U.S. v. Vigil

Full title: UNITED STATES OF AMERICA, Plaintiff, v. CAROLINE VIGIL, Defendant

Court: United States District Court, D. Kansas

Date published: Nov 16, 2005

Case No. 04-40066-JAR (D. Kan. Nov. 16, 2005)

Opinion

Case No. 04-40066-JAR.

November 16, 2005

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

JULIE ROBINSON, District Judge

Defendant Caroline Vigil is charged with two counts of making a false statement in acquisition of a firearm in violation of 18 U.S.C. §§ 922 (a)(6) and 924(a)(2). This matter is before the Court on defendant's Motion to Suppress Evidence (Doc. 31).

The charges against defendant stem from a search of a residence that she maintained with Lawrence Nielson. Defendant alleges that evidence from the search should be suppressed because the officers executed the search at 4:45 a.m. and failed to knock and announce prior to entering her residence, in violation of the Fourth Amendment's ban on unreasonable searches and seizures. Lawrence Nielson was also arrested and charged in a separate case, United States v. Nielson, D. Kan. No. 04-40068-RDR. A suppression hearing was held in that case. The Court grants the government's request that this Court take judicial notice of that hearing, as "[t]he facts shall be identical and in the interests of judicial economy, a further evidentiary hearing would accomplish nothing."¹ Judge Rogers granted defendant Nielson's motion to suppress.² The government appealed, and on July 21, 2005, the Tenth Circuit affirmed.³ A motion for rehearing en banc was denied on October 12, 2005, and the mandate issued on October 20, 2005.⁴

1 Government's Response to Defendant's Motion to Suppress Evidence (Doc. 32, p. 9 n. 7).

2 United States v. Nielson, 2004 WL 3186011 (D. Kan. Oct. 6, 2004).

3 United States v. Nielson, 415 F.3d 1195 (10th Cir. 2005).

4 The government's motion to stay execution of the mandate was denied on October 31, 2005.

In affirming Judge Roger's order granting suppression in the Nielson case, the Tenth Circuit took the district court's view that law enforcement officers failed to demonstrate that they had an objectively reasonable suspicion that knocking and announcing would be dangerous or futile. For the reasons set forth in detail by the Tenth Circuit in Nielson, this Court also grants defendant Vigil's motion to suppress.

IT IS THEREFORE ORDERED BY THE COURT that defendant's motion to suppress (Doc. 31) is GRANTED.

IT IS SO ORDERED.