United States v. Mendoza-Trujillo

Full title: UNITED STATES of America, v. Javier MENDOZA–TRUJILLO.

Court: United States District Court, D. Utah, Central Division.

Date published: Sep 2, 2014

46 F. Supp. 3d 1204 (D. Utah 2014)

Opinion

Case No. 2:13–CR–762 DN.

09-02-2014

UNITED STATES of America, v. Javier MENDOZA–TRUJILLO.

Vernon G. Stejskal, U.S. Attorney's Office, Salt Lake City, UT, for United States of America. Benjamin A. Hamilton, Utah Federal Defender Office, Salt Lake City, UT, for Javier Mendoza–Trujillo.

DAVID NUFFER, District Judge.

Vernon G. Stejskal, U.S. Attorney's Office, Salt Lake City, UT, for United States of America.Benjamin A. Hamilton, Utah Federal Defender Office, Salt Lake City, UT, for Javier Mendoza–Trujillo.

MEMORANDUM DECISION AND ORDER GRANTING MOTION TO SUPPRESS

DAVID NUFFER, District Judge.

This order grants Javier Mendoza–Trujillo's Motion to Suppress.¹ An evidentiary hearing was held on May 29–30, 2014.² As directed, the parties submitted draft decisions.³ Argument was heard August 14, 2014.⁴ This Memorandum Decision and Order is entered after thorough review and consideration of the evidence presented, draft decisions and argument at the hearing. FINDINGS OF FACT

1 Docket No. 26, amended by Docket No. 41.

2 Docket Nos. 52–53.

3 Government's Proposed Findings of Fact and Conclusions of Law Re: Defendant's Motion to Suppress, docket no. 60, filed July 7, 2014; (Defendant's proposed) Memorandum Decision and Order, docket no. 61, filed July 28, 2014.

4 Minute Entry, docket no. 64, filed August 14, 2014.

Incident and First Contact with Officers

In the early morning hours of October 30, 2013, three armed men confronted Ismael Mendoza–Trujillo in the driveway of his brother Javier's residence at 7133 West Chula Vista Drive in West Valley City, Utah.⁵ One of the assailants, armed with an automatic pistol, entered the house and went into the master bedroom where Maria del Socorro Mendoza–Trujillo (Javier's wife) and two small children were lying down.⁶ Javier was in the bathroom at the time, brushing his teeth.⁷ Ismael was still outside, fighting with the other two assailants.⁸ Ismael saw that one of the armed men had entered the home.⁹ Ismael was able to get away from the other two men that he was fighting with and ran into the house because he was fearful for his brother, Javier, and Maria and the children.¹⁰ Wearing only his sweatpants, Javier came out of the bathroom¹¹ to find the assailant pointing a pistol at his wife.¹² Crying, Maria yelled for Javier and then jumped out of the bedroom window.¹³ Maria ran to the downstairs tenants, yelling and screaming to call 911.¹⁴

5 Transcript of evidentiary hearing on Motion to Suppress (“Transcript”), p. 32, lines 16–19, p. 257, lines 16–18, p. 258, lines 6–15, docket nos. 56 and 63, filed June 12, 2014 and August 7, 2014, respectively.

6 Transcript, p. 32, lines 11–15, p. 62, lines 1–2, p. 212, lines 3–4, p. 259, lines 13–14; Exhibit BB, p. 17, lines 14–18.

7 Exhibit BB, p. 3, lines 11–15, p. 18, lines 9–12; Transcript p. 62, line 3.

8 Transcript, p. 258, lines 9–25, p. 259, line 1.

9 Transcript, p. 17, lines 17–19.

10 Transcript p. 17, lines 12–23; Transcript, p. 48, lines 2–17; Transcript p. 258, line 24—p. 259, line 4.

11 Transcript, p. 278, lines 21–25, p. 279, lines 1–5.

12 Exhibit BB, p. 3, lines 15–16, p. 4, lines 1–3.

13 Transcript, p. 62, lines 7–8, p. 212, lines 16–18; Exhibit BB, p. 18, lines 16–22.

14 Transcript, p. 41, lines 12–13, p. 62, lines 8–10, p. 212, lines 13–15.

Javier and Ismael engaged the assailant, trying to wrestle away the pistol.¹⁵ Javier and Ismael fought the armed assailant for some time, somewhere between eight and 20 minutes,¹⁶ ultimately disarming the assailant and immobilizing the assailant with a chokehold after tumbling down the stairs.¹⁷ The other two armed assailants never entered Javier's residence and ran away before the police arrived.¹⁸ Medical personnel were dispatched and took the armed assailant to the hospital, where the assailant was placed on life support, and dies from his injuries two days later.¹⁹ West Valley City police were dispatched, and officers began arriving at Javier's house around 5:30 in the morning.²⁰ The first officers to arrive cleared the home, secured the scene, and made sure all of the adults, including Javier, were placed in a common area with an instruction not to talk to each other.²¹ Eventually, detectives with Critical Incidents and the Major Crimes response team were dispatched, arriving between 6:30–6:45 a.m.²² Detective Pittman arrived at 7:10.²³

15 Exhibit BB, p. 4, lines 10–23.

16 Exhibit BB, p. 6, lines 21–23; Transcript, p. 50, lines 12–14, p. 260, line 18.

17 Exhibit BB, p. 8, lines 21–25, p. 20, lines 4–10, p. 22, lines 11–25, p. 23, lines 1–2; Transcript, p. 259, line 22.

18 Transcript, p. 18, lines 14–16, p. 258, lines 9–16, p. 259, lines 1–2.

19 Transcript, p. 1824–25, p. 19, lines 1–8, p. 42, lines 3–9.

20 Transcript, p. 201, lines 4–10.

21 Transcript, p. 201, lines 17–25, p. 202, lines 1–6.

22 Transcript, p. 16, lines 15–25, p. 36, lines 21–25, p. 98, lines 13–15.

23 Transcript, p. 138, lines 12–16.

The Major Crimes detective, Detective Stanworth, testified to the proper protocol when responding to a home invasion type of crime where one party is seriously injured:²⁴ the scene must be secured, the scene must be processed for forensic evidence, and the involved parties need to be interviewed.²⁵ Detective Stanworth further testified it is common practice to conduct interviews at the police station in major cases.²⁶ This way, he said, the scene can be properly processed and the interviews can be recorded, both audio and video.²⁷

24 Transcript, p. 16, lines 23–25.

25 Transcript, p. 19, lines 15–18, p. 20, lines 1–13.

26 Transcript, p. 23, lines 11–12.

27 Transcript, p. 23, lines 13–19.

At the time Javier's house was being processed by the forensics team, the focus of the police investigation was to ascertain who the two escaping assailants were, who the injured assailant was, and simply to determine what had just happened.²⁸

28 Transcript, p. 20, lines 19–25.

Transport to Police Station

The five adults (Javier, Ismael, Maria, and the two tenants in the basement apartment) were told they needed to go to the police station.²⁹ Detective Stanworth testified that he could not “necessarily say what these individuals were told, but in this situation we just tell them that due to the nature of the crime we need to interview them in a more formal setting so that the interview is recorded so that we can have a good account of the interview.”³⁰ In response to a question whether they “agreed” to come to the station and submit to an interview, he stated that he “was not made aware of any complaints or hesitation on their part to come to the station.”³¹ However, Javier testified that he specifically asked if he had to go to the police station, and was told it was necessary for him to do it (go to the station for the interview).³² And Detective Pittman testified he was assigned to explain to Javier and others “that they need to go back to the police station to talk to us....”³³ Thus, Detective Stanworth, Detective Pittman and Javier concur that the officers described the change of location as “necessary.” No one testified that options were presented.

29 Transcript, p. 29, lines 7–10.

30 Transcript, p. 24, line 24 to p. 25, line 3.

31 Transcript, p. 25, lines 4–7.

32 Transcript, p. 281, lines 22–25, p. 282, line 1.

33 Transcript, p. 39, lines 5–6. See also Transcript, p. 44, lines 2–6.

Javier was taken to the police station by Officer Cowan.³⁴ Javier was placed in the back seat, behind the cage, in Officer Cowan's vehicle.³⁵ The back doors of Officer's Cowan's vehicle cannot be opened from the inside.³⁶ Prior to leaving the house, but after placing Javier behind the cage, Officer Cowan asked Javier if he had his driver's license.³⁷ Javier did not have his license with him. Officer Cowan left Javier in the back seat, went to the house, and acquired Javier's ID from another officer.³⁸

34 Transcript, p. 203, lines 20–22.

35 Transcript, p. 204, lines 11–16.

36 Transcript, p. 204, lines 17–21c.

37 Transcript, p. 205, lines 1–7.

38 Transcript, p. 205, lines 10–15.

Upon arriving at the police station, all five adults were kept separated to prevent their respective testimony from being tainted by someone else's perception.³⁹ At the time Javier was taken to the police station, Detective Stanworth said Javier was not viewed as a suspect but rather viewed strictly as a victim.⁴⁰ Detective Pittman was asked to interview Javier, Ismael, and Maria, because he was one of three Spanish-speaking detectives with West Valley City police and the individuals were more comfortable speaking in Spanish.⁴¹

39 Transcript, p. 24, lines 1–7.

40 Transcript, p. 25, lines 8–18, p. 43, lines 1–8.

41 Transcript, p. 26, lines 6–8, p. 38, lines 3–5.

Placement in Interview Room

Javier arrived at the West Valley City police station at 7:58 a.m.⁴² Javier was put into an interview room sometime before 9:07 a.m. when video recording began,⁴³ and not moved from the interview room until taken to forensics for fingerprints, DNA, and photographs.⁴⁴ Javier sat alone in the interview room for nearly 90 minutes, watched by someone in the viewing room.⁴⁵ Once inside the police station, all five of the adults, including Javier, needed permission to walk around, use the restroom, or otherwise leave the interview room.⁴⁶

42 Transcript, p. 310, line 11.

43 The video recording is Exhibit AA. It has captions in English. The transcript of the video in English is Exhibit BB. The times on the video are different than the times indicated on the paper exhibits as evidenced by comparing the documents and the video time-stamp. Detective Pittman explained the anachronism between the documents and the video, as Detective Pittman used his iPhone for the time. Transcript, p. 95, lines 17–25, p. 96, lines 1–25, p. 97, lines 1–7.

44 Transcript, p. 60, lines 2–4.

45 Exhibit AA; Transcript, p. 45, lines 17–24.

46 Transcript, p. 30, lines 3–5, p. 207, line 25, p. 208, lines 1–3, p. 225, lines 22–25, p. 226, line 1, p. 252, lines 19–25, p. 253, lines 1–4, p. 264, lines 16–25, p. 265, lines 1–8, p. 282, lines 24–25, p. 283, line 1.

First Interview Segment

Detective Pittman testified his original intent when he started interviewing Javier was for the purpose of investigating the home invasion robbery.⁴⁷ Detective Pittman said that when he began his interview of Javier “there was no speculation of drugs.”⁴⁸ Detective Pittman began interviewing Javier at 10:32 a.m.⁴⁹ by stating “I want you to tell me from the beginning to end everything that happened. You can start wherever you want, and tell me everything that happened complete. Don't give me lies, everything that happened.”⁵⁰ Javier explained the home invasion and the ensuing fight between the armed assailant, himself, and Ismael.⁵¹ Despite being asked several times why the attack occurred, Javier consistently answered he did not know.⁵²

47 Transcript, p. 68, lines 8–10.

48 Transcript, p. 137, lines 3–4.

49 Exhibit AA–1.

50 Exhibit AA, 10:33:05–25, 153847–154453, 01:25:34–54; Exhibit BB, p. 2, lines 23–25, p. 3, lines 1–2.

51 Exhibit BB, pp. 3–11, pp. 13–16, pp. 22–23.

52 Exhibit BB, p. 28, lines 16–20, p. 38, line 14.

Detective Pittman refused to believe this was simply a random home robbery, stating his personal belief the armed assailant “was looking for something.”⁵³ Detective Pittman said that he would not investigate if Javier was doing “something illegal.”⁵⁴ After listing a litany of possibilities as to why Javier's residence was targeted, Detective Pittman expressed his disbelief in Javier's version,⁵⁵ telling Javier “I just want to know the truth. Why were they there? And I know you know why they were there.”⁵⁶ Detective Pittman held fast to his belief that Javier was lying, yelling at Javier to “[t]ell me the truth!”⁵⁷ Javier's response was equally as vehement “That is the truth!”⁵⁸

53 Exhibit AA, 10:57:37–58:01, 197970–198692, 1:50:06–30; Exhibit BB, p. 27, lines 12–13.

54 Exhibit AA, 10:57:37–58:01, 197970–198692, 1:50:06–30; Exhibit BB, p. 27, lines 14–15.

55 Exhibit AA, 10:59:45, 201810, 01:52:14; Exhibit BB, p. 28, line 22.

56 Exhibit AA, 10:59:34–68, 501464–589, 1:52:02–07; Exhibit BB, p. 28, lines 15–17. See also Exhibit BB, p. 29, lines 21–24, p. 30, lines 9–10.

57 Exhibit AA, 11:01:53–56, 205637–748, 01:54:22–25; Exhibit BB, p. 30, line 9, p. 31, line 9.

58 Exhibit AA, 11:01:53–56, 205637–748, 01:54:22–25; Exhibit BB, p. 30, line 10, p. 31, line 10.

Execution of Consent to Search Cell Phone

After a discussion about Javier's wallet, how Detective Pittman was paid by check and not in cash, and whether or not Javier had contraband in his house,⁵⁹ Detective Pittman asked Javier if he had his cell phone with him.⁶⁰ Detective Pittman then asked Javier if Javier used his “cell phone after all this happened?”⁶¹ Javier responded “no”⁶² as he was only wearing sweatpants when all this happened.⁶³ Since Javier's son may have used Javier's phone to take a photo of the armed assailant,⁶⁴ Detective Pittman told Javier he wanted “two things. First, I want to get the information off your cell phone like that picture or a text or a history of the calls, things like that so I can verify if you are telling me the truth.”⁶⁵ Detective Pittman told Javier it was possible “to say no.”⁶⁶ In response, Javier asked if he was going to be arrested for hitting the armed assailant.⁶⁷

59 Exhibit AA, 11:01:56–04:17, 205748–209974, 01:54:24–56:46; Exhibit BB, p. 30, lines 11–25, p. 31, lines 1–3.

60 Exhibit AA, 11:04:23, 210149, 01:56:52; Exhibit BB, p. 32, lines 21–23.

61 Exhibit AA, 11:04:29, 210308, 01:56:57; Exhibit BB, p. 32, lines 24–25.

62 Exhibit AA, 11:04:29–34, 210328–462, 01:56:58–57:03; Exhibit BB, p. 33, line 1.

63 Exhibit AA, 11:04:29–34, 210328–462, 01:56:58–57:03; Exhibit BB, p. 33, line 3.

64 Exhibit AA, 11:04:39–45, 210618–797, 01:57:08–14; Exhibit BB, p. 33, lines 6–12.

65 Exhibit AA, 11:05:04–31, 211358–212164, 01:57:33–59; Exhibit BB, p. 33, lines 17–21.

66 Exhibit AA, 11:05:26, 212016, 01:57:54; Exhibit BB, p. 33, lines 23–25.

67 Exhibit AA, 11:05:34, 212281, 01:58:03; Exhibit BB, p. 34, lines 2–3.

Q. Okay. I want—what I want to do is two things. First I want to get the information off your cell phone like that picture or a text or a history of the calls, things like that so I can verify if you are telling me the truth. Okay, of this case.

A. Yes.

Q. Can I do it? You can say no to me. I'm just asking you permission to do it.

A. Okay.

Q. Can I do it?

A. Like all this, are you going to arrest me for having hit him?

Q. No, no, no, no. You are a victim. Why would I arrest?⁶⁸

68 Exhibit BB, p. 33, lines 17–25, p. 34, lines 1–5.

Detective Pittman told Javier “No, no, no, no. You are a victim.”⁶⁹ Javier was not pacified. Javier stated, with interruptions by Detective Pittman, “I feel like—like if I have done something wrong, and that's why you have to arrest me.”⁷⁰ Although the issues of texts or calls had not been broached in the interview at the time, Detective Pittman stressed his need to verify what Javier told him and the need to see inside Javier's cell phone.⁷¹ The following exchange took place:⁷²

69 Exhibit AA, 11:05:38, 323396, 01:58:07; Exhibit BB, p. 34, line 4.

70 Exhibit AA, 11:05:50, 212743, 01:58:19; Exhibit BB, p. 34, lines 8–11.

71 Exhibit AA, 11:05:52–07:13, 212807–215220, 01:58:21–59:41; Exhibit BB, p. 34, lines 19–25, p. 35, lines 1–8.

72 Exhibit AA, 11:05:52–07:27, 212807–215657, 01:58:21–59:59; Exhibit BB, p. 34, lines 19–25, p. 35, lines 1–15.

Q (Pittman): Also, I have to verify what you told me, so then one of those verifications is I want to see inside your cell phone to see if have the picture. I want this picture. And you told me that you never made a call after. I want to verify that. I want to verify that you didn't do a text or made any calls saying, hey, I hit this guy and I was going to kill him or something like that.

I want to verify because when we go to court, that guy, I want to talk to the judge to tell, no, he told me the truth. He told me he didn't do a text, and there is not a text. He told me he didn't do a phone call, and there is not a call. He told me that he took a picture and, yes, there was a picture. Well, okay. Is that fine?

A (Javier): But right now what are you going to do with me? Are you detaining me?

Q: You?

A: Uh-huh.

Q: Once we finished talking, you can go back to your house.

A: But I do feel like if I were

Detective Pittman continued to interview Javier, asking why Javier was the victim of this home invasion.⁷³ Detective Pittman claimed, based on his experience, “every investigation that I have done about drugs or money, every one.”⁷⁴ Pressing Javier, Detective Pittman repeated “I want to know why these guys were there.”⁷⁵ Javier repeated “I don't know.”⁷⁶

73 Exhibit BB, p. 35–38.

74 Exhibit AA, 11:12:11, 224175, 02:04:40; Exhibit BB, p. 38, lines 4–5.

75 Exhibit AA, 11:12:44, 225169, 02:05:13; Exhibit BB, p. 38, lines 12–13.

76 Exhibit AA, 11:12:48, 225265, 02:05:17; Exhibit BB, p. 38, line 14.

Detective Pittman returned to the issue of the phone, repeating his request for Javier's consent to “look inside your cell phone for pictures to see if you did texts or made any calls after.”⁷⁷ Javier agreed.⁷⁸ Detective Pittman then gathered specific information about Javier's phone,⁷⁹ ultimately learning that the photo was taken using Javier's wife's (Maria's) phone.⁸⁰ Nonetheless, Detective Pittman filled out the consent to search form to look for “texts or for data or for pictures and for the call history”⁸¹ on Javier's phone.

77 Exhibit AA, 11:12:55–13:02, 225477–225700, 02:05:24–31; Exhibit BB, p. 38, lines 15–18.

78 Exhibit AA, 11:13:04, 225741, 02:05:32; Exhibit BB, p. 38, line 19.

79 Exhibit BB, p. 38, lines 20–25, p. 39, lines 1–23.

80 Exhibit BB, p. 40, lines 4–6.

81 Exhibit AA, 11:15:00–22, 229242–899, 02:0729–51; Exhibit BB, p. 40, lines 6–8;Transcript, p. 40, lines 7–8.

Detective Pittman then had Javier complete specific lines⁸² on the West Valley City Police Department Consent to Search form⁸³ while continuing to talk with Javier about the case.⁸⁴ Detective Pittman did not translate the form from English to Spanish.⁸⁵ Detective Pittman did not explain to Javier that he (Javier) had a constitutional right to refuse or withhold consent.⁸⁶

82 Exhibit AA, 11:15:32, 230200, 02:08:01; Exhibit BB, p. 40, lines 8–9; Exhibit AA, 11:16:59, 232811, 02:09:28; Exhibit BB, p. 41, lines 9–11.

83 Exhibit 1; Transcript, p. 74, line 25, p. 75, lines 1–13.

84 Exhibit BB, p. 40, lines 10–25, p. 41, lines 1–9, 13–25.

85 Exhibit AA.

86 Id.

The consent form was executed at 1133.⁸⁷ After signing the form as instructed by Detective Pittman, Javier inquired as to the whereabouts of his son,⁸⁸ and then requested to use the bathroom.⁸⁹

87 Exhibit 1. See n. 43, supra, for an explanation of this different time format.

88 Exhibit AA, 11:17:48–18:21, 234276–235245, 02:10:17–50; Exhibit BB, p. 41, lines 13–20.

89 Exhibit AA, 11:18:22–25, 235277–362, 02:10:51–53; Exhibit BB, p. 41, lines 21–25.

Bathroom Break

Detective Pittman told Javier he could use the restroom, and then stepped out of the room.⁹⁰ The video counter shows the time Detective Pittman left the room to be approximately 11:18:17.⁹¹ An officer escorted Javier to and from the bathroom.⁹² Detective Pittman reentered the interview room at approximately 11:22:45⁹³ to ask Javier his cell phone number.⁹⁴ The number Javier gave Detective Pittman was not the same as the number Detective Pittman wrote on the Consent to Search form.⁹⁵ Detective Pittman left the interview room at approximately 11:24:33.⁹⁶

90 Exhibit AA, 11:18:22–25, 235277–362, 02:10:51–53; Exhibit BB, p. 41, lines 23–25.

91 Exhibit AA–1.

92 Transcript, p. 71, lines 4–12.

93 Exhibit AA–1.

94 Exhibit BB, p. 42, lines 2–12.

95 Exhibit 1; Exhibit BB, p. 42, line 11.

96 Exhibit AA–1.

Execution of Consent to Enter House for Cell Phone

Detective Pittman reentered the interview room at approximately 12:31:41.⁹⁷ He told Javier there were not “any detectives at your house right now”⁹⁸ and said he wanted permission to enter Javier's house to look for the cell phone.⁹⁹

97 Exhibit AA–1.

98 Exhibit AA, 12:31:52, 367462, 03:24:21; Exhibit BB, p. 43, lines 11–12.

99 Exhibit AA, 12:31:52–32:08, 367462–926, 03:24:21–37; Exhibit BB, p. 43, lines 12–15; Transcript, p. 75, lines 23–25, p. 76, lines 1–3.

The statement about the absence of officers at the home is inconsistent with the other facts developed at the hearing. Detective Sean McCarthy received a call around 10:00–10:15 a.m. and he arrived at Javier's residence around 11:00 a.m.¹⁰⁰ Detective Averett was already at Javier's residence when Detective McCarthy arrived.¹⁰¹ Detective McCarthy sat outside Javier's residence until around 3:00 p.m.¹⁰² However, the downstairs tenant noted that seven to ten officers were inside the house.¹⁰³

100 Transcript, p. 147, lines 14–15.

101 Transcript, p. 147, lines 18–24.

102 Transcript, p. 150, lines 2–3.

103 Transcript, p. 253, lines 16–23.

In answer to Detective Pittman's request to enter the house to look for the cell phone, Javier repeatedly responded “whatever you want.”¹⁰⁴ After Detective Pittman repeated his request to enter Javier's house, Javier said “Yeah, that's fine. How much longer I'm going to be here?”¹⁰⁵ Detective Pittman replied “I hope not much longer. I think maybe 30 minutes or an hour or so or maybe more than that.”¹⁰⁶

104 Exhibit AA, 12:32:34–57, 368712–369414, 03:25:03–26; Exhibit BB, p. 44, lines 3–4, line 12.

105 Exhibit AA, 12:33:13, 369897, 03:25:42; Exhibit BB, p. 44, lines 17–18.

106 Exhibit AA, 12:33:17–21, 369993–370114, 03:25:45–50; Exhibit BB, p. 44, lines 19–21.

Javier asked then about a drink of water, photographing his injuries, and food.¹⁰⁷ Detective Pittman chuckled, replying that he had not eaten either.¹⁰⁸ Detective Pittman then presented Javier with another Consent to Search form, claiming the search will be limited to the bedroom for the purposes of finding Javier's phone.¹⁰⁹ The form does not specify the master bedroom. It states consent to search “7133 W. Chula Dr., Cell phone” was voluntarily given.¹¹⁰ Detective Pittman told Javier “[l]ike I explained to you before, you can put your name, your date of birth, and your signature”¹¹¹ on the form. The second Consent to Search was executed at 1251.¹¹²

107 Exhibit AA, 12:33:32–34:06, 370466–371463, 03:26:01–35; Exhibit BB, p. 44, lines 24–25, p. 45, lines 1–9; Transcript, p. 130, lines 21–25, p. 131, lines 1–5.

108 Exhibit AA, 12:34:08–10, 371547–868, 03:26:38–48; Exhibit BB, p. 45, lines 10–13.

109 Exhibit BB, p. 45, lines 19–20.

110 Exhibit 2.

111 Exhibit AA, 12:35:00, 373092, 03:27:29; Exhibit BB, p. 45, lines 17–18.

112 Exhibit 2.

Javier mentioned wanting to take a shower, and wanted to know if Detective Pittman would be taking him home, or if someone else needed to be called.¹¹³ Rather than answer yes or no, Detective Pittman stated “[w]hen you are finished here, you can go back to your house.”¹¹⁴ Javier asked about his children.¹¹⁵ Detective Pittman left the room at approximately 12:36:26.¹¹⁶

113 Exhibit AA, 12:35:27–45, 373914–374451, 03:27:56–28:14; Exhibit BB, p. 46, line 1–5.

114 Exhibit AA, 12:35:48, 374521, 03:28:17; Exhibit BB, p. 46, lines 6–7.

115 Exhibit AA, 12:35:51–36:16, 374620–375376, 03:28:20–45; Exhibit BB, p. 46, lines 8–16.

116 Exhibit AA–1.

Execution of Third Consent Form

Detective Pittman reentered the interview room at approximately 13:11:40.¹¹⁷ Detective Pittman explained he needed a DNA sample and fingerprints from Javier.¹¹⁸ With a third Consent to Search form,¹¹⁹ Detective Pittman told Javier to write his name, date of birth, and signature.¹²⁰ This Consent to Search form was executed at 1331.¹²¹ Detective Pittman asked Javier if he was okay, needed to use the bathroom, or needed water.¹²²

117 Exhibit AA–1.

118 Exhibit AA, 13:12:44–13:43, 440965–442725, 04:05:14–06:12; Exhibit BB, p. 47, lines 16–25, p. 48, lines 1–19; Transcript, p. 77, lines 10–13.

119 Exhibit 3.

120 Exhibit AA, 13:14:55, 444881, 04:07:24; Exhibit BB, p. 48, line 25, p. 49, line 1.

121 Exhibit 3.

122 Exhibit AA, 13:15:43–16:13, 446329–447208, 04:08:13–42; Exhibit BB, p. 49, lines 8–9.

Javier had asked for water earlier,¹²³ but Detective Pittman had forgotten.¹²⁴ Detective Pittman left the interview room at approximately 13:16:13,¹²⁵ and reentered the interview room with water at approximately 13:18:48.¹²⁶

123 Exhibit BB, p. 44, lines 24–25.

124 Exhibit AA, 13:15:43–16:13, 446329–447208, 04:08:13–42; Exhibit BB, p. 49, lines 11–12.

125 Exhibit AA–1.

126 Exhibit AA–1.

In Forensics

At approximately 13:21:57,¹²⁷ Detective Pittman removed Javier from the witness room for the purpose of taking Javier to forensics for fingerprints, obtaining a DNA sample, and photographing Javier's injuries.¹²⁸ Javier, Ismael, and Maria were taken to forensics together,¹²⁹ although kept separated.¹³⁰ The conversations that occurred in forensics and the execution of the fourth consent to search were not recorded.¹³¹

127 Exhibit AA–1.

128 Exhibit BB, p. 49, lines 17–24.

129 Transcript, p. 127, lines 7–8, 18–24.

130 Transcript, p. 58, lines 17–19.

131 Transcript, p. 81, lines 24–25, p. 82, lines 1–4.

While waiting for the fingerprints, DNA sample and photographs, Detective Pittman kept talking to Javier, “again, talking about why he thought someone would break into his residence and rob him.”¹³² Javier “kept on telling” Detective Pittman “he didn't know, that he would like to know, also.”¹³³ Detective Pittman did not believe the home invasion was “just a random act.”¹³⁴ Instead, Detective Pittman believed the home invasion was “for a specific reason, to take or to, it could have been a debt, Javier owed them money, there could be something. He could keep large quantities of cash in his house. It's unknown, and [Detective Pittman] wanted to know why these people picked [Javier's] residence.”¹³⁵ Detective Pittman “continued to talk to Javier in regards to why these people broke in. I keep saying people. These suspects broke into his residence, why they broke into his residence. It was a continuation of talking to Javier in that aspect of the case.”¹³⁶

132 Transcript, p. 80, lines 8–10.

133 Transcript, p. 80, lines 12–13.

134 Transcript, p. 80, line 15.

135 Transcript, p. 80, lines 15–20.

136 Transcript, p. 82, lines 7–11.

Execution of Fourth Consent Form

As a result of Detective Pittman's continuing interview of Javier at forensics, a fourth consent to search was presented.¹³⁷ By this point in time, Detective Pittman had spoken with Detective Dowland about the investigation of drugs.¹³⁸ Detective Dowland had asked Detective Pittman to obtain this fourth consent to search to get into Javier's house to look for “the speculation there might be—or the reason behind why the robbery took place,”¹³⁹ such as “the drugs and the money.”¹⁴⁰

137 Transcript, p. 79, lines 21–24, p. 82, lines 5–12.

138 Transcript, p. 122, lines 8–11.

139 Transcript, p. 122, lines 24–25.

140 Transcript, p. 122, lines 12–17, p. 137, lines 6–12.

This fourth consent to search asked for Javier's permission to search Javier's residence for a cell phone, items used in the assault, drugs, and money.¹⁴¹ This consent to search was not read to Javier,¹⁴² nor was it translated from English to Spanish and explained.¹⁴³ Javier was not told he could refuse to sign the fourth consent to search.¹⁴⁴ In fact, the only time Detective Pittman told Javier he could say no to a request to search was early in the discussion of the first consent to search.¹⁴⁵

141 Exhibit 4; Transcript, p. 80, lines 23–25, p. 81, lines 4–5.

142 Transcript, p. 283, lines 20–22.

143 Transcript, p. 283, lines 23–25.

144 Transcript, p. 284, lines 1–3.

145 Transcript, p. 289, lines 15–23; Exhibit BB, p. 33, line 23.

Javier testified that prior to signing the fourth consent to search, he asked to speak to an attorney.¹⁴⁶ Javier said that Detective Pittman told Javier an attorney was not needed because Javier was the victim and was not being arrested.¹⁴⁷ In contrast, Detective Pittman testified that Javier did not raise the issue of an attorney¹⁴⁸ and that he, Detective Pittman, did not mention an attorney when this form was signed.^{149 150} Detective Pittman did not testify as to what he told Javier about counsel, just as to what he would say if a person in Javier's position raised the issue of an attorney.¹⁵¹ Javier's version of the facts is more credible.At the time Detective Pittman had Javier execute the fourth consent to search, he (Detective Pittman) did not have any information that drugs or large amounts of currency were at Javier's residence.¹⁵² Detective Pittman did not gain this information (the presence of drugs or large amounts of currency) until after Javier's house was searched.¹⁵³ The consent to search was executed at 1405.¹⁵⁴

146 Transcript, p. 284, lines 17–19.

147 Transcript, p. 284, lines 20–23, p. 296, lines 12–18.

148 Transcript, p. 363, lines 23–25; p. 364, lines 16–17.

149 Transcript, p. 364, lines 11–15.

150 [missing text]

151 [missing text]

152 Transcript, p. 137, lines 6–11.

153 Transcript, p. 137, lines 12–14.

154 Exhibit 4; Transcript, p. 137, lines 10–12.

After Javier filled out the fourth consent to search, Detective Pittman handed the consent form to Detective Dowland, who was also inside the forensics area¹⁵⁵ and in charge of the drug investigation.¹⁵⁶ When Detective Dowland received the consent forms, Javier had not had his fingerprints taken, the DNA swab done, and photographs were not yet taken of his injuries.¹⁵⁷

155 Transcript, p. 82, lines 23–25, p. 83, lines 1–2.

156 Transcript, p. 119, lines 20–23.

157 Transcript, p. 83, lines 16–21.

Detective Dowland and others were going to perform the “consent search to retrieve the phone and look for other evidence in the assault and for the motive behind the home invasion being possibly drugs, money, or whatever else, whatever reason it was for the home invasion.”¹⁵⁸

158 Transcript, p. 83, lines 4–8.

Victim Advocates

After Javier had been processed at forensics, Detective Pittman offered to walk Javier, Ismael, and Maria to the victim advocates.¹⁵⁹ At that instant, Detective Pittman testified the three were free to leave.¹⁶⁰ They did not have to talk with victim advocates—if they wanted to leave, Detective Pittman offered to drive them somewhere, they could have found their own ride, or Detective Pittman was going to provide a phone so they could call someone.¹⁶¹

159 Transcript, p. 84, 12–25, p. 85, lines 1–6.

160 Transcript, p. 86, lines 8–14.

161 Transcript, p. 86, lines 15–17.

Search of the Home

Around 3:00 p.m., Detective Dowland and Lieutenant McClennon arrived at Javier's residence.¹⁶² They informed Detective McCarthy that consent to search the residence had been obtained.¹⁶³ Detective McCarthy was not shown a copy of the consent to search form.¹⁶⁴ Entering through the unlocked front door, the three police officers went to the master bedroom and began to search.¹⁶⁵ At that time, Detective McCarthy had been told “some sort of home invasion robbery had occurred,”¹⁶⁶ and that based on the interviews at the police station, “[i]t wasn't a random act of violence. The belief was that there was something illegal in the master bedroom.”¹⁶⁷ The three began to search the bedroom for illegal items, including finding items of drug packaging materials behind the headboard and large amounts of currency in the closet within a few minutes of starting the search.¹⁶⁸ Upon finding the items, the officers stopped searching.¹⁶⁹ Detective McCarthy was requested to write a search warrant for the residence, using the kitchen table to type the affidavit.¹⁷⁰

162 Transcript, p. 150, lines 7–9.

163 Transcript, p. 150, lines 9–10.

164 Transcript, p. 150, lines 11–12.

165 Transcript, p. 150, lines 22–25, p. 151, lines 1–4.

166 Transcript, p. 151, lines 8–10.

167 Transcript, p. 151, lines 11–15.

168 Transcript, p. 151, lines 21–25.

169 Transcript, p. 152, lines 4–6.

170 Transcript, p. 152, lines 6–14.

Resumption of Interviews

Approximately ten (10) minutes after Detective Pittman left Javier, Ismael, and Maria with the victim advocates, Detective Pittman received a phone call from Detective Dowland.¹⁷¹ Detective Dowland reported drugs had been located inside Javier's residence.¹⁷² Detective Dowland asked Detective Pittman to find Javier and bring him back to the interview room.¹⁷³ Detective Pittman did as requested, going to the victim advocates office, and asking if Javier was still there.¹⁷⁴ Javier, Ismael, and Maria were still there, never having left the police station. Detective Pittman took all three back to where they were initially interviewed, returning Javier to the interview room.¹⁷⁵ When Javier was returned to the interview room, the recording began again, starting at approximately 14:15:42.¹⁷⁶

171 Transcript, p. 88, lines 20–21.

172 Transcript, p. 88, lines 22–23.

173 Transcript, p. 89, lines 4–6.

174 Transcript, p. 89, lines 9–13.

175 Transcript, p. 89, lines 17–21, p. 90, lines 3–4.

176 Exhibit AA–1; Transcript, p. 90, lines 5–7.

Detective Pittman told Javier “the other detectives ... called ... and they said that they found things; drugs, money inside the clothes here in the house.”¹⁷⁷ Detective Pittman then asked Javier “Do you want to cooperate and talk to me about that?”¹⁷⁸ Javier responded “I am addicted to cocaine.”¹⁷⁹ Detective Pittman expressed disbelief or inability to hear, and Javier repeated his statement about being addicted to cocaine.¹⁸⁰ Following Javier's statements about cocaine, Detective Pittman explained Javier's rights.¹⁸¹ Detective Pittman then asked if Javier wanted to continue talking.¹⁸² Javier asked for his attorney.¹⁸³

177 Exhibit BB, p. 50, lines 4–7; Transcript, p. 90, lines 10–12.

178 Exhibit BB, p. 50, lines 12–13.

179 Exhibit BB, p. 50, line 14; Transcript, p. 90, line 12.

180 Exhibit BB, p. 50, lines 15–18.

181 Exhibit BB, p. 50, lines 19–25, p. 51, lines 1–2; Transcript, p. 90, lines 13–14.

182 Exhibit BB, p. 51, lines 3–4.

183 Exhibit BB, p. 51, line 5; Transcript, p. 90, lines 16–19.

Detective Pittman then left the interview room at 14:54:22.¹⁸⁴ After some time passed, Javier asked to use the restroom.¹⁸⁵ Detective Pittman reminded Javier of his request for an attorney, and repeated the Miranda warning, asking Javier if he understood his rights.¹⁸⁶ Javier said he understood, but continued talking to Detective Pittman.¹⁸⁷ It was somewhere between 7:00 p.m. and 9:00 p.m. that Javier and Detective Pittman talked outside of the interview room.¹⁸⁸ Javier had not been given anything to eat—Javier did not get any food until 10:30 or 11 o'clock at night.¹⁸⁹

184 Exhibit AA–1; Exhibit BB, p. 51, line 19; Transcript p. 90, lines 21–22.

185 Exhibit BB, p. 51, line 21.

186 Transcript, p. 92, lines 5–9.

187 Transcript, p. 92, lines 10–12.

188 Transcript, p. 93, lines 1–4, p. 94, line 1.

189 Transcript, p. 130, lines 11–22.

DISCUSSION

This order finds that Mr. Mendoza–Trujillo was illegally seized and held in custody, and that all evidence which was obtained as a result of that illegal seizure must be suppressed, including evidence obtained from searches which were conducted based upon consent given during and as a result of the illegal seizures. The legal conclusions regarding voluntariness of the consent forms are provided in the alternative.

I. Mr. Mendoza–Trujillo Was Illegally Seized

A. Legal Framework

The Fourth Amendment protects “the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”¹⁹⁰ The Fourth Amendment serves to protect individuals against “unreasonable searches and seizures.”¹⁹¹

190 Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quotation omitted).

191 United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

Whether “a person has been seized within the meaning of the Fourth Amendment”¹⁹² is based upon the totality of the circumstances. Only if, in light of all of the factors surrounding the event in question, “a reasonable person would have believed that he was not free to leave,”¹⁹³ can it be said that the police seized a person within the meaning of the Fourth Amendment. Stated differently, “[s]o long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual.”¹⁹⁴ In light of the circumstances surrounding the police encounter, the key question to determine whether a person has been seized is whether “the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”¹⁹⁵

192 Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

193 Id.

194 Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

195 Id. at 437, 111 S.Ct. 2382 (quotation omitted); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Prior to Terry, seizures of persons were analyzed in terms of arrest, for which “the requirement of probable cause ... was treated as absolute.”¹⁹⁶ The holding in Terry and subsequent cases carved out exceptions to the Fourth Amendment's prohibition on government intrusion into personal security.¹⁹⁷

196 Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

197 See Michigan v. Summers, 452 U.S. 692, 699, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) ; United States v. Brignoni–Ponce, 422 U.S. 873, 886–87, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

Beyond narrowly defined exceptions to the Fourth Amendment prohibition on unreasonable seizures, any other seizure of any individual is deemed an arrest and “must be supported by the “long-prevailing standards” of probable cause.”¹⁹⁸ “The requirement of probable cause has roots that are deep in our history,”¹⁹⁹ and represent the “best compromise”²⁰⁰ between the opposing interests of protecting citizens from unreasonable interference with privacy and law enforcement's need for “fair leeway” when enforcing laws for the “community's protection.”²⁰¹

198 Dunaway, 442 U.S. at 212, 99 S.Ct. 2248 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ).

199 Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

200 Dunaway, 442 U.S. at 208, 99 S.Ct. 2248.

201 Id.

Not every police-citizen encounter is a seizure within the meaning of the Fourth Amendment. The variety and circumstances of police-citizen interactions are too numerous and varied to be listed or specifically defined. Courts must consider the particulars of each case while retaining “their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.”²⁰²

202 Terry, 392 U.S. at 15, 88 S.Ct. 1868.

The Tenth Circuit recognizes three types of police-citizen encounters:

(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by reasonable suspicion of criminal activity; and (3) arrest, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.²⁰³

203 United States v. Fox, 600 F.3d 1253, 1257 (10th Cir.2010).

In evaluating whether a person has been seized, courts consider several factors, including:

(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of a person's personal effects; (6) a request to accompany the officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.²⁰⁴

204 Fox, 600 F.3d at 1258 (citing United States v. Rogers, 556 F.3d 1130, 1137–38 (10th Cir.2009) ). See also United States v. Jones, 701 F.3d 1300, 1313 (10th Cir.2012) (setting forth eight factors to consider when contemplating whether an individual has been seized).

Of course, whether or not the individual was told by the officers he was free to leave is also relevant.²⁰⁵ “No single factor is dispositive, and this list is not exhaustive.”²⁰⁶

205 Fox, 600 F.3d at 1258.

206 Fox, 600 F.3d at 1258 (citing Rogers, 556 F.3d at 1138 ).

While not conclusive, the “strong presence of two or three factors may be sufficient to support the conclusion a seizure occurred.”²⁰⁷ For example, in Fuerschbach v. Southwest Airlines Co., a seizure occurred when an individual was confronted by two “uniformed and armed police officers, told of an outstanding arrest warrant, ordered to accompany the officers, and finally handcuffed and led forcibly toward an exit.”²⁰⁸ Under those conditions, a reasonable person would not have felt free to terminate the encounter with law enforcement officials.²⁰⁹

207 United States v. Lopez, 443 F.3d 1280, 1284–85 (10th Cir.2006).

208 Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1203 (10th Cir.2006).

209 Id.

A detention can start out consensual or investigative and quickly transform into an arrest,²¹⁰ or the detention can effectively be an arrest from the outset, even if not labeled as such by the police. “The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion ... is termed an ‘arrest’ under state law.”²¹¹

210 See Florida v. Royer, 460 U.S. 491, 502–03, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (what began as consensual inquiry “escalated into investigatory procedure in a police interrogation room,” where defendant was never informed he was free to leave, and as a practical matter, was under arrest).

211 Dunaway, 442 U.S. at 212, 99 S.Ct. 2248.

No bright-line rule exists to determine precisely when a police encounter transforms from something consensual or legitimately investigative to a de facto arrest. While the inquiry is case-specific, courts examine whether the investigative detention was “(1) justified at its inception, and (2) reasonably related in scope to the circumstances which justified the interference in the first place.”²¹² If the detention fails this two-prong test, the seizure “becomes an arrest that must be supported by probable cause,”²¹³ or consent.²¹⁴

212 United States v. Salas–Garcia, 698 F.3d 1242, 1248 (10th Cir.2012) (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868 ).

213 United States v. Neff, 300 F.3d 1217, 1220 (10th Cir.2002) ; Salas–Garcia, 698 F.3d at 1248 (citing Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir.2010) ).

214 United States v. Melendez–Garcia, 28 F.3d 1046, 1051 (10th Cir.1994).

Transportation Has Great Significance

In some instances, the police-citizen encounter exceeds the “permissible limits of those temporary seizures.”²¹⁵ A “line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.”²¹⁶ “Transportation of a defendant to the police station cannot be justified absent probable cause to believe the defendant committed a crime.”²¹⁷ The Sixth Circuit has been clear: “officers cross the line from an investigatory stop into an arrest when they place a suspect in a police vehicle for questions.”²¹⁸ No Supreme Court case has “sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes, whether for interrogation or fingerprinting, absent probable cause or judicial authorization.”²¹⁹ When police, absent a warrant or probable cause, take an individual from his home and transport him to the police station, where briefly detained for investigative purposes, the seizure, “at least where not under judicial supervision, [is] sufficiently like [an] arrest[ ] to invoke the traditional rule that arrests may constitutionally be made only on probable cause.”²²⁰

215 Hayes v. Florida, 470 U.S. 811, 815, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985).

216 Hayes, 470 U.S. at 816, 105 S.Ct. 1643 ; United States v. Gonzalez, 763 F.2d 1127, 1133 (10th Cir.1985).

217 United States v. Shareef, 100 F.3d 1491, 1508 (10th Cir.1996).

218 United States v. Butler, 223 F.3d 368, 375 (6th Cir.2000). See also Kaupp v. Texas, 538 U.S. 626, 630, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (taking individual to police station for questioning is “sufficiently like arrest to invoke the traditional rule that arrests may constitutionally be made only on probable cause”).

219 Hayes, 470 U.S. at 815, 105 S.Ct. 1643.

220 Id. at 816, 105 S.Ct. 1643.

Retention of Identification is Significant

In the context of a traffic stop, the Tenth Circuit applies a bright-line rule that a detention may not be deemed consensual unless the driver's documents have been returned to him.²²¹ Retention is significant if law enforcement conduct as perceived by a reasonable person would communicate that the person was not free to ignore law enforcement requests and end the encounter.²²² The encounter may become consensual if the officer returns the license and registration and asks questions without further constraining the person by an overbearing show of authority.²²³ While this case did not involve a traffic stop, Detective Pittman's retention of Javier's driver's license coupled with accusatory and coercive questioning would have conveyed to a reasonable person that he was not free to go.

221 United States v. Guerrero–Espinoza, 462 F.3d 1302, 1309 & nn. 7–8 (10th Cir.2006) (collecting cases).

222 Id. at 1309.

223 Id. at 1308.

Length of Detention is Significant

The Supreme Court has stated that investigative detentions that are not based on probable cause must be supported by “reasonable suspicion” and must be “brief.” For example, Terry v. Ohio ²²⁴ “involved a brief, on-the spot stop on the street and a frisk for weapons.”²²⁵ Similarly, other cases applying Terry approved only brief detentions. In United States v. Brignoni–Ponce, ²²⁶ the Court approved brief stops by roving border patrol agents to check for illegal immigrants. The stops usually lasted less than a minute and involved a brief question or two.²²⁷ Thus, the investigative detentions in Terry and Brignoni–Ponce were upheld because of the limited nature of the intrusion.²²⁸

224 392 U.S. 1, 88 S.Ct. 1868.

225 Dunaway, 442 U.S. at 209, 99 S.Ct. 2248.

226 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

227 Dunaway, 442 U.S. at 210–211, 99 S.Ct. 2248.

228 Dunaway, 442 U.S. at 211, 99 S.Ct. 2248.

In this case, Javier was not briefly detained, but was held for hours, under circumstances indistinguishable from an arrest. The nature of the intrusion was great, and not “carefully tailored to the rationale justifying it.”²²⁹

229 Dunaway, 442 U.S. at 209 n. 11, 99 S.Ct. 2248.

Witness Status Is Not Significant

The Fourth Amendment's prohibition against unreasonable seizures applies whether the individual is deemed a suspect or a witness. “Witness detentions are confined to the type of brief stops that interfere only minimally with liberty.”²³⁰ When a “presumptive rule of unconstitutionality applies,” as when police cross the threshold into an individual's home or place an individual in the back of a police car without consent, “probable cause remains a categorical requirement.”²³¹ To permit witnesses to be forcibly taken to the police station via a patrol car or the like “would stand the Fourth Amendment on its head.”²³² Exceptions to the requirement of warrants and probable cause must be “jealously and carefully drawn.”²³³

230 Manzanares v. Higdon, 575 F.3d 1135, 1145 (10th Cir.2009) (quoting Illinois v. Lidster, 540 U.S. 419, 427, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) ).

231 Id., 575 F.3d at 1145 (citing Georgia v. Randolph, 547 U.S. 103, 115, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ).

232 Id. at 1146.

233 Randolph, 547 U.S. at 109, 126 S.Ct. 1515 (quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958) ).

B. Javier Mendoza–Trujillo Was Illegally Seized

Javier was seized in direct contravention of the Fourth Amendment when he was forced into the back of a police car for transport to the police station. The Supreme Court has “never ‘sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to the police station and his detention there for investigative purposes ... absent probable cause or judicial intervention.’ ”²³⁴ As outlined below, Javier was involuntarily taken, via police car, to the police station without probable cause or judicial intervention.

234 Kaupp, 538 U.S. at 630, 123 S.Ct. 1843 (quoting Hayes, 470 U.S. at 815, 105 S.Ct. 1643 ) (alteration in original); cf. Payton v. New York, 445 U.S. 573, 589–90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

Previously, Detective Pittman was asked to inform Javier that he “needed” to go back to the police station to be interviewed regarding the home invasion.²³⁵ Both Detectives Pittman and Stanworth testified that Javier “needed” to go to the police station to give statements and be interviewed.²³⁶ Although not given an opportunity or option to decline, Javier still asked the police if he had to go to the police station.²³⁷ Javier was told it was “necessary” for him to go to the station.²³⁸ Javier was not given the opportunity or option regarding when or where his interview would take place. Javier was not given options as to how he would physically go from his house to the police station.

235 Transcript, p. 39, lines 1–8.

236 Transcript, p. 29, lines 7–10, p. 44, lines 2–6.

237 Transcript, p. 281, lines 22–25, p. 282, line 1.

238 Transcript, p. 282, line 1.

Officer Cowan was responsible for taking Javier from his house to the police station.²³⁹ Javier was placed in the back seat of Officer's Cowan patrol car, behind the cage,²⁴⁰ where he had no door control.²⁴¹

239 Transcript, p. 203, lines 20–21.

240 Transcript, p. 204, lines 11–16.

241 Transcript, p. 44, lines 2–6.

Prior to leaving the house, but after Javier had been locked in Officer Cowan's car,²⁴² Officer Cowan asked Javier if he had his driver's license with him.²⁴³ Javier had nothing with him.²⁴⁴ Javier was not allowed to go back inside his own house and retrieve his wallet or ID. Instead, Officer Cowan left Javier locked in the back of the patrol car, walked up to the house, asked another officer to find Javier's wallet and give it to him (Officer Cowan).²⁴⁵ Then Officer Cowan drove Javier to the police station.

242 Transcript, p. 204, lines 11–23.

243 Transcript, p. 205, lines 1–4.

244 Transcript, p. 205, line 8.

245 Transcript, p. 205, lines 10–25, p. 206, lines 1–3.

The record is devoid of any evidence suggesting the existence of probable cause at the time Javier was confined and transported. Javier's “detention was in important respects indistinguishable from a traditional arrest and therefore required probable cause or judicial intervention to be legal.”²⁴⁶ The officers' statements indicating that Javier had no choice but to go, confirm that no reasonable person would have believed that he was free to remain at home.

246 Kaupp, 538 U.S. at 631, 123 S.Ct. 1843.

The seizure continued and was made even more severe once Javier arrived at the police station. When he first was delivered to the police station, Javier was escorted by Officer Cowan to the third floor break room.²⁴⁷ Other detectives were present in the break room, ensuring Javier did not speak with his wife or his brother.²⁴⁸ At some time between 7:58am²⁴⁹ and 9:07am,²⁵⁰ police officers took Javier to an interview room.²⁵¹ Other than Detective Pittman, no one came into the room with Javier. Javier asked if he was being arrested and was told no.²⁵² He asked if he was being detained, and was told he could leave when Detective Pittman was finished.²⁵³ The lack of a simple and straightforward answer, assuring Javier he was not under arrest or being detained, in response to such direct questions, unequivocally confirms that the only reasonable conclusion is that Javier was not free to leave. Javier asked about going home to shower,²⁵⁴ getting something to eat,²⁵⁵ getting a drink of water,²⁵⁶ and when photographs of his injuries would be taken.²⁵⁷ He was not in control of any of these basic needs.

247 Transcript, p. 206, lines 7–17, p. 282, lines 10–13.

248 Transcript, p. 128, lines 11–13, p. 206, lines 18–26, p. 207, lines 1–3.

249 Transcript, p. 310, line 11.

250 Exhibit BB.

251 Transcript, p. 282, lines 14–16.

252 Exhibit BB, p. 34, lines 2–11.

253 Exhibit BB, p. 35, lines 9–14.

254 Exhibit BB, p. 46, lines 1–2.

255 Exhibit BB, p. 45, lines 8–11.

256 Exhibit BB, p. 44, lines 24–25.

257 Exhibit BB, p. 45, lines 1–6.

As the Supreme Court noted in Kaupp, “[i]t cannot seriously be suggested that when the detectives began to question Kaupp, a reasonable person in his situation would have thought he was sitting in an interview room as a matter of choice, free to change his mind and go home to bed.”²⁵⁸ A reasonable person in Javier's situation—prohibited from getting his own ID from his own house (which was then kept in the possession of police);²⁵⁹ prohibited from going to the police station in his own vehicle; kept in a small, windowless interview room for several hours without food or water; and escorted to and from the restroom—would not have thought it was all a matter of choice, and that he could change his mind at any time and go home. Detective Pittman never advised Javier that he could refuse to answer questions. Detective Pittman never told Javier that he could terminate the interview. Detective Pittman never told Javier that he was free to leave.²⁶⁰ In fact, when Javier specifically asked if he was being detained, Detective Pittman actually confirmed that understanding, telling him “[o]nce we [are] finished talking, you can go back to your house.”²⁶¹ Javier could have no other reasonable understanding than that he was being detained in police custody until he satisfactorily answered Detective Pittman's questions.

258 Kaupp, 538 U.S. at 631, 123 S.Ct. 1843.

259 United States v. Guerrero–Espinoza, 462 F.3d 1302, 1308–09 (10th Cir.2006) (bright-line rule that a stop may not be deemed consensual unless the driver's documentation, i.e., license and proof of insurance, have been returned).See also Felders v. Bairett, 885 F.Supp.2d 1191, 1201 (D.Utah 2012), aff'd, Felders ex rel. Smedley v. Malcom, 755 F.3d 870 (10th Cir.2014).

260 See Fox, 600 F.3d at 1258 (one factor suggestive of a non-consensual encounter is if the officer advised the individual he was free to leave).

261 Exhibit AA, 11:07:14–18, 215262–215373, 01:59:43–46, Exhibit BB, p. 35, lines 10–14.

The Seizure Was Not an Investigative Detention

An individual may not be “detained even momentarily without reasonable objective grounds for doing so.”²⁶² While an individual may be subject to a brief investigative detention, the detaining officer must have “a reasonable suspicion that criminal activity may be afoot.”²⁶³ “Reasonable suspicion requires a particularized and objective basis for suspecting the person of criminal activity.”²⁶⁴ Furthermore, the “detention must be temporary, lasting no longer than necessary to effectuate the purpose, ... and the scope of the detention must be carefully tailored to its underlying justification.”²⁶⁵

262 Royer, 460 U.S. at 498, 103 S.Ct. 1319.

263 Fox, 600 F.3d at 1259.

264 Id. (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ) (internal quotations omitted).

265 United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997) (citing Royer, 460 U.S. at 500, 103 S.Ct. 1319 ).

In this case, police officers not only lacked probable cause, but also lacked the lower threshold of reasonable suspicion to detain Javier, even briefly, at the police station. When Javier was placed in the back of the police car, he was not a suspect in a crime.²⁶⁶ He was viewed as a victim.²⁶⁷ Detective Pittman, who interviewed not only Javier, but his wife Maria and his brother Ismael as well, did not have any information indicative of illegal or criminal activity by Javier until after Javier's home had been searched.²⁶⁸ Detective Pittman testified that when the interviews began, he had no evidence to suggest the presence of illegal drugs.²⁶⁹ Even after the preliminary interviews with not only Javier, but Ismael and Maria as well, Detective Pittman did not have any information that there were drugs or large amounts of currency in the house.²⁷⁰ Rather, it was only after a search of Javier's house had been performed and Javier had been interrogated for a second time that Detective Pittman had any indication of criminal activity being afoot.²⁷¹ No Supreme Court case has sanctioned “the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes ... absent probable cause or judicial authorization.”²⁷² “[S]uch seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause.”²⁷³

266 Transcript, p. 25, lines 8–10.

267 Transcript, p. 25, lines 13, 18, p. 43, line 8, p. 118, lines 11–15.

268 Transcript, p. 136, lines 6–17.

269 Transcript, p. 135, lines 9–12, 25, p. 136, lines 1–5, p. 137, lines 3–4.

270 Transcript, p. 136, lines 6–11.

271 Transcript, p. 136, lines 12–17.

272 Kaupp, 538 U.S. at 630, 123 S.Ct. 1843 (alteration in original) (quoting Hayes, 470 U.S. at 815, 105 S.Ct. 1643 ). See also Royer, 460 U.S. at 499, 103 S.Ct. 1319 (police may not “seek to verify their suspicions by means that approach the conditions of arrest”); Hayes, 470 U.S. at 816, 105 S.Ct. 1643 (police procedures are so intrusive as to trigger the full protection of the Fourth Amendment when police, absent probable cause or a warrant, transport an individual to the police station where he is detained, however briefly, for investigative purposes).

273 Hayes, 470 U.S. at 816, 105 S.Ct. 1643.

The length of time that Javier was detained further supports the finding of an unlawful seizure rather than an investigative detention. Similar to the instant matter, in Leveto v. Lapina, ²⁷⁴ the plaintiff was detained for a total of eight hours, during which he was “restricted in communicating with others.”²⁷⁵ For a six-hour period, the plaintiff was subjected to interrogation by federal agents.²⁷⁶ Though the Supreme Court has not declared a fixed time after which a detention becomes prolonged, an “eight-hour detention undoubtedly qualifies as prolonged under any reasonable understanding of that term.”²⁷⁷ Perhaps more offensive to the Third Circuit was the fact that the detention “did little to advance the law enforcement interests”²⁷⁸ that would justify detention like preventing flight if incriminating evidence was found or minimizing risk of harm to an officer.²⁷⁹

274 Leveto v. Lapina, 258 F.3d 156, 169 (3rd Cir.2001).

275 Id.

276 Id.

277 Id.

278 Id. at 170.

279 Id. at 167.

Here, Javier was held in custody for a minimum of seven hours. He was taken into custody at approximately 7:40 a.m., and then held isolated in a small interview room where he was interrogated for nearly six hours. No members of the public were in the interview room. No other police officers were in the interview room.²⁸⁰ Though moved from the interview room to the forensics area, Javier was still restrained from talking to anyone other than Detective Pittman. In fact, Detective Pittman continued interrogating Javier until taking him to the victim advocate's office—nearly seven hours following Javier's initial arrest.

280 United States v. Little, 60 F.3d 708, 712 (10th Cir.1995) (citing Bostick, 501 U.S. at 437, 111 S.Ct. 2382 ).

The interview began in an accusatory nature, as Detective Pittman told Javier “Don't give me lies”²⁸¹ and continued with “accusatory, persistent, and intrusive” questions and statements.²⁸² Detective Pittman repeatedly warned Javier to not give lies,²⁸³ and to tell the truth.²⁸⁴ Detective Pittman spent a great deal of time telling Javier there is always a reason for armed assailants to breach the privacy and security of an individual's home.²⁸⁵ Detective Pittman used aggressive language and persisted in his demands for the truth while continually insinuating Javier was involved in illegal activity.²⁸⁶ For example, within the first forty minutes of the interview, Detection Pittman mentioned “drugs” seven times²⁸⁷ and “money” twelve times.²⁸⁸

281 Exhibit AA, 10:33:21, 154326, 01:25:50; Exhibit BB, p. 3, lines 1–2.

282 Exhibit BB, p. 28, lines 15–16, p. 29, lines 24–25, p. 30, lines 7–9, p. 31, line 9.

283 Exhibit BB, p. 3, lines 1–2.

284 Exhibit BB, p. 28, lines 15–16, p. 29, lines 24–25, p. 30, lines 7–9, p. 31, line 9.

285 See United States v. Little, 862 F.Supp. 334, 335 (D.N.M.1994) (accusatory, persistent and intrusive questioning can turn a voluntarily police-citizen encounter into one that is coercive making responses to police inquiries required, not optional) (citing Bostick, 501 U.S. 429, 111 S.Ct. 2382 ), aff'd United States v. Little, 60 F.3d at 712.

286 Exhibit BB, p. 27, lines 14–15, p. 29, lines 24–25, p. 35, lines 22–23.

287 Exhibit BB, p. 28, lines 8–9, p. 32, line 18, p. 35, line 16, p. 37, line 25, p. 38, lines 3, 5.

288 Exhibit BB, p. 28, lines 6, 11, p. 30, lines 16, 21, p. 31, lines 7, 22, p. 32, lines 7, 10, p. 35, line 17, p. 37, line 25, p. 38, lines 3, 5.

Based upon the totality of the circumstances, including Detective Pittman's unequivocal lack of probable cause, the extreme length of time Javier was detained, the conditions of Javier's detention (isolated from the public, subjected to aggressive and persistent interrogation, and deprived of food), and the lack of law enforcement interests served by the detention, it is clear Javier was unlawfully seized, and not in an investigative detention, until being left at the victim advocate's office.

II. No Break in the Chain of Events Validates the Consent Forms

Javier was subjected to a warrantless arrest without probable cause and therefore seized in direct contravention of the Fourth Amendment. The illegal seizure continued for several more hours after Javier arrived at the police station.

The next question is whether, in light of the unconstitutional seizure, any consents to search or any statements given by Javier were sufficiently purged of the taint of the illegal seizure. If the consents or statements were not sufficiently purged of the taint of illegality, any evidence obtained as a result of the searches must be suppressed as fruit of the poisonous tree.²⁸⁹ The government does not claim that such an attenuation occurred. But the issue will be examined to complete the analysis.

289 Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

“It is settled law that a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is sufficiently an act of free will to purge the primary taint.”²⁹⁰ “Mere submission to lawful authority does not equate to consent, rather valid consent must be unequivocal and specific, and freely and intelligently given.”²⁹¹

290 Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (quoting Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982) ).

291 United States v. Manuel, 992 F.2d 272, 275 (10th Cir.1993) (citing Royer, 460 U.S. at 497, 103 S.Ct. 1319 ).

When an individual is illegally detained or arrested, any evidence flowing from the unlawful seizure must be suppressed unless obtained via an “act of free will [sufficient] to purge the primary taint of the unlawful invasion.”²⁹² Thus, the inquiry is whether the consents to search were sufficiently acts of “free will to purge the primary taint,”²⁹³ of the illegal seizure.

292 Kaupp, 538 U.S. at 632, 123 S.Ct. 1843 (quoting Wong Sun, 371 U.S. at 486, 83 S.Ct. 407 ).

293 Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (quoting Wong Sun, 371 U.S. at 486, 83 S.Ct. 407 ).

The government bears the burden of proof to establish that there was a “break in the causal connection between the illegality and evidence thereby obtained” and that “consent was voluntary under the totality of the circumstances.”²⁹⁴ While establishing a break in the causal connection is fact-intensive and case-specific, the “Supreme Court [has] articulated three factors especially relevant to this inquiry: (1) the temporal proximity between the police illegality and the consent to search; (2) the presence of intervening circumstances, and ... (3) the purpose and flagrancy of the official misconduct.”²⁹⁵

294 Fox, 600 F.3d at 1257 (quoting Melendez–Garcia, 28 F.3d at 1054 ).

295 Fox, 600 F.3d at 1259–60, (quoting Melendez–Garcia, 28 F.3d at 1054 ); Brown v. Illinois, 422 U.S. at 603–04, 95 S.Ct. 2254.

A. The Consents to Search Were Executed in the Same Time Frame as the Illegal Seizure

By the time Javier signed the first consent to search form at 1133,²⁹⁶ more than six hours had passed since his home was invaded by armed assailants. It had been six hours since police first arrived at Javier's house. Three-and-a-half hours had elapsed since Javier had been involuntarily removed from his house and taken via police car to the police station. Nearly two-and-a-half hours had gone by since Javier had been isolated in a small interview room. Detective Pittman had been talking to Javier for an hour.

296 Exhibit 1.

B. No Circumstance Intervened Between the Illegal Seizure and the Consent Form Signatures

As succinctly set forth in the preceding paragraph, the facts do not evidence any intervening circumstance or attenuation between when Javier was illegally arrested and when he signed the first consent to search form. Nothing happened to “create a discontinuity between the illegal seizure and the consent such that the original illegality [was] weakened and attenuated.”²⁹⁷

297 Fox, 600 F.3d at 1260 (quoting United States v. Gregory, 79 F.3d 973, 980 (10th Cir.1996) ).

In some cases, carefully explaining a consent form and advising an individual of the right to withhold consent may create an intervening circumstance.²⁹⁸ However, this did not occur in the present case. Despite a lengthy conversation about cell phones and why Detective Pittman may have wanted to search Javier's cell phone,²⁹⁹ Detective Pittman did not explain (in any language) the consent to search form to Javier. Instead, Detective Pittman instructed Javier where to put his name, date of birth, and signature.³⁰⁰ The only time Detective Pittman suggested that Javier could withhold consent was early on in the conversation about cell phones,³⁰¹ thirty minutes before the actual consent to search form was presented. Based on the facts and the record, no attenuation or intervening circumstance occurred to remove the taint of the illegal arrest.

298 See United States v. Mendoza–Salgado, 964 F.2d 993, 1012 (10th Cir.1992) (in addition to many other events creating attenuation, officers carefully explained the consent to search form in suspect's native language as well as advising her of her right to withhold consent).

299 Exhibit BB, pp. 32–41.

300 Exhibit BB, p. 41, lines 9–11.

301 Exhibit BB, p. 33, lines 23–24.

C. The Purpose and Flagrancy of the Official Misconduct Show No Break

The purpose and flagrancy of the official misconduct is the last factor in determining whether a break exists. “[P]urposeful and flagrant misconduct is generally found where: ‘(1) the impropriety of the official's misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed in the hope something might turn up.’ ”³⁰²

302 Fox, 600 F.3d at 1261 (quoting United States v. Simpson, 439 F.3d 490, 496 (8th Cir.2006) ) (internal quotation marks omitted).

Detective Pittman claimed that when he began his interviews, “there was no speculation of drugs. [He] was trying to find a reason why these people did what they did to Javier and his family.”³⁰³ The following excerpt of Detective Pittman's testimony demonstrates his proclaimed lack of investigation of Javier:

303 Transcript, p. 137, lines 2–5.

Q. So you thought the home invasion robbery might be connected to some other crime; is that right; when you began interviewing all of the adult witnesses?

A No.

....

Q. You're just trying to figure out, but you can't look to anything specifically and say, hey, there's a reason why I believe that there is some other crime or activity going on in this home.

A. I had no idea what was going on and why they picked that house.

Q. Okay. And based on the interviews that you conducted with all of the three adult individuals at the station you didn't get any information that there was drugs or a large amount of currency in the home; correct?

A. No. Until later on. In the preliminary interviews, no.

Q. Until later on, until a search was done at the home.

A. Yeah. Until I talked to Javier the second time.

Q. And that was after a search had been done at the home.

A. Correct.³⁰⁴

304 Transcript, p. 135, lines 9–12, 25, p. 136, lines 1–17.

Detective Pittman's admitted lack of reasonable suspicion of criminal activity, coupled with the illegal arrest, leads to the inescapable conclusion that Detective Pittman was on a “fishing expedition in the hope that something might turn up.”³⁰⁵

305 Fox, 600 F.3d at 1262 (quoting United States v. McSwain, 29 F.3d 558, 563 (10th Cir.1994) ).

But Detective Pittman's testimony also shows that he was suspicious of criminal activity—without any articulable basis—from the start. Detective Pittman refused to believe this was simply a random home robbery, stating his personal belief that the armed assailant “was looking for something.” ³⁰⁶ After listing possible reasons why Javier's residence was targeted, Detective Pittman expressed his disbelief in Javier's version,³⁰⁷ telling Javier “I just want to know the truth. Why were they there? And I know you know why they were there.”³⁰⁸ Detective Pittman held fast to his belief that Javier was lying, yelling at Javier to “[t]ell me the truth!”³⁰⁹ Javier's response was equally as vehement “That is the truth!”³¹⁰ Later, Detective Pittman claimed, based on his experience, “every investigation that I have done [it was] about drugs or money, every one.”³¹¹ Pressing Javier, Detective Pittman repeated “I want to know why these guys were there.”³¹² Javier repeated “I don't know.”³¹³

306 Exhibit AA, 10:57:37–58:01, 197970–198692, 1:50:06–30; Exhibit BB, p. 27, lines 12–13.

307 Exhibit AA, 10:59:45, 201810, 01:52:14; Exhibit BB, p. 28, line 22.

308 Exhibit AA, 10:59:34–68, 501464–589, 1:52:02–07; Exhibit BB, p. 28, lines 15–17. See also Exhibit BB, p. 29, lines 21–24, p. 30, lines 9–10.

309 Exhibit AA, 11:01:53–56, 205637–748, 01:54:22–25; Exhibit BB, p. 30, line 9, p. 31, line 9.

310 Exhibit AA, 11:01:53–56, 205637–748, 01:54:22–25; Exhibit BB, p. 30, line 10, p. 31, line 10.

311 Exhibit AA, 11:12:11, 224175, 02:04:40; Exhibit BB, p. 38, lines 4–5.

312 Exhibit AA, 11:12:44, 225169, 02:05:13; Exhibit BB, p. 38, lines 12–13.

313 Exhibit AA, 11:12:48, 225265, 02:05:17; Exhibit BB, p. 38, line 14.

Detective Pittman's conduct in detaining Javier for no articulable reason is flagrant, as are his inconsistent explanations of a lack of investigative purpose directed at Javier and a belief that drugs were involved.

Summary

The facts demonstrate that no causal break or attenuation existed between Javier's illegal arrest and when Javier signed all four of the consents to search. There were no intervening circumstances to separate Javier's illegal seizure from his signing of any of the consents to search. Finally, in all four situations, Detective Pittman's questions constituted purposeful and flagrant misconduct, designed to coerce Javier into signing the consent forms.³¹⁴ Necessarily, the Court finds that all four of the consents to search were not purged of the taint of the illegal seizure. Because Javier's consents were not purged of the taint of his illegal arrest, any and all evidence obtained as a result of the four consents to search must be suppressed.

314 Fox, 600 F.3d at 1261–62.

III. Examined Independently of the Seizure, the Consents Were Not Voluntary

Even if the prolonged detention of Javier did not invalidate the consents, an independent examination of the circumstances surrounding the consent forms shows that consent was involuntary.

The government's recitation of factors to be considered when evaluating the voluntariness of consent is correct.³¹⁵ Factors to be considered include:

315 Government's Proposed Findings, p. 6.

physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, the physical and mental condition and capacity of the defendant, the number of officers on the scene, and the display of police weapons. Whether an officer

reads a defendant his Miranda rights, obtains consent pursuant to a claim of lawful authority, or informs a defendant of his or her right to refuse consent are also factors to consider in determining whether consent given was voluntary under the totality of the circumstances.³¹⁶

316 United States v. Jones, 701 F.3d 1300, 1318 (10th Cir.2012) ; Government's Proposed Findings, p. 6.

The government also correctly suggests that relevant factors may include the length of detention and questioning, the extent of the suspect's cooperation with police, and the suspect's belief that no incriminating evidence will be found.³¹⁷

317 Government's Proposed Findings, p. 6.

A. Javier Was Not Informed of His Right to Refuse Consent

The record does not support a finding that Javier was informed of his right to refuse consent to the search of his house. The video record does not show this right was ever explained to him except briefly very early in the interrogation. When the first consent to search the cell phone was discussed, thirty minutes before the form was signed, Detective Pittman said “You can say no.”³¹⁸ No such discussion occurred when the first consent form was presented and no such discussion occurred at the time any other form was discussed or presented on the video. The fourth consent form was signed with no video record. Detective Pittman testified that on this fourth form he explained the right to withhold consent.

318 Exhibit BB, p. 33, lines 23–25.

A. But I did explain to him to the best of my ability in Spanish that he could tell us no, that this was a consent. It was his own free will giving us permission to enter the residence, and he could tell us no.

Q. And after that explanation he signed the consent?

A. Yes, he did.³¹⁹

319 Transcript, p. 81, lines 18–23.

Except for the first consent to search, Javier was never told he could refuse consent—and the circumstances surrounding the first consent do not clearly demonstrate Javier was informed he could withhold consent as it pertained to the search of his cell phone. In light of the failure to adequately explain the right to withhold consent in the three prior videotaped discussions of the form, Detective Pittman's testimony that he explained this right in the one other instance is not credible. He is likely recalling his few words said early in the discussion about the first form. He embellishes, however, in this instance saying that he also informed Javier that this was a consent, and that it was his own free will. This is more than he explained in the first video-taped instance, and striking in the absence of any explanation of a right to consent when the second and third consent forms were presented, explained and signed.

The government suggests that the consent to search form contains clear and unequivocal language stating that the subject has a constitutional right to refuse permission to search. But the form is in English. At the hearing, the government elicited the following testimony from Javier:

Q: Do you read some English?

A: No.

Q: None?

A: I understand a little, but no, no.³²⁰

The language in the form cannot be relied on to show Javier knew his right to withhold consent to search. Without an explanation of the right to refuse to consent, and any comprehension of the form language, Javier did not know he could refuse to consent.

320 Transcript, p. 287, lines 4–7.

B. Javier Was Not Generally Cooperative

The government contends further evidence of voluntariness is that Javier was generally cooperative with police.³²¹ The record, however, is devoid of any suggestion that Javier's compliance with a police directive “was anything more than a mere submission to a claim of lawful authority.”³²² Javier was given no choice about transportation to the police station in the locked portion of a patrol car, detention in an interview room even when not being interviewed, controlled access to the bathroom, restriction from access to food and water, isolation from his family members, and continued interrogation for many hours. Thus for a lengthy time until he was formally arrested, he had no unrestrained choices.

321 Government's Proposed Findings. P. 9.

322 Kaupp, 538 U.S. at 631, 123 S.Ct. 1843 (quoting Royer, 460 U.S. at 497, 103 S.Ct. 1319 ).

C. Coercive Tactics Were Used

While the government contends no coercive tactics were used, Detective Pittman used many of the psychologically coercive tactics identified in Miranda:

taking an individual out of his home and removing him to an unfamiliar and isolated location;³²³

323 Miranda v. Arizona, 384 U.S. 436, 449–50, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

patient and persistent, and at times, relentless questioning; and³²⁴

324 Miranda, 384 U.S. at 451–52, 455, 86 S.Ct. 1602.

offering legal excuses for his actions to eventually obtain an admission of guilt.³²⁵

325 Miranda, 384 U.S. at 451–52, 86 S.Ct. 1602.

One example of Detective Pittman's conduct from Javier's illegal seizure and interrogation highlights this latter technique:

“They were waiting for you. I want to know why. Wait. When something like this happens, they happen for a reason. They are not just band members that are passing by a house and they say, “Hey, let's go rob this house.”

This is not what happened. Okay. I believe they were looking for something because when this guy came in the house, he went directly to your bedroom, your wife's and your bedroom. He was looking for something. He believed there was something inside house. I don't know what you guys do. I am not going to investigate if you do something illegal.”³²⁶

326 Exhibit BB, p. 27, lines 4–15.

This type of questioning occurred throughout the multiple hours Javier was detained at the police station.³²⁷

327 Exhibit BB, pp. 28–29, pp. 34–35, pp. 36–38.

D. Other Factors Do Not Suggest Consent

The government is, however, correct in asserting there was no use or display of force; that Javier Mendoza–Trujillo did not display intellectual or educational deficiencies; and in claiming the neutrality of whether Javier believed incriminating evidence would be found.

However, even if the consents were sufficiently purged of the taint of the illegal arrest, a finding of voluntariness would not be supported. Javier was not informed of his right to refuse consent. Javier was not given the opportunity to read the consent to search form, in English or Spanish. There is no indication Javier was independently cooperative with police; rather the record supports a finding that Javier was merely complying with what he thought was a lawful directive. The length of Javier's illegal arrest and ensuing custodial interrogation was excessive. Coercive tactics were used throughout the entirety of Javier's prolonged, unlawful seizure. The facts that Javier seemed to possess his mental faculties, the interview was conducted in Spanish, and Detective Pittman did not make a show of force do not outweigh these factors which show that Javier's consent was not voluntary.

CONCLUSION

Javier Mendoza–Trujillo was subjected to an illegal, warrantless arrest that violated his Fourth Amendment right to be free from unreasonable searches and seizures. The police lacked probable cause or judicial intervention in the form of a warrant when they transported Javier away from his home to the police station in the back of a patrol car. If not at the time of transport, the seizure clearly became illegal when he was controlled, isolated and retained for such a long period of time in a transparent attempt to obtain evidence of his criminal activity without a basis for his detention.

While illegally detained, Javier signed four discrete consents to search. The only way the fruits of such searches would be admissible is if the government first shows a sufficient attenuation or break in the causal connection between the illegal detention and the arrest, and then that consent was voluntary.³²⁸ No causal break or attenuation occurred between Javier's illegal seizure and when Javier signed all four consents to search. All four of the consent to search forms are tainted by the illegality of Javier's arrest and ensuing detention.

328 Fox, 600 F.3d at 1259.

Further, when examined apart from the seizure, the consents were not signed voluntarily. Accordingly, any and all evidence obtained as a result of the unlawful detention and arrest of Javier and the resultant consents is and shall be suppressed. Defendant's Amended Motion to Suppress³²⁹ is GRANTED.

329 Docket no. 41, filed May 12, 2014.

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Table of Contents

Table of Contents

1209

FINDINGS OF FACT

1210

	Incident and First Contact with Officers	1210
	Transport to Police Station	1211
	Placement in Interview Room	1212
	First Interview Segment	1212
	Execution of Consent to Search Cell Phone	1213
	Bathroom Break	1215
	Execution of Consent to Enter House for Cell Phone	1216
	Execution of Third Consent Form	1217
	In Forensics	1217
	Execution of Fourth Consent Form	1218
	Victim Advocates	1219
	Search of the Home	1219
	Resumption of Interviews	1220

DISCUSSION

1221

	I.	Mr. Mendoza–Trujillo Was Illegally Seized	1221

		A.	Legal Framework	1221
		B.	Javier Mendoza–Trujillo Was Illegally Seized	1225

	II.	No Break in the Chain of Events Validates the Consent Forms	1229

		A.	The Consents to Search Were Executed in the Same Time Frame as the Illegal Seizure	1230
		B.	No Circumstance Intervened Between the Illegal Seizure and the Consent Form Signatures	1230
		C.	The Purpose and Flagrancy of the Official Misconduct Show No Break	1231

	III.	Examined Independently of the Seizure, the Consents Were Not Voluntary	1232

		A.	Javier Was Not Informed of His Right to Refuse Consent	1233
		B.	Javier Was Not Generally Cooperative	1234
		C.	Coercive Tactics Were Used	1234
		D.	Other Factors Do Not Suggest Consent	1234

CONCLUSION	1235