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United States v. Senese

United States District Court, S.D. Florida

June 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD ROBERT SENESE, Defendant.

          ORDER ON DEFENDANT'S MOTION TO SUPPRESS

          BETH BLOOM, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court upon the Defendant's Motion to Suppress Physical, Testimonial and Statement Evidence (the “Motion”), ECF No. [18]. The Court has considered the Motion, the Government's response, the record and applicable law. In addition, the Court has evaluated the testimony and evidence presented at the hearings on the Motion, and is otherwise fully advised. For the reasons that follow, the Defendant's Motion is denied.

         I. BACKGROUND

         Defendant Richard Senese is charged by Indictment with one count of knowingly and intentionally attempting to import into the United States five kilograms or more of cocaine in violation of 21 U.S.C. § 952 and § 960(b)(1)(B)(ii), and one count of knowingly and intentionally possessing with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(ii). See ECF No. [10].

         The relevant facts surrounding Defendant's arrest are as follows.[1] On the morning of February 20, 2018, United States Coast Guard officials encountered Defendant aboard his 28-foot Mako center console vessel bearing Florida registration number FL 9703 LD. At the time of the encounter, Defendant was the sole occupant of the vessel, which was disabled and offshore near West Palm Beach, Florida. The vessel was towed by a commercial salvage company to the Riviera Beach Marina, where it was boarded by members of the Coast Guard and officials from United States Customs and Border Protection (“CBP”) to conduct an inbound border search of the vessel. While no evidence of illegal activity was found, each of the agents that questioned Defendant and searched the vessel noticed various irregularities.

         First, CBP Agent Matthew Manning[2] testified that he performed a records check of the vessel, which revealed that the vessel had been flagged for a possible connection to maritime narcotics smuggling. In particular, a CBP agent conducting surveillance had previously observed the vessel parked at a residence in Broward County, Florida that was owned by the wife of a convicted drug trafficker (“Residence 1”), [3] the vessel had been registered to another convicted drug trafficker who was the brother-in-law of the convicted drug trafficker whose wife owned Residence 1, [4] and CBP had stopped and inspected the vessel in Fort Lauderdale, Florida around April 2017.

         Defendant also provided nervous and inconsistent answers when questioned by Agent Manning. For instance, Defendant stated that he was returning from an overnight fishing trip to Bimini, Bahamas.[5] Prior to returning, Defendant re-fueled his vessel. On his way back to the United States, Defendant's vessel broke down, which caused him to drift for several hours before being encountered by the Coast Guard. However, when Agent Manning asked him where he had stayed during his trip, Defendant was unable to provide the name of the place where he stayed and offered inconsistent statements regarding the amount of money he had paid to stay. Defendant was unable to produce any receipts or documentation relating to his stay. Defendant stated that he did not have any navigation devices with him, such as a “global positioning system” (“GPS”), but that he could safely navigate without one. Furthermore, when Agent Manning searched the Defendant's phone, he observed a small number of calls, text messages, and contacts, suggesting that the phone's contents had recently been reset or cleared. Defendant was not able to provide a definitive explanation and attributed the lack of activity to the fact that the phone was new.

         During the border search of Defendant's vessel, agents noticed that multiple screws around the deck hatch cover behind the center console were loose, missing, or with tool marks indicating that the hatch had been removed or tampered with. Further indicating that the hatch had been removed or altered was caulking near the hatch that also appeared to be disturbed, as well as chips around the edge of the fiberglass. A search around and under the hatch did not reveal anything illicit.

         Following the completion of the questioning and border search, the Riviera Beach Marina would not allow Defendant to keep his vessel there while he retrieved his truck and trailer. After being presented with a few options, Defendant decided, and the agents arranged, for the vessel to be towed to the Lake Worth Coast Guard Station dock in Riviera Beach. The Defendant travelled to Broward County via commuter rail to pick up his truck and the vessel was docked at the Coast Guard station. It was during this time that the agents placed a GPS tracking device on the vessel to determine if it was involved in drug trafficking.

         The GPS utilized spot monitoring to track the vessel. Agent Manning explained that once the GPS tracker is placed on a vessel, it begins to broadcast a position. Once the vessel stops at a specific location, the agents set up an electronic boundary around an area, enabling them to receive an alert or notification when the GPS tracker leaves that area. The GPS tracker only allowed for 48 hours of monitoring time. Thus, if it took a technician two minutes, for instance, to log in (to the computer program that is utilized to monitor the GPS) and check the position of the tracker, then that would constitute two minutes out of the 48 hours of monitoring time available on the GPS tracker. According to the tracker log submitted into evidence at the hearing, from February 20, 2018 to March 17, 2018, the Government checked the tracker 21 times on approximately 18 different days.

         The GPS data revealed that after Defendant retrieved the vessel from the Lake Worth Coast Guard station, the vessel: travelled to another location in Broward County (“Residence 2”) that was owned by the convicted drug trafficker whose wife owns Residence 1; remained at Residence 2 until March 6, 2018, when it was moved to Residence 1; travelled up and down a canal behind Residence 1 on at least two days; returned to Residence 2 on March 16, 2018; and entered the water from the 15th Street boat ramp in Fort Lauderdale, Florida on March 17, 2018, headed toward the Bahamas. At that point, Agent Manning contacted the CBP Air and Marine Branch to inform the patrol aircraft that would be in the area to be on the lookout for the vessel.

         The GPS tracker data revealed that the vessel travelled to Bimini, went to an area slightly north of Bimini known as Great Isaac, [6] and proceeded northeast to the town of Freeport in Grand Bahama Island, where it appeared to trailer onto land. The vessel then remained overnight at a house in a neighborhood known as Bahamia. The next morning, on March 18, 2018, the tracker showed that the vessel returned to Bimini, where it remained for a short period of time before returning to the United States.

         Once the vessel began to return to the United States, Agent Manning again contacted the CBP Air and Marine Branch, who informed him that they had a scheduled air patrol going on that day, as well as two scheduled marine patrols covering the area where the vessel might enter the United States. Agent Manning requested for the two marine patrols to intercept the vessel if it was encountered. The CBP air patrol unit spotted the vessel with its sole occupant as it crossed the twelve nautical mile line toward Port Everglades, Florida, and relayed the vessel's position to the marine patrol units. However, once the vessel had entered the waters of the United States, the vessel once again became inoperable and was unable to proceed on its own. The vessel was ultimately intercepted by the two CBP marine patrols approximately ten to eleven nautical miles east of Port Everglades for an inbound border search.[7] When the vessel was located, the agents observed Defendant waving his arms over his head as if calling for help.

         Once one of the marine patrols was alongside the vessel, CBP Agent Mark Samples, also a Marine Interdiction Agent with the Office of Air and Marine, asked Defendant where he was coming from and whether he needed a tow back to the mainland. Defendant stated that he did, as he was broken down and did not have any way of calling for assistance because he was out of cell phone range. Agent Samples and two other agents then boarded the vessel and began to ask Defendant routine questions regarding the nature of his trip. Defendant stated that he was returning from an overnight stay in Bimini, where he had gone fishing. The agents observed a cooler of fish aboard the vessel. Defendant also stated that he had gone to place sports bets for college basketball games and won $1, 000.[8]

         According to Agent Samples, Defendant provided some evasive and inconsistent answers to some of his questions. Defendant stated that his friend “Mike, ” whose last name he did not know, had dropped him off at the 15th Street boat ramp the previous morning. While Defendant correctly described the hotel, its location, and its owner, he could not remember the name of the hotel, nor could he produce any documentation related to his stay. Defendant also claimed that he did not have to pay to dock the vessel, even though Agent Samples knew that the dock master at the hotel and marina was very strict. Defendant, who said that he had only stopped by the hotel to check-in and eat some lunch that he had brought with him, admitted that he did not clear Bahamian customs, explaining that he returned to Bimini for the night after fishing in Great Isaac. That morning, he re-fueled before returning to the United States.

         While Agent Samples questioned Defendant as the vessel was being towed back to shore, the two other agents conducted a standard, cursory border search of the vessel but did not find anything illegal. Nevertheless, the agents again noticed the same anomalies regarding the loose screws and bolts around the leaning post near the center console and the deck cover, as well as missing and/or peeled caulking around the deck cover that demonstrated signs of recent tampering. Adding to the agents' suspicion was the overall poor condition of the vessel, which did not seem well-equipped for that type of voyage.

         Following Defendant's questioning, a determination was made by the agents on the voyage back to shore to tow the vessel for further inspection to a dock in Port Everglades that is used by the Broward County Sheriff's Office and law enforcement when they have interest in a vessel.[9] Upon their arrival, the agents began their inspection with the aid of a Broward County Sheriff's Office narcotics detection canine. During the ten to fifteen minute examination, the canine immediately alerted to the odor of narcotics in little airspaces near the fishing pole holders toward the rear of the boat, in the center console area, and in the access holes in the front bow on the right side of the vessel. The agents proceeded to remove the leaning post and deck cover over the fuel tank near the center console and noticed a loose section on top of the fuel tank, indicating a false compartment. Specifically, the agents observed that the fiberglass over the fuel tank moved along a seam as they stepped on it. After removing the fiberglass-covered metal plate, the agents discovered numerous packages commonly used to transport drugs and that ultimately yielded positive results for cocaine. Upon finding the suspected drugs, the agents placed Defendant under arrest and advised him of his Miranda rights. Defendant invoked his right to counsel and declined to answer any questions.

         Defendant moves to suppress all the physical and testimonial evidence obtained by the Government. See ECF No. [18]. The Government has filed its response. See ECF No. [25]. The Court held hearings on the Motion on June 1, 2018, and June 4, 2018. See ECF Nos. [31]-[32]. The Court's Order on the Motion now follows.

         II. LEGAL STANDARD

         Defendant moves to suppress the evidence against him pursuant to Federal Rule of Criminal Procedure 12(b)(3). “A motion to suppress must in every critical respect be sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented.” United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) (citing United States v. Smith, 546 F.2d 1275 (5th Cir. 1977)).[10] “In short, the motion must allege facts which, if proven, would provide a basis for relief. A court need not act upon general or conclusory assertions founded on mere suspicion or conjecture . . . .” Id. (citing United States v. Harrelson, 705 F.2d 733 (5th Cir. 1983)). While in certain well-defined situations the ultimate burden of persuasion may shift to the government upon an initial showing of certain facts by the defendant, “[i]t is well established that the burdens of production and persuasion generally rest upon the movant in a suppression hearing.” United States v. Lincks, No. 09-60187-CR, 2009 WL 3256745, at *3 (S.D. Fla. Oct. 7, 2009) (quoting United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977)).

         III. DISCUSSION

         Defendant contends that the search conducted on March 18, 2018, was illegal, that the placing of the warrantless GPS was an illegal search, and that the statements made by Defendant during the search on March 18, 2018, were obtained in violation of ...


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