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United States v. Rocher

United States District Court, M.D. Florida, Fort Myers Division

February 26, 2018

UNITED STATES OF AMERICA
v.
OLIVER ROCHER

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Oliver Rocher's Motion to Suppress (Doc. 21), the United States of America's response in opposition (Doc. 23), and Rocher's reply (Doc. 26). The undersigned held an evidentiary hearing on Rocher's motion at which Rocher was present and represented by counsel.

         Rocher called two witnesses at the hearing - himself and Detective Christopher Tice of the Lee County Sheriff's Office. He also introduced affidavits for search warrants that Detective Tice prepared in unrelated cases. The Government called no witnesses, but it introduced three exhibits: the search warrant for Rocher's hotel room, Detective Tice's affidavit in support of the warrant, and a list of items seized.

         At the hearing, the Court held that Rocher had standing to bring the motion to suppress but that he was not entitled to a Franks hearing. The Court took under advisement Rocher's challenge to the search warrant's particularity with a written order to follow. This Opinion and Order is that decision.

         BACKGROUND

         This is a drugs and guns case. It started when a confidential informant (“CI”) told Detective Tice that “Lotto, ” who she later identified as Rocher, was selling heroin. Neither party disputes that Rocher and Lotto are the same person. Detective Tice arranged two controlled drug buys between the CI and Rocher. The first happened on May 11, 2017.[2]The CI called Rocher, and they agreed to meet at a local mall within the hour. After confirming the CI had no contraband, Detective Tice equipped her with a one-way audio device and gave her prerecorded cash to buy heroin.

         About thirty minutes later, another detective drove the CI to the mall and “parked near the front by the food court.” (Gov't Ex. 1 at 2). The detective and the CI went inside, and the CI called Rocher. At Rocher's direction, the CI left the food court and headed to the mall's back parking lot. Detective Tice trailed the CI to the lot “to keep a constant visual of [her].” (Gov't Ex. 1 at 2). The CI entered a Chrysler Sebring with only Rocher inside. According to Detective Tice, the CI handed Rocher cash and Rocher “handed the CI a bag of suspected heroin.” (Gov't Ex. 1 at 2).

         The CI returned to the mall where the other detective was waiting. Detective Tice followed Rocher to a nearby Comfort Inn, where he photographed Rocher walking towards the hotel's side doors. Detective Tice then met the CI and fellow detective at a set location. There, the CI's purchased drugs field-tested positive for heroin. The CI later identified Rocher in a six-person photo line-up as the person who sold her heroin.

         Later that same day, Detective Tice returned to the Comfort Inn. Detective Tice passed Rocher in the lobby and watched him drive away. The front desk employee confirmed that Rocher had been at the hotel for several weeks and had rented two rooms.

         The second controlled drug buy happened about a week later at the Comfort Inn. To prepare for the buy, Detective Tice searched the CI for unauthorized contraband, equipped her with a one-way audio device, and gave her prerecorded cash. Another detective drove the CI to the hotel. That detective went to the hotel's second floor and watched Rocher meet the CI. Detective Tice was “in the parking lot and kept a constant visual of the CI as the CI walked through the parking lot towards the hotel pool area.” (Gov't Ex. 1 at 3). The CI made immediate contact with Rocher. Because Rocher allegedly felt like someone was watching, he brought the CI into a stairwell. Once inside, Rocher handed the CI a newspaper that concealed heroin. A few minutes later, the CI returned to the undercover car. Detective Tice eventually met the CI and other detective at a set location. The drugs the CI purchased again field-tested positive for heroin. The CI also picked Rocher from a photo lineup as the person who sold her drugs the second time.

         Fast-forward about three months to August. Detective Tice learned that Rocher left the Comfort Inn and moved to the Budget Inn. On August 1, he saw Rocher walk through the Budget Inn's parking lot and enter Room 115. He watched the room for most of the day. Detective Tice testified that he saw Rocher come in and out of Room 115 about four times that day. He also observed Rocher meet with about six people in fewer than thirty minutes. According to Detective Tice, “[i]t appeared Rocher was conducting quick hand to hand transactions in front of the Hotel room.” (Gov't Ex. 1 at 4). Detective Tice also watched Rocher drive a silver Nissan Altima out of the Budget Inn's parking lot.

         Detective Tice continued to watch Room 115 the next day. Detective Tice testified that he saw Rocher move in and out of the room about four times. He also observed Rocher meet with people (maybe a dozen or so) at the hotel's door with each interaction lasting under a minute. He also saw Rocher walk toward the Nissan Altima to meet with three women. (Gov't Ex. 1 at 4).

         Based on the CI's controlled drug buys and his observations of Rocher at the Budget Inn, Detective Tice applied for a warrant on August 2 to search Room 115. A county court judge signed a search warrant that incorporated Detective Tice's affidavit. (Gov't Ex. 2). When the officers executed the search warrant on August 3 around 7:00 a.m., they found Rocher sleeping in the hotel bed. They arrested Rocher and seized these items: cocaine, heroin, cash, Smith & Wesson firearm, magazine clip, First Alert safe, digital scale, and bottles of caffeine and testosterone. (Gov't Ex. 11).

         Based on the foregoing, a federal grand jury indicted Rocher for distributing heroin and cocaine, possessing a firearm and ammunition as a convicted felon, and possessing a firearm to further drug trafficking. (Doc. 1). He now moves to suppress the drugs, firearm, ammunition, and his statements. (Doc. 23).

         DISCUSSION

         A. Standing

         At the hearing, the Court first heard the Government's challenge to Rocher's standing to bring the motion to suppress. Standing is a shorthand reference for the threshold determination under the Fourth Amendment of whether Rocher had a reasonable expectation of privacy in the invaded area - Room 115. United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).

         The Government argued that Rocher lacked standing because he rented the hotel room under an alias only to sell drugs and changed his story about owning the clothes found in the room. The Court was unpersuaded. It found at the hearing that Rocher proved a reasonable expectation of privacy in Room 115. Rocher testified at the hearing that he lived at and slept in Room 115 for the first three days in August. This testimony was consistent with Defective Tice who witnessed Rocher freely access Room 115 on August 1 and 2. According to Detective Tice, Rocher came and went, met people at Room 115's door, and even let individuals inside. When the officers executed the search warrant, Rocher was sleeping in the bed, his driver's license was secured in the safe, and his clothes were in the room. Based on these facts, and for the reasons stated on the record at the hearing, the Court found that Rocher had standing to bring his motion to suppress.

         B. Fr ...


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