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U.S. v. Sedillo

United States District Court, D. New Mexico
Jul 7, 2006
Crim. No. 04-2577 WJ (D.N.M. Jul. 7, 2006)

Opinion

Crim. No. 04-2577 WJ.

July 7, 2006


ORDER DENYING MOTION TO SUPPRESS


THIS MATTER comes before the Court upon Defendant's Motion to Suppress, filed March 14, 2005 (Doc. 14), following a hearing on the matter on May 18, 2005. After consideration of the parties' arguments at the hearing based on their pleadings, as well as arguments presented in supplemental briefs ordered by the Court (see Doc. 27), I find that Defendant's motion is not well-taken and will be denied for the reasons given below.

Background

Defendant requests that the Court suppress as evidence against him the 20 gauge shotgun that was found on him on November 23, 2004, and any and all statements the Defendant made prior to and subsequent to the seizure of that firearm. In December, 2004, Defendant was charged with possession of a firearm, as defined by 26 U.S.C. § 5845(a)(2), Defendant contends that he was arrested without probable cause, and that police obtained the firearm on the basis of the invalid arrest and statements made by Defendant in violation of his constitutional rights.

The underlying incident began with police responding to an anonymous report that two men were standing on the front porch of house located on Potomac Street shooting a gun that looked like a rifle or shotgun. Deputy John Allan, Deputy Robert Tyler and Lieutenant McCauley, responded to the dispatch. When they approached the address reported by the anonymous caller, the officers saw a car slowly backing out of the driveway, and saw a young male walk behind the car and run into the house when he saw the officers. Defendant Sedillo was driving the car, Defendant's girlfriend Mika Jacobs was in the back seat, and Ms. Jacob's sister was also in the back seat with Defendant and Ms. Jacobs' infant son. The officers drew their weapons, ordered Defendant to stop the car and ordered the three adult occupants of the car to place their hands on the surface in front of them.

Deputy Allan asked the car occupants general questions about what had been going on, if shots had been fired earlier, and why the man ran into the house. After confirming from the dispatcher that the officers had the right house and individuals, Deputy Allan ordered Defendant to get out of the car. He then pat-searched and handcuffed Defendant, and placed him in back of the squad car. Deputy Allan asked Defendant if he had been shooting a shot gun, and if he knew why the other young man had run inside the house. Defendant denied shooting the gun, and explained that the young man who had run inside the house was initially in the car, but was on probation, got scared that he got into trouble, and got out of the car when he saw the police. Meanwhile, Deputy Tyler and Lt. McCauley walked to the front of the house and called for the occupants to come out. They located shotgun shells on the driveway in front of the porch. It is not clear from the record whether Deputy Tyler and Lt. McCauley ever actually entered the house. Eventually, the male subject, a juvenile, came out of the residence along with three other individuals. After further questioning, Defendant admitted he was shooting the gun, and then told Deputy Allan that the gun was in the trunk of his car. Defendant made a similar admission subsequently at the station house. Upon a search, a shotgun was found in the trunk which appeared to be shorter than normal and the barrel had been cut.

At the hearing, Defendant stated that he had purchased the gun at Wal-Mart and was shooting at bottles on the side of his friend's house.

The legal issues underpinning the validity of the arrest which are raised by Defendant are tied to factual disputes over: (1) whether police conduct went impermissibly outside the scope of an investigatory stop for a petty misdemeanor (the scope by felony stop and handcuffing Defendant); (2) whether Deputy Allan obtained incriminating statements from Defendant before advising Defendant of his rights under Miranda v. Ariz., 384 U.S. 436 (1966); and (3) whether the firearm police retrieved from the trunk of Defendant's car was illegally obtained.

I. Validity of Arrest

Defendant claims that the officers' response to the dispatch was unlawful because the officers did not have reasonable suspicion to believe that the occupants of the car were involved in criminal activity, and thus they should have requested a warrant in case their investigation of the reported shooting proved to be nothing more than an unobserved misdemeanor offense. Defendant further contends that the use of handcuffs was unjustified because there was no articulable ground for fearing danger from the suspects. Defendant alleges that he admitted to the shooting before he was read his rights under Miranda. Since that admission was the basis for his arrest, the arrest is invalid.

The Government argues that the officers could not reasonably have known that the situation they were responding to would turn out to be an unobserved misdemeanor offense (negligent use of a firearm), and that their response was justified: officers were responding to reports of shots being fired by two males from a front porch; when the officers arrived at the scene, they observed a vehicle pulling back slowly, and a young male running inside the house. There was no way to ascertain how many other individuals were inside the house, or what was going on inside the house (a crime in progress? an ensuing hostage situation?), and the firearm had not yet been located. The Government concedes that the Defendant was in custody when he was asked about the shooting. However, the Government contends that the officers' initial questioning regarding whether Defendant had been shooting the firearm comes under the public safety exception to the requirement of Miranda warnings prior to questioning because the officers' questions were directed to locating the shooter and the firearm. Thus, upon Defendant's admission to the shooting, the officers had probable cause for the arrest, without a warrant.

The act of shooting a firearm within 150 yards of a dwelling is a misdemeanor. N.M.S.A. § 30-7-4.

The Court tends to agree with the Government's position on these issues. The "exigent circumstances" exception to the warrant requirement are that: 1) the police must have reasonable grounds to believe that there is an immediate need to protect their lives or the lives of others or their property or that of others; 2) the search must not be motivated by an intent to arrest and seize evidence; and 3) there must be some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be searched. Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003); see also United States v. Watson, 423 U.S. 411, 417 (1976) (law enforcement personnel may arrest a person without a warrant if there is probable cause to believe that person committed a crime). The situation to which the officers responded satisfies these requirements. Further, at the time Defendant was handcuffed, the officers had still not yet located the firearm used in the shooting.

Even if any of Defendant's arguments concerning the invalidity of the arrest for the shooting had merit, Defendant's arrest would still be supported by probable cause because of the existence of the outstanding misdemeanor warrant for a traffic violation. Defendant does not challenge either the existence of the warrant, or that the outstanding warrant provides an independent basis for Defendant's arrest. Instead, Defendant contends that any legal infirmities of Defendant's arrest for shooting the firearm are not cured by Defendant's arrest under the outstanding warrant, because Deputy Allan placed him under arrest before he had knowledge of the outstanding warrant.

I agree with Defendant that Deputy Allan's testimony regarding when he learned about the misdemeanor warrant is somewhat confusing, but find that the particular moment Deputy Allen called NCIC and discovered the existence of the misdemeanor warrant is a red herring for purposes of this Fourth Amendment analysis. Deputy Allan testified that he called in Defendant's name and social security information to the National Crime Information center ("NCIC") within 12-15 minutes after arriving on the scene, after he pat-searched and handcuffed Defendant. Tr. 28:3-9; 36:21-23. Deputy Allan stated that dispatch called back with information about the outstanding warrant "pretty much immediately." Tr. 28:18-22. However, Defendant testified at the hearing that he did not recall Deputy Allan calling anyone after he was handcuffed, and that the officer was "right there with me the whole time." Tr.147:1-16.

"Tr." refers to the Transcript of the hearing which took place on May 18, 2005.

Pinpointing the exact time when Deputy Allan found out about the misdemeanor warrant is not critical. It is clear that the officer eventually obtained knowledge of the outstanding warrant. It is also apparent that whether Deputy Allan called into NCIC at the initial stages of the questioning or towards the end, after Defendant's admission of the shooting, that Defendant would not be leaving that scene without being arrested. Thus, the existence of the misdemeanor warrant cures any defects (without specifically finding that any occurred) in Defendant's arrest for shooting the firearm. See, Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588 U.S. (2004) (arrest of driver for impersonating an officer or obstruction of justice could be supported by probable cause, notwithstanding fact that such offenses were not closely related to offense stated by officers as reason for arrest); Richardson v. Bonds, 860 F.2d 1427 (7th Cir. 1998); United States v. Rambo, 789 F.2d 1289, 1294 (8th Cir. 1986) (when a person is arrested and charged with more than one offense, even if there is no probable cause to arrest for one of the offenses, such an arrest is not unlawful provided that there is probable cause for the arrest for at least one of the other offenses charged); see also U.S. v. White, 326 F.3d 1135, 1138 (10th Cir. 2003) (affirming order denying motion to suppress on basis of the inevitable discovery doctrine; officers would have eventually run a check on deft in NCIC database, since cops had checked others in the apt and would eventually have gotten to defendant); Hill v. Bogans, 735 F.2d 391, 393 (10th Cir. 1984) (holding that police officers acted reasonably in relying on routine police procedures, i.e., calling police station, for establishing existence of an outstanding warrant); Capone v. Marinelli, 868 F.2d 102 (3d Cir. 1989) (holding that officers were entitled to rely on NCIC bulletin stating that there was an arrest warrant outstanding).

Defendant's arrest is therefore supported by probable cause and is therefore valid. Defendant is correct, however, that Defendant's arrest on the outstanding misdemeanor warrant does not, in itself, justify Deputy Allan to search the trunk of the car. See U.S. v. Wright, 932 F.2d 868, 878 (10th Cir. 1991), overruled on other grds. by U.S. v. Flowers, 441 F.3d 900 (10th Cir. 2006) (citing New York v. Belton, 453 U.S. 454, 460 n. 4 (1981) (when a suspect is arrested in a car, law enforcement personnel may search the passenger compartment as part of the area within the arrestee's immediate control).

I. Discovery of Firearm

The gun was legally obtained by the officers if Defendant consented to the search of the trunk of his car, or if the officers had some other independent legal basis for the search. The Government contends that after admitting to shooting the gun and telling Deputy Allan that the gun was in the trunk, he consented to the search.

A. Consent

The Government bears the burden of proving that there was valid consent for a warrantless search. United States v. Pena-Sarabia, 297 F.3d 983, 986 (10th Cir. 2002). A consent search is valid if the consent is voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Whether a search was voluntary is a question of fact to be determined by the district court from the totality of the circumstances. Id.

The testimony elicited from Deputy Allan at the hearing indicates that consent was requested, and that Defendant merely had no objection to the search:

Q. . . . Did you request consent to search?
A. Yes, I did.
Q. And who did you request consent from?
A. The driver of the vehicle . . .
Q. And how about Mr. Sedillo? Did he have any objection to you searching?
A. No, he did not. No.

Tr. 24:7-10, 20-22.

Defendant testified:

Q. Did you agree to let them open the trunk and look inside?
A. I told them.
Q. That they could look in?
A. Yeah . . .

Tr. 167:3-6.

It is clear that Defendant gave his verbal consent to search the trunk of his vehicle at some point after he told Deputy Allan where the gun was located. Defendant does not offer any legal basis for his argument that consent was not valid because it was not written. See, e.g., U.S. v. Melendrez-Moreno, 126 Fed.Appx. 919 (10th Cir. 2005) (it was irrelevant whether consent was given before the officers crossed the threshold because it is uncontradicted that Defendant gave oral consent to search before the officers began inspection of his house) (emphasis added). However, it is not clear why the officers failed to obtain a written waiver from Defendant as well.

B. Other Legal Bases for Searching the Trunk

The officers would have had independent legal support which justified the trunk search, even without Defendant's consent. I agree with Defendant that the trunk search would not have been proper if it was obtained during a search incident to arrest, or from administrative impoundment of the vehicle. A search incident to arrest would have extended only to Defendant himself, and the passenger compartment of his car. Chimel v. California, 395 U.S. 752 (1969) (search incident to defendant's proper arrest in house on burglary charge, was unreasonable as extending beyond defendant's person and area from which he might have obtained either weapon or something that could have been used as evidence against him);U.S. v. Najera, 165 Fed.Appx. 700 (10th Cir. 2006) (citing New York v. Belton, 453 U.S. 454, 460 (1981)).

Neither was an inventory search appropriate as a basis for searching Defendant's trunk. See, e.g., U.S. v. Edwards, 242 F.3d 928 (10th Cir. 2001) (car search not proper where inventory search not done to protect officers from liability for lost or stolen property, but rather as pretext for investigation, and not proper as search incident to arrest because there was no danger of defendant retrieving weapon, since he was sitting in police car); U.S. v. Kornegay, 885 F.2d 713, 716 (10th Cir. 2006) (inventory search of defendant's vehicle was proper, where police did not know defendant's identity, defendant was alone, and car was not parked on defendant's property). In this case, Defendant's car was parked in his driveway. He was in the process of moving into his partner's house, and Defendant relied on others to take custody of his vehicle. Nevertheless, the Court finds merit to the Government's contention that the firearm would have been obtained through inevitable discovery based on Defendant's statements to Deputy Allan: in admitting to shooting the gun, and in telling the officer that the gun was located in the trunk. Defendant argues that his admission to shooting the gun was pre-Miranda, and therefore inadmissible. While the Court is inclined to view the statement as coming within the public safety exception to the Miranda requirement, even if that statement is omitted, the officers were still justified in the search of the trunk based on Defendant's post-Miranda statement.

Under the public safety exception, testimonial evidence directly obtained from a suspect interrogated in custody is admissible, despite a failure to give Miranda warnings, when a threat to public safety requires immediate questioning. See, N.Y. v. Quarles, 467 U.S. 649, 655 (1984); U.S. v. Holt, 264 F.3d 1215, 1226 (10th Cir. 2001) (officer safety concerns weighed in favor of routinely asking motorist about the presence of loaded weapons).

C. Admissibility of Statements

There is a bit of confusion regarding exactly at what points Deputy Allen gave Defendant his advice of rights. Defendant testified that he was not given Miranda warnings until after search of the vehicle and the gun was found. Tr.163:13-18; 164-1-3, but this is not consistent with the weight of other evidence. Deputy Allan testified that he advised Defendant of his rights three times throughout the entire investigation, but that the first time was not captured on the officer's belt tape recorder. Tr. 23:14-15; 62:12-13. He stated that he read Defendant his rights after Defendant admitted to shooting the gun, somewhere within 15 to 20 minutes of arrival, and the asked Defendant further questions. Tr.15: 8-11, 21:6-15; 42:10-17. Lt. McCauley was informed during the investigation that Defendant had been read his rights, and that he also asked Defendant if he understood them. Tr. 105-07.

Despite some confusion as to the exact timing of the Miranda warnings provided to Defendant, the weight of the evidence shows that Deputy Allan advised Defendant of his rights at least immediately after he admitted to shooting the gun, and also later at the police station. Even Defendant's view of the situation supports a finding that Defendant was read his rights after admitting to shooting the gun, but prior to telling the officers where the gun was located. Tr. 48:8-10 ("Officer, isn't it true all you said to him is, `You don't have to talk to me without an attorney. Why were you shooting that gun?'").

I have already concluded that Defendant's arrest was valid, at the very least, based on the outstanding misdemeanor warrant. I have also determined that Defendant's admission regarding the location of the firearm was a post-Miranda statement. The officers would have naturally and logically asked Defendant, as well as the others present, about the location of the firearm. Defendant'Cs post-Miranda statement that the gun was in the trunk was therefore not the fruit of an illegal admission, or of an illegal arrest. At the point Defendant made this statement, the officers had probable cause to search the trunk of the car, and would have ultimately discovered the gun. In other words, Defendant's post-Miranda statement was not tainted by an illegal arrest, since the outstanding warrant provided probable cause for the arrest. Also, the Court is not totally persuaded by Defendant's arguments that the arrest for shooting the gun violated his Fourth Amendment rights. The statement is also not rendered inadmissible because it did not necessarily flow from Defendant's pre-Miranda statement. In their efforts to locate the gun, the officers naturally would have inquired of anyone at the scene what he or she knew about the location of the gun. Accordingly, I find that even if Defendant had not given express consent to search the trunk, police would have inevitably discovered the firearm in light of the situation to which they were responding. United States v. Nielsen, 9 F.3d 1487, 1489-90 (10th Cir. 1993) (Probable cause to search a vehicle is established if, under the totality of the circumstances there is a fair probability that the car contains contraband or evidence).

D. Whether Statements were Voluntary

Defendant argues that providing the Miranda warning does not make the statements admissible, since the statements were neither voluntary nor attenuated from the illegal arrest. The statements do not need to be attenuated from the arrest, because as I have previously determined, Defendant's arrest was legal.

Defendant contends that his admissions and other statements were not voluntary because the officers promised him that he would not be arrested but rather would be allowed to proceed on his way after they found the gun. Defendant was sitting in back of the squad car during most of the questioning after he was handcuffed. Tr. 56:23-25; 59. The Government has the burden to persuade the Court that confessions or admissions or statements of defendant were voluntarily taken and not the product of circumstances of coercion or promises of leniency. Jackson v. Denno, 378 U.S. 368 (1964); Moran v. Burbine, 475 us 412, 421 (1986) (government must show that relinquishment of the right must have been voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion or deception). Defendant claims that the officers told him to tell them where the gun was so "everybody can go home" (Tr. 154:10-13); to make it easier on himself (Tr.167:6-8), and to tell the truth so the police did not have to get a warrant (Tr. 153:10-17). Deputy Allan denied telling Defendant that the officers would make it easier on him if he told the officers about the gun. Tr. 57:19-25; 58:1-5. However, Lt. McCauley said that he told Defendant that things could go easier for him if he told the truth:

A. . . . if you can admit you made a mistake and truly be sorry for it, I mean, the judge can tell if you're — or a jury in some cases, obviously, but the judge can — in sentencing can say, this person really just made a mistake, and they feel bad about it . . .

Tr. 107-08.

Clearly, a confession induced by threats or promises is not voluntary. U.S. v. Vera, 701 F.2d 1349, 1364 (11th Cir. 1983) (citations omitted). However, a mere admonition to the accused to tell the truth does not render a confession involuntary . . . an agent's statement that it would be "helpful" to sign a confession has been held to be insufficient by itself to render a confession involuntary. United States v. White, 493 F.2d 3, 5 (5th Cir.),cert. denied, 419 U.S. 901 (1974). Consequently, "a confession is not involuntary merely because the suspect was promised leniency if he cooperated with law enforcement officials." U.S. v. Santiago, 410 F.3d 193, 202-03 (5th Cir. 2005).

I find that the comments made by Deputy Allan or other officers at the scene telling Defendant to tell the truth, or even comments suggesting that things may go easier for him if he told the truth, are insufficient to constitute deception or promises of leniency which would show that Defendant's statements were the product of intimidation, coercion or deception, and not voluntary.

Conclusion

Defendant was not illegally arrested. The arrest was valid because of the outstanding misdemeanor warrant. Also, the Court finds that Defendant's theories that the underlying arrest for shooting the gun was invalid are not convincing. The officer's search of the trunk, and therefore, retrieval of the firearm, did not violate Defendant's Fourth Amendment rights. Defendant gave his consent to the search. Further, even if consent was not given, the officers would have inevitably discovered the firearm as a result of statements made by Defendant after he was advised of his rights, statements which were not tainted either by an illegal arrest or incriminating inadmissible previous statement.

THEREFORE,

IT IS ORDERED that Defendant's Motion to Suppress (Doc. 14) is hereby DENIED, for reasons described above.

UNITED STATES DISTRICT JUDGE


Summaries of

U.S. v. Sedillo

United States District Court, D. New Mexico
Jul 7, 2006
Crim. No. 04-2577 WJ (D.N.M. Jul. 7, 2006)
Case details for

U.S. v. Sedillo

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff, v. ABRAHAM SEDILLO, Defendant

Court:United States District Court, D. New Mexico

Date published: Jul 7, 2006

Citations

Crim. No. 04-2577 WJ (D.N.M. Jul. 7, 2006)