Opinion
Criminal Action No: SA-03-CR-187-XR
June 2, 2004
ORDER
On May 7, 2004, the Court heard testimony regarding Defendant's Motion to Suppress. Defendant Luis Perez is charged in an indictment with two counts of violating 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) on August 4, 2002 and October 23, 2002. He argues that on August 4, 2002, law enforcement officers illegally entered and searched his home without a warrant. Because of the search, Defendant Perez moves to suppress both the semi-automatic rifle and ammunition found in his home and statements he made to the police officers concerning the rifle. Further, he argues that on October 23, 2002, a law enforcement officer unreasonably detained him and searched his vehicle. Because of that detention and search, Defendant Perez moves to suppress the .40 caliber pistol found under the front seat of his vehicle. IT IS HEREBY ORDERED that the Motion to Suppress is GRANTED in part, and DENIED in part.
FINDINGS OF FACT
August 4, 2002 Incident
1. On August 4, 2002, at approximately 11:50 p.m., San Antonio Police Officers Rodriguez and Garcia were dispatched to 311 Castillo Ave., Apartment No. A to investigate a 911 call. The officers were informed that a male was assaulting a female at that location. The officers arrived at the scene at 11:55 p.m. 2. Defendant Luis Perez and his then-girlfriend Cassandra Lopez lived at that residence along with their two daughters. However, the anonymous phone call to the San Antonio Police Department originated from a pay phone located at 3023 South Presa Street, which is approximately three-tenths of a mile from 311 Castillo.
3. Officer Rodriguez did not hear any yelling or loud voices upon his approach to the house. However, when he approached the front door of the house he saw a male inside the residence. The male saw Officer Rodriguez, turned around and walked in the opposite direction away from the front door. After Officer Rodriguez knocked and announced their presence, the male did not answer the door. Because the officers feared the male would attempt to run out the back door, Officer Garcia inspected the rear of the home and found that the back door was locked with a padlock. Officer Garcia walked back to the front of the house, and Officer Rodriguez knocked and announced their presence again.
4. Officer Rodriguez made a number of attempts to get someone to answer the front door. He identified himself as a police officer and pounded on the door at least five times. Because two minutes elapsed and no one answered the door, the officers became concerned for the alleged assault victim and entered the unlocked front door.
5. Once inside the home, the officers could see a majority of the space. The home has three small rooms. The front room, where the officers had entered, appeared to be a living room. The front living room is divided from the middle bedroom by sliding doors. The assault victim from that evening, Ms. Cassandra Lopez, testified that one door was open to gain entry to the second room, while the other door was closed to conceal the bed. From the bedroom, there appeared another door that led into the kitchen area. There were also two bathrooms in the house with one located off the bedroom and another off the kitchen.
6. As the officers entered, Ms. Lopez approached them in the middle part of the house. They immediately noticed visible injuries on her face. She would not cooperate with questioning and denied that there was anyone else present in the home. Officer Rodriguez testified that his questioning took place in the middle bedroom and that he was there approximately ten minutes.
7. Notwithstanding Ms. Lopez's statement, Officer Rodriguez heard noises emanating from the attic. Officer Rodriguez noted that there was a doorway in the kitchen area that led to a staircase and the attic. Although he called a number of times for the person in the attic to come down, there was no response.
8. Police backup began to arrive at 12:08 a.m. Officer Torres arrived first, with Officer Plauche arriving next. At this time, Officer Rodriguez was already in the kitchen commanding that the person in the attic come down. As Officers Torres and Plauche entered the home, Officer Plauche stated that a rifle was protruding from the mattress. Officer Rodriguez testified that although he was in the kitchen, he did not see the rifle at that time and that he thought Officer Plauche took the rifle to his patrol car. However, when asked to review Officer Plauche's report, it stated that the rifle was not retrieved until after Defendant Perez was taken into custody for family violence. Officer Plauche did not testify at the suppression hearing.
9. Officer Rodriguez testified that when he learned of the rifle, he called for a canine backup to assist him with the person in the attic. He stated that for safety reasons, he would not go into an attic when a firearm has already been found on the premises. The canine unit arrived at approximately 12:12 p.m. Thus, approximately only four minutes elapsed from when Officer Plauche arrived, found the gun, and canine back up arrived.
10. Officer Rodriguez also testified that the rifle was found prior to Ms. Lopez being arrested. Officer Rodriguez stated that after the rifle was found, Ms. Lopez was handcuffed and taken outside by Officer Torres because they were "trying to secure the area, for safety reasons, and since she wasn't being cooperative and telling us anything — from taking chances."
11. Officer Rodriguez also testified that although he questioned Ms. Lopez in the bedroom for approximately ten minutes before going into the kitchen, he did not see a weapon protruding from the mattresses.
12. Ms. Lopez at no time asked that the police officers leave her home.
13. Ms. Lopez offered conflicting testimony as to the location of the rifle and the relevant timing. She testified that prior to her being handcuffed and escorted outside of the house, the police officers did not hear any noises in the attic and did not find a weapon inside the home.
14. She testified that she did not know at first where Defendant Perez had hid the rifle. She further testified that no part of the weapon was protruding from the bed. Rather, she only noticed that the rifle was between the two mattresses when she sat down on the bed to answer the officer's questions. However, she did not testify that she sat on the weapon, but rather that as she was sitting down, she noticed a hump. She testified that Defendant Perez must have thrown the comforter over the bed in an attempt to hide the hump. Although this would make the bed look unkept, it is unclear if it actually hid the hump.
15. Ms. Lopez testified that to be able to retrieve the weapon from the springboard and mattress it would be necessary to lift the mattress. She said that as she was sitting on the edge of the bed facing the officers, the rifle was behind her and close to the wall. She also thought that the officers could not see the hump because she was directly in front of it.
16. Ms. Lopez is not a credible witness regarding these issues. The Court attributes her testimony to a fear that Defendant will commit another assault upon her or withhold child support. Defendant Luis Perez and Ms. Lopez now have four children. She testified during the suppression hearing that she had been assaulted on August 4, 2002, by Defendant Perez. She further testified that in June 2003, she called the police because he assaulted her. However, on or about November 2003, she separated from him because often years worth of incidents."
17. In addition, at the suppression hearing, she admitted that she lied to police officers on the night they entered her home. She testified that she lied because she was afraid that the Defendant would have become upset with her if she told the truth to the police officers. During the suppression hearing, Ms. Lopez attempted to justify her lying because Defendant Luis Perez was in the attic and technically not in the house. Ms. Lopez admitted that on August 4, 2002, Defendant Luis Perez had turned on the radio loudly and the two of them "started arguing again at the house."
18. When the canine unit arrived, it was utilized to bring the individual down from the attic. The individual was subsequently identified as the Defendant Luis Perez.
19. He was read his Miranda rights and arrested. He was questioned about the rifle, and acknowledged that the weapon belonged to him and that he bought the weapon for $150. It was also determined that there was an outstanding active misdemeanor warrant issued by Bexar County for his arrest. Defendant Luis Perez also informed police officers that he knew it was unlawful for a convicted felon to possess a firearm. It is these statements that the Defendant is trying to suppress.
20. The Government offered no testimony as to the location of the duffel bag of ammunition, or when it was discovered.
October 23, 2002 Incident
1. On October 23, 2002, at 9:52 p.m., San Antonio Police Officers Mark Anthony Harris and John Schiller were patrolling the area near Hamilton Avenue and South San Luis Street. It is an area known by law enforcement officers for drug sales.
2. Officer Harris noticed a bicyclist next to a parked car. Because bicyclists are often used as couriers in drug transactions and the area was known for drug sales, he approached the two individuals. Officer Harris asked the two individuals "what's going on?" and "you are not buying any dope or anything, are you?" The individuals said "nothing" and that they were just talking. It appeared to Officer Harris though, that they both became agitated and fidgety. Officer Harris asked the two individuals to identify themselves. The bicyclist identified himself and also stated that there were warrants outstanding for his arrest.
3. The driver of the vehicle, later identified as Defendant Luis Perez, gave Officer Harris his name and an incorrect date of birth. When Officer Harris ran a computer check on Defendant Luis Perez, the computer was unable to verify his identity. Officer Harris returned to Defendant Luis Perez and requested that he accurately identify himself. At that time, Defendant gave his name and his correct date of birth. After the computer check verified the information, it was noted that Defendant Luis Perez had active warrants for his arrest.
4. At no time prior to his arrest was Defendant Luis Perez told he was not free to leave.
5. While Officer Harris was questioning Defendant Perez, Officer Schiller was standing on the rear passenger side of Defendant's vehicle serving as "cover" for Officer Harris. Officer Harris testified that Defendant Perez never turned around to look for Officer Schiller. He further testified that Defendant Perez was polite and soft-spoken throughout the encounter.
6. Because of the active warrants, Defendant Perez was arrested and read his Miranda warnings.
7. His car was searched incident to his arrest and a .40 caliber pistol loaded with eight rounds was located in the driver seat. Officer Harris asked Defendant Luis Perez why he was carrying a weapon. The Defendant stated "somebody tried to kill him before and he wanted to have something to protect him." Defendant Perez is seeking to suppress both the weapon and this statement.
CONCLUSIONS OF LAW
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
The police officers' warrantless entry into the home on August 4, 2002
2. Although warrantless entries into homes are presumptively unconstitutional, an entry may be justified by exigent circumstances. U.S. v. Blount, 123 F.3d 831, 837 (5th Cir. 1997). Courts have concluded that exigent circumstances will generally exist when the safety of law enforcement officers or the general public is threatened. Id; Mincey v. Ariz., 437 U.S. 384, 393 (1978). The Government however, has the burden of proving the existence of the exigent circumstances and cannot rely on circumstances that were created by the officers. U.S. v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).
3. Because Officer Rodriguez feared for the safety of the alleged assault victim, the officers were justified in entering the home. The officers were responding to a 911 call that a female was being assaulted by a male at the residence in question. Upon arriving at the scene, a male was seen acknowledging the police presence and turning in the opposite direction. After repeatedly announcing themselves as police officers and pounding on the door, no one responded. Officer Rodriguez testified he feared for the safety of the female believed to be inside the premises. See Tamez v. City of San Marcos, 118 F.3d 1085 (5th Cir. 1997) (Police responding to a "shots fired" call could reasonably believe the residents of a home were in danger.).
4. Defendant emphasizes that the 911 caller was anonymous and made the phone call from a location three-tenths of a mile away. However, "there is no set formula for determining when exigent circumstances may justify a warrantless entry." Blount, 123 F.3d at 836. There was no evidence tendered that the exigent circumstances here were created or manufactured by any law enforcement officer. The fact that the call was anonymous does not detract from Officer Rodriguez's reasonable belief that an assault victim could be injured inside of the home. Because Officer Rodriguez reasonably believed that the safety of the assault victim could be in danger, exigent circumstances existed for the officers to enter the home.
Discovery of the semi-automatic rifle and duffle bag of ammunition on August 4, 2002
5. Generally, the burden of proof in a motion to suppress remains with the moving party. U.S. v. Roch, 5 F.3d 894, 897 (5th Cir. 1997). However, when a defendant produces evidence that he was subject to a search without a warrant, the burden shifts to the government to justify the warrantless search. Id; U.S. v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). Thus, the Government must prove by a preponderance of the evidence that the seizure of the rifle and ammunition is constitutional. Id.
6. Ms. Lopez testified that Defendant hid the weapon immediately upon seeing the police approach the home. Defendant had only approximately two minutes to retrieve the weapon from wherever it was located, hide the weapon under the bed, and go up into the attic. In this haste, it is likely that he failed to conceal the weapon as well as he would have liked. 7. Defendant argues that the testimony of Ms. Lopez establishes that the semi-automatic rifle was not protruding from the bed where it was hidden, and that the police officers conducted an illegal search of the premises before or after Defendant was removed from the attic and arrested. Because the Court finds Ms. Lopez less credible than Officer Rodriguez, the Court is unwilling to state the exact location of the rifle. But before the officers can seize the rifle, the Government must prove by a preponderance of the evidence that it was in plain view.
8. An exception to the Fourth Amendment's requirement of a search warrant is the plain-view doctrine. The Supreme Court explained the plain-view doctrine in Minn. v. Dickerson, 508 U.S. 366 (1993). Under the plain-view doctrine, the police may seize an item if (1) they are lawfully in a position from which they view the object, (2) its incriminating character is immediately apparent, and (3) the officers have a lawful right of access to the object. Id. at 375. See also U.S. v. Simmonds, 262 F.3d 468, 470 (5th Cir. 2001)
9. Although the Government has established that exigent circumstances justified their entry into the home, the Government has failed to establish by a preponderance of the evidence that the rifle was protruding from the mattress. Although Officer Rodriguez interviewed Ms. Lopez in the bedroom for approximately ten minutes, he never saw a rifle protruding from the mattress. He stated that he never saw it "because I guess I had tunnel vision and I was concentrating on the back of the house." He testified however, that the house was not that big.
10. In addition, the Government presented no evidence as to the location of the ammunition and the timing of its discovery. While the Court finds the testimony of Officer Rodriguez more credible than the testimony of Ms. Lopez, Officer Rodriguez relied upon Officer Plauche for all facts regarding the weapon. Officer Plauche did not testify at the hearing. The lack of Officer Plauche's testimony and the questionable find of ammunition in a duffle bag establish serious doubt as to the rifle's location. Because Officer Plauche did not testify, and the Government did not present any information concerning the duffle bag of ammunition, the Court cannot conclude that the rifle was in plain view.
11. The Government also argues that warrantless searches incident to lawful arrests are admissible. See Chimel v. Cal., 395 U.S. 752 (1965). While this is a proper restatement of the law, Officer Rodriguez testified that the rifle was found before Defendant Perez was arrested. Therefore, any alleged search that occurred could not be incident to his arrest. Although Officer Plauche's report stated that the rifle was removed after the Defendant was arrested, the Government presented no evidence that the rifle was found and removed after the arrest. In addition, the Court notes that the Defendant was arrested as he came down from the attic. A search between mattresses or even in the bedroom could not occur in connection with an arrest in the kitchen. 12. Under the "fruit of the poisonous tree" doctrine, "all evidence derived from the exploitation of an illegal search or seizure must be suppressed, unless the Government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation." U.S. v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998) citing Brown v. Ill., 422 U.S. 590, 602-03 (1975). The Government failed to produce any such evidence.
13. The Court GRANTS Defendant's Motion to Suppress, in part, and ORDERS that evidence of a semi-automatic rifle, the duffel bag of ammunition, and the Defendant's subsequent statements admitting that he owned the rifle and bought it for $150 be suppressed.Discovery of the .40 caliber pistol on October 23, 2002
14. Officer Harris did not stop Defendant's vehicle for any traffic violation. It was already parked on the street and the driver was speaking with a person on a bicycle. Because bicyclists are often used in that area as drug couriers, the officers suspected that a drug deal was taking place. However, the lone fact that the car is parked in an area known for illegal activity is not enough to create reasonable suspicion in a police officer. Ill. v. Wardlow, 528 U.S. 119, 124 (2000). Thus, the police acted on a "hunch," rather than reasonable suspicion.
15. However, not every encounter between the police and a citizen implicates the Fourth Amendment. INS v. Delgado, 466 U.S. 210 (1984). If a reasonable person is under the impression that he is free to ignore the police presence and go about his business, a contact between the police and a citizen will not raise a Fourth Amendment claim. U.S. v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002). In addition, although initial citizen questioning may not implicate the Fourth Amendment, if the consensual encounter turns into a seizure or arrest, the police must have a reasonable suspicion or probable cause. Delgado, 466 U.S. at 217.
16. "This `reasonable person' standard is objective, and is concerned not with the citizen's subjective perception or the officers' subjective intent, but only with what the officers' words and actions would have conveyed to a reasonable and innocent person." U.S. v. Mask, 330 F.3d 330, 336 (5th Cir. 2003) (citation omitted).
17. Defendant argues that three factors compel a finding that a reasonable person would believe that the police officers' actions were coercive and would cause a person to believe they were not free to leave: (1) Officer Harris parked his marked police vehicle behind his parked car; (2) Officer Schiller stood "cover" at the rear passenger side of his vehicle; and (3) Officer Harris, a large male, asked Defendant for identification. The Court concludes that these factors are insufficient to compel such a finding. The police vehicle did not encumber Defendant's vehicle. Officer Schiller did not impede Defendant's ability to leave. Neither of the officers, through their speech, actions, or position relative to Defendant, ever prevented Defendant from informing Officer Harris that he would not be answering any questions. There is no evidence that the officers ever brandished their weapons, or spoke to Defendant in an intimidating manner. As long as police officers do not induce cooperation by coercive means, they may ask questions and request identification. U.S. v. Drayton 536 U.S. 194, 200(2002).
18. In addition, after Defendant gave Officer Harris an incorrect date of birth, the Officer could have formed a reasonable suspicion that Defendant was engaged in illegal activity. Defendant was only arrested after he correctly identified his date of birth and Officer Harris discovered there were outstanding warrants for Defendant's arrest.
19. After Defendant was arrested, he was read his Miranda warnings. To solicit a waiver of Miranda rights, the law does not require a police officer to use a waiver form or to ask explicitly whether the defendant intends to waive his rights. See U.S. v. Hernandez, 574 F.2d 1362, 1371 (5th Cir. 1978). Where an officer confirms that a person in a custodial interrogation setting understands his rights, such confirmation is sufficient to establish that person's knowledge of his rights. Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000). A defendant's subsequent willingness to answer questions after acknowledging his Miranda rights is sufficient to constitute an implied waiver. Id.; See also Hernandez, 574 F.2d at 1371. Defendant's post- Miranda statement that he was carrying a weapon because "somebody tried to kill him before and he wanted to have something to protect him" will not be suppressed.
20. After Defendant was arrested for outstanding warrants, the interior driver section of his car was searched. Because vehicle searches are lawful incident to arrest, the seizure of the gun under Defendant's seat is constitutional. N.Y. v. Belton, 453 U.S. 950 (1981); U.S. v. Ponce, 8 F.3d 989 (5th Cir. 1993) (approving police procedures designed to secure and protect vehicles and their contents when the driver has been arrested).