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United States v. Zamudio

United States District Court, S.D. Indiana, Indianapolis Division

March 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JUAN ZAMUDIO (02), Defendants.

          ENTRY ON MOTION TO SUPPRESS

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on Defendant Juan Zamudio's Motion to Suppress. (Filing No. 745.) Juan Zamudio is charged in Count One: Conspiracy to Possess with Intent to Distribute and to Distribute Controlled Substances; Count Six: Possession with Intent to Distribute Controlled Substances; Count Seven: Illegal Alien in Possession of a Ammunition; and Count Thirteen: Conspiracy to Launder Monetary Instruments. He petitions this Court to suppress any and all items seized pursuant to a search warrant, from his residence at 64 N. Tremont Street, Indianapolis, Indiana (“64 N. Tremont”). For the reasons set forth below, Juan Zamudio's Motion to Suppress is granted.

         I. BACKGROUND

         The FBI began an investigation into Jose Zamudio's Drug Trafficking Organization (“DTO”) in February of 2016 and culminated in the FBI receiving judicial authorization to intercept ten different cellular phones, including a phone utilized by Jose Zamudio. (Filing No. 762 at 2.) As part of the investigation, the Government intercepted phone calls between Jose Zamudio and various other individuals in the DTO including his brother, Juan Zamudio. Id. Agents performed surveillance on a number of individuals believed to be in Jose Zamudio's DTO. Id. On November 14, 2016, the Government applied for a search warrant that requested judicial authorization to search numerous locations, including Juan Zamudio's residence at 64 N. Tremont, Indianapolis, Indiana. Id. The Application and Affidavit for the Search Warrant was 125 pages long and sought the search of 34 separate locations. (Filing No. 762-1.) The Magistrate Judge approved the Application for a Search Warrant that same day. During execution of the search warrants, agents located approximately 11, 405 grams of pure methamphetamine at 64 N. Tremont, Indianapolis, Indiana.

         Juan Zamudio's role in the DTO is explained in the Search Warrant application. The parties both cite to three specific incidents in the Affidavit that connect Juan Zamudio to drug trafficking. On October 27, 2016, police surveillance observed co-defendants Jeremy Perdue (“Perdue”) and Jeffrey Rush (“Rush”) enter Jose Zamudio's house on 1126 South Auburn Street, Indianapolis, Indiana, at 11:41 a.m., and exit a few minutes later. (Filing No. 762 at 3.) At approximately 1:00 p.m., that same day, Rush, Perdue, and Joseph Coltharp (“Coltharp”) met at a Long John Silver's restaurant in Indianapolis. (Filing No. 762-1 at 81.) Just after the meeting, Coltharp was stopped by an Indianapolis Metropolitan Police Department (“IMPD”) officer, after he committed a traffic violation. Id. at 82-83. The IMPD officer located a package of narcotics on the floorboard of the passenger side of the vehicle, which was later determined to be 852 grams of pure methamphetamine. Cell phone pings from Perdue and Juan Zamudio's cell phones showed both individuals in the area of Juan Zamudio's place of employment, which is a tire shop across the street from the Long John Silver's restaurant. The Affidavit reveals an intercepted telephone call between Jose Zamudio and Juan Zamudio:

Juan: I have the guys here, they're done.
Jose: Did they leave you the fifteen?
Juan: Yes. Look, um the guy was telling me right now for you to have the house dark, because the dogs were following them.

(Filing No. 762-1 at 83-84). The Government explains that this conversation meant that Rush and Perdue met with Juan Zamudio for a drug transaction, and reported they had been followed by law enforcement from Jose Zamudio's house that morning. (Filing No. 762 at 4.) The drug activity on this date took place at Jose Zamudio's house on 1126 South Auburn Street and the Long John Silver's restaurant near Juan Zamudio's place of employment.

         The second, and more significant act attributed to Juan Zamudio occurred on October 20, 2016. Officers were conducting surveillance on Juan Zamudio, Perdue, and Rush. Id. at 4. Co-defendant David Silnes is also observed in the activity.

Later that day on October 20, 2016, PERDUE and RUSH took part in the purchase of two pounds of methamphetamine from Juan ZAMUDIO and delivered methamphetamine to SILNES. Surveillance officers that day were conducting surveillance on PERDUE, RUSH, and Juan ZAMUDIO as a result of intercepted telephone calls over Target phones 8 and 9. At approximately 1:44 p.m. on October 20, 2016, Jose ZAMUDIO called Juan ZAMUDIO at Target Phone 8. In this call Jose Zamudio stated, “Can you put in a call to the white guy? Tell him that if he needs something, for him to, to call you (Juan ZAMUDIO should call RUSH and explain to RUSH that he is to call Juan ZAMUDIO when he needs to purchase methamphetamine).” At approximately 1:47 p.m., on October 20, 2016, Juan ZAMUDIO sent an outgoing test to RUSH, at TARGET Phone 9, utilizing Target Phone 8. This text message stated, “Primo sed if you. Need call me bro [sic] (RUSH should call Juan ZAMUDIO rather than Jose ZAMUDIO when Rush needs to purchase methamphetamine).” At approximately 6:20 p.m., on October 20, 2016, RUSH, utilizing Target Phone 9, sent an outgoing text to Juan ZAMUDIO at Target Phone 8. This text message, in part, stated, “Yeah I need two (RUSH wished to purchase two pounds of methamphetamine from Juan ZAMUDIO.” At 7:40 p.m. Juan ZAMUDIO responded to RUSH, “Meet me at Kroger.” At 7:42 p.m. RUSH responded, “Ok we are here (RUSH and PERDUE had both arrived at Kroger to pick-up the two pounds of methamphetamine).” Subsequently, at 7:42 p.m. on October 20, 2016, surveillance officers observed RUSH exist an unknown Chevy Pickup truck, and enter Juan ZAMUDIO's Chevy Trailblazer. A short time later RUSH exited Juan ZAMUDIO's vehicle, in possession of a basketball sized red box, and reentered the passenger seat of the pickup. Surveillance officers followed the pickup truck away from the scene, and observed it travel directly to David SILNES' resident at 732 South Norfolk Street, Indianapolis, Indiana. Surveillance officers observed RUSH exist the passenger side of the pickup carrying the same red box he was observed exiting Juan ZAMUDIO's vehicle with, and also observed PERDUE exit the driver's door of the pickup, and enter SILNES' residence. I believe that PERDUE and RUSH were in the process of delivering methamphetamine to SILNES during this surveillance.

(Filing No. 762-1 at 85-86.). The drug activity involving Juan Zamudio on this date took place in his Chevy Blazer automobile and at the Kroger store parking lot.

         The third incident involved Co-defendant Adrian Bennett, Jose Zamudio, and Juan Zamudio. The Government describes this incident in its Response.

On November 3, 2016, Bennett called Jose Zamudio, but Juan Zamudio answered the phone. Bennett and Juan Zamudio then discussed if Jose Zamudio had received his shipment of marijuana. Bennett then told Juan that he had “some change (drug proceeds) for him, and also that he needed, “more of his usual (more controlled substances).” Bennett then stated that he needed “some ice cream (methamphetamine).” Juan Zamudio was then heard relaying that information to Jose Zamudio, and then Juan Zamudio told Bennett if he wanted to “swing by there (Jose ZAMUDIO's residence), they are there.” Bennett then stated that he would be at Jose Zamudio's residence in an hour.

(Filing No. 762 at 5) (internal citations omitted). The drug activity surrounding this incident took place at Jose Zamudio's residence. The Affiant states that based on his training and experience, he is aware that drug traffickers generally store their drug-related paraphernalia in their residence or the curtilage of their residences. (Filing No. 762-1 at 111.)

         II. L ...


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