Criminal No. 99-308 (DRD).
June 20, 2000.
Jacabed Rodriquez, Assistant U.S. Attorney, for Appellant Counselors.
Johnny Rivera-Gonzáler Esg., for Appellee Counselors.
REPORT AND RECOMMENDATION
The hearing on above defendant's Motion to Suppress was held on June 5, 2000. It was the defendant's initial contention that the search of his residence conducted at the time of his arrest was illegal upon the absence of a search warrant or a valid consent. As indicated in the motion entitled "Defendant Melvin Torres Roldán's Motion to Suppress", the consent of defendant and his wife to the search of their residence should not be considered and were not advised of the right to refuse to consent. In addition, it was claimed that the agents' display of firearms reasonably created a subtle form of coercion that flawed defendant's judgment. See D.E. #101.
The government filed its "Opposition to Motion to Suppress" (D.E. #103) indicating the defendant's wife, Mrs. Emelina Almeida Román, who had control over the premises, granted both a verbal and a written consent for the search. She was provided the form in her native language, Spanish, indicating therein she had the right to refuse to consent. In addition, Mrs. Almeida was allowed during the events to take care of her husband, the defendant, providing him with coffee, and to keep attending her baby, in the kitchen area.
During the hearing the defendant submitted the testimony of Mrs. Emelina Almeida, the defendant's common-law wife, who resided at the residence object of the search where the defendant was arrested, together with their infant child. In the morning hours of October 15, 1999, she heard very loud knocking or kicking at the door and once it was opened, a Police female agent grabbed her by the arm and asked her to sit down, explaining they came to arrest Melvin Torres. A group of agents came inside asking if there was anyone else in the house. They were carrying firearms. She heard noises as if the agents began searching inside the rooms. Since she was in her nightgown, Mrs. Almeida asked to be allowed to dress up and the Police woman went out to ask another agent. Once she entered the room to take her clothing, the agents who were opening boxes stopped. She put on a shirt on the hallway and took care of her baby child. The agents asked her if she authorized a search and provided a paper for her to sign. It was her understanding that they were searching for weapons. While the search was being conducted, she remained sitting in the dining area, inside the kitchen with her child. Photos of the kitchen area were produced, identified and admitted into evidence. A photo of the conditions of the master room that was searched was also admitted. Exhibits A-D. The witness also testified she could hear noises inside the house and a helicopter hoovering outside.
Mrs. Almeida indicated she signed the consent form provided in the Spanish language, but did not pay much attention and hardly read same. The agents asked her if she authorized them to search for weapons inside the house and did not recall if she was advised that she could refuse to sign. She fell frightened and terrorized at the time.
The agents prior to leaving left her a piece of paper (Custody Receipt for Retained or Seized Property), but she did not authorize them to take the items described therein, including the cellular phone that does not appear in the form. Exhibit F.
In cross-examination the witness recognized her signature in the form which indicated in Spanish that she had the right not to allow the search without a search warrant, and that she allowed a minute search at the premises including letters, papers and any other item, without having been threatened, coerced nor given any promises. The residence is a two-stories dwelling and the mother-in-law with her sister live in the first level, while defendant, his wife, and child live in the second level. Mrs. Almeida admitted, during cross-examination, that the female Police officer held the baby while she was preparing coffee for her husband. The defendant was also allowed, before leaving with the agents, to have breakfast, brush his teeth, and get dressed. While Mrs. Almeida remained inside the kitchen area, she was not able to see what was going on inside the bedrooms.
The agent who provided the consent document for her signature was not brandishing his weapon at the time, but other agents inside the house had their weapons.
Ms. Elisa Torres Roldán also testified. She resides in the first level with her mother, while his brother, defendant Melvin Torres, lives with his family upstairs. She was awakened by the noise the morning of the arrest and saw several persons going upstairs. She saw through her window people with long arm weapons and heard a helicopter. She did not witness any other event inside the defendant's home.
The government presented the testimony of agent Rafael Diaz who went with a seven-team members to the defendant's residence to execute his arrest. They identified themselves knocking at the door and a female Police officer asked the wife with the baby to go the kitchen. The agents initially verified through a security sweep if there were other persons or firearms inside and the agents thus checked that no one else was hiding in the rooms, inside the closets, in the bathrooms nor under the beds. The defendant's wife remained at the kitchen and was preparing milk for the baby. She was asked for authorization search the house and the consent document was presented to her. She did not hesitate the document in the Spanish language was provided. Agent Diaz noticed Mrs. Almeida same after reading it. She did not limit the scope of the search. The defendant was placed meanwhile on the sofa and was later allowed to dress and have coffee. He was also taken to the bedroom to get dressed and to the bathroom to brush his teeth before leaving the house under arrest. The drawers in the rooms were searched after the wife's consent had been obtained. Exhibit G shows a Report of Investigation. The only item defendant questioned at the time was why was the boric acid taken.
There is no controversy that Mrs. Emelina Almeida, who provided the consent, had mutual use of the premises that were searched and thus common authority over the property. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988 (1974). Whether the consent provided, was voluntary turns on an assessment of the totality of the circumstances. It is not essential, however, that the law-enforcement officers inform the consenting party of the right to withhold consent. United States v. Espuilin, 208 F.3d 315 (1st Cir. 2000).
"Common authority" rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-habitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." United States v. Matlock, supra.
The initial security sweep conducted at the premises does not amount to a full search. A sweep is "narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Officers are allowed to take reasonable steps to ensure their safety and may look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094-1095 (1990).
At the time the consent to search was requested, the agents were not displaying their weapons nor aiming at Mrs. Almeida. She was, although restricted to the kitchen area, allowed to move, prepared milk for her infant child and coffee for her husband. She was also, upon request, taken to get dressed. The consent form provided was in Spanish, clearly and plainly drafted, and indicated she could refuse to consent. Except for the fact that the law-enforcement agents who were present to execute the arrest of a defendant were armed, there was no unusual display of weaponry and no evidence of threats or coercion that vitiated same. Still, the agent testified, that upon being provided with the form, Mrs. Almeida glanced at it for a short while and seemed to have read it, signing same afterwards.
The validity of a consent to search is to be determined by a voluntariness test, examining all surrounding circumstances.Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973). In the case at bar, the consent given by Mrs. Almeida, who was not the object of the arrest and well knew at the time that it was her husband the person being sought and detained by law enforcement, is deemed to be voluntary.
In light of above, it is recommended that the defendant's motion to suppress BE DENIED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drillina Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).
IT IS SO RECOMMENDED.