Opinion
SA-23-CR-578-OLG
06-28-2024
UNITED STATES OF AMERICA, Plaintiff, v. ADRIAN AGUSTIN DEHOYOS, Defendant.
TO THE HONORABLE ORLANDO L. GARCIA UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns Defendant's Motion to Suppress. (See Docket Entry 28.)The District Court referred the motion to the undersigned for consideration (see Docket Text Entry dated February 24, 2024), and the parties presented evidence and argument on the motion at hearings held on March 26 and 28, 2024, and subsequently filed supplemental briefing on the issues presented (see Docket Entries 46, 47, 48, and 49). After careful consideration of the evidence and arguments presented, I recommend that Defendant's motion be DENIED.
The original motion was sealed, but a unsealed redacted version has also been filed. (Docket Entry 45.)
I. Jurisdiction.
The Court has original jurisdiction over this federal criminal case pursuant to 18 U.S.C. § 3231. The undersigned issues this report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
Defendant's motion to suppress concerns seizures made pursuant to a warrant in October of 2023. Drug Enforcement Agency (“DEA”) task force officers had received information about overdoses from fentanyl that Defendant was suspected of distributing from his apartment in San Antonio, Texas. (Docket Entry 46, at 10-11.) The task force officers relayed the information to the San Antonio Police Department Covert Unit. (Id. at 11.)
On the evening of October 16, 2023, unit officers went to Defendant's apartment complex; the officers had received information that in addition to Defendant, an individual named Christoper Coccaro was there with a stolen vehicle. (Docket Entry 46, at 11.) When the officers arrived, they located the vehicle parked at the apartment complex and confirmed from its license plate that it had in fact been stolen. (Id. at 12.) The officers established surveillance of the vehicle and placed a deflation device behind one of the tires to prevent anyone from using it to escape. (Id. at 1214.)
About two to three hours after surveillance started, officers saw Defendant and Coccaro enter the vehicle; Coccaro got into the driver's seat, and Defendant got into the passenger's seat. (Docket Entry 46, at 14-15.) When Coccaro backed the vehicle out of its parking space, the deflation device flattened a tire. (Id. at 15.) Defendant got out of the car to see what happened; after apparently seeing the deflation device, he immediately fled towards the paved walkway that led to his apartment. (Id at 16.) Officers quickly arrested both men-Coccaro while still in the vehicle, and Defendant near the walkway that led back to his apartment. (Id. at 16-17.) During the search of Defendant incident to his arrest, a methamphetamine pipe was found on his person. (Id. at 40.)
After the men were arrested, two officers, Detectives Jose Juarez and Matthew Robles, proceeded to Defendant's apartment.(Docket Entry 46, at 17, 41.) The apartment door did not open onto the parking lot where Defendant was arrested; instead, to reach the apartment door, the officers walked down the walkway and around to the other side of the building-a distance of approximately 35 yards. (See Docket Entry 28, at 17-18.)
Video footage from Detectives Juarez's and Robles's body cameras was admitted at the suppression hearing (see Gov't Exs. O and M, respectively), as was the body-camera footage from three other officers: Detectives Robert Hardeman (Gov't Ex. N), and Austin Dixon (Gov't L) and Sergeant Phillips (Gov't Ex. P). (See generally Docket Entry 49, at 2) (describing the video evidence). The camera footage is cited by exhibit number and time stamp; the parties do not dispute that the time stamps match on all the footage.
The officers knocked and the door was answered by Defendant's girlfriend, Rebecca Zimmer. (Docket Entry 46, at 18.) The officers asked Zimmer for identification, and she went into the back room to obtain it, eventually coming out with her purse. (Id. at 18, 20.) The officers then asked Zimmer if they could come inside to conduct a protective sweep of the apartment for other persons who may be present-as Officer Juarez described it, for “bodies and bodies only.” (Docket Entry 46, at 20-21; cf. Gov't Ex. N, at 22:36:33.) According to Juarez, Zimmer “agreed and said it was fine that we just looked for persons and persons only not to search for anything else other than for people.” (Docket Entry 46, at 22.) This interaction was partially captured on the officers' body cameras, but the entire audio was not recorded because of a 30-second delay when the body cameras are activated; on the audio, Zimmer is heard saying that there was no one else in the apartment. (Id. at 87, 132-33; see also Gov't Ex. M, at 22:36:40; Gov't Ex. N, at 22:36:42-44.)
Although only Detectives Juarez and Robles were immediately at the front door when consent to enter the apartment was obtained, between six and nine other officers were also present nearby, and many of them also immediately entered. (Docket Entry 46, at 61; see Gov't Exs, L, M, N, O, at 22:36:37.) Within moments of Detectives Juarez and Robles entering, Zimmer voiced objections, telling them “y'all don't all have to come in-you're just making sure there's no people” (Gov't Ex. N (Hardeman), at 22:36:46-47), and asking “what are you doing? You're [supposed to be] looking for bodies!” (id. at 22:36:51-52).However, as Zimmer never expressly told the officers to “leave my apartment,” the officers continued to conduct the sweep. (See Docket Entry 46, at 24, 32.) In conducting the sweep, different officers went through the same rooms- sometimes even running into each other. (See Gov't Exs. L, M, N, and O, at 22:36-37.) Detective Juarez explained that the Covert Unit has a procedure of using two officers to sweep each room, and to conduct a primary and secondary sweep of each room. (Docket Entry 46, at 23.) However, one of the officers, Sergeant Phillips appears to have come in to search well after the others had completed the sweep. (Gov't Ex. P, at 22:39-41.)
Zimmer later voiced additional objections, including voicing a concern that the officers did not have a warrant - and therefore that they did not “have a reason to be in here.” (Gov't Ex. O, at 22:42:25-22:42:29.)
While conducting the sweep, the unit officers saw drug residue and drug paraphernalia in plain view. (Docket Entry 46, at 24.) The officers' plain-view observations were captured in photographs that were introduced at the suppression hearing. (See id. at 26-32; see Gov't Exs. C-K.) In particular, the evidence shows that Detective Robles, one of the two officers who had obtained consent and one of the first to enter the apartment, immediately observed methamphetamine and paraphernalia on a dresser drawer and computer keyboard console. (Docket Entry 46, at 25-26, 29-30, 60; Gov't Exs. C, D, and G; Gov't Ex. M, at 22:36:40-45.)
The officers then engaged in a “fairly long” conversation with Zimmer, explaining that they had seen drugs, questioning her about Coccaro's presence at the apartment, and telling her they could not leave the drugs in the house, but would have to seize them or secure a search warrant instead. (Docket Entry 24, at 33, 49; see Ex. O, at 22:37-22:45, Ex. P, at 22:54:51-22:54:59.) Eventually during this conversation, Zimmer went outside to smoke a cigarette while the officers collected the drug residue they had observed. (Id. at 33-35; Ex. P., at 22:55-22:59.)
Within fifteen minutes of entering the apartment, unit officers relayed their observations to Detective Castillo, who was acting as the case agent that evening and who had remained by the stolen vehicle with the arrestees while the other officers entered the apartment. (Docket Entry 46, at 34, 56.) Castillo then relayed the information to DEA task force officer Hunter Westbrook, who prepared an affidavit in support of a state court search warrant for the apartment. (Id. at 34, 6668, 70-71; Gov't Ex. A.) The warrant was issued and served later that evening. (Docket Entry 46, at 34; Gov't Ex. B.) During the subsequent search, the officers discovered more than 120 grams of fentanyl and more than 35 grams of methamphetamine, as well as pipes, scales, and other paraphernalia for drug use or drug distribution. (Docket Entry 1, at 4-5.)
Defendant was initially arrested on state charges, but was eventually indicted in federal court on a charge of conspiracy to possess fentanyl with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846. (Docket Entries 1, 15.) Defendant moved to suppress the fruits of the state search warrant. (Docket Entries 28, 45.) The undersigned held hearings on the motion on March 26 and 28, 2024 (see Docket Entries 46 and 47), and received post-hearing briefing from both parties (see Docket Entries 48, and 49).
III. Analysis.
In his motion to suppress, Defendant advances two main arguments: (a) that officers procured the state search warrant for Defendant's apartment based on information obtained during the earlier, warrantless entry and search; and (b) that the good-faith exception to the exclusionary rule, established by United States v. Leon, 468 U.S. 897 (1984), would not apply because the warrant was obtained based on knowingly or recklessly false statements. (Docket Entry 28, at 1.)
Defendant also argues that exclusionary rule would not apply because the warrant affidavit was “practically barebones.” (Id. at 1.) Cf. Leon, 468 U.S. at 915. As defense counsel conceded at oral argument on the motion, however, the “barebones” issue arises only if the illegally-obtained evidence is removed from consideration of the warrant affidavit. (Docket Entry 47, at 23-24; cf. Docket Entry 48, at 10-11.)
This Report and Recommendation first considers the warrantless entry into the apartment, and then the allegedly false statements in the affidavit.
A. The Initial Warrantless Entry.
Under the Fourth Amendment, “a search of the house or office is generally not reasonable without a warrant issued on probable cause.” Maryland v. Buie, 494 U.S. 325, 331 (1990). There are, however, exceptions to this rule, “where neither a warrant nor probable cause is required.” Id. Two exceptions are relevant to the present case: (1) reasonably justified protective sweeps for officer safety, see id. at 335; and (2) searches by consent, see United States v. Matlock, 415 U.S. 164 (1974). This Report and Recommendation considers each exception in turn.
1. Protective sweep.
Although the warrant affidavit describes the initial search in this case as a protective sweep (see Gov't Ex. A, at 4), much of officers' conduct cannot be justified under this exception to the warrant requirement. Such sweeps may consist of no more than “a cursory inspection of those spaces where a person may be found,” and must last “no longer than necessary to dispel the reasonable suspicion of danger.” United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004) (en banc) (quoting Buie, 494 U.S. at 335-36), abrogated on other grounds by Kentucky v King, 563 U.S. 452 (2011). Here, the officers' entry into the apartment lasted long after it was apparent that no one else was in the apartment, and their inspection was far more than cursory, as it involved multiple officers, repeated entries into each room of the apartment, relatively lengthy questioning of Zimmer, and seizures of evidence. As Detective Juarez candidly admitted in his testimony, while the officers “initial intention was to look for any other persons,” once contraband was allegedly observed in plain view, “we're not just going to leave immediately.” (Docket Entry 46, at 59-60.) Accordingly, the protective-sweep exception to the warrant requirement cannot justify all the officers' conduct when searching the apartment
2. Consent.
At the hearing and in its briefing, the Government has not sought to justify the officers' actions solely under Buie's protective-sweep doctrine. (See Docket Entry 47, at 36.) Instead, the Government argues that the initial search was justified by Zimmer's consent. (See Docket Entry 49, at 9.)
The Government correctly notes that, when reviewing whether a search was justified by consent, the Court must examine four issues. (Docket Entry 49, at 9-10.) First, it must be shown there was actual consent, based on the totality of the circumstances. United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007). Second, the government must show that the consent was voluntary, also based on the totality of the circumstances. Id. at 832 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). Third, the Government must show that the search was within the scope of the consent. Freeman, 482 F.3d at 832. And finally, the Government must show that the consenting individual had authority to consent. Id.
In this case, three of the above for factors are not in serious question. There is no dispute that Zimmer had authority to consent: it is well settled that, absent unusual circumstances which are not present here, a co-occupant of a residence may consent to a search. See Fernandez v. California, 571 U.S. 292, 294 (2014) (discussing Georgia v. Randolph, 547 U.S. 103 (2006)). And there is little doubt that Zimmer did in fact consent: detective Juarez testified that Zimmer agreed to a protective sweep (Docket Entry 46, at 20-22), and his testimony was substantially corroborated by the body camera footage the Government introduced. (See Gov't Ex. M (Robles) at 22:36:40; Gov't Ex. N (Hardeman), at 22:36:42.) Additionally, the totality of the circumstances show that Zimmer's consent was voluntary. Zimmer was not in custody at the time she agreed to the sweep; the police did not act aggressively or coercively in seeking consent; Zimmer appeared to be cooperative up until the time of the search; she apparently understood her right to object to the search (particularly as measured by her later statements, see infra); she appeared to be of normal intelligence and have an understanding of the situation; and she stated that the officers would not find anyone, making it likely that she saw no adverse consequence from consenting to the sweep. Accordingly, under the factors identified in Freeman, 482 F.3d at 832, there is no basis upon which to find Zimmer's consent involuntary.
The real issue before the Court is the remaining factor-the scope of consent. “When the government relies upon consent as the basis for a warrantless search, ‘they have no more authority than they have apparently been given by the consent.'” United States v. Mendoza-Gonzalez, 318 F.3d 663, 666-67 (5th Cir. 2003) (citing WAYNE R. LAFAVE, SEARCH AND SEIZURE § 8.1(c) (3d ed. 1996 & Supp. 2003)). The scope of consent is governed by objective reasonableness: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). In applying this objective standard, “courts can look at the defendant's conduct to help determine the scope of a consensual search.” United States v. Gonzalez-Badillo, 693 Fed.Appx. 312, 315 (5th Cir. 2017) (quoting United States v. Maldonado, 38 F.3d 936, 940 (7th Cir. 1994)) “For example, ‘[a] failure to object to the breadth of the search is properly considered an indication that the search was within the scope of the initial consent.'” Gonzalez-Badillo, 693 Fed.Appx. at 315 (quoting Mendoza-Gonzalez, 318 F.3d at 670).
In this case, the record reveals that the scope of consent was extremely limited. The testimony and video evidence conclusively show that the agreed-upon search was for “bodies only”-i.e., for the presence of others in the apartment. (Docket Entry 46, at 20-21; cf. Gov't Ex. N, at 22:36:33.) Additionally, the Government fails to show that, when she consented, Zimmer could reasonably have believed that the search would be conducted by no more than the two officers with whom she was interacting. (See, e.g., Gov't Ex. L, at 22:36.)
The record also shows that the search the officers conducted exceeded the scope of Zimmer's consent. Instead of a quick sweep conducted by two officers, many officersdescended upon the apartment, repeatedly searching rooms that had already been searched, and-once contraband had been spotted-refusing to leave the apartment without making seizures. (See Docket Entry 46, at 59-60.) The officers' actions clearly went beyond the search to which Zimmer had agreed-a fact which is confirmed by her almost immediate objections to their conduct. (Gov't Ex. N (Hardeman), at 22:36:46-52.) Because the search exceeded “what . . . the typical reasonable person [would] have understood by the exchange between the officer[s] and the suspect,” Jimeno, 500 U.S. at 251 (1991), the Court should find that Zimmer's limited consent did not justify the full extent of the officers' search of the apartment.
Detective Juarez testified that “most of the whole unit” present at the scene entered into the apartment. (Docket Entry 46, at 61-62.)
A finding that the search exceeded the scope of Zimmer's consent does not end the matter, however. This is because contraband was seen in plain view during that portion of the search that was within the scope of consent-a brief, cursory sweep by the original officers, Detectives Juarez and Robles. Within seconds of entering-and before Zimmer voiced any objection-Robles had already looked at the dresser and the keyboard console where drug residue, pipes and other paraphernalia were plainly visible. (See Gov't Ex. M, at 22:36:40-45.)
In light of Zimmers' objections, the parties also dispute whether she revoked the consent after she gave it. (Docket Entry 48, at 9-10; Docket Entry 49, at 15-16.) But even assuming Zimmer did revoke her consent, Detective Robles had already seen drugs and paraphernalia in plain view before any such revocation.
While the remainder of the search exceeded Zimmer's consent, it was Robles' initial, plainview observations that provided the operative facts set out in the warrant affidavit. As the affidavit stated:
During the safety sweep, SAPD Detectives observed in plain view a small amount of methamphetamine to be sitting on top of a dresser within the residence. SAPD Detectives also observed methamphetamine residue to be on top of a table where a computer sat, along with multiple pipes that are used to smoke narcotics that were found in plain view throughout the apartment.(Gov't Ex. A, at 4.) Of these statements, the only portion that arguably reflected observations made in excess of Zimmer's consent is the statement that narcotic pipes were found “throughout the apartment,” as opposed to the pipes found in the first room Robles entered. (Id.) However, even if that portion is excised from the affidavit, it would not affect the probable-cause determination, or the reasonability of the decision to seek a search warrant. See United States v Hassan, 83 F.3d 693, 697 (5th Cir. 1996) (citing United States v. Restrepo, 966 F.2d 964 (5th Cir. 1992)).
Accordingly, although it appears that the officers' search violated the Fourth Amendment by exceeding the scope of Zimmer's consent (and the legitimate scope of a protective sweep), the search warrant and the subsequent seizures were not fruits of that violation.
Even when a warrant is found to be the fruit of an illegal search, the Fifth Circuit has held that suppression is not appropriate if two conditions are met: (1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant was “close enough to the line of validity” that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct; and (2) the resulting search warrant was sought and executed by a law enforcement officer in good faith as prescribed by Leon. See Massi, 761 F.3d at 528 (applying two-prong test); United States v. Fulton 928 F.3d 429, 435-36 (5th Cir. 2019) (discussing Massi). Because the warrant in this case was not the fruit of an illegal search, the Court need not reach this issue. Cf. Massi 761 F.3d at 525 n.3 (assuming that “the fruit of the poisonous tree doctrine applies” for purposes of its analysis).
B. False Statements in the Affidavit .
Defendant also argues that, even if the warrant was not a fruit of a prior illegal search, the good-faith exception to the exclusionary rule is inapplicable here. The good-faith inquiry concerns the “question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.” Leon, 468 U.S. at 923 n.23. Applying the good-faith exception does not resolve whether a constitutional right has been violated; it is simply a judicial determination that, because the officer reasonably relied on the warrant in good faith, exclusion of evidence does not advance the interest of deterring unlawful police conduct. United States v. Massi, 761 F.3d 512, 525 (5th Cir. 2014) (citations omitted). Accordingly, if the goodfaith exception applies, courts generally need not reach the question of probable cause for the warrant. United States v. Gentry, 941 F.3d 767, 779 (5th Cir. 2019).
The good-faith exception to the exclusionary rule does not apply, however, “when the issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false.” United States v. Beverly, 943 F.3d 225, 232-33 (5th Cir. 2019) (citation omitted); see, e.g., Leon, 468 U.S. at 923. To evaluate purported falsehoods in the warrant affidavit, courts apply the standard from Franks v. Delaware, 438 U.S. 154 (1978); under that standard a defendant must show that (1) allegations in a supporting affidavit were deliberate falsehoods or made with reckless disregard for the truth, and (2) the remaining portion of the affidavit is not sufficient to support a finding of probable cause. See United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006) (discussing Franks).
In this case, Defendant argues that the following statements in the warrant affidavit were deliberately or recklessly false: that Defendant was “running towards his apartment” when he was arrested by the officers, but was taken into custody “prior to . . . entering his apartment,” and that the officers contacted Zimmer at the apartment “due to [Defendant's] attempting to re-enter his apartment.” (Gov't Ex. A, at 4; see Docket Entry 28, at 8; Docket Entry 48, at 10.) Defendant has some justification in making these arguments-after all, it was speculative to aver that Defendant was “attempting to re-enter his apartment” when he was detained more than 100 feet away from the apartment door, and had not even reached the path that could lead to that door (as well as to other areas).
The Government argues that, because Officer Westbrook, the affiant for the warrant, was not on the scene of the arrests that night, he could not have made false statements either intentionally or with reckless disregard for their veracity. (Gov't Ex. 49, at 7.) The Government cites no authority for this argument, which appears contrary to the Fifth Circuit's repeated admonitions that an “otherwise uninformed officer should [not] serve as an affiant solely to enable a police department to deploy the ‘collective knowledge doctrine . . . as a subterfuge to evade probable cause requirements.'” Reitz v. Woods, 85 F.4th 780, 795 n.10 (5th Cir. 2023) (quoting United States v. Webster, 750 F.2d 307, 323 (5th Cir. 1984)). It is for this reason that the court of appeals has consistently reminded “police departments to ‘seek to provide magistrates with warrant applications from the law enforcement official most directly involved in the investigation and most directly involved with the facts stated in the affidavit.'” Michalik v. Hermann, 422 F.3d 252, 259 n.6 (5th Cir. 2005) (quoting Bennett v. City of Grand Prairie, Tex. 883 F.2d 400, 407 (5th Cir. 1989)); see also Reitz, 85 F.4th at 795 n.10.
However, even if these statements were removed from the warrant affidavit, there would still be sufficient information from which to find probable cause. The remaining information includes that the DEA had been investigating Defendant for months prior to the search (Govt Ex. A, at 3); that “numerous interviews” with unnamed cooperating defendants had revealed that Defendant was “responsible for the distribution of methamphetamine, fentanyl, and other illegal narcotics” from his apartment (id.); that both Zimmer and Coccaro had been associated with drug distribution from the same apartment that was searched (id.); that Zimmer and Coccaro were both present at the apartment complex at the time of Defendant's arrest, with Coccaro in possession of a stolen vehicle (id. at 3-4); that narcotics were seized from the vehicle (id. at 4); and finally, that drugs and drug pipes were seen in plain view within the apartment (id.). These facts, viewed in their totality, were more than enough to “warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237, 243 (2013) (brackets omitted) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). After all, probable cause requires only “the kind of ‘fair probability' on which ‘reasonable and prudent people, not legal technicians, act.' ” Harris, 568 U.S. at 244 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In short, even after removing the allegedly false statements, the facts in the affidavit were more than enough to support a “fair probability” that drugs would be found at the apartment. Accordingly, suppression is not appropriate here.
IV. Conclusion and Recommendation.
Based on the foregoing, I recommend that the Defendant's Motion to Suppress (Docket Entry 28) be DENIED.
V. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length.
An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v Arn, 474 U.S. 140, 149-52 (1985); Acuna v Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).