UNITED STATES VS CARMONA2024 WL 2813287 (1st district 2024)

Ronald Carmona was in the fentanyl business. Unfortunately for him, Roy (one of his regular customers) became an informant. Roy only knew Carmona by the alias “Guy” and the two communicated via text message. Roy texted Guy his shopping list and Guy responded with a location where a courier would meet him with the drugs and collect payment. Roy never met Guy.

Roy cooperated with an investigation to uncover Guy’s identity. Roy made several controlled purchases that he arranged with Guy via text message. Roy was equipped with a hidden recording device and was given money to pay for each transaction. Agents observed each meeting between Roy and Guy’s messenger. After each purchase, agents picked up the recording device and the drugs purchased.

For the first controlled purchase, Roy sent Guy a text message to confirm the purchase of approximately 200 grams Fentanyl. Guy texted Roy with the address where he planned to meet Guy’s messenger. A few weeks later, Guy texted Roy that he had changed his phone number. Agents obtained a search warrant to locate the new phone. Not long after, Roy made a second controlled purchase of about 200 more grams of fentanyl.

Location data showed that the phone was frequently located in one apartment. The phone was also observed to be in a different apartment building for a few hours each night. Agents suspected that Guy lived in the first apartment and maintained a stash in the second. A few weeks later, Roy conducted two more controlled buys, one 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 with the meeting location.

A phone signal showed the phone was in the first apartment while agents were monitoring it. Agents saw a taxi arrive, and “Guy” came out with a cell phone and got into the taxi. An agent stopped the taxi and falsely claimed the driver had committed a traffic violation in order to find out Guy’s identity. Agents learned Carmona’s name and that he lived in an apartment on the third floor of the building he had just left.

The agents arranged a fifth controlled buy to identify Guy’s stash. The agents planned a “double deal” and wanted to demand more drugs after the first order. Roy asked for his usual amount of fentanyl. After the courier delivered, Roy asked for 10 more fentanyl sticks. The agents hoped to follow the courier to the stash, but were unable to do so.

Less than a week later, Guy told Roy he had changed his phone number again. Agents obtained a new ping warrant for that phone as well. An agent learned that Guy’s new phone was found in an apartment building and began surveillance. The agent saw Guy/Carmona leave the house as a car pulled up, hand the driver something, and then go back inside. The agent sent two uniformed officers to the house to determine which apartment Guy occupied.

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

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

Carmona was charged with five counts of fentanyl distribution and one count of conspiracy to distribute fentanyl. He asked the court to suppress evidence obtained during the traffic stop and search of his residence. Carmona claimed that the stop of the taxi that led to “Guy” being identified as Carmona was not supported by probable cause or reasonable suspicion. The court ruled that the stop was supported by reasonable suspicion and denied the motions for injunctive relief; the Court of Appeals agreed, finding that the Terry The stopping of the taxi was based on a well-founded, articulated suspicion.

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

The court found that the information, taken together, constituted reasonable suspicion for the stop and probable cause for the search warrant. Remember, courts are required to assess reasonable suspicion and probable cause by examining the totality of the information that officers rely on—not by looking at each factor individually and considering it in isolation. Reasonable suspicion, the court said, “deals with degrees of probability, not certainties or near-certainties.” The three-judge panel added, “Considering the totality of these circumstances and considering the agents’ conclusions, we find that the agents who stopped the defendant had a reasonable, articulable suspicion that the defendant was Guy—the unidentified fentanyl seller.”

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