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United States v. Mompie

United States District Court, S.D. Indiana, New Albany Division

October 20, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MIGUEL MOMPIE, (07), RITZY ROBERT-MONTANER, (08), Defendants.

          ENTRY DENYING MOTIONS TO SUPPRESS

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on Defendant Ritzy Robert-Montaner's (“Montaner”) Motion to Quash Arrest and Suppress all Evidence Obtained as a Result Thereof (Filing No. 437) and Defendant Miguel Mompie's (“Mompie”) Second Amended Motion to Suppress Fruits of Search (Filing No. 445). Montaner is charged with Conspiracy (Count 23) in violation of 18 U.S.C. § 371 and 18 U.S.C. § 659. Her co-defendant, Mompie, is charged with Interstate Transportation of Stolen Property (Counts 10, 12, 14, 16, 18 and 20), Possession of Goods Stolen from Interstate Commerce (Counts 9, 11, 13, 15, 17 and 19), and Conspiracy (Count 23). Both Defendants have petitioned the Court to suppress from introduction into evidence any and all items that were seized from their person and from a Chevrolet Sonic rental car on February 25, 2015. An evidentiary hearing was held on September 22, 2016. Pursuant to Federal Rule of Criminal Procedure 12(d), the Court now states its conclusions of law. For the reasons set forth below the Court DENIES each Defendants' Motion to Suppress.

         I. FINDINGS OF FACT

         On December 9, 2014, a semi-tractor and trailer containing 4, 610 T-Mobile cellular telephones were stolen from a truck stop in Oklahoma City, Oklahoma (the “T-Mobile load”). (Filing No. 472 at 1.) The stolen merchandise was valued at approximately $460, 000.00. Id. On or about December 17, 2014, the FBI was contacted by an investigator hired by T-Mobile to investigate the theft of the T-Mobile load. (Filing No. 472 at 2.) The investigator reported that one of the stolen cell phones from the T-Mobile load had been activated at a location in Oklahoma City on December 10, 2014. Id. While other stolen cell phones were subsequently activated, the location and time of activation of this particular cell phone led the FBI to conclude that the phone activated on December 10, 2014 was in the possession of someone connected to the theft of the T-Mobile load. Id.

         Sometime during their investigation the FBI learned through a confidential informant that Mompie and others had recently stolen a load of T-Mobile telephones, and that Mompie was possibly carrying one of the telephones with him. Id. at 3. Upon receiving this information, the FBI acquired the toll records of the stolen cell phone. Id. An investigation on the telephone numbers associated with the stolen cell phone revealed call activity between Mompie and other associates, named by the confidential informant, that were also allegedly involved in the theft of the T-Mobile load. Id. After a review of the data, the FBI discovered that cell phones associated with Mompie and his associates had been active around the truck stop where the T-Mobile load was stolen, including on the same day. Id.

         On February 18, 2015, the FBI acquired a warrant to track and monitor the precise location of the activated stolen cell phone believed to be in the possession of Mompie, who resided in Jeffersonville, Indiana.

         On February 23, 2015, the FBI with the help of the Kentucky State Police (“KSP”) determined that the stolen cell phone had traveled to Virginia. Wes Rowe (“Rowe”), an investigator with the National Insurance Crime Bureau (“NICB”), was contacted for assistance. Id. The NICB is a non-profit organization that receives support from insurance companies, and its mission is to lead a united effort between insurers and law enforcement agencies to prevent and combat insurance fraud and crime. Id. Rowe's position within the NICB was to conduct complex fraud investigations in the southwest Virginia area and supervise all field operations for North and South Carolina. Rowe had previously been a deputy for the Wythe County Sheriff's Office (“WCSO”), and remained a reserve deputy with full law enforcement authority during his participation in the FBI investigation. In the five years that he had worked for NICB, Rowe had been involved in the investigation of approximately forty organized Cuban groups involved in cargo thefts.

         Sgt. Motley (with the KSP) and FBI agent Paul Meyer (“Agent Meyer”) advised Rowe that a Cuban suspect, known to be involved in cargo theft, had flown from Louisville, Kentucky to Chicago, Illinois and was currently tracked (via the stolen cell phone) to be at the Richmond International Airport in Richmond, Virginia. The suspect was identified as Mompie. Sgt. Motley and Agent Meyer informed Rowe that Mompie might be meeting with associates who were previously known by Rowe to have been involved in other cargo thefts.

         In tracking the cell phone, Sgt. Motley and Agent Meyer began relaying, in real time, information to Rowe and other law enforcement officers involved in the investigation. Rowe was constantly advised of the cell phone's location. The cell phone was located near a Hewlett Packard distribution center in Richmond. The cell phone then traveled to Caroline County and was located near a McKesson distribution center. Rowe contacted Caroline County's Sherriff's office to put them on notice of the current situation and requested that they contact him if a cargo theft was reported. However, no incidents took place on that afternoon. Rowe kept tracking the cell phone and alerting authorities along the cell phone's route. Once the cell phone reached Roanoke, Virginia and became stationary at a motel, Rowe ceased monitoring the activity.

         The next day, on February 24, 2015, Rowe was contacted again because the cell phone was traveling on I-581/ U.S. 220 towards Greensboro, North Carolina. Rowe felt that it was likely that the cell phone was headed for the Ralph Lauren distribution center in Greensboro. The cell phone did travel to the area of the distribution center and its activity indicated, based on past behavior, that the subject was surveilling the center.

         Rowe then alerted Ralph Lauren's Asset Protection Manager. After the manager began to track the outgoing truck loads via GPS, it was determined that the cell phone was following one of the truck loads that had recently left the distribution center. John Cannon of the Georgia Bureau of Investigation was advised of the situation as the load and the cell phone were headed towards the South Carolina/Georgia state line. Rowe and the Ralph Lauren manager were working together to determine if Mompie, who was in possession of the cell phone, would follow and steal the load.

         However, before the two drivers in the truck received the information on where to do the controlled stop, they stopped at a gas station in South Carolina. The drivers stated that, while at the gas station, one of them went inside while the other one stayed with the truck. They also stated that they had been followed by a small silver car with three passengers, one of whom followed the driver into the store. After the two remaining passengers realized there was a second driver, the passenger who had gone inside went back to the car and they left the station. Tracking resumed, and it was discovered that the car was headed back towards Greensboro, subsequently becoming stationary at a motel two miles away from the Ralph Lauren distribution center.

         The Asset Protection Manager was again informed of the situation, and she went to the motel near the Ralph Lauren distribution center to look for vehicles matching the description given by the truck drivers. The manager provided Rowe with the license plate numbers of four vehicles. The only vehicle that proved to be a small silver four-door car was a Chevrolet Sonic that had been rented from Enterprise Rent-A-Car (“Enterprise”) by Montaner. Rowe recognized Montaner as the known girlfriend of Orlis Machado Cantillo (“Machado”), an identified member of a Cuban organized cargo theft group operating out of the Louisville, Kentucky area.

         On February 25, 2015, the stolen cell phone returned to the Ralph Lauren distribution center. It then began traveling towards Sanford, North Carolina, home of the Coty Cosmetics distribution center. The cell phone did not stay in the area very long and began traveling north towards Wythe County, Virginia. The appropriate authorities were contacted. Rowe followed the cell phone to a TA truck stop and observed the silver Sonic, which was empty at the time. Rowe watched the vehicle until a female and male exited the truck stop store and entered the vehicle on the passenger's and driver's sides, respectively. Rowe was able to identify Montaner as the female driver, but was unable to identify the male. Rowe did not see a third passenger. A surveillance video at the truck stop showed that Montaner was following a truck driver inside the truck stop. Both Montaner and the male went back into the truck stop for a few minutes before Montaner exited and left the truck stop alone in the silver Sonic.

         Rowe contacted Brian Lawson (“Corporal Lawson”), the on-duty corporal for WCSO that evening, about his observations and that he thought a cargo truck theft might be occurring. Rowe wanted the Wythe County officers to locate the silver Sonic while he continued to monitor the truck stop. Shortly thereafter, the WCSO central dispatch broadcast that a tractor and trailer had been stolen from the TA truck stop. Rowe provided Corporal Lawson with the cell phone's location near an area not far from the truck stop. Corporal Lawson relayed all of this information to Deputy E. Wayne Kirby (“Deputy Kirby”), including a description and license plate number of the suspect vehicle. While patrolling the area, Deputy Kirby spotted a silver Sonic coming from a dead end road, which now had three passengers. Deputy Kirby stopped the vehicle because it was traveling on a secluded dead end road, it was after 10:00 at night, and he was suspicious that the vehicle might have had something to do with the tractor and trailer that was just stolen in the area. Rowe arrived at the traffic stop and identified the three passengers as Montaner, Mompie, and Machado. Montaner was the driver and Mompie was the rear seat passenger. A search was conducted of the dead end area from which the suspects' car had just left and the stolen trailer and cargo were found. The tractor was found later, in a different location, unoccupied. The silver Sonic was stopped approximately one-third of a mile away from where the stolen trailer was found, and one and a quarter of a mile from the truck stop. The tractor was found four and a half miles from the truck stop where it was stolen.

         Montaner, Mompie, and Machado were all arrested. Various items-including nine cell phones, a backpack, a gallon of white Valspar “Cover & Go” paint, a paint brush, a paint roller, a paint roller pan, a Blue Hawk 4-8'paint roller extension handle, and a GPS jamming device-were all visible in plain view in the rear passenger compartment of the vehicle. An Apple iPhone 6 was seized from Montaner's pocket incident to her arrest. After they were transported to the sheriff's office, Wythe County Investigator Adam Williams (“Investigator Williams”) appeared before a magistrate judge and verbally requested and obtained arrest warrants. A Wythe County magistrate judge approved charges against Montaner, Mompie, and Machado for crimes related to cargo theft under Virginia state statutes.

         On February 27, 2015, Wythe County Investigator Adam Williams (“Investigator Williams”) applied for and received a warrant to search the silver Sonic from a Wythe County magistrate judge. In the Affidavit for Search Warrant, Investigator Williams indicated he sought to search the vehicle for items “involved in the theft of a Tractor Trailer stolen from the T/A Travel Center, Wytheville, (Wythe County), Virginia on February 25, 2015.” A second search warrant was issued on March 15, 2015, for the cell phones recovered from the vehicle. The affidavit for the cell phones alleges in part, that the affiant (Investigator Williams) is aware through training and ...


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