Opinion
Case No. 1:02-CR-98TC.
May 7, 2003
ORDER
The Defendant, Adolfo Melendrez-Moreno, has moved to suppress evidence obtained during an October 17, 2002, warrantless search of his apartment. Mr. Melendrez-Moreno contends that he did not give valid consent for the search. He alternatively argues that the officers' search, which extended into the kitchen attic and the control panel of a wall heater, exceeded the scope of any consent Mr. Melendrez-Moreno gave. Mr. Melendrez also seeks to suppress statements he made following an allegedly insufficient advisement of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). For the reasons set forth below, Mr. Melendrez-Moreno's motion is DENIED IN PART and GRANTED IN PART.
FINDINGS OF FACT
On the evening of October 17, 2002, based on several tips concerning possible drug activity at Mr. Melendrez-Moreno's apartment, Ogden City Police Officers Dale Weese and Juan Trujillo and Adult Probation Parole ("APP") Supervisor Blake Woodring ("Agent Woodring") visited the apartment. The apartment, which was one part of a partitioned home, was located at 463 32nd Street in Ogden, Utah. Officer Weese knocked on the door. When Mr. Melendrez-Moreno, who was twenty-three years old at the time, answered, the officers identified themselves.
This Order refers to Mr. Melendrez-Moreno's "apartment" and "home" interchangeably.
At the door, Officer Weese started to talk to Mr. Melendrez-Moreno in English. Once it became apparent that Mr. Melendrez-Moreno was more comfortable speaking Spanish, Officer Trujillo began speaking in Spanish. Officer Trujillo explained to Mr. Melendrez-Moreno that the officers were acting on a report of drug activity in the apartment. Officer Trujillo asked if any drug activity was occurring in the apartment. Mr. Melendrez-Moreno said that he did not do or sell drugs.
While still standing outside of the house, Officer Trujillo asked whether the officers could come in. (See transcript ("tr.") at 35.) Mr. Melendrez-Moreno told the officers they could come inside. Once inside the kitchen, "the first room that [the officers] entered," (tr. at 9), Officer Trujillo asked Mr. Melendrez-Moreno if the officers "could search for drugs and paraphernalia inside of his home." (Tr. at 36.) Although Officer Trujillo gave inconsistent testimony as to the exact form of the permission Mr. Melendrez-Moreno gave, based on a review of the evidence, the court finds that Mr. Melendrez-Moreno responded with words to the effect of "yes." (See tr. at 36.) During this initial encounter, none of the officers pulled their weapons, forced their way into the apartment, threatened Mr. Melendrez-Moreno, or used inappropriate language.
Additionally, some discrepancies in the officers' testimony exist concerning whether Mr. Melendrez-Moreno gave permission to search his apartment before or after the officers entered the apartment. (Compare Officer Weese's testimony, tr. at 8, with Officer Trujillo's testimony, tr. at 35-36, 44.) The court finds that Officer Trujillo initially asked Mr. Melendrez-Moreno if the officers could come into his apartment. See tr. at 35.) Mr. Melendrez-Moreno told them they could come inside. Once inside, Officer Trujillo asked for and received permission to search the apartment. (See tr. at 36.)
After the officers had received initial permission to search Mr. Melendrez-Moreno's apartment, Officer Weese briefly walked around the apartment. Officer Weese noticed "cans of grease that had plastic bags in them, [and] some driveshafts." (Tr. at 10.) The driveshafts "signal[ed] to [Officer Weese] that something was going on due to the amount of them that [he] found there." (Tr. at 10.) Also in the kitchen, Officer Trujillo noticed "a lot of greasy fingerprints" around the light switches, the doorknobs, and on the attic "trapdoor." (Tr. at 36.)
Meanwhile, Officer Trujillo gave Mr. Melendrez-Moreno a consent to search form (the "form") that was printed in Spanish and explained the form to Mr. Melendrez-Moreno in Spanish. The form was "a standard form for Ogden City Police. [The Police] have one in English and in Spanish." (Tr. at 37; see also Consent to Search Form, Pl.'s Ex. 1.) At the hearing, Officer Trujillo testified that among other things, the form permitted the officers to enter Mr. Melendrez-Moreno's residence and search his "personal items." (See tr. at 49-50.) Also at the hearing, Officer Trujillo stated that the form did not contain the word "buscar," a Spanish word meaning "to search." (See Tr. at 50.) On cross-examination, however, Officer Trujillo stated that when he explained the form to Mr. Melendrez-Moreno and asked if the officers could search the apartment, he used the word "buscar." (See Tr. at 51.)
Mr. Melendrez-Moreno told Officer Trujillo that he understood the form after Officer Trujillo explained its contents. He signed the form in the name of Carlos Angulo and provided a Mexican picture identification with the same name. Mr. Melendrez-Moreno did not place any limitations on where the officers could search. Further, none of the officers pulled their weapons or threatened Mr. Melendrez-Moreno prior to his signing of the consent form.
After Mr. Melendrez-Moreno signed the consent form — which was approximately fifteen minutes after the officers first came into Mr. Melendrez-Moreno's home — the officers began to search the apartment thoroughly. During the search of Mr. Melendrez-Moreno's bedroom, Officer Weese found a methamphetamine pipe and prescription pills, Agent Woodring found a box of .45 caliber bullets in the closet, and Officer Trujillo found a semiautomatic pistol between the mattresses of Mr. Melendrez-Moreno's bed.
When asked by Officer Trujillo where he kept his gun, Mr. Melendrez-Moreno initially said that he did not have a gun but then pointed toward the bed. See tr. at 39.)
Noticing "greasy fingerprints all over" the attic access door in the kitchen and a "tall bar stool" close by, Officer Weese stood on the bar stool and looked in the attic. See tr. at 13, 22-23.) Within reach of the attic door, Officer Weese found "driveline parts" and approximately an ounce of a crystalline substance. See tr. at 13, 22-23.) While searching a storage room, Officer Weese opened the access door to the control panel of a wall heater and found two "balls" of crystal methamphetamine. (See tr. at 13-14, 27.)
Once the officers found the gun and the suspected methamphetamine, Officer Trujillo advised Mr. Melendrez-Moreno of "his rights as perMiranda in Spanish." (Tr. at 40, 48.) At the hearing the government asked Officer Trujillo specifically how he advised Mr. Melendrez-Moreno of his rights. Officer Trujillo responded,
I told him that he had the right to remain silent, that anything he says can and will be used against him in a court of law. I told him that he had the right to have an attorney with him while he was being questioned. And then I asked him if he understood his rights.
(Tr. at 40.)
At some point after he had been advised of his rights and taken into custody, Mr. Melendrez-Moreno told Officer Trujillo that "the gun was used for protection, and . . . that he used and sold drugs." (Tr. at 41.) After telling Agent Jeff Machielson of the Weber-Morgan Narcotics Strike Force that he remembered the rights Officer Trujillo had given him and that he still wished to speak, Mr. Melendrez-Moreno told Agent Machielson that the gun found in his apartment belonged to him and that he sold drugs. (See tr. at 41, 59-60.) Mr. Melendrez-Moreno and Agent Machielson spoke to each other in English.
Later in the evening, but before Mr. Melendrez-Moreno's transportation to the jail, Immigration Naturalization Service ("INS") Special Agent Kirk Halverson spoke by phone to Mr. Melendrez-Moreno. At the beginning of the conversation, Special Agent Halverson identified himself as an INS agent and advised Mr. Melendrez-Moreno of his Miranda rights in Spanish. See Miranda v. Arizona, 384 U.S. 436 (1966). Mr. Melendrez-Moreno told Special Agent Halverson that he understood his rights and was willing to answer the agent's questions. Mr. Melendrez-Moreno gave Special Agent Halverson biographical and other information, told Special Agent Halverson that he was present illegally in the United States, and told the Special Agent that his true name was Adolfo Melendrez-Moreno. Later that night, as Agent Machielson was driving Mr. Melendrez-Moreno to the Weber County Jail, Mr. Melendrez-Moreno told him "that he entered the United States through Nogales" and "that he could purchase an ounce of methamphetamine for $900 and then turn around and sell it for [$1050]." (Tr. at 61-62.)
CONCLUSIONS OF LAW
I. Did the Ogden City Police Officers Obtain Mr. Melendrez-Moreno's Voluntary Consent?
The Fourth Amendment to the United States Constitution provides in part that "the right of the people to be secure in their . . . houses, . . . against unreasonable searches and seizures, shall not be violated." U.S. Constit. amend. IV. A warrantless entry or search of a house is "per se unreasonable" unless a specifically established exception, such as valid consent, applies. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 357 (1967)). When the government relies on a defendant's consent to establish the validity of a search of a home, the government must prove that consent was freely, intelligently, and voluntarily given. United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993); see also Schneckloth, 412 U.S. at 222. Voluntariness is a question of fact that a court should determine from the totality of the circumstances. See Schneckloth, 412 U.S. at 227;United States v. McRae, 81 F.3d 1528, 1536-37 (10th Cir. 1996).
The Tenth Circuit has developed a two-part test for determining the voluntariness of a defendant's consent to search. See McRae, 81 F.3d at 1537. The government must (1) "proffer `clear and positive testimony that consent was unequivocal and specific and freely and intelligently given'" and (2) "prove that this consent was given without implied or express duress or coercion." McRae, 81 F.3d at 1537 (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995) (further quotation omitted)). The government does not discharge its burden "by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); see also United States v. Sorenson, 28 F. Supp.2d 1310, 1317 (D.Utah 1998).
In the present case, the government has presented clear and positive testimony that Mr. Melendrez-Moreno specifically and unequivocally consented to the search of his apartment, and that he did so freely and intelligently. Officer Trujillo, whom the court found to be credible, testified that he asked to come inside Mr. Melendrez-Moreno's apartment while the officers were outside of the apartment. Mr. Melendrez-Moreno gave permission verbally for the officers to come inside. Once inside, Officer Trujillo asked Mr. Melendrez-Moreno if the officers "could search for drugs and paraphernalia inside of his home." (Tr. at 36.) Mr. Melendrez-Moreno consented to the search with words to the effect of "yes." Mr. Melendrez-Moreno additionally told Officer Trujillo that he understood the written consent form and signed the form after Officer Trujillo explained it to him in Spanish.
The government further has proved that the police did not coerce Mr. Melendrez-Moreno into granting his consent to search. The Tenth Circuit has stated that
[i]n determining whether a consent to search was free from coercion, "a court should consider, inter alia, physical mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant within the totality of the circumstances."United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998) (quotingUnited States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994) (further internal quotations omitted)).
The officers in the present case made no threats, promises, or displays of force when they asked Mr. Melendrez-Moreno if they could come inside and search his apartment. Additionally, no evidence suggests that Mr. Melendrez-Moreno lacked the physical or mental capacity to consent to a search of his apartment. To the contrary, the evidence shows that on October 17, 2002, Mr. Melendrez-Moreno communicated coherently with the officers both in English and in Spanish, (see tr. at 45, 58), seemed to understand what was going on, (see tr. at 45-46), and appropriately answered questions when asked, (see tr. at 45-46, 60).
In sum, the government has demonstrated under the totality of the circumstances that Mr. Melendrez-Moreno voluntarily consented to the initial entry and subsequent search of his home by the Ogden City Police officers. Accordingly, Officer Weese and Agent Woodring's initial search of Mr. Melendrez-Moreno's home was lawful.
II. Did the Officers' Search of Mr. Melendrez-Moreno's Home Exceed the Scope of Mr. Melendrez-Moreno's Consent?
Mr. Melendrez-Moreno next argues that even if he consented to the search, the Ogden City Police officers exceeded the scope of that consent. The Tenth Circuit has stated that "[t]he standard for measuring the scope of an individual's consent to search is that of `objective reasonableness,' asking what the typical reasonable person would have understood to be the scope of his or her consent under the circumstances." United States v. Pena, 143 F.3d at 1367-68 (quotingFlorida v. Jimeno, 500 U.S. 248, 251 (1991)). "The scope of a consent to search `is generally defined by its expressed object, and is limited by the breadth of the consent given.'" Id. at 1368 (quoting United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997) (further citations omitted)). A court should look at the totality of the circumstances when determining whether a search was within the scope of the consent. See United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1231 (10th Cir. 1998).
The Tenth Circuit has further explained that "[c]onsent to an officer's request to search for drugs would reasonably include areas in which one would be expected to hide drugs." Pena, 143 F.3d at 1368. In Pena, Albuquerque police officers were investigating a report of drug activity in a motel room. See id. at 1365. The officers asked Pena, the defendant motel guest, for permission to "look in the room" after Pena admitted that he recently had smoked marijuana there. Id. The defendant "responded with words to the effect of `go ahead.'" Id. at 1366. In their search of the motel room, the officers "removed a ceiling tile in the bathroom above the toilet and found a bag of marijuana." Id. at 1365. One officer "inserted his head into the hole where the ceiling tile had been and found two bags of crack cocaine." Id. The district court denied the defendant's motion to suppress evidence. See id.
On appeal, the Tenth Circuit held that under the circumstances, the officer's request to "`look in' the motel room . . . would reasonably be understood to include a thorough search of the room, including the space above the bathroom ceiling." Id. at 1368. The court first emphasized that "at no point did Pena object to the officers' search to the bathroom."Id. Next, the court stated that it had "consistently held that similarly phrased requests for consent to search are requests for a full search of the premises." Id. Additionally, the court noted that
because [the officer] asked for Pena's consent immediately after Pena had admitted to smoking marijuana in the motel room, it was clear to Pena that the object of the search was to find illegal narcotics. One in possession of illegal drugs does not typically leave them out in the open. . . . Because Pena consented to a search for drugs, he consented to a search of any area in the motel room where one might hide drugs.Id.
In the present case, Mr. Melendrez-Moreno contends that the terms of the written consent to search form (1) govern the scope of the search and (2) did not provide for a search of Mr. Melendrez-Moreno's home. He specifically emphasizes that the Spanish word "buscar," which Officer Trujillo testified means "to search," was not contained in the form. (See Def.'s Mem. Supp. Mot. Suppress at 15-16.) Mr. Melendrez-Moreno further argues that the phrase "Permiso de entrar y registrar" governs the form. (See id. at 16.) Consequently, Mr. Melendrez-Moreno claims, "the written consent form talks solely about entering and registering personal items not about searching and seizing property." (Id.)
Although the consent form did not contain the word "buscar," the court is convinced that Mr. Melendrez-Moreno well knew that he was consenting to a search of his apartment for drugs. Officer Trujillo testified, for example, that he explained the form to Mr. Melendrez-Moreno in Spanish and, using the word "buscar," asked if the officers could search his home. See tr. at 36-37, 51.)
Mr. Melendrez-Moreno also argues that because he did not have the opportunity to object to the officers' search of his apartment, the Tenth Circuit's Pena decision does not control here. See Pena, 143 F.3d at 1368. As explained above, the court in Pena relied on two grounds in addition to the defendant's failure to object to the scope of the search namely — the broad terms of the officers' request to search and the inherently broad scope of a search for drugs. See id. Specifically, the court stated that an officer's request to "look in" the defendant's motel room "reasonably included a search into the area above the bathroom ceiling." Id. The Tenth Circuit explained that it had "consistently held that similarly phrased requests for consent to search are requests for a full search of the premises." Id. In the present case, Officer Trujillo's request to search for drugs "inside of [Mr. Melendrez-Moreno's] home" and the form's permission to search Mr. Melendrez-Moreno's personal belongings were similarly phrased. (Tr. at 36); see Pena, 143 F.3d at 1368.
Further, because the officers asked for consent to search Mr. Melendrez-Moreno's home immediately after he stated that he did not use or do drugs and because Officer Trujillo specifically asked if they "could search for drugs and paraphernalia," it was clear to Mr. Melendrez-Moreno that the object of the search was to find illegal drugs. (See tr. at 35, 36); Pena, 143 F.3d at 1368. Because Mr. Melendrez-Moreno consented to a search for illegal drugs, he consented to a search of any area in his apartment where one might hide drugs. See Pena, 143 F.3d at 1368. The attic above the kitchen and the control panel of a wall heater fit well within the scope of such a search.
In sum, although the consent to search form that Mr. Melendrez-Moreno signed did not contain the word "buscar," the testimony demonstrated that Mr. Melendrez-Moreno consented to a search of his apartment for drugs. Additionally, the officers' permission to search for drugs "inside of [Mr. Melendrez-Moreno's] home" and the language of the consent form constituted requests for a full search of the apartment. (Tr. at 36.) And because the officers made it known that they were searching for drugs, Mr. Melendrez-Moreno's consent reasonably would be understood to include a thorough search of his apartment, including the kitchen attic and wall heater control panel.
III. Was Mr. Melendrez-Moreno Properly Advised Pursuant to Miranda v. Arizona?
Mr. Melendrez-Moreno next seeks to suppress the statements he made to Officer Trujillo and Agent Machielson because there was insufficient compliance with Miranda's warning requirements. See Miranda v. Arizona, 384 U.S. 436, 471 (1966). As a prerequisite to the admission of any statement by a suspect in custody, Miranda v. Arizona requires police to give the several warnings. See id. Specifically, the suspect
must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.Id. at 479. The Court has indicated that the "rigidity" of Miranda's requirements does not "extend to the precise formulation of the warnings given a criminal defendant." California v. Prysock, 453 U.S. 355, 359 (1981). Instead, the form of a particular Miranda warning need only constitute "a fully effective equivalent" of Miranda's four essential warnings. Prysock, 453 U.S. at 360 (quoting Miranda, 384 U.S. at 476);see also Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (stating that "[t]he inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda") (internal quotation and alterations omitted)).
In the present case, Officer Trujillo's testimony indicates that he did not give a "fully effective equivalent" of Miranda's four essential warnings. Prysock, 453 U.S. at 360. When asked on direct examination at the hearing specifically how he advised Mr. Melendrez-Moreno, Officer Trujillo stated,
I told him that he had the right to remain silent, that anything he says can and will be used against him in a court of law. I told him that he had the right to have an attorney with him while he was being questioned. And then I asked him if he understood his rights.
(Tr. at 40.) This testimony, which is the only evidence before the court concerning Officer Trujillo's explanation of the Miranda warnings, includes only three of Miranda's four essential warnings. The evidence does not show that Officer Trujillo told Mr. Melendrez-Moreno that if Mr. Melendrez-Moreno could not afford a lawyer, one would have been provided for him prior to any interrogation. See Miranda, 384 U.S. at 479.
Because the evidence shows that Officer Trujillo failed to convey the substance of Mr. Melendrez-Moreno's right to have appointed counsel, Mr. Melendrez-Moreno's statements to Officer Trujillo are suppressed. See United States v. Tillman, 963 F.2d 137, 141 (6th Cir. 1992) (stating that police officers' "fail[ure] to convey the substance of defendant's rights under law" necessitated suppression of the defendant's statements). Further, because Agent Machielson did not separately advise Mr. Melendrez-Moreno of the Miranda warnings, the statements Mr. Melendrez-Moreno made to Agent Machielson at Mr. Melendrez-Moreno's apartment also are suppressed. See tr. at 59.)
As explained in the findings of fact, Agent Halverson read Mr. Melendrez-Moreno the Miranda warnings in Spanish when Mr. Melendrez-Moreno began speaking on the telephone with Agent Halverson from his apartment. Mr. Melendrez said that he understood his Miranda rights and agreed to answer Agent Halverson's questions. See tr. at 68.)
Mr. Melendrez-Moreno does not contest the sufficiency of Agent Halverson's Miranda warning or specifically argue that the statements Mr. Melendrez-Moreno made after the second Miranda warning must be suppressed. Accordingly, the statements made after the second Miranda warning are not suppressed.
CONCLUSION
For the reasons set forth above, Mr. Melendrez-Moreno validly consented to the officers' October 17, 2002 search of his apartment. Mr. Melendrez-Moreno's consent to the officers' request to "search for drugs and paraphernalia inside of his home" reasonably included areas in which a person could hide drugs, including inside the kitchen attic and in the control panel of a wall heater. (Tr. at 36.) Mr. Melendrez-Moreno's motion to suppress therefore is DENIED as to the evidence found during the officers' search of Mr. Melendrez-Moreno's apartment.
The evidence shows that Officer Trujillo did not inform Mr. Melendrez-Moreno of his right to appointed counsel. Later that evening, however, Agent Halverson advised Mr. Melendrez-Moreno of his Miranda rights over the telephone. Consequently, Mr. Melendrez-Moreno's motion to suppress is GRANTED as to the statements Mr. Melendrez-Moreno made after receiving the deficient Miranda warning from Officer Trujillo but before receiving his Miranda warnings from Agent Halverson. Any statements made to Agent Halverson or to Agent Machielson during the car ride to the jail therefore are not suppressed.
BY THE COURT: