United States v. Gomes

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, Chief Judge.

         Defendant Leandro Gomes (“Gomes”) was indicted for one count of conspiracy to sex traffic a child, in violation of 18 U.S.C. § 1594(c); one count of sex trafficking a child, in violation of 18 U.S.C. §§ 2, 1591(a)(1), (a)(2)(b), (b)(2) and (c); and two counts of transporting a minor interstate with intent to engage in criminal sexual activity, in violation of 18 U.S.C. §§ 2423 (a), (b). Gomes moves to suppress (“Motion”) (ECF No. 55) his arrest, the search of his vehicle, all tangible evidence that law enforcement officers seized on April 17, 2017, and the subsequent search of his iPhone 5, on the basis that they are the product of a warrantless arrest without probable cause. The Court held an evidentiary hearing on the Motion on May 24 and 29, 2018 (“Hearing”). After considering the evidence and the parties' arguments, for the following reasons, the Motion is denied.

         I. Background

         At the Hearing, the government offered the testimony of Detective Michael Iacone and Sergeant Lori Sweeney, both with the Special Victims Unit of the Cranston Police Department, and Officer Brian Corvese, also with the Cranston Police Department. The Court finds the following facts from their testimony.

         On April 11, 2017, Detective Iacone received an anonymous tip that two juveniles were possibly involved in prostitution through Backpage.com (“Backpage”) advertisements.^[1] (Hr'g 1 Tr. 12:4-17, ECF No. 67.) On April 12, Detective Iacone, in conjunction with Special Agent Donaghy of Homeland Security, searched for and located a Backpage advertisement for the victim, a seventeen-year-old minor female named “NB.” (Id. at 13:4-9.) The advertisement referenced NB as “H3nny, ” and provided revealing pictures of her and a cell phone number. (Id. at 16:18-20.)

         Sometime before noon, Detective Iacone texted “H3nny” using the phone number provided on her Backpage advertisement to arrange an “in call” “date” for commercial sex.^[2] (Hr'g 1 Tr. 19:1-10, 20:9-11, 21:1-6.) Detective Iacone testified that he intended his text message to identify solely where the prostitution was occurring. (Id. at 25:12-15.) Later that day, H3nny called Detective Iacone and specified an address of 15 Esten Street in Providence, Rhode Island. (Id. at 26:24-25, 27:1-4.) Around noon, officers cancelled that date with H3nny and took up a surveillance position in a parking lot where they had a clear vantage point of the 15 and 20 Esten Street area. (Id. at 27:24-25; 28:1-10.) 20 Esten Street was significant to officers because it was Defendant Leandro “Leo” Gomes's home, which was diagonal from 15 Esten Street, the anticipated “date” location. (Id. at 30:5-11, 32:15-19.)

         At approximately 1:00 p.m., officers observed five individuals, three males and two women, exit 20 Esten Street. (Id. at 33:18-19.) Officer Iacone testified that he identified one of the women as the victim, “NB, ” by a distinct, upper-chest tattoo that he recognized from her Facebook page. (Id. at 33:20-25, 34:1-9.) After exiting the home, the men began working on a black Nissan Infiniti (“black Infiniti”), with a Texas registration plate, HPC4386.^[3] (Id. at 34:19-21, 35:1-15.) Around 1:30 p.m., the two females and two of the men got in the vehicle and drove away. (Id. at 37:3-5.)

         Once the officers completed the surveillance, they returned to the station where they ran the vehicle's registration plate; information on it could not be gleaned from either the computer database normally used by Cranston Police Department or the Texas Department of Motor Vehicles. (Id. at 41:3-25, 42:1.) Officers also learned that NB was missing from a Department of Children, Youth and Families facility in Newport, Rhode Island, and that the second woman seen exiting 20 Esten Street was Andrea, an 18-year-old female recently released from the Rhode Island Training School. (Id. at 42:2-21.)

         Around 1:30 p.m. on April 17, officers re-engaged with NB through text message using a different cell phone number, again trying to solicit a “date” with her. (Id. at 43:22-25, 44:18-20.) Officers successfully arranged an “out call date” for a “two girl special” for $500, which was to occur at an undercover apartment at 825 Pontiac Avenue in Cranston, Rhode Island, where Officer Iacone, Special Agent Donaghy, Detective Lee, and another Homeland Security Agent were positioned. (Id. at 44:9-12, 47:23-25, 48:1-13.) Other state and local police officers surveilled outside the apartment. (Id. at 51:4-7.) While on the way to the apartment, H3nny called the officers twice, once for directions and a second time to inform them she had arrived. (Id. at 49:15-20, 50:1-6.)

         Once the officers knew that H3nny was in the vicinity of the undercover apartment, they radioed outside surveillance to look out for a “dark-colored sedan heavily tinted with this Texas plate” or a “black Maxima tinted with Texas Plates.” (Id. at 51:16-24; Hr'g 2 Tr. 52:19-21, ECF No. 68.) Sergeant Sweeney surveilled the apartment from an undercover police vehicle parked directly across the street. (Hr'g 2 Tr. 52:22-25, 53:1-8.) He testified that:

[O]nce [Detective Iacone] said that [H3nny and a second female] should be here, I observed a black tinted out what appeared to be a Maxima with Texas plates pass by my location. . . . I could see the . . . front passenger only. The window was completely down. It was a white female, brown hair. She was on the phone. She was kind of looking around and then focused to the entrance of the apartment complex.

(Id. at 53:25, 54:1-10.)

         Sergeant Sweeney lost sight of the vehicle once it passed. (Id. at 55:1-5.) Soon afterwards, she observed the white female passenger and a second female enter the apartment building, and radioed Officer Iacone to inform him. (Id. at 55:17-18.) Once the two females, one of whom Officer Iacone identified as NB, entered the apartment, they were taken into custody. (Hr'g 1 Tr. 52:10-15.) The other female identified herself as Justine Marzilli, who officers believed was twenty-eight to twenty-nine years old. (Id. at 52:22-25, 53:1-6.) Officers transported both females to the Cranston Police Station, where they were booked. (Id. at 54:7-10.)

         After arresting NB and Ms. Marzilli, Officer Iacone radioed outside surveillance units to move in on the black Infiniti. (Id. at 53:21-25, 54:1.) Sergeant Sweeney testified that shortly after the females' arrest, Officer Corvese radioed in that he had located the vehicle idling on Dixwell Avenue, approximately 200 feet from the main entrance of the apartment complex. (Hr'g 2 Tr. 32:12-25, 33:1-6, 56:15-25, 57:1.) Officer Corvese ran the vehicle's registration and learned that it did not match the vehicle. (Id. at 32:25, 33:1-3.) He pulled behind the vehicle and made contact with the driver, Gomes, who was alone and looking down at his cell phone. (Id. at 33:4, 34:4-5, 36:6-9, 37:22-24.) Officer Corvese could not tell what Gomes was doing on his phone, but it was illuminated. (Id. at 37:22-25, 38:1-6, 40:11-19.) Upon Officer Corvese's arrival and at his request, Gomes rolled down the driver-side window and provided a valid license, issued in his name.^[4](Id. at 36:13-15, 37:2-8.) Officer Corvese testified that Gomes appeared visibly nervous, stuttering as he spoke. (Id. at 38:9-17.) Gomes informed Officer Corvese that he was in the area to drop off a friend; he could not, however, provide an exact name or location for the friend. (Id. at 38:25, 39:1-11.) While Officer Corvese spoke with Gomes, Sergeant Sweeney and other agents arrived on the scene. (Id. at 40:1-4.) At Sergeant Sweeney's direction, Officer Corvese arrested Gomes for pandering. (Id. at 40:5-10.) Officer Corvese testified that he seized two cellphones from Gomes (the iPhone 5 and a white Samsung). (Id. at 40:20-25.) Around 6:00 p.m. on April 17, Gomes was taken to the police station and booked. (Id. at 12:14-21.)

         While at the police station, Ms. Marzilli told Officer Iacone that the juvenile had visited the apartment to engage in commercial sex and that she was there for her protection. (Hr'g 1 Tr. 54:19-21, 55:3-9.) Officer Iacone testified that, later that day the victim asked to retrieve two phone numbers from her cellphone, one for her mother, and another for her “uncle, ” “Uncle Sincere.” (Id. at 56:3-12.) Officer Iacone knew the name Sincere from a previous investigation related to minor sex trafficking.^[5] (Id. at 56:18-25.) Gomes was released from custody that evening on a $5, 000 personal recognizance bond; police, however, retained his two cellphones. (Hr'g 2 Tr. 10:24-25, 11:1; Hr'g 1 Tr. 57:22-24.) On April 20, three days after his arrest, officers obtained search warrants for both of Gomes's phones. (Hr'g 1 Tr. 58:10-13, 60:4-6.) Officers could not obtain any information from the iPhone 5, because it had a passcode that officers could not unlock. (Id. at 59:2-22.) Officers did gain access to the Samsung, but it lacked any data or information. (Id. at 59:23-25, 60:1-3.)

         On April 24, Agent Iacone and Agent Donaghy visited the victim, NB, at the Rhode Island Training School. (Id. at 60:7-10.) NB told them how she became involved in prostitution and that Gomes and his co-defendant would take her to multiple locations in Rhode Island, Massachusetts, and New York to have sex for money. (Id. at 60:16-25, 61:1-2.) On May 10, 2017, officers used this information to obtain federal search warrants issued by Magistrate Judge Sullivan for Gomes's iPhone 5. (Id. at 61:6-8, 13-16.)

         Gomes was later arrested and charged with four counts of sex tracking ...