducted a drive-by surveillance of the parking lot. When Detective Tuss drove past the parking lot he saw three men, whom he could not identify but presumed to be Calderon, Gaspar, and the white male, sitting in the Forester. Detective Tuss continued around the block.

         A minute later, Agent Duquette finished circling the block and drove past the parking lot again. Agent Duquette could not see anyone in the parking lot this time. As Agent Duquette continued around the block he saw the flatbed pickup idling in the parking lot's alley exit with the white male in the driver's seat. Calderon and Gaspar were walking away from the flatbed pickup. From his vantage point, Agent Duquette could not see where Calderon and Gaspar went. The flatbed pickup pulled out of the alley and drove away, but not before Agent Duquette was able to relay the flatbed pickup's license plate to dispatch. Dispatch stated the flatbed pickup was registered to a Leslie and Kimberly Birdinground in Crow Agency, Montana, located within the Crow Indian reservation.

         Agent Duquette relayed dispatch's information to Detective Schillinger. Detective Schillinger did not recognize the names so he relayed them to Bureau of Indian Affairs Special Agent Kevin Proctor. Agent Proctor was involved in the reservation aspect of the investigation into the San Jose-based cartel. Agent Proctor told Detective Schillinger the Birdingrounds were known drug users and were under investigation for distribution on the reservation. At that point, Detective Tuss, Detective Schillinger, and Agent Duquette planned their course of action: if the Forester left the parking lot and committed a traffic violation, they would pull it over and have a K-9 unit from the Billings city police perform a dog sniff on the vehicle. They contacted Billings Police K-9 Officer Jim Nyquist and requested he be on standby.

         Shortly thereafter, Calderon and Gaspar got into the Forester, drove out of the parking lot, and headed south towards the highway. Detective Schillinger followed the Forester and observed it change lanes without a turn signal while simultaneously cutting off a semi-truck. Detective Schillinger decided not to pull the Forester over because Officer Nyquist was not in the vicinity yet. The Forester Forester continued south and entered the interstate headed eastbound. Agent Duquette contacted Montana Highway Patrol trooper Jack Rhodes and told him there was a California-plated red Subaru Forester headed eastbound on the interstate that was suspected of drug activity. Agent Duquette did not direct Trooper Rhodes to pull the Forester over. Instead, Agent Duquette told Trooper Rhodes that he would assist with a traffic stop if Trooper Rhodes had reason to pull the Forester over.

         Trooper Rhodes quickly parked in the interstate's median a few miles east of where the Forester entered the interstate. A few minutes later, the Forester, following closely behind a semi-truck, drove past Trooper Rhodes. Trooper Rhodes pulled onto the interstate and followed about 150 yards behind the Forester. After about a half-mile, Trooper Rhodes saw the Forester suddenly brake to avoid rear ending the semi-truck. Trooper Rhodes initiated his overhead lights. The Forester pulled on to the interstate's shoulder and stopped.

         Trooper Rhodes approached the Forester on the passenger side. Calderon was in the driver's seat and Gaspar was in the front passenger seat. Trooper Rhodes explained that he pulled them over for following the semi-truck too closely and nearly rear ending it. Trooper Rhodes asked Calderon for his driver's license, registration, and insurance. Calderon replied in Spanish and Gaspar explained that that Calderon did not speak English. Calderon handed Trooper Rhodes a Mexican identification card. Gaspar explained that Calderon didn't have a license because it it was expired. Trooper Rhodes returned to his patrol car and ran Calderon's name name through his computer to check if Calderon had a valid driver's license or active warrants. The computer showed Calderon had an arrest warrant out of California. Trooper Rhodes asked his dispatch to confirm Calderon's arrest warrant was still valid.

         While Trooper Rhodes waited for dispatch to confirm Calderon's arrest warrant, K-9 Officer Nyquist arrived on scene. Trooper Rhodes asked Officer Nyquist to obtain Gaspar's information. Gaspar told Officer Nyquist he didn't have an ID card and gave his name and date of birth instead. Nyquist relayed Gaspar's information to Trooper Rhodes, who ran it through the computer. The computer showed Gaspar also had an arrest warrant out of California. Trooper Rhodes asked dispatch to confirm Gaspar's arrest warrant was still valid.

         While waiting for dispatch to confirm the warrants for Calderon and Gaspar, Trooper Rhodes directed Calderon and Gaspar to exit the vehicle, handcuffed them, and placed them in separate police cars. Dispatch confirmed the arrest warrants were valid. K9 Officer Nyquist had his dog sniff the Forester and the dog alerted to both the front passenger door and the driver's door. Calderon and Gaspar were transported to the Yellowstone County jail. The Forester was impounded and Detective Schillinger applied for, and was granted, a warrant to search the vehicle. A search of the vehicle uncovered, among other things, three cell phones, $8, 400 in cash, and a .38 caliber revolver.

         II. ...


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