D.Guam: CI’s tale insufficiently reliable for PC for arrest

A named CI arrested at the airport gave up defendant. The court finds the CI’s tale insufficient for probable cause for arrest, and the arrest and its fruits are suppressed. United States v. Duenas, 2017 U.S. Dist. LEXIS 91480 (D. Guam June 12, 2017).* Analyzing the proof:

Here, the first factor weighs in favor of the Government solely because Scully’s identity was known. See id. at 907-08. The second factor, however, weighs in favor of Duenas because there is no evidence that Scully provided reliable information in the past. See id. at 908. Additionally, the officers failed to verify information she provided regarding her purported previous travel to Guam. Thus, Scully was an “unproven informant” without any “track record of reliability.” See id.

The third factor weighs slightly in favor of the Government to the extent that she was the only basis of knowledge of the tip. See id. However, it is problematic because there is no evidence that the officers attempted to corroborate any information regarding the purported May 2016 drug transaction, such as checking flight or passport records prior to the arrest.

The fourth Rowland consideration weighs in favor of Duenas because Scully’s information regarding Duenas’ movements were not predictive. Rather, Duenas was contemporaneously told by the officers and Scully to meet at the Hotel Santa Fe. Meeting an individual at a hotel as directed by text message, without more, could be considered an “innocent” rather than “suspicious” activity.” See id.

As to the final factor, however, Scully may have had motive to fabricate the tip. See id. Scully was intercepted at the Airport, and her tip may have been an attempt to lessen her culpability. The court would normally consider this factor to be neutral because despite Scully’s motive to fabricate, she could be held accountable for false information. The court notes, however, that Officer Gutierrez observed Scully’s eyes to be glassy. This could be indicative of her being under the influence of narcotics. Consequently, this factor weighs against Scully’s reliability and in favor of Duenas.

When these factors are considered, Scully was not sufficiently reliable for the officers to conduct a warrantless arrest of Duenas in the absence of a controlled delivery. Even though Scully told the officers she had delivered methamphetamine to Duenas in the past, none of the texts explicitly referenced drugs. See Gov.’s Ex. 1. There is reference in the text messages to a “guy” who “has 7.” Even if this is coded language for illegal activity, it is unclear and does not arise to the level of probable cause necessary to conduct a full-blown arrest. See United States v. Mayorquin, No. CR 12-1076-CAS, 2013 WL 5405704, at *3-4 (C.D. Cal. Sept. 20, 2013) (concluding that phone calls referencing “seven shirts” and “six little dolls” with respect to a narcotics trafficking coupled with the officer’s observation of black bag being placed in defendant’s vehicle established reasonable suspicion, but stopping short of determining probable cause was present). Unlike cases where the Ninth Circuit has determined “coded” conversations could contribute to a finding of probable cause, the Government in this case did not present an affidavit by any officer providing interpretations of purportedly “coded” conversations. See United States v. Beltran, 11 F. App’x 786, 787 (9th Cir. 2001), as amended on denial of reh’g (May 30, 2001). Moreover, unlike Beltran, this case did not involve any ongoing investigation. See id.; see also United States v. Freeman, 498 F.3d 893, 902 (9th Cir. 2007) (observing that an officer “may provide [lay] opinion testimony regarding meaning of vague or ambiguous statements” if the lay opinion is “rationally based on the perception of the witness.” (citations omitted)).

Additionally, even though the officers testified that they were able to identify Duenas from his Facebook profile and description of his vehicle, the Government has failed to articulate how arranging to pick up or meet Scully at the hotel is indicative of criminal activity. The Government has not shown what contraband or evidence of a crime they believed was present on Duenas’ person or in Duenas’ vehicle. There were no incriminating statements by Duenas in the text messages he sent to Scully, no evidence presented of an ongoing criminal investigation of Duenas, and no evidence that a Department of Motor Vehicle return was executed showing that Duenas had a criminal record.