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United States v. Encarancion

United States District Court, W.D. Missouri, Western Division

January 25, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CARLOS JESUS ENCARANCION, Defendant.

          REPORT AND RECOMMENDATION

          SARAH W. HAYS UNITED STATES MAGISTRATE JUDGE

         This matter is currently before the Court on defendant Encarancion's Motion to Suppress Evidence (doc #21). For the reasons set forth below, it is recommended that this motion be denied.

         I. INTRODUCTION

         On February 14, 2017, a criminal complaint was filed against defendant Carlos Jesus Encarancion. On February 23, 2017, the grand jury returned a one-count indictment against defendant Encarancion. The indictment charges that on February 13, 2017, defendant knowingly possessed with intent to distribute heroin, in an amount of 1000 grams or more.

         On November 1, 2017, the undersigned conducted an evidentiary hearing on the motion to suppress. Defendant Encarancion was represented by Assistant Federal Public Defender William J. Raymond. The Government was represented by Assistant United States Attorney D. Michael Green. The Government called Detective Brian Ruch of the Kansas City, Missouri Police Department and Detective Colin Smith of the Platte County Sheriff's Department as witnesses. Defendant Encarancion testified on behalf of the defense.

         II. FACTS

         On the basis of the evidence adduced at the evidentiary hearing, the undersigned submits the following proposed findings of fact:

1. On February 13, 2017, at approximately 7:07 p.m., Detective Brian Ruch of the Kansas City, Missouri Police Department, who was assigned to the MOWIN Drug Interdiction Task Force, was on duty at the Greyhound Bus Station at 1101 Troost in Kansas City, Missouri. (Tr. at 3-4) A bus which had originated out of Dallas, Texas, arrived at the station. (Tr. at 4) Detective Ruch testified that they make a majority of their narcotics arrests off of that bus. (Tr. at 4) Detective Ruch was located just inside the passenger terminal doors as he watched passengers exit the bus. (Tr. at 5-6)
2. Detective Ruch observed a person (later identified as defendant Encarancion) enter the bus terminal and walk past Ruch. (Tr. at 6-7) Detective Ruch's attention was drawn to Encarancion because Encarancion had a hood up over his head, canted his body as he walked by Ruch, and appeared to be trying to get out of the terminal without being seen. (Tr. at 7, 28) Detective Ruch testified that race does not play a factor in who he stops or searches. (Tr. at 27) Detective Ruch walked outside to where Encarancion was standing and talking to a cabbie about a fare. (Tr. at 7) Detective Ruch was dressed in a t-shirt, jeans and a jacket. (Tr. at 12) While Detective Ruch was armed, his firearm was concealed. (Tr. at 12) Two other officers, Detective Colin Smith and Detective Errol Riggins, were outside the bus station. (Tr. at 11) Detectives Smith and Riggins were 10 to 15 feet away from Detective Ruch and to the back side of Encarancion. (Tr. at 11, 52) Detective Ruch testified that the other detectives stayed back because Ruch was going to attempt to make a consensual contact with Encarancion and he did not want Encarancion to feel like his freedom of movement was inhibited. (Tr. at 12)
3. Detective Ruch testified that he tapped defendant Encarancion on the shoulder, Encarancion turned around, [1] Ruch pulled out his badge, identified himself as a police officer with the Kansas City, Missouri Police Department, and asked if he could speak with Encarancion. (Tr. at 8, 31-32) Detective Ruch testified that Encarancion said, “Sure.”[2] (Tr. at 8) Detective Smith testified that he was a little too far away to hear what Encarancion said, but he saw Encarancion shake his head yes. (Tr. at 65) Detective Ruch testified that if Encarancion would have tried to get into the cab, Ruch would have backed away.[3] (Tr. at 32) Detective Smith testified that if Encarancion would have tried to get in the cab and leave, he would not have stopped him. (Tr. at 64-65) Detective Ruch asked Encarancion for his bus ticket or his travel itinerary to see where he was coming from. (Tr. at 8) Encarancion presented Detective Ruch with his bus receipt and itinerary. (Tr. at 8-9; Government's Ex. 1) The receipt and itinerary showed that he originated out of Phoenix, Arizona. (Tr. at 9; Government's Ex. 1) Detective Ruch found this significant in that Phoenix is a known source city for narcotics. (Tr. at 10) The name on the one-way ticket was Jamie Lewis and it was purchased with $227.50 in cash. (Tr. at 10; Government's Ex. 1) Detective Ruch testified that sometimes people who are involved in drugs purchase tickets in cash so that there is no electronic transaction that can be traced. (Tr. at 10, 35) Detective Ruch asked Encarancion for some identification and Encarancion said that he did not have any. (Tr. at 23) Detective Ruch found this significant because most people have some sort of identification when they travel and it raises officers' suspicions when people do not have any proper identification. (Tr. at 23) Detective Ruch handed the receipt and itinerary back to Encarancion. (Tr. at 10-11)
4. Detective Ruch explained to defendant Encarancion that he talks to passengers that are riding the bus lines. (Tr. at 11) Detective Ruch stated that officers look for and interdict the flow of narcotics, but they also run into people who are wanted for various crimes, murder, robbery or who are on parole violations. (Tr. at 11) Detective Ruch explained that officers also look for people carrying large amounts of United States currency without any justifiable reason. (Tr. at 11) Detective Ruch then asked Encarancion for his consent to search the bag which he was carrying. (Tr. at 12) Detective Ruch testified that Encarancion verbalized either “sure” or “yeah.”[4] (Tr. at 12) Encarancion then bent down, untwisted a twist tie that was holding the zippers on the bag together, pulled the twist tie out through the loops, unzipped the bag, and backed away.[5] (Tr. at 12) Detective Smith testified that he could not hear Encarancion's response when Detective Ruch asked to search his bag; he just saw Encarancion place the bag down, unzip it, and step away. (Tr. at 53, 66) Defendant Encarancion testified that when he was having the conversation with Detective Ruch by the cab, it was just Detective Ruch and him. (Tr. at 84) Encarancion did not know there were any other officers present at that time. (Tr. at 84-85) Encarancion further testified that Detective Ruch had not put him in handcuffs or pulled a gun on him. (Tr. at 84)
5. Detective Ruch kneeled down and searched the bag. (Tr. at 13) Inside the bag, Detective Ruch found male clothes and a pair of women's wedge shoes (sandals), which Ruch testified he found very odd. (Tr. at 13, 19) Detective Ruch pulled out one shoe and testified that it felt very heavy, like it was concealing something inside it. (Tr. at 13-14) Detective Ruch looked at the shoe and testified that it looked like the shoe was glued back together, which raised his suspicion even further that something was concealed inside the sole of the shoe. (Tr. at 14, 16) Detective Ruch asked defendant Encarancion if these were his mother's shoes. (Tr. at 14, 54-55) Detective Ruch testified that Encarancion “kind of gave me a funny ‘Yeah.'” (Tr. at 14) Detective Smith testified that Encarancion “did like a nervous laugh” and then said “Yeah.” (Tr. at 55) Detective Ruch testified that Encarancion was now starting to perspire on his face and lip, which Ruch found odd because it was chilly outside. (Tr. at 15) Detective Smith testified that he noticed a little bit of sweat on Encarancion's face and that Encarancion seemed really nervous. (Tr. at 54)

         6. Detective Ruch asked defendant Encarancion to follow him inside so that Ruch could inspect the shoes a bit further. (Tr. at 17, 55) Detective Ruch picked up Encarancion's bag with the shoes in it and walked towards the front main entrance doors to the Greyhound Bus Station. (Tr. at 17, 55) Encarancion followed Detective Ruch.[6] (Tr. at 17, 55) Detective Smith testified that he did not see Detective Ruch have his hand on or near Encarancion. (Tr. at 67) Detective Smith testified that Encarancion was free to leave, but he would have had to leave his bag with Detective Ruch. (Tr. at 67)

7. Detective Ruch and defendant Encarancion went into an office located in the back of the station. (Tr. at 17) Detective Smith joined them in the office. (Tr. at 17, 56-57) Detective Ruch and Detective Smith each testified that Encarancion was free to leave, but Encarancion was not told that he was free to leave.[7] (Tr. at 39, 68-69) Detective Smith sat with Encarancion in the office while Detective Ruch took the bag to a luggage storage area where Detective Acton and his narcotics K-9 performed a sniff check of Encarancion's bag and several other bags which were in the luggage storage area. (Tr. at 18, 57) The K-9 did not alert to any of the bags. (Tr. at 18) Detective Ruch took the bag back to the ...

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