United States District Court, D. Rhode Island
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
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