Small Puzzle Pieces Add Up to Probable Cause

by | June 26, 2024

United States v. Carmona, 2024 WL 2813287 (1st Cir. 2024)

Ronald Carmona was in the business of selling fentanyl. Unfortunately for him, Roy (one of his regular customers) became a confidential informant. Roy only knew Carmona by the pseudonym “Guy” and the two communicated by text message. Roy messaged his shopping list to Guy and Guy responded with a location where a runner would meet him with the drugs and take payment. Roy never met with Guy.

Roy cooperated with an investigation to uncover Guy’s identity. Roy made several controlled buys arranged by text with Guy. Roy was wired with a hidden recorder and was provided money to pay for each transaction. Agents watched each meeting between Roy and Guy’s runner. After each buy, agents retrieved the recording device and the purchased drugs.

For the first controlled buy, Roy texted Guy to arrange the purchase of approximately 200 grams of fentanyl. Guy texted Roy the address for meeting Guy’s runner. A few weeks later, Guy sent a message telling Roy he had changed his phone number. Agents obtained a warrant for phone ping locations on the new phone. Not long after, Roy made a second controlled buy of approximately 200 additional grams of fentanyl.

Location data revealed that the phone was frequently at a residence. The phone was also observed to be at a different residential building for a few hours each night. The agents surmised Guy resided at the first residence and maintained a stash house at the second. A few weeks later, Roy completed two more controlled buys a week apart. The day before each meeting, Roy texted Guy to order 20 sticks (approximately 200 grams) of fentanyl. The day before each controlled buy, Guy texted Roy designating the meeting location.

A phone ping showed the phone was at the first residence while agents were surveilling it. The agents saw a taxicab arrive and “Guy” walked out carrying a cell phone and climbed into the taxicab. An agent stopped the taxicab, falsely claiming the driver had committed a traffic violation, to try to learn Guy’s identity. The agents learned Carmona’s name and that he lived in a third-floor apartment in the building he had just left.

Agents arranged a fifth controlled buy to try to identify Guy’s stash house. The agents planned a “double deal,” intending to ask for more drugs once the initial order was filled. Roy requested his usual quantity of fentanyl. Once the runner delivered, Roy asked for 10 more sticks of fentanyl. The agents hoped to follow the runner to the stash house but were not able to do so.

Less than one week later, Guy let Roy know he had changed his phone number once again. Agents obtained a new ping warrant for that phone as well. An agent learned Guy’s new phone was located at a multifamily residence, and he began surveillance. The agent saw Guy/Carmona leave the house as a car pulled up front, hand something to the driver, then go back into the house. The agent sent two uniformed officers into the house to determine which apartment Guy was occupying.

An officer knocked on the door of the second-floor apartment. Guy answered and the officer told him he was seeking a fictitious individual. Guy responded that the person did not live there. He told the officer, “I’m the only person that lives here. No one lives here. Only me.”

After obtaining a search warrant, agents went to the second-floor apartment and once again found Guy/Carmona home. Agents found $1,555 in cash, the phone used to contact Roy, and two jewelry receipts. One receipt identified the defendant as the buyer and listed that same phone as Carmona’s telephone number.

Carmona was charged with five counts of distribution of fentanyl and one count of conspiracy to distribute fentanyl. He asked the trial court to suppress evidence obtained during the traffic stop and the search of his apartment. Carmona claimed the stop of the taxicab that led to “Guy” being identified as Carmona was not supported by probable cause or reasonable suspicion. The trial court ruled the stop was supported by reasonable suspicion and denied the suppression motions; the appellate court agreed, finding the Terry stop of the taxi was based on articulable reasonable suspicion.

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Carmona claimed there was no basis to believe he was involved in criminal activity at the time that he got into the taxi. The court cited the following factors known to the agents: Carmona (as Guy) arranged (by way of text message) fentanyl sales with Roy on three occasions prior to the stop; location data from a ping warrant of Carmona’s phone showed the phone was frequently at the residence Carmona left just before the stop; an agent saw Carmona at the residence during subsequent surveillance; and on the day of the stop, agents surveilling the apartment (based on location information that Guy’s phone was there) saw Carmona leave the residence with a phone in his hand and get into the taxi.

The court held the pieces of information added up to reasonable suspicion for the stop and provided probable cause for the search warrant. Remember that courts are required to assess reasonable suspicion and probable cause by examining the totality of the information relied upon by officers — not by separating each factor and considering it in a vacuum. Reasonable suspicion, according to the court, “deals with degrees of likelihood, not with certainties or near certainties.” The three-judge panel added: “Considering the totality of these circumstances and giving due weight to the inferences drawn by the agents, we hold that the agents who stopped the defendant possessed a reasonable, articulable suspicion that the defendant was Guy — the unidentified fentanyl seller.”

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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