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noting that "the appearance of the place [that was searched] with minimal furniture [was] consistent with a drug house"
Summary of this case from U.S. v. TraylorOpinion
A05-066 CR (RRB).
November 17, 2005
RECOMMENDATION REGARDING MOTIONS TO SUPPRESS
Motion to Suppress Evidence Seized from a Warrantless Search
Defendant Alejandro Dominguez Bojorquez moves the court to suppress evidence seized from a warrantless search of the residence at 3931 Astro Circle, on June 22, 2005. Docket No. 28. Defendants Victor Manuel Astorga and Omar Salazar-Cardenas joined in the defendant's motion to suppress, Docket Nos. 29 and 35 respectively. The government filed an opposition at Docket No. 39. Additional written argument in support of the motions was filed by Defendant (D-01) Astorgia at Docket No. 58; Defendant (D-04) Salazar-Cardenas Docket No. 59; Defendant (D-02) Bojorquez at Docket No. 60. The government filed its additional argument at Docket No. 69.
Defendant (D-02) Bojorquez filed a reply argument at Docket No. 77 and request to supplement the motion to suppress with an additional hearing regarding the "sniffle" testimony; the field testing of the cocaine and the five hour video tape. Defendant (D-04) Salazar-Cardenas filed joinder to Defendant (D-02) Bojorquez's reply argument, Docket No. 80. The government filed a response and opposition to Defendant (D-03) Bojorquez's Reply, Docket No. 83. Defendant (D-01) Astorga filed a joinder and reply at Docket No. 128.
Motion to Suppress Fruits of Pat-Down Search
Defendant (D-02) Bojorquez filed a motion to suppress fruits of pat-down search, Docket No. 102. Defendant (D-04) Salazar-Cardenas filed a joinder, Docket No. 104; Defendant (D-01) filed a joinder, Docket No. 106; Defendant (D-03) Cardenas-Aguayo filed a joinder at Docket No. 113; The government's opposition was filed at Docket No. 121. Defendant (D-04) Salazar-Cardenas filed a reply at Docket No. 123.
Motion to Suppress Seizure of Money and Statements
Defendant (D-01) Astorgia filed a motion to suppress seizure of money and statements and to void the search warrant. Docket No. 110. Defendant (D-03) Cardenas-Aguayo filed a joinder at Docket No. 126. The government filed its opposition at Docket No. 119.Defendant (D-01) Astorga also filed a (second) motion to void search warrant and suppress all evidence seized. Docket No. 120. Defendant (D-03) Cardenas-Aguayo filed a joinder at Docket No. 127.
Defendant (D-02) filed a motion to suppress statements. Docket No. 125. Defendant (D-01) joined in this motion at Docket No. 118. An evidentiary hearing was conducted on August 28; September 29, October 14; October 20; November 2, November 4 and November 9, 2005. Upon due consideration of the evidence adduced and arguments of counsel the magistrate judge recommends that the court adopt findings of fact and conclusions of law as set forth below and that all the motions to suppress be DENIED except the motion to suppress statements made in response to interrogation of defendants at the residence undertaken without Miranda warnings. That motion should be GRANTED with respect to the government's use of such statements in their case-in-chief at trial.
Findings of Fact
On June 22, 2005 at about 10:30 p.m. the Anchorage Police Department (APD) received a complaint from a concerned citizen that an occupant of 3931 Astro Circle in Anchorage had just discharged a firearm from a second story deck of that residence. APD officers Arthur Anderson, Kimberly Ann Trujillo and Adam Weissenberger responded to the call and made contact with the neighbor citizen, Mr. Jacob Lautarut at his address, 3940 Galactica in Anchorage.Mr. Lautarut told the officers that he had seen a male with black hair walk out of a second story deck, run the slide on a firearm and discharge it toward the ground. He described the person and his clothing and pointed to the location at 3931 Astro Circle from a window of his residence. Mr. Lautarut had been concerned about the loud music coming from the residence and was intending to go over to the house to complain about the sound.
The officers then went to 3931 Astro Circle to make contact with the occupants. They could hear the music from far away. Officer Trujillo waited at the bottom of the steps outside while the other two officers approached the front door. A double car garage opened to the front of the house but the door was closed. Officer Anderson rang the doorbell but there no answer. He could hear the loud music coming from the residence. After ringing the doorbell several times the loud music was turned down. He rang the doorbell again. When no one came to the door Officer Weissenberger kicked the bottom of the door to make a louder sound.
The officers thought that the occupants could hear their knocking; they did not know the reason for the delay in answering the door. After about 45 to 60 seconds had elapsed a Hispanic male came to the door. When the door was opened Officer Trujillo went up the stairs to the landing at the front of the house.
The officers told the male why they were there. Officer Anderson asked if everyone was okay. The male who identified himself as "Miguel Aviles" nodded yes. He spoke English with an accent The officer asked who else was in the house. Avilez (Cardenas-Aguayo) responded "friends." The officers said they were there because of a gun shot. Cardenas-Aguayo said he didn't know anything about that. Cardenas-Aguayo was asked if there was anyone injured and he gave no response. He was asked if there was anyone else present and he looked over his left shoulder upstairs but made no verbal response.
Initially, Cardenas-Aguayo provided a false name (Miguel Aviles), but a law enforcement check later revealed that his true identity was, if fact, Juan Cardena-Aguayo.
An officer asked if they could come inside to check out the residence and make sure everybody is okay. Cardenas-Aguayo shrugged his shoulder which the officer took as an acquiescence and Cardenas-Aguauo pushed the door open. The door hit some phone books on the floor and bounced off. Officer Weissenberger held the door open so that he could keep an eye on Cardenas-Aguayo. Officer Anderson asked Cardenas-Aguayo who owned the residence. He looked to the top of the stairs. Officer Anderson asked Cardenas-Aguayo to step outside and he complied.
Officer Trujillo hand-cuffed him and did a pat-down search for officer safety because a gun was involved in the investigation. She wore gloves. In his left front pocket she felt a thick, hard object which felt like a wallet. She removed it from the pocket and it turned out to be 30 One Hundred Dollar bills. She made a quick visual observation so see if the wad contained any dangerous instrumentality such as a knife or razor blade or a handcuff key. She placed the money in her pocket without counting it. She felt a hard item in his right back pocket and removed a wallet. She opened the wallet to check for weapons and observed an Alaska Identification Card in the name of Michael [Miguel] Abilas. She then placed it back in the pocket of Cardenas-Aguayo. Officer Anderson found during the pat-down of Bojorquez two cell phones and some money which he did not immediately count. No gun was found. Officer Trujillo observed Cardenas-Aguayo's blood shot and watery eyes and perceived that he was intoxicated. When she asked him for his identification Cardenas-Aguayo did not respond.
Officers Weissenberger and Anderson yelled for the other people to come outside. Initially there was no response. Officer Weissenberger was concerned for officer safety because the door to the residence opened to a split level entry with separate steps leading up and down. Officer Weissenberger walked past the threshold of the front door a couple of steps so he could protect himself should anyone threaten him from upstairs. He was aware that Cardenas-Aguayo Miguel had looked upstairs to the right as if to indicate that there might be more people upstairs. The officers had no information about how many people might be in the residence. The stairwell leading to the second floor had an opening part way up and a sofa against the railing. Officer Weissenberger stated loudly "Anchorage Police Department come out." Eventually, three other people came out with their hands up. These persons were later identified as the co-defendants (Astorga, Bojorquez and Salazar-Cardenas). Officer Anderson took them to Officer Trujillo who secured them by placing them in handcuffs against the garage door. Officers Trujillo and Anderson performed a pat-down search of these individuals.
While Officer Weissenberger remained in the Arctic entry area he exclaimed that he thought there was someone else in the house. He described the noise as sounding like a sniffling. He was concerned that there might be an injured person inside. He asked for backup officers. Officer Trujillo recognized that the three officers already had four people in protective custody. She requested backup from dispatch. Officer Darrell Evans responded as that backup.
After Officer Evans arrived he and Officer Weissenberger performed a protective sweep of the residence. They stayed together and looked upstairs, downstairs and in the garage. Their sweep lasted about five minutes to see if there was anyone inside including an injured person. It is standard APD policy when doing a protective sweep for a minimum of two officers to go inside with firearms drawn to guard. No gun was seen in the residence either prior to or during the protective sweep.
During the sweep Officer Evans looked inside a partially open closet in one of the bedrooms to see if there was anyone hiding in the corners of the closet. The right side of the closet door was held open by a travel bag. I Accept the testimony that one side of the closet door was open when Officer Evans first approached the closet. The officer observed a digital scale containing a white powdery reside in plain view while looking to see if there was anyone present. He also observed a bag of rubber bands. Officers Weissenberger and Evans also observed in plain view in a bedroom a couple of black 33-gallon trash bags. One of them was partially opened allowing him to see what appeared to be hot peppers and a trash can containing what appeared to be pieces of a cooler lid.
There were alcohol beverage bottles on the floor in the kitchen area. During the protective sweep the officers observed a shell casing on the carpet near the kitchen sliding glass door, and a large amount of cash in a half opened cupboard and two cell phones over to the left on a glass table. Officer Glen arrived by 23:03. Officer Evans briefed him about the protective search. Tr. 238.
After the pat-down searches occurred, Officer Anderson asked Bojorquez who rented the premises. Bojorquez stated he did. The officer inquired as to how he could obtain the phone number of the owner of the home. Borjorques stated the phone number was on his cell phone. Bojorquez assisted Anderson in getting the number from his cell phone directory. Each of the four detainees were asked similar questions regarding their identifications. They were asked if they had any identifications; where the ID was, and whether the officer could retrieve it from their persons. Cardenas-Aguayo had an Alaska Identification; Astorga and Salazar-Cardenas had California Ids, and Bojorquez possessed a Mexican voter ID. At this time no gun had been recovered and the officers weren't sure whether other people were still in the residence. After Evans left the scene for the courthouse, Officer Anderson interviewed the suspects. They were asked how long they had lived in Alaska, where they worked, and whether they were living in the residence. Officer Anderson concluded that Bojorquez was probably an illegal alien. He was able to talk with Borjorques by using one of the other suspects to translate Spanish into English. Before this questioning took place, Mr. Lauterat, the complainant, was shown each of the four suspects one at a time to identify the shooter. Mr. Lauterat identified one of the suspects as the shooter.
After the protective sweep Officer Evans returned to the bedroom and conducted a field test on the residue on the scales. The test produced a positive result for cocaine. Officer Evans applied to a State magistrate for a search warrant based on what the officers had seen. The four defendants remained outside in front of the garage while the application for the search warrant was pending. The application sought a warrant to search for a gun(s) as well a evidence of drug distribution. The officers chose not to guard the back of the residence initially because of insufficient man power.
Officer Anderson had two telephone conversations with Officer Evans before the warrant was issued. He informed Evans about the amount of money seen in the residence and his contacts with the suspects. Some of this information was used in the application for the search warrant.
The application for a search warrant was audio recorded by the state magistrate before issuing a search warrant for the residence at 3931 Astro Circle. Based on the testimony of Officer Evans the magistrate found probable cause to believe that inside the residence there would be evidence of the crime of misconduct involving a weapon and misconduct involving a controlled substance.
After being sworn, Officer Evans told the magistrate about the telephone call received by APD on June 22, 2005 at about 10:23 p.m. Officer Evans described the caller as stating that he had witnessed from his back window a neighbor on Astro Circle fire a single shot from a handgun into the ground in the backyard before returning inside the residence. The complainant identified the shooter as a white male wearing a white tee shirt and blue jeans. Officer Evans related how the officers had responded first to the complainant and then to 3931 Astro Circle where they contacted subjects at that residence and removed four Hispanic males.
Officer Evans described the cursory sweep of the residence for persons and observations in plain view of the spent .9 millimeter shell casing laying just inside the back sliding glass door of the residence. The officer described the digital scale lying on the shelf in the closet with what appeared to be cocaine residue, small bags throughout the house containing small rubber bands and loose razor blades lying about the house. He described a kitchen type trash can that contained small yellow chunks of insolation that appeared to be removed from the lid of a cooler. He related the pat-down search of one of the subjects which disclosed $3,000 in cash on his person. The officer described that during the protective search they observed what appeared to be about a 3 to 4-inch wad of twenty dollar bills and numerous cellular telephones. The officer described the house as containing minimal furniture with few clothing items about the house and that it appeared that the subjects were living out of suitcases.
The officer responded to the magistrate's question about one of the subjects admitting that there was a gun but disclaiming that he had fired it. Officer Evans described a cocaine field test performed on the residue of the scale revealing a positive result for cocaine. He indicated that he believed that the subjects were involved in the transportation of cocaine or drugs and that there probably would be found in the house a .9 millimeter hand gun.
The magistrate found that the shell casing corroborated the report of the complainant about the shot being fired. The magistrate recited in his summary of facts that there were drugs, a scale, residue on the scale and what appeared to be packaging material. These items suggested that the money could be associated with a drug distribution. The coolers which appeared to be hollowed out as transportation devices were also considered as evidence of the crime of misconduct involving a controlled substance. Attachment A to the Search Warrant described the items which the court found probable cause to believe were being concealed on the property.
After Officer Evans left to apply for a search warrant Officer Weissenberger began a video recorder about 12:29 a.m. aimed at the suspects and the front of the residence. The Weissenberger video shows officers entering the residence at a recorded time prior to 12:40 a.m. when the warrant was issued.
The face of the search warrant reflects that it was issued at 12:40 a.m. on June 23, 2005. Sgt. Robert Glen, APD told officers at the house not to go back into the house until the search warrant arrived. Tr. 240. A second protective sweep was done after the search warrant arrived at the scene. Tr. 241. The police waited for Officer Evans to return with the Search Warrant before executing it about 12:49 a.m. Nobody went back in the residence after 1:00 a.m. until the search warrant arrived. Testimony of Officers Glen and Woodward, Tr. 260-294. During the execution of the search warrant officers found two handguns that had not been seen during the protective sweep. During a second pat-down of the suspects which was performed after Detective Gordon Dorr arrived, Officer Weissenberger found on Salazar-Cardenas a cell phone and money folded over. He removed them from his pocket. After the kilograms of cocaine were found in the residence pursuant to the search, Officer Woodward notified DEA. Tr. 302. Astorga's wallet which had been seized was turned over to Special Agent Lopez, DEA. Tr. 301.
Raymond Dojaque, an APD officer whose first language is Spanish, received a call from Sgt. Glen to come to the scene. He asked no questions of the suspects while there. Initially, he remained near the suspects to guard them and listen should the suspects speak in Spanish. Sgt. Glen told Bojorquez that the police were applying for a search warrant.
APD Officer Elizar Feliciano, assigned to the DEA Narcotics Task Force was contacted by Agent Alan Lopez about the apprehension of suspects at Astro Circle. His first contact with the suspects was about 4:30 a.m. at the DEA Building on East Tudor. Agent Lopez and Detective Feliciano conducted interviews of the four suspects. Agent Lopez and Detective Feliciano were told very little about the suspects by the police. Agent Lopez was told that the police had recovered about five kilograms of drugs found in coolers inside the residence at Astro Circle and that a large amount of money had been found in a bedroom and bathroom. Agent Lopez shared this information with Detective Feliciano before the interviewing occurred. Agent Lopez was not told anything about a Mexican voting card or whether the suspects could understand English.
Astorga's interview began about 4:25-4:30 a.m. That was followed by an interview of Salazar-Cardenas at 5:20 a.m., Bojorquez at 6:20 a.m. and Cardenas-Aguayo at 7:15 a.m. Astorgia was re-interviewed at 8:35 a.m., Cardenas Aguayo was re-interviewed at 12:30 p.m and Salazar-Cardenas Astorgia at about 4:24 p.m. The primary interrogator was Agent Lopez and the primary note taker was Detective Feliciano. The interrogations took place in an interview room at the DEA office. Each suspect was read his Miranda rights and asked if they understood those rights.
Omar Salazar-Cardenas's interview was done in Spanish. He appeared to the officers to understand what was being spoken. He did not ask to speak to an attorney or to have the questioning cease. He was willing to talk to the officers and waived his Miranda rights.
Cardenas-Aguayo also known as "Miguel" was advised of his rights in Spanish. He was asked if he had any questions about his rights and he indicated that he had none. He agreed to speak with the officers and at no time did he ask to speak with an attorney or have the questioning cease. He provided a consent to the officers to search his residence at Runamuck Place. He agreed to show them the residence and the officers transported him there after an initial interview.
Bojorquez was read his Miranda rights in Spanish. He stated he understood those rights and agreed to speak with the agents. He appeared relaxed and waived his Miranda rights. He did not ask to have the questioning cease nor did he invoke any of this Miranda rights or ask for an attorney. After the interviews were completed the suspects were taken to jail.
Bojorquez and Cardenas-Aguayo were advised of their right to have the Mexican Consulate contacted. This advisement occurred immediately after they were advised of their Miranda rights.
The handcuffs were removed from the suspects when they were placed into the holding cells at the DEA office. Food and restroom breaks were available for the suspects. Although the lights were kept on in the cells and interview room no suspect asked to have the lights turned off while they were waiting for their turn to be interviewed.
During the interview with Bojorquez he appeared to struggle at one point about whether to make a statement or what to say or cooperate, particularly when he was asked if he were willing to identify the supplier of the drugs. He never provided that information and his interview terminated shortly thereafter. After Agent Lopez advised Bojorquez of his right to contact a consulate, Bojorquez responded in Spanish: "Lets go forward." In the context of the colloquy the agents took this response to mean that Bojorquez was willing to go forward with the questioning. It did not appear to be a request for the consulate. When Bojorquez was asked whether having the Miranda rights in mind he wanted to talk with the officer he responded that he was willing to answer questions. As Detective Feliciano read the Miranda rights from his card obtained from his wallet, Agent Lopez studied the suspect including his body language to assess whether he understood what was being said to him. During the interview of Bojorquez, Agent Lopez obtained his name, date and place of birth. Bojorquez advised Agent Lopez that he had entered the United States illegally. He was asked where he lived and where he had been arrested as well as the kind of work he did.
Defendant Salazar-Cardenas initially gave a different name to the officers at the scene. During the interview the DEA officers received information that the suspect's fingerprint comparison had revealed the name Cardenas-Aguayo who had a prior arrest record in the United States. Agent Lopez learned from Salazar-Cardenas that he did not reside at Astro Circle. He was asked how he got to the United States and questioned about his family members. Near the end of the interview, Agent Lopez was alone with the suspect in the interview room. Salazar-Cardenas told the agent that he wanted to renounce what he had said.
Conclusions of Law
I. Initial Entry Into Residence
Because the police entered the residence at 3931 Astro Circle before they had a search warrant, the search is per se illegal unless it falls within an exception to the Fourth Amendment's warrant requirement. See Katz v. United States, 389 U.S. 347, 357 (1967). Generally, the Fourth Amendment prohibits searching a residence without a warrant unless at the time of the search there is both probable cause to believe that evidence of a crime will be found in the residence and exigent circumstances are present. Stoner v. California, 376 U.S. 483 (1964).
Officers Anderson, Trujillo and Weissenberger responded to a "shots fired" dispatch to talk with the complainant who had reported being an eye witness to the discharge of a firearm in his residential neighborhood. The complainant who appeared credible to the officers and he described an individual he had seen fire the weapon just before making his call to the police. The police proceeded immediately thereafter to 3931 Astro Circle as a followup to the interview with the complaint.
1. Protective Sweep
The Fourth Amendment permits a properly limited protective sweep in conjunction with a lawful in-home entry when the officer(s) possess a reasonable belief based on specific and attributable facts that the area to be swept harbors an individual posing a danger to those officers at the scene. Maryland v. Buie, 494 U.S. 325 (1990). The initial question is whether the protective sweep exception to the requirement of a search warrant to enter a residence is applicable. "A protective sweep inside a suspect's premises has been defined in [the Ninth Circuit] as an exception to the Fourth Amendment's warrant requirement to prevent physical harm or the destruction of evidence." United States v. Alfonso, 759 F.2d 728, 741-43 (9th Cir. 1985) cited in United States v. Hoyos, 892 F.2d 1387, 1398 (9th Cir. 1989). Although bare suspicion unsupported by articulable facts will not justify a protective search, United States v. Wiga, 662 F.2d 1325, 1330 (9th Cir. 1981), cert. denied 456 U.S. 918 (1982), here the officers had sufficient facts to believe that someone in this residence had recently fired a firearm in violation of the law. They entered to see if anyone had been or was about to be injured and to preserve the status quo while investigating the "shots fired" report since all occupants would not come to the door, and to preserve any firearm(s) as evidence.
When defendant Cardenas-Aguayo answered the door his responses to the officers' questions enhanced their suspicion that someone in the house had recently fired a gun from the second floor. Cardenas-Aguayo acquiesced in the request by the officer to step inside by pushing open the door. He was reluctant to identify the owner of the residence. The officers had reason to believe that there was more than one person in the residence based upon the response of Cardenas-Aguayo. The officers had probable cause to believe that a violation of Municipal Code 8.25.030 (making it a crime to discharge a firearm within city limits) had occurred.
Because of the hesitancy of three of the persons to reveal their identities to the police, the officers had a reasonable articulable belief that a person inside the residence might destroy evidence or pose a threat to the officer(s) safety. Cardenas-Aguauo appeared intoxicated when he came to the door. In Wiga the Ninth Circuit recognized that an overly restrictive view of the "protective sweep" doctrine might expose arresting officers to unnecessary dangers without providing any greater protection to legitimate Fourth Amendment interests. Id. at 1331. The court concluded that a case-by-case analysis best accommodated the balance of the officer(s) need for protection with the individual's right to be free from unreasonable searches. The evidence here establishes sufficient articulable facts that an entry into the residence was necessary to protect the officers and to assess the safety of others and to avoid destruction of evidence.
Officer Weissenerger stepped passed the threshold of the front door as a measure of officer safety to protect himself because of the split level entry. After the officers requested anyone else in the premise to come out, three people came forward. The officers had an articulable reason to believe that others might in fact be inside the residence based upon Officer Weissenberger's perception that he heard a noise inside. No gun had been produced. The protective sweep was based not so much upon the expectation that a firearm would be located in the residence, but upon the fact that a citizen had recently seen someone discharge the firearm from that location. The officers did not know whether the person firing the shot was intoxicated, distraught, threatening someone, or likely to discharge the firearm again.
Here, the officers did not have enough police support to guard the back of the residence once four people had come forward in response to the police command. The facts must be viewed as of the time known to the officers prior to the protective sweep. Thus, the fact that no one else was found in the house is not dispositive.
The protective sweep exception to the requirement of a search warrant to enter a residence is not inapplicable because the arrests of the defendants occurred outside the residence. If the exigencies to support a protective sweep exist, whether the arrest occurred inside or outside the residence does not affect the reasonableness of the officers' conduct. As the Ninth Circuit has recognized, "[a] bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another. The likelihood of a destruction of evidence is the same whether the arrest is indoors or in an outdoor area within the sight or hearing range of an accomplice within the residence." Hoyos, supra at 1397. The officers had a right to conduct a quick and cursory check of the residence because they had reasonable grounds to believe that there might be other person's present inside who might present a serious safety risk.
Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990) holds that the Fourth Amendment permits a properly limited protective sweep in conjunction with an otherwise valid contact when the searching officer possess reasonable belief based on specific and articulable facts that the area to be swept harbors individual posing a danger to those on the arrest scene. The precautionary action by the officers however, is not limited to matters incident to an arrest. Police need to act quickly for their own safety where the circumstances are justified.
In Buie, the court held "that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. . . ." For a more extensive sweep "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. Once Officer Evans observed in plain view evidence of drug trafficking the nature of this crime made it likely that the criminal conduct could involve more confederates or other persons present in the premises. The protective sweep served the purpose of not only looking for other accomplices, but to ensure the officers' own safety while detaining the arrestees in the front yard.
In Buie, while effecting an in-house arrest pursuant to an arrest warrant, the police swept the house for other dangerous persons. 110 S. Ct. at 1095. The sweep, based only on reasonable suspicion, was upheld. Id. at 1098. It would be unreasonable to require the police officers to take unnecessary risks in the performance of their duties. As in Buie the police had a legitimate right to enter the home. Once inside, the potential danger justified a standard less than probable cause for conducting a limited protective sweep. "The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or lives of others." Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 1645-46 (1967).
The officers in this case had a right to approach the residence to conduct an investigation. Whether or not they entered the residence they would have had a right to fear for their safety particularly since someone had recently been observed firing a shot from the second floor. When defendant Cardenas-Aguayo stated he knew nothing about a shot being fired and acted somewhat evasive in answering the questions about whether anyone else was present, the officers reasonably could fear the removal or destruction of evidence might be imminent particularly since other persons in the residence were slow to come forward. Astorga argues that the officers never asked if anyone was injured. That is contrary to the evidence. After Cardenas-Aguayo answered the door he was asked if there was anyone injured. Tr. 64, 100.
In the instant case the protective sweep of the upstairs, downstairs and garage lasted about five minutes. The officers were entitled to look in places where a person may be hiding. The defendants argue that the officers had no right to approach the closet in the bedroom because it was open and the officer could clearly see that there was no one inside. Only one side of the closet doors were open. Officer Evans opened the other side to look for a person. The evidence including the photograph of the closet (Exhibit 6) support the officer's approach to the closet to see if there was anyone standing to the left or right of the partially open doorway. Someone hiding in a closet would not likely stand in open view but rather to the side perhaps in the hope that the open door to the closet would dissuade a closer look. A lawful protective sweep allows the officer to open a closed closet door to quickly ascertain that there is no one present.
The digital scale was on a shelf at the middle of the closet and visible before the left door of the closet was opened.
Because the protective sweep was justified by officer safety the court need not decide whether the protective sweep was necessary to prevent physical harm to another or to present destruction of evidence. The evidence shows that the primary purpose for the protective sweep was for officer safety and to determine if there was an injured person, not to obtain evidence. I conclude the officers had the right to enter the house to do a protective sweep in order to secure it while applying for a search warrant for a firearm. They also had a legitimate concern that there might be an injured party inside. Several of the police officers were cross-examined about statements in their police reports relating to their initial entry into the residence for a protective sweep. I am satisfied that the apparent discrepancies in their respective testimony were cleared up without undermining the officers' credibility.
2. Plain View Observations
Visual observation by law enforcement officers situated in a place where he has a right to be does not constitute a search within the meaning of the Fourth Amendment. United States v. Coplen, 541 F.2d 211, 214 (9th Cir. 1976). Officer Weissenberger testified that the bedroom was small and he could clearly see the scale on the closet shelf of the open closet. His approach allowed him to observe in plain view what appeared to be a white powdery residue on a portable scales. He noted the residue as probable evidence of a drug violation. Officer Evans made a similar observation. The officer testified that the overall appearance of the residence was that of a drug house because it contained minimum personal affects and furniture. During the protective sweep the officers observed in plain view a large amount of cash, and cell phones consistent with a drug house.
Astorga requests the court to suppress all evidence found in excess of the cursory protective sweep prior to the issuance of the search warrant. Officer Evans testified about small chunks of insulation observed in a kitchen trash can. Officer Evans observed the trash can in plain view. Officer Weissenberger observed a couple of black 33-gallon trash bags one of which was partially opened. He testified that he saw protruding from the bag parts of what appeared to be an igloo cooler like one in which you would place soda pop. Transcript of Suppression Hearing, p. 112. There is no evidence that he opened the bag during the protective sweep. I accept the testimony that the plain view observations were made during the protective sweep without opening medicine cabinets or drawers.
Bojorquez argues that the money in the medicine cabinet were illegally seen by Officer Evans. I am satisfied that the record indicates that Officer Weissenberger observed the currency in the cabinet in plain view of the half-opened cabinet while he was scanning the bathroom for persons. Counsel for Bojorquez asks a rhetorical question, namely why would someone hide dollars in the medicine cabinet without closing the door. Material facts such as who placed the currency in the cabinet and why are not presently before the court.
Bojorquez argues that the protective sweep was unnecessary and illegal because the officers were merely investigating a misdemeanor involving an alleged shooting at the ground. This argument fails because the report to the police by the concerned citizen neighbor raised an immediate legitimate concern about community safety, and more important, was the concern for officer safety.
II. Pat-Down of Defendants
In determining the lawfulness of a frisk, consideration must be given to whether the officer was rightly in the presence of the party frisked so as to be endangered if that person was armed, and whether the officer had a sufficient degree of suspicion that the party frisked was armed and dangerous. The nature of the initial crime under investigation involved the discharge of a firearm from the balcony of the residence. Because the incident had recently occurred there was a substantial possibility that one of the occupants was armed.
The quantum of evidence needed to justify an arrest for the crime of carrying a concealed weapon need not be present in order for a lawful frisk to occur. The test is an objective one and no officer need demonstrate that he or she was in actual fear. United States v. Baker, 47 F.3d 691 (5th Cir. 1995). The Terry test for a frisk was met. In Pennsylvania v. Mimms, 434 U.S. 106 (1977) the court ruled that without any showing that a particular suspect may be armed an officer may require a person lawfully stopped in that case to alight from his car in order to diminish "the possibility, otherwise substantial, that the driver can make unobserved movements." This rule is equally applicable where the officers are investigating a shot fired from a residence containing a number of occupants. The minimal intrusion in asking them to step outside is justified in the interest of officer safety.
Following a consent entry no probable cause is needed for a pat-down of a suspect for weapons if it is independently justified by reasonable suspicion that the suspect may be armed. United States v. Flippin, 924 F.2d 163, 166 (9th Cir. 1991).
Defendant Cardenas-Aguayo complains about the cash from his pocket kept by Officer Trujillo. I conclude that the governmental interest in seizing the currency briefly to pursue further investigation was substantial. The brief detention of this "personal effect" was so minimally intrusive of Fourth Amendment interest that the strong countervailing governmental interest justified its seizure based on articulable facts that the property could contain a hidden instrument for assaulting the police (and later as evidence of a drug crime after observations were made in the the protective sweep). See generally, United States v. Place, 462 U.S. 696 (1983) (governmental interest in seizing luggage briefly to pursue further investigation does not violate Fourth Amendment). A seizure which is limited in its intrusiveness may be reasonable under the Fourth Amendment even in the absence of probable cause traditionally required for an arrest. Terry v. Ohio, 392 U.S. 1 (1968).
Officer Trujillo told Detective Dorr that she had removed $3,000.00 from Cardenas-Astorga. There were not enough officers when the four suspects were initially subject to a pat-down search. The suspects were reluctant to come out of the residence when requested and no one acknowledged the presence of the firearm identified by Mr. Lautarat, the complainant. It was not unreasonable for Officer Trujillo to retain the currency (30 bills) because she had no time to count or inspect it for a weapon at that time.
Detective Dorr explained his reason for conducting a further pat-down of the suspects. When the initial pat-down took place there was not one officer controlling each suspect. There was no one officer responsible for all the earlier pat-down searches. He also checked the comfort of each suspect vis-a-vis the effect of the handcuffs.
Detective Dorr noticed that Astorgia still retained his wallet which could conceal a weapon such as a razor blade. In his past experience Detective Dorr had found a razor blade in a wallet. He removed the wallet from Astorgia and looked inside for identification since APD would become responsible for the wallet. He asked Astorgia no questions. Detective Dorr did not empty the defendants' pockets or remove any cell phones. Thus, evidence derived from the pat-down searches should not be suppressed.
III. Arrest of Defendants
Defendants complain about the duration of their custody before being formally arrested. The removal of the suspects from the residence where the shot fired had recently occurred was lawful. To preclude the officers from ascertaining the identity of their suspects would have prevented them from fully investigating possible criminal behavior. The detention of a suspect under Terry is evaluated under the standard of reasonableness under the totality of the circumstances. 392 U.S. at 19. See also United States v. Sharpe, 470 U.S. 675, 685 (1985). There is no bright line rule in evaluating whether an investigative detention is unreasonable. Sharpe, 470 U.S. at 685. Rather than rigid criteria the determination includes consideration of common sense and ordinary human experience. Here, the officers' actions in removing the suspects from the residence was justified and reasonably related in scope to the circumstances which justified the interference in the first place and the developing circumstances. Because the officers were responding to an allegation of a shot fired the initial contact with the occupants of the premises was justified.
The facts known to the officers at the time included the observations made in plain view during the protective sweep. These facts indicated the likelihood of illegal drug trafficking. Although the evidence does not set the precise time when the officers considered the defendants under arrest the evidence is clear that the lawful Terry stops ripened into arrests before the search warrant was obtained because of the presence of probable cause to believe that the defendants were trafficking in drugs. Thus, the claim by some of the defendants raised for the first time at the suppression hearing that they should have been released as soon as the complainant, Mr. Lautarut identified a different suspect as the likely shooter is of no avail. Nor did the custody of the suspects depend upon whether a different individual was perceived to be the renter of the residence (or sub-lessee). The standard for arrest is probable cause to believe that one committed an offense. That they might have been a casual visitor to the premises need not be sorted out at this early stage of the investigation where the probable cause standard applies.
Four suspects had come out of the residence. Officer Trujillo recognized that she and Officer Anderson needed backup and soon thereafter Officer Evans came to the scene. Once Officer Evans arrived the protective sweep was undertaken. The protective sweep revealed evidence of drug trafficking which supplied a factual basis for arresting the suspects, and certainly to detain them pending application for a search warrant.
Exactly When an arrest occurred cannot be answered in the abstract. Once probable cause to arrest is present it is unnecessary to determine the precise time the custody ripened into an arrest. The defendants have no legal basis to complain about their detention after the protective sweep and during application for and execution of the search warrant. There was sufficient evidence of probable drug trafficking in the residence discovered during the protective sweep to justify holding all four suspects pending Officer Evan's immediate application for a search warrant. Because the defendants were subjected to a lawful arrest this established authority to search their persons. Thus, Detective Dorr had the authority to discover the contents of Astorga's wallet beyond what was learned about his identity during the pat-down search.
The arrests were lawful, and evidence resulting from them should not be suppressed.
IV. Validity of State Search Warrant
The application for the search warrant contains a reference to a positive field test for cocaine on the scale found in the bedroom. The defendants argue that without a warrant the officers had no authority to conduct a field test on the residue of the scale. I disagree. See United States v. Buchanan, 70 F.3rd 818, 824 (5th Cir. 1995) (plain view doctrine will justify warrantless seizure of officer's lawfully entered area where items were located; items were in plain view; incriminating nature of items was immediately apparent, and officers had lawful right of access to items). Upon entering a bedroom under a lawful protective sweep Officer Evans discovered in plain view a digital scale with white powdery residue. The officer reasonably believed the substance to be cocaine in light of the other indica of drug trafficking observed by him in plain view during the protective sweep. As in Buchanan, the officer confirmed that the suspect substance was cocaine, secured the premise and obtained a search warrant. Officers may seize evidence in "plain" view without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971)." Any item's incriminating nature is immediately apparent if `the officers had probable cause to believe the object was contraband or evidence.'" United States v. Castorena-Jaima, 285 F.3d 916, 924 (10th Cir 2002), citing United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996).
Transcript of Application for Search Warrant, 3AN-05-615SW, p. 11. (Hereinafter Tr), Exhibit A to Docket No. 52.
Defendants also complain that the scale contained no remnant of residue left for them to test with their own experts. The government responds that it does not matter since they do not intend to argue at trial that the residue was cocaine.
Officer Evans returned to the bedroom following his protective sweep after retrieving a field kit to test the residue. Even if this court were to conclude that Officer Evans did not have lawful "access" to the scale, although he had probable cause to believe that the white powdery residue was cocaine, his plain view observation of its appearance and location during the cursory protective sweep was legal and not tainted by the subsequent field test.
Even if this court were to conclude that the evidence of the positive field test was obtained during an illegal warrantless search and therefore should not have been included in the affidavit for a search warrant under Wong Sun v. United States, 371 U.S. 471 (1963), the mere inclusion of tainted evidence in an affidavit does not by itself invalidate the warrant where the evidence seized was pursuant to the warrant. United States v. Driver, 776 F.2d 807 (9th Cir. 1985), cited in United States v. Vasey, 834 F.2d 782, 788 (9th Cir. 1987). According to Vasey the reviewing court should excise the tainted evidence and determine whether the remaining, untainted evidence would provide a neutral magistrate with probable cause to issue the warrant. Id.
The court determines alternatively whether there was an independent source for the search warrant unrelated to the field test of the substance on the scale assuming that evidence was illegally obtained. If the search warrant was obtained pursuant to information that was sufficiently distinguishable from the illegal field test then the evidence obtained pursuant to the search warrant need not be suppressed. The court determines whether the search warrant was issued upon probable cause as supported by facts "untainted" by any prior illegality. United States v. Giordano, 416 U.S. 505, 554-556 (1974) (Justice Powell's concurrence in part and dissension in part); United States v. Driver, 776 F.2d 807 (9th Cir. 1985).
A search warrant affidavit is sufficient if it recites facts and circumstances for which a reasonably prudent person would conclude that an offense has been committed and that evidence thereof will be found at the place to be searched. The State search warrant was issued for evidence of a crime involving a weapon as well as for controlled substances. I have reviewed the transcript of Application for Search Warrant 3AN-05-615 SW filed at Docket No. 52. Deleting the reference to the positive field test of the residue there is still ample evidence for the search warrant authorizing a search for 3931 Astro Circle for items including drugs, packaging materials, items related to illegal (drug) transactions, items showing the identity, travel or ownership of firearms. See the State Court's findings contained in the Transcript of the Application for Search Warrant, p. 14. Probable cause to search for a firearm and related evidence was supported by testimony relating the citizen informant's report of the discharge of a firearm, the spent shell casing observed inside the back sliding glass door of the residence, and that no weapon was found on any of the suspects during a pat-down search. The warrant to search for drugs and related evidence was supported by the plain view observation of the scale with the white powdery substance; (observed prior to the field test of residue), a large amount of cash discovered prior to executing the search warrant, the Igloo cooler (parts cut out), tags showing the coolers had been transported by air, and the appearance of the place with minimal furniture consistent with a drug house.
Defendant Astorga's claim that Officer Evans "misled" the magistrate by making untruthful statements is rejected. I find no bad faith by Officer Evans as an affiant in seeking the search warrant. His reliance upon the illegally obtained field test of the residue on the scales was not made recklessly or with the intent to mislead the magistrate. I reject the claim that Officer Evans embellished his application for a warrant by misstating what he saw during the protective sweep.
Astorgia observes that Officer Evans reported to the magistrate that there were razor blades viewed in the residence, yet razor blades were not listed on the warrant returned as property seized. Defendant Astorga questions the source of the information about razor blades being observed at the residence since they were not seized and no photographs of razor blades have been produced in discovery even though they are referenced in the application for the search warrant. Officer Evans listed razor blades as one of the items commonly used to break down the package drugs. The fact that razor blades were not seized as evidence is not determinative of motion to suppress evidence. That the officers chose not to seize the razor blades does not discredit the testimony of Officer Evans that he saw razor blades during his protective sweep.
Thus, the state search warrant was valid, and evidence derived from its issuance should not be suppressed.
V. Execution of Search Warrant
1. Timing of Search
Defendant Salazar-Cardenas filed a supplemental motion to suppress on grounds that the officers entered the residence at 3931 Astro Circle to conduct a search prior to the issuance of the search warrant. Docket No. 105. The face of the search warrant reflects that it was issued at 12:40 a.m. on June 22, 2005. The time footage on the video recording made in Officer Weissenberger's vehicle (Exhibit 12) shows people entering the premises before that time. This raises an issue of fact about whether the officers had begun searching the premises before the search warrant was issued. Evidentiary hearings were conducted on October 26, November 4, and November 9, 2005 to address this issue. Testimony was taken from Officer Darrel Evans, Agent Alan Lopez, Sgt. Robert Glen, Detective Gordon Dorr, Detective Feliciano and Officer Ramon Dujoque.Salazar-Cardenas argues that the officers began searching the residence before the issuance of a search warrant. Search Warrant 05-615 SW authorizing a search of the premises known as 3931 Astro Circle is dated June 23, 2005 and indicates the time issued as 12:40 a.m. Salazar-Cardenas argues that the court document (search warrant) is presumptively correct and is consistent with the police dispatch (Exhibit 13) that reports that Officer Evans arrived at the residence (with the search warrant) about 12:49 a.m. He argues that the time recorded on Officer Weissenberger's video mounted on his police vehicle shows officers entering the residence before 12:40 a.m.
There is clearly a discrepancy in the times reported on the search warrant, the police dispatch records, Officer Weissenberger's mobile video recorder, and Officer Dorr's police report. In short, not all of the times reported can be accurate in light of their inconsistencies. The underlying claim is that the officers entered the premises before they had a search warrant. The government responds that the critical issue is the sequence of events not the actual time when the events took place. To resolve that factual issue the court conducted an evidentiary hearing.
The police dispatch log contained some computer generated times on a 24 hour clock as well as entries made by a dispatcher that may or may not conform to the actual time the events occurred. Detective Dorr arrived [at the scene] about 11:59 p.m. According to Officer Evans it took him about 7- to 8-minutes to drive from the courthouse to the scene. Officer Evans was present when the officers did a second protective sweep and then executed the search warrant. When he arrived at the scene the search warrant or a copy was placed on a search kit located on the ground outside the front entrance. This is depicted in Weissenberger's video recording which displays 12:12:29 a.m. (hour/minutes/seconds). The video shows that shortly thereafter the officers lined up for the final protective sweep before executing the search warrant. The video records the time of the four officers walking in at 12:29:45 a.m. [00:29:45]. The second sweep took 5 to 10 minutes. Tr. 193. After that, Detective Dorr comes out of the residence to pick up the search kit. Tr. 193. Evans put the search warrant on top of the search kit prior to participating in the second protective sweep. Tr. 196.
Some of the people in the video shown about the time of the second sweep were not at the scene when the first protective sweep occurred. Evans spent at least 15 minutes with the magistrate. Tr. 205. Officer Woodward came out of the house at 00:34 from the sweep. Tr. 207. And then began his pre-search photographs.
The CAD dispatch log, a computer generated time stamped model was introduced as Exhibit 13. This appears to be the most accurate sequence of events addressing the arrival of the officers at the scene; Officer Evan's trip to the magistrate's office to obtain the search warrant, and the officers' entry into the premises to execute the warrant. The log reflects that at 22:43 (10:43 p.m.) Officer Evans was initially en route to 3931 Astro Circle. He arrived at the residence at 22:46 (10:46 p.m.). At 23:14 (11:14 a.m.), he was en route to the magistrate's office arriving there about 23:21 (11:21 a.m.).
The dispatch center was actually working out of the emergency operations center at the time, not the usual dispatch center at APD. Tr. 208.
The dispatch log reflects that at 00:49 (12:49 a.m.), Evans was back at the residence.
In contrast the video recording, Exhibit 12, shows Officer Evans placing the search warrant on Detective Dorr's search kit near the garage at 00:29 [12:29 a.m.]. At 00:33 [12:33 a.m.] the video shows an intensified light attributed to the pre-search taking of photographs which immediately followed the second protective sweep prior to the execution of the warrant. The video shows Detective Dorr coming out of the premise and picking up the search warrant kit and search warrant.
Officer Evans testified that he does not have independent knowledge of the exact time when the search warrant was obtained. When he returned to the premises with the search warrant he did not notice anything inside the premises that had been moved nor did it appear to him that anyone had been inside to conduct a search. To his knowledge no evidence had been moved from its original location. Items appeared to be in the same place where he left them from the first protective sweep. Officer Evans did not immediately report in to dispatch when he returned with the search warrant. This accounts for several minutes of the discrepancy in the dispatch log reflecting his arrival at the residence with the search warrant. A CD of radio traffic (Exhibit 14) places Evans' arrival back at the residence about 12:53 a.m. although Evans arrived there a couple of minutes prior to that as reflected in his colloquy with dispatch. The time typed in the dispatch doesn't necessarily mean that that is the time the event happened.
Defendant Astorgia argues that the dispatch (Exhibit 13) is the product of human entries and therefore subject to human error. Based on the evidence I conclude that the Weissenberger video is more likely inaccurate. It was not used to record the precise times of events but rather to serve as a surveillance record of the defendants while they were being detained in custody awaiting the arrival of the warrant. Officer Weissenberger acknowledged that the video could have an error of at least five minutes.
Detective Dorr's statement in his report that he received a call from Evans at 12:28 a.m. reporting that "Evans had been granted a search warrant" raises some concern. However, because the evidence is clear that the officers waited for the search warrant to arrive before entering the premises to search it, there is no reasonable doubt that the warrant had been issued before its execution. Dorr's report does not address whether the officers waited for a search warrant. The decision to await the actual arrival of the warrant was made by Sgt. Glen not made by Detective Dorr. Thus, the absence of that fact in his report is of no surprise. At 29:33 the lights come on. Evans thought it could be Weissenberger's headlights. Tr. 214. Before the search warrant was issued Officer Evans placed a radio call to Officer Anderson to ask for clarification about the description of the house. Before returning to the scene Officer Evans called Detective Dorr on his cell phone to let him know that the search warrant had been issued. Soon after his arrival Officer Evans gave the search warrant to Sgt. Glen.
The video shows Officer Evans and the search warrant he obtained. I reject the defendants' argument that the video is too vague to allow the fact-finder to conclude that it shows Officer Evans after the search warrant was issued. At the evidentiary hearing Officer Evans identified himself on the DVD video. Both the Weissenberger DVD video and the police dispatch log are consistent in showing the sequence of events relating to the execution of the search warrant. It is not necessary to identify the exact time the events took place as long as they do not indicate a violation of the law.
Sgt. Robert Glen, a patrolman on the swing shift arrived at the scene about 11:03 p.m. Officer Evans spoke to him before leaving to obtain the search warrant. When Sgt. Glen arrived there was no one inside the premises and the defendants had been taken outside. He called for a Spanish speaking officer to come to the scene and Officer Dojaque came to the scene. The police dispatch indicates that Officer Dojaque was present at the scene at 11:31 p.m. After conferring with Sgt. Woodward, Sgt. Glen instructed the officers not to go back into the house until after the search warrant had been received at the premises. Officer Trujillo started to go inside the residence thinking that Officer Anderson was inside. Sgt. Glen directed that she come out of the entrance way and not go inside. Actually Officer Anderson was in the back yard at this time.
I reject the defendants' argument that because Officer Trujillo went into the entry way of the residence before being called back to await the arrival of the search warrant, the court should necessarily conclude that the officers were illegally inside the residence before the search warrant was issued. The officers were maintaining the status quo pending application for a warrant. Officer Trujillo did not proceed past the entrance way, and she made no search or observations of the premises of any consequence. I find no evidence of bad faith in her misjudgment nor do I find her presence at the entry way to negate the authority of the search warrant for a lawful entry.
Sgt. Robert Glen and Sgt. Woodward were the two highest ranking officers at the scene. Sgt. Glen did not see anyone enter the premises (other than Trujillo) prior to his receipt of the search warrant. Although Officer Anderson and another officer were stationed in the back of the residence and Sgt. Glen could not physically see if an officer entered through the rear of the residence Sgt. Glen was certain that no one entered the premises before the search warrant was received. He was in a position to make such observation and was acutely aware of such sequence of events since he had directed that the officers wait until the arrival of the search warrant before entering the premises.
When Detective Gordon Dorr, APD Drug Enforcement Unit, arrived at the premises about midnight Sgt. Woodward was there as well as Sgt. Glen, Officers Trujillo, Anderson and Weissenberger. Officer Evans had departed for the courthouse. Detective Dorr has no independent recollection but recorded in his report that he received a call from Officer Evans about 12:28 a.m. indicating that the search warrant had issued. Sgt. Dorr was confident that Officer Evans was not present at the scene at 12:28 a.m. He was also confident that the officers did not make entry into the premises until after the search warrant was received. I conclude that Detective Dorr probably recorded the time he spoke with Officer Evans correctly, but he was incorrect about the time reported in reference to when the search warrant had actually been issued.
The notation in Detective Dorr's police report that he learned about 12:28 that the search warrant had issued is of no great significance because even Detective Dorr agrees that no entry to the residence was made until after Officer Evans returned to the scene. His report states that "at approx 0028, we received word that Evans had been granted a search warrant." The next sentence states: "We entered the residence and confirmed that it was clear." This latter statement has no time line.
The evidence reflects that at 12:28 a.m. Officer Evans placed a cell phone call to Officer Anderson about the content of the warrant application. There is no indication that Evans informed the officer that the search warrant had already issued.
From the evidence I conclude that the video clock was not accurately set. Comparing the times Officer Evans is shown back at the residence as recorded in the dispatch log with the video illustrate that both times cannot be correct. Comparing these two sources reveals about 8 to 10 minutes difference. See for example, dispatch time Officer Weissenberger calls Homeland Security at 23:15:41 (Exhibit 13) with his voice recording on the video at 00:23:07 (Exhibit C). The CD of the radio traffic (Exhibit 14) from June 22 to June 23, 2005 from 10:42 p.m. to 1:01 a.m. (Tr. 225) shows that at 12:53 p.m. Evans calls dispatch asking whether he had called out on Astro Circle. Dispatch says "No, but I put you there a couple minutes ago." Tr. 228. The primary purpose of the running of the video on Weissenberger's vehicle was to record events not exact times. I Determine from the evidence that Weissenberger's video was not synchronized to real time. I am satisfied from the evidence that the depiction of persons entering the premises as shown in Weissenberger's video depicts an entry made after the search warrant was issued and not before.
The defendants claim that the officers' entry preceded the issuance of the warrant is primarily based upon using the time line of the video. That time line has to be inaccurate because it shows Officer Evans with the search warrant placed on the search kit which could not have occurred before the warrant was issued.
Sgt. Glen explained that the dispatch calls are not always accurate and the record does not necessarily mean that that's the time the event actually happened. Although Detective Dorr may have recorded the wrong time as to when he received a telephone call or learned that Officer Evans had obtained a search warrant the error is of no consequence because it is clear that entry was not made into the premises until after Evans had brought the search warrant to the location. There is no evidence that Sgt. Woodward entered the residence to take photographs before the search warrant was issued.
The sequence of events shown in the video are consistent with the time line sequence described in the police dispatcher log. I conclude that the search warrant was issued about 12:40 a.m. on June 23, 2005. The search warrant return shows that it was executed about 12:49 a.m. and this is consistent with the dispatcher log (Exhibit 13) which shows that Officer Evans arrived at the scene about 12:49 a.m.
The dispatch log shows Evans arriving at the courthouse at 23:21. If Evans was there about 15 to 20 minutes then that would place the search warrant being issued at 00:23:36-41. This would agree with the time stated on the search warrant itself at 12:40 a.m.
Although Officer Weissenberger's video shows officers inside the residence at a time line on the video prior to the issuance of the search warrant, I am satisfied from the testimony that the video time line is wrong and the officers did not enter the premises to conduct their second or final protective sweep and the execution of the search warrant until after the search warrant had issued and Officer Evans had returned at the scene. Officer Evans specifically recalled laying the search warrant down on top of the search kit prior to participating in the (second) protective sweep. The video shows Detective Dorr picking up the search kit. I accept Evans testimony that he was present when the search warrant was executed. By a clear preponderance of the evidence the officers did not enter the residence in bad faith prior to the issuance of the search warrant as claimed by the defendants. WHEREFORE, defendant Salazar-Cardenas's motion to suppress evidence based upon a search of the residence commencing before the issuance of the search warrant should be denied.
2. Service of Search Warrant
Rule 41(f)(3) of the Federal Rules of Criminal Procedure provides that the officer executing the search warrant must give a copy of the warrant to the person from whom, or from whose premises, the property was taken. Defendants complain that they were not provided a copy of the search warrant as required by law. Sgt. Glen asked Bojorquez if he was the person who was in charge or control of the residence and received an affirmative answer. Bojorquez spoke English. Sgt. Glen read the search warrant to him soon after it was delivered to the premises by Officer Evans. Sgt. Glen inquired whether Bojorquez understood what had been read to him and Bojorquez said that he understood "most" of what had been said (in English). Sgt. Glen then had Officer Dojaque repeat what he had said in Spanish. Officer Dojaque summarized the search warrant using Spanish. Sgt. Glen asked no other questions of the defendants. Sgt. Glen did not believe that Bojorquez was the actual renter of the premises or the owner. He had spoken with the owner who indicated that the residence had been rented to a couple with a child. No other defendants claimed to be in charge of the premises being searched. It was not necessary for the officer to read the search warrant to each and every person merely because he was present in the residence when the officers arrived. In compliance with Rule 41(f)(3)(B) a copy of the search warrant was left on the dining room table (Tr. 174). The search warrant was properly served.
VI. Statements of Defendants
The defendants complain that the officers asked if they lived there. This question was asked while the defendants were being detained under a lawful Terry stop and did not require advisement and waiver of the Miranda rights. Officers are not prohibited by case law from asking for or even demanding a suspect's identification. United States v. Christian, 356 F.3d 1103, 1106 (9th Cir. 2004). Determining a suspect's identity falls within an officer's authority under Terry v. Ohio, 392 U.S. 1 (1968) Terry also includes permission to inquire concerning suspicious conduct of the person detained. Michigan v. Summers, 452 U.S. 692, 700 n. 12 (1981). The purpose of the brief stop of a suspicious individual is to maintain the status quo momentarily while obtaining more information.
The defendants contend that while located in front of the garage at 3931 Astro Circle their Miranda rights were violated when they were asked about their residences, employment, citizenship of origin and contacts with Alaska, Ordinarily, routine gathering of background biographical data does not constitute interrogation. United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981), citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980). The statements taken by Officers Trujillo and Anderson were solicited before the protective sweep had occurred which gave rise to suspecting the defendants of drug trafficking. The Ninth Circuit Court of Appeals recognizes that when police officers know that large quantities of drugs are contained within a residence, asking a suspect his address constitutes interrogation. United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986). It is undisputed that Miranda warnings were not provided to the defendants before questions were asked of them at the residence. Even if the questions constituted interrogation the defendants cannot exclude the "fruits" of that interrogation from the search warrant application on Miranda grounds. United States v. Brinton, 985 F.2d 575 (9th Cir. 1993). Where the questions were used only to establish probable cause for a search warrant affidavit they do not constitute excludable fruits of any Miranda violation.
I find no evidence of coercion or otherwise that might impair the trustworthiness of the statements by defendants. With respect the use of the statements to establish probable cause for a search warrant affidavit defendants' motion to suppress the fruits must be denied. Questions relating to who was in control of the premises was appropriate to determine facts necessary to comply with the law regarding the service of a search warrant. Questions relating to a suspect's nationality were relevant to assess the necessity for advising the suspect of the right to have his Consulate notified if arrested.
It is axiomatic that statements taken in violation of Miranda may not be used to prove the prosecution's case at trial. To that extent the motion to suppress statements has merit if the government seeks to introduce such statements at trial.
The government has not identified what statements, if any, made by defendants they intend to offer in their case-in-chief at trial.
VII. Consent Search of Residence
During Cardenas-Aguayo's interview the defendant indicated he lived elsewhere than 3931 Astro Circle. The officers inquired whether he would consent to a search of his residence at Runamuck Place.
In the Ninth Circuit the following factors are used to assess whether a consent is voluntary: (1) whether the person was in custody; (2) whether the officers had their guns drawn; (3) whether a Miranda warning had been given; (4) whether the person was told that he had the right not to consent; and (5) whether the person was told that a search warrant could be obtained. United States v. Reid, 226 F.3d 1020 (9th Cir. 2000); United States v. Morning, 64 F.3d 531 (9th Cir. 1995). No one factor is determinative. Although Cardenas-Aguayo was in custody when the consent to search his residence was discussed he had previously been given and waived his Miranda rights. There is no evidence of coercion, express or implied. The officers did not have guns drawn. Cardenas-Aguayo had been told that he had the right not to consent and there is no evidence that he was threatened with a search warrant if he did not consent. I find that his consent to allow the officers to search his residence at Runamuck Place was unequivocal and specific and freely and intelligently given. The defendant accompanied the officers to the residence from the interview room. Thus, the consent to search Cardenas-Aguayo's residence was valid.
Conclusion
For the foregoing reasons it is hereby recommended that the defendants' motions to suppress be granted as to incriminating statements solicited from the defendants at the residence after the first protective sweep of the residence. In all other respects the motions to suppress should be denied.Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON, Wednesday, November 23, 2005. The failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON, Tuesday, November 29, 2005. The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).