Opinion
Case No. 2:04-CR-388 TC.
February 24, 2005
REPORT RECOMMENDATION
Defendant Fernando Chavez-Lopez filed an Amended Motion to Suppress (Dkt. # 26) asking the court to suppress evidence seized from his residence on May 20, 2004, and evidence derived from the seizure including statements made by the defendant. Defendant Genaro Sotelo subsequently joined in the motion. (Dkt. no. 31.) After retaining new counsel, Defendant Chavez Lopez filed a Motion to Suppress Statements. (Dkt. 62.) The case was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B).
After retaining new counsel, Defendant Chavez-Lopez filed a Brief in Support of Defendant's Motion to Suppress on September 28, 2004, Docket no. 44.
Defendant Sotelo filed an Addendum to Motion to Suppress on July 30, 2004, Docket no. 35.
Defendant Chavez-Lopez's Motion to Suppress Statements is dated August 2, 2004, and was received by the court on August 3, 2004. However, through inadvertence, the motion was not officially filed until February 22, 2005.
I. PROCEDURAL BACKGROUND
On September 20, 2004, the Magistrate Judge held a hearing on the motions to suppress. Stephen McCaughey represented Defendant Sotelo; Clayton A. Simms represented Defendant Chavez-Lopez; and Veda M. Travis represented the Government. (Tr. at 2.) At the hearing, the Magistrate Judge set a briefing schedule which was to be completed by October 26, 2004. (See Minute Entry, Dkt. no. 43.) However, because the parties contemplated a plea agreement which apparently would have rendered the suppression issue moot, they did not submit memoranda in accordance with the schedule. (See Letter from Veda M. Travis to Stephen R. McCaughey, dated October 6, 2004, lodged in file.) Eventually, Defendant Chavez-Lopez reached a plea agreement with the Government and entered a plea of guilty to Count I of the indictment on February 17, 2005. (Minute Entry, Dkt. no. 60.)When it became apparent that Defendant Sotelo intended to go to trial, the court held a hearing on January 6, 2005 to determine the status of the case. Defendant Sotelo was represented by Mr. McCaughey, and the Government was represented by Mark Vincent. At the hearing, the parties stipulated to suppression of the evidence found in the basement wall of the residence. Regarding the evidence found on the main floor, a new briefing schedule was entered with the final memorandum to be submitted by February 11, 2004. (Minute entry, Dkt. no. 53.)
On January 28, 2005, Defendant Sotelo filed a Motion to Withdraw Motion to Suppress. (Dkt. no. 56.) Subsequently, on February 2, 2005, Defendant Sotelo and the Government filed a Stipulation Regarding Suppression Motion in which the parties stipulated as follows: "1. The contraband and currency found in the wall in the basement should be suppressed. 2. The issue of the contraband and other items found on the main level is submitted to the Court without further argument." (Dkt. no. 57.) Accordingly, the only issues before the court are the motions to suppress the evidence found on the main level of the residence, and the incriminating statements made by the defendants.
The motion to withdraw the motion to suppress apparently was filed in error.
II. FACTS
The parties stipulated that Defendants had standing to challenge the entry into the residence and the subsequent search and seizure except for items found in the basement wall. (Tr. 10-11.)
Deputy Edward Charles Malm of the Salt Lake County Sheriff's Office (Tr. 11-12) testified that about 7:20 p.m. on May 12, 2004, he was dispatched to a residence on a fight in progress involving a gun. At that location, he talked to Defendant Sotelo using Sergeant Jason Mazuran as an interpreter. (Tr. 12-13, 30, 32.) Defendant Sotelo told the officers that earlier that evening, there was a knock at his door. When he opened it, two men asked for "Carlos." He stated that he did not know who Carlos was. The men then pointed a pistol to his stomach and ordered him around to the back of the house. At that point, they were joined by three other men who put Defendant Sotelo on the ground and proceeded to beat him. They pistol-whipped him and attempted to restrain his arms behind his back with zip ties. Defendant Sotelo stated that he had no idea who the men were, why they were there, or why they had beaten him. (Tr. 13.) Deputy Malm considered the circumstances suspicious and suspected a drug deal gone bad or something of that nature. (Tr. 14-15.)
After Deputy Malm left the residence, another deputy called his attention to a police bulletin containing a photograph of an individual resembling Sotelo who was wanted for drug distribution. (Tr. 15.) After ascertaining that the suspect had not yet been apprehended, Deputy Malm returned to the residence on the afternoon of May 20, 2004 accompanied by Sergeant Mazuran. (Tr. 16.) When they arrived, Sergeant Mazuran went to the front of the house and knocked on the door, and Deputy Malm went around the back of the house. (Tr. 16-17.) As he approached the back of the house, Deputy Malm noticed a strong chemical odor coming from the house. Deputy Malm proceeded to the backyard where he saw five men, one of whom was Defendant Sotelo. One of the men was wearing a white dust mask which Deputy Malm thought was odd. The men appeared startled to see Deputy Malm who was armed and in uniform. (Tr. 17.)
While Deputy Malm was trying to speak with Defendant Sotelo, Sotelo twice tried to go back into the house. Deputy Malm testified that this made the officers suspicious. The officers told him to wait outside while they determined whether he was the suspect wanted for drug distribution. (Tr. 18.)
Shortly after the officers had made contact with Defendant Sotelo, Deputy Vanrosendal arrived with another officer. (Tr. 18.) The officers then stepped back to discuss the picture of the wanted suspect which looked a lot like Defendant Sotelo. When Deputy Malm turned his attention back from talking with the other officers, he noticed that one of the individuals who had been in the backyard, specifically the man with the mask, was missing. (Tr. 19.) The officers thought that he might have gone back into the house, and considered finding him an officer safety issue. (Tr. 19.) With Sergeant Mazuran interpreting, Officer Malm asked Defendant Sotelo if they could enter the house to find the man with the mask. (Tr. 19-20.) Defendant Sotelo consented. (Tr. 20.)
Sergeant Mazuran twice testified that he asked Sotelo if they could check the house to see if there were any guns, drugs, and to find the individual who was trying to avoid them. Sotelo said yes. (Tr. 32, 36.) However, on redirect examination, Sergeant Mazuran indicated that when he asked Sotelo for permission to enter the residence, it was specifically for the purpose of looking for someone, and no other consent was obtained from him at that time. (Tr. 37.)
Deputy Malm and Sergeant Mazuran then entered the kitchen area of the house. (Tr. 20.) At the end of a hallway, Deputy Malm saw the man with the mask. (Tr. 20-21.) Deputy Malm called out to him, but the man bolted around a corner. Deputy Malm proceeded down the hallway, where he had to make a left-hand turn. At that point, he observed a man with a plunger in the sink plunging. The officers never learned why he was plunging, but the chemical odor was extremely strong. (Tr. 21.)
At the base of the wall, Deputy Malm noticed what appeared to be an intake for an air conditioning system. The cover was down and there was an open hole in the wall. Deputy Malm could see into the opening where he observed packaging materials, plastic wrap, scales, and what appeared to large bundles of a white powder substance. (Tr. 21, 23.) Deputy Malm believed that the items were contraband, paraphernalia, and drugs. Based on his observations, he concluded that drug distribution was going on at the house. Deputy Malm then got down on eye level with the opening and observed a pistol. At that point, the residents of the house were taken into custody, including Defendants Sotelo and Chavez-Lopez. (Tr. 22.) Deputy Malm later determined that Defendant Sotelo was not the suspect pictured in the police bulletin. (Tr. 22.)
After the officers had discovered the items and taken the Defendants into custody, Special Agent Edgar Martinez of Immigration and Customs Enforcement arrived at the scene. He obtained a written consent to search the residence from Defendant Sotelo. (Tr. 24, 38, 39-43; Ex. 1.) After obtaining the consent, the officers searched the house. Additional evidence was found in one bedroom which was occupied by all of the Defendants, as well as one of the other bedrooms. (Tr. 43-44, 74.)
All exhibits are attached to the Minute Entry of the September 20, 2004 hearing, docket no. 43.
The officers also searched the basement where they located evidence behind the ceiling tiles. (Tr. 44, 45, 73.) In addition, they broke through a basement wall and discovered other evidence. (Tr. 46, 73-74.) As discussed above, the parties have stipulated that the evidence found in the basement should be suppressed.
On May 20, 2004, Special Agent Martinez interviewed Defendant Sotelo. After being advised of his rights, Defendant Sotelo waived his rights and agreed to speak to Agent Martinez. However, he refused to sign a waiver of his rights or to provide a written statement. Defendant Sotelo did provide an oral statement in which he made incriminating statements. (Tr. 57-58, 61-63, 75-76.)
Special Agent Martinez first mistakenly testified that the interview with Defendant Sotelo occurred on May 24, 2004. (Tr. 57, 61.) He later stated that he was confused and the correct date was May 20, 2004. (Tr. 61.)
On May 24, 2004, Special Agent Martinez interviewed Defendant Chavez-Lopez. Defendant Chavez-Lopez waived his Miranda rights, both orally and in writing, and gave an oral and written statement which contained incriminating statements. (Tr. 58-59, 60, 65-67, Ex. 2 3.)
III. DISCUSSION
A. Consent1. Voluntariness of Consent
Defendants ask the court to suppress the evidence seized during the search and any evidence derived therefrom, including incriminating statements made by the defendants. In support of suppression, Defendants contend that there was not a voluntary consent to the search of the residence, and the search exceeded the scope of any consent that was given. (Chavez-Lopez's Am. Mot. to Suppress, Dkt. no. 26; Sotelo's Joinder in Chavez-Lopez Mot. to Suppress, Dkt. no. 31; Sotelo's Addendum to Mot. to Suppress, Dkt. no. 35.)
The court determines the voluntariness of Defendant Sotelo's consent to the search under the "totality of the circumstances," with the government having the burden of proof. United States v. Orrego-Fernandez, 78 F.3d 1497, 1505 (10th Cir. 1996);United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993); United States v. Zapata, 997 F.2d 751, 758 (10th Cir. 1993). "To sustain its burden, `the government must show that there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given.'" Orrego-Fernandez, 78 F.3d at 1505 (quoting United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993)); accord Iribe, 11 F.3d at 1557.
In the instant case, there is no evidence that duress or coercion was employed in obtaining Defendant Sotelo's initial consent to search the house. Sergeant Mazuran spoke to Defendant Sotelo in Spanish and specifically asked permission to search the house for guns, drugs, and the individual who had gone back into the house. (Tr. 32, 36.) Sergeant Mazuran testified that Defendant Sotelo had no trouble understanding him. Sergeant Mazuran did not raise his voice to Defendant Sotelo, did not draw his weapon, or threaten him in any way. (Tr. 33.) Although three other officers were present, they did not speak to Defendant Sotelo directly, did not draw their weapons, or threaten Defendant Sotelo or any of the other men. (Tr. 33-34.) Further, at the time Sergeant Mazuran asked for consent to search, it was daylight (Tr. 31), and four other civilians were present. (Tr. 71.) See Soto, 988 F.2d at 1558 (finding no coercion where officer "did not unholster his weapon, did not use an insisting tone or manner, did not physically harass defendant, and no other officers were present"); Orrego-Fernandez, 78 F.3d at 1505 (consent voluntary where defendant was not physically harmed; no other officers were present; the officer did not threaten the defendant or use a threatening tone; the search was conducted on a public highway in daylight, and the consent was specific and unequivocal). Accordingly, the court concludes that Defendant Sotelo's initial oral consent to search the residence was voluntary.
As previously noted, Sergeant Mazuran's testimony was muddled. He testified twice that he specifically asked Defendant Sotelo if the officers could check the house to see if there were any guns or drugs, and to find the individual who was trying to evade the officers. (Tr. 32, 36.) However, on redirect examination, Sergeant Mazuran indicated that when he asked Sotelo for permission to enter the residence, it was specifically for the purpose of looking for someone, and no other consent was obtained from him at that time. (Tr. 37.) At the hearing, the court stated on the record that "Malm and Mazuran testified that there was a discussion of a search for persons, guns or drugs, but both officers testified that their main concern was to find the man with the dust mask who had disappeared. Mr. Sotelo gave his consent and the officers entered the home." (Tr. 72.) Accordingly, the court finds that Sergeant Mazuran specifically asked for permission to search for drugs and guns, as well as the missing man. However, it should be noted that even if the officers only obtained consent to search for the missing man, the items of contraband discovered in the initial search were found in plain view.
After the officers saw the contraband, they took the men, including Defendant Chavez-Lopez and Sotelo, into custody and waited for the narcotics unit to arrive. (Tr. 25.) Subsequently, Special Agent Martinez obtained a written consent from Defendant Sotelo to search the house. (Ex. 1.) Special Agent Martinez testified that he spoke to Defendant Sotelo in Spanish, and asked him if he understood the reason that law enforcement personnel were present. Defendant Sotelo acknowledged that he did. (Tr. 39-40.) Special Agent Martinez then asked Defendant Sotelo for consent to search the residence, and Sotelo stated that he would consent to the search. (Tr. 40.) Special Agent Martinez then obtained the written consent form. (Tr. 40.) Although the consent form is printed in English, Special Agent Martinez testified that he read the entire form to Defendant Sotelo in Spanish. He then asked Defendant Sotelo if he understood it, and Sotelo responded, "Yes." (Tr. 41-42.) The document advised the person signing it that he had the right to refuse to give consent to a search of the premises. (Tr. 42; Ex. 1.) Defendant Sotelo then signed the form, and Special Agent Martinez witnessed the signature. (Tr. 43.)
A printed statement at the bottom of the form contains the following instruction: "The person giving consent should also place their initials next to each of the four sections outlined in this form." (Ex. 1.) Defendant Sotelo did not place his initials next to any of the four sections. (See Ex. 1; Tr. 64.) Special Agent Martinez explained that because he was an immigration agent and the form was produced by the Salt Lake County Sheriff's Office, he was not familiar with the form. He therefore was not aware of the requirement that each section of the form should be initialed at the time Defendant Sotelo signed the form. (Tr. 64, 69.)
The court concludes that the written consent to search was also voluntarily given. At the time he signed the written consent form, Defendant Sotelo was in custody. Although the Tenth Circuit has acknowledged that a detained individual will naturally feel some degree of compulsion, detention does not automatically make the consent involuntary. Orrego-Fernandez, 78 F.3d at 1505;Soto, 988 F.2d at 1557-58 (citing cases). "Valid consent may be given by a person being detained." United States v. Nicholson, 983 F.2d 983, 988 (10th Cir. 1993) (citing cases). Thus, the fact of detention is a factor to be considered, but it is not dispositive. Nicholson, 983 F.2d at 988.
Special Agent Martinez testified that he read the consent form in its entirety to Defendant Sotelo in Spanish. The form specifically advises the signer that he has a right to refuse a search of the premises. Advice that the defendant has a right to refuse consent is an important factor for the court's consideration. Orrego-Fernandez, 78 F.3d at 1505; United States v. McSwain, 29 F.3d 558, 563 (10th Cir. 1994). Further, the form states that the consent was given "without any explicit or implied threat, coercion or promise on the part of the requesting officer." (Ex. 1.) Defendant Sotelo was not subjected to an illegal detention, and acknowledged that he understood the reason for the officers' presence supporting the conclusion that his consent was freely and intelligently given. Accordingly, the court concludes that under the totality of the circumstances, the government has carried its burden to show that the written consent was voluntary.
Although due to his unfamiliarity with the form, Special Agent Martinez failed to have Defendant Sotelo initial each section as required, this lapse did not undermine the validity of the consent.
2. Scope of Consent
Defendants also contend that the search exceeded the scope of the consent. The court understands this contention to refer principally to the officers' conduct in breaking through the wall in the basement. As discussed, the search of the basement is no longer at issue in this case.
To the extent that Defendants contend that the search of the main floor of the house exceeded the scope of the consent, the court disagrees. "The scope of a search is generally defined by its expressed object." Florida v. Jimeno, 500 U.S. 248, 251 (1991); accord United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997); Orrego-Fernandez, 78 F.3d at 1505.
Deputy Mazuran initially asked Defendant Sotelo for consent to search the residence for wanted persons, drugs, and guns. Defendant Sotelo did not place any explicit limitation on the scope of the search. See Orrego-Fernandez, 78 F.3d at 1505. The officers conducted a brief search in which they discovered evidence in an air-conditioning vent in plain view. Their conduct did not exceed the scope of the consent. Similarly, the written consent form gives the officers authorization to search the premises described on the consent form. Again, it does not place any limitation on the scope of the search. Accordingly, the court concludes that the officers' search of the main floor of the residence did not exceed the consent given.
As previously noted, although Sergeant Mazuran gave confusing testimony concerning the scope of the consent, the court finds that Defendant Sotelo gave consent to look for guns and drugs. Even absent consent to look for those items, they were discovered in plain view when the officers entered the house to find the missing man.
Indeed, the parties seemed to agree at the September 20, 2004 hearing that the search of the main level was conducted pursuant to a valid consent. (Tr. 79, 80-81.)
B. Incriminating Statements
Defendants request suppression of all evidence seized as a result of the purportedly illegal search, and evidence derived therefrom, including incriminating statements made by the defendants. Because the court finds that the search was conducted pursuant to a valid consent, the subsequent statements by the defendants were not tainted by the search. The court further finds that the statements made by the defendants were voluntary.
The test for the voluntariness of a waiver of Miranda rights is the same as the standard for voluntariness under the due process clause. Colorado v. Connelly, 479 U.S. 157, 169-70 (1986). Under this standard, the issue is whether the defendant's will was overborne by the police and his capacity for self-determination critically impaired. If so, the use of his confession violates due process. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). "Whether a defendant's incriminating statements were made voluntarily must be assessed from the totality of the circumstances, looking both at the characteristics of the defendant and the details of the interrogation." United States v. Rith, 164 F.3d 1323, 1333 (10th Cir. 1999); see Bustamonte, 412 U.S. at 226;United States v. Erving, 147 F.3d 1240, 1248-49 (10th Cir. 1998). Five factors to be considered include "(1) the age, intelligence, and education of the defendant; (2) the length of [any] detention; (3) the length and nature of the questioning; (4) whether the defendant was advised of [his or] her constitutional rights; and (5) whether the defendant was subjected to physical punishment." Rith, 164 F.3d at 1333 (quoting United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997)); Erving, 147 F.3d at 1249.
Special Agent Martinez interviewed Defendant Sotelo on May 20, 2004. He advised Defendant Sotelo of his Miranda rights in Spanish, and Defendant Sotelo waived his rights and agreed to speak to him. Although Defendant Sotelo provided an oral statement, he refused to sign a written waiver or to provide a written statement. (Tr. 57-58, 61-63.) Although Defendant Sotelo refused to sign a written waiver or statement, that does not invalidate the oral consent.
On May 24, 2004, Special Agent Martinez met with Defendant Chavez-Lopez. Special Agent Martinez read Defendant Chavez-Lopez his Miranda rights in Spanish. Defendant Chavez-Lopez then signed a Spanish language written waiver of his Miranda rights. (Tr. 58-59, 65-66; Ex. 2.) After giving an oral statement, Defendant Chavez-Lopez provided a written statement in Spanish in his own handwriting that contained the same incriminating statements as his oral statement. (Tr. 60, 66-67; Ex. 3.)
The record contains no evidence to suggest that the defendants were susceptible to coercion due to their age, intelligence, or education. See Glover, 104 F.3d at 1580. In fact, Defendant Sotelo showed fortitude by refusing to sign the Miranda waiver or to give a written statement. See Rith 164 F.3d at 1333 (stating that defendant "displayed his fortitude by demanding that the officers show him a search warrant before they could enter the house"). There is no evidence concerning the length and nature of the questioning. Regarding the length of detention, Defendant Sotelo presumably had been in custody for a few hours since Special Agent Martinez testified that he was interviewed following the search of the house on May 20, 2004. Defendant Chavez-Lopez apparently had been in custody about four days at the time of his interview on May 24, 2004. Both defendants were advised of their constitutional rights, and Defendant Chavez-Lopez signed a Spanish language waiver of his rights and gave a written statement. There is no suggestion that either defendant was threatened or subjected to physical punishment. Considering the totality of the circumstances, the court concludes that the statements of both defendants were voluntary.
IV. RECOMMENDATION
Defendants' motions to suppress (Dkt. nos. 26, 31, 62) should be DENIED with respect to the evidence found on the main floor of the residence and their subsequent statements to police. The motions should be GRANTED with respect to the search of the basement. The evidence seized from the basement wall should be suppressed pursuant to the stipulation between the parties. (Dkt. no. 57.)
It is further RECOMMENDED that pursuant to 18 U.S.C. § 3161(h)(1)(F) and (J), any order of the district judge regarding this Report and Recommendation should exclude from the computation of the Speedy Trial Act, the time from the filing of the Motion to Suppress through the date of entry of the order of the district judge.
Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.