United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
M.
CHRISTINA ARMIJO Chief United States District Judge.
THIS
MATTER is before the Court on Defendant39');">39;s
Motion to Suppress Fruits of Illegal Search of Residence
[Doc. 33] regarding a search that took place on November 7,
2016 and Defendant39');">39;s Motion to Suppress Fruits of
Illegal Search of Residence [Doc. 34] regarding a search
that took place on August 3, 2016. The Court has considered
the evidence presented at hearing, the parties39');">39;
submissions, and the relevant law, and is otherwise fully
informed. For the following reasons, the Court
GRANTS Defendant39');">39;s Motion to
Suppress Fruits of Illegal Search of Residence [Doc. 33]
and DENIES Defendant39');">39;s Motion to
Suppress Fruits of Illegal Search of Residence [Doc.
34].
FINDINGS
OF FACT
1.
Defendant is a 52 year-old man who graduated from high school
and who describes himself as a “certified refrigeration
man.” [Doc. 81, 25:3-9]
2.
Defendant has had prior encounters with law enforcement and
knows his rights, including his right not to consent and his
“right not to make statements.” [Doc. 81,
61:11-22]
August
3, 2016 - 93 Cielo Azul
3. On
August 3, 2016, law enforcement officers were searching for a
fugitive, Shauna Gutierrez, who was indicted in a RICO case
in April of 2016. Ms. Gutierrez was also the wife or
girlfriend of another defendant in the RICO case. Officers
were seeking her to execute the arrest warrant. [Doc. 75,
46:9-16 (Howard), 95:2-13 (Acee)]
4. On
August 3, 2016, the law enforcement officers seeking Ms.
Gutierrez received a tip that she was staying with Defendant.
[Doc. 75, 31:20 to 32:12 (Howard)]
5.
Defendant met Ms. Gutierrez in mid-June, 2016, when she was
hitchhiking in Los Lunas, and, because she did not have a
place to stay, he let her live with him. [Doc. 81, 26:9 to
27:11] Ms. Gutierrez told Defendant that her name was Sally
Martinez. [Doc. 81, 26:17-18]
6. Nine
law enforcement officers went to Defendant39');">39;s residence at
93 Cielo Azul in San Clemente, New Mexico, to arrest Ms.
Gutierrez. [Doc. 75, 31:20 to 32:6 (Howard)] The officers
arrived in three vehicles. [Doc. 75, 68:3-7 (Salcido), 75,
95:11-22 (Acee)]
7.
Officers participating in the search for and arrest of Ms.
Gutierrez included: Special Agent Byran Acee with the FBI
[Doc. 75, 95:11-18]; FBI Special Agent John Howard, [Doc. 75,
29:14-25, 31:20-25]; Matthew Salcido, a deportation officer
with Immigration and Customs Enforcement, who is assigned to
the FBI Safe Streets Task Force [Doc. 75, 66:16 to 67:8];
Task Force Officer Mark Myers [Doc. 75, 70:18-25]; Special
Agent Sarah Rich [Doc. 75, 72:2-5]; Special Agent Tom Neale
[Doc. 75, 73:25]; Special Agent Joseph Sainato [Doc. 75,
68:13-17]; Task Force Officer Chris Cupit [Doc. 75, 99:6-8];
and one other unidentified officer.
8.
According to Agent Howard, nine officers went to
Defendant39');">39;s residence because of the serious nature of
the allegations in the RICO case and against Ms. Gutierrez,
including murder and conspiracy to commit murder, and because
Ms. Gutierrez could be with members of a prison gang. [Doc.
75, 31:20 to 32:6]
9. All
of the law enforcement officers were wearing
“RAID” vests. [Doc. 75, 69:14-16 (Salcido)]
10.
Agent Howard diagramed the property at 93 Cielo Azul. [Doc.
75, 33:20 to 34:9; Government Exhibit (hereafter, GEX) 48] As
shown on the diagram, the front door of the residence is on
the left side of the page.[1" name="FN1"
id="FN1">1] [Doc. 75, 36:11-23] The residence is a
trailer. [Doc. 75, 35:6-8]
11. All
officers arrived at the same time, one car parked toward the
back of the property (on the right side of the page) and two
cars parked toward the front of the property (on the left
side of the page). [Doc. 75, 35:20 to 36:10 (Howard); GEX 2]
12.
Agent Howard drew his weapon when he exited his vehicle and
trained it on the residence. [Doc. 75, 38:11-17] He
approached the trailer and focused his attention and weapon
on two windows above the front door as depicted on the
diagram. [Doc. 36:11 to 37:3]
13.
Matthew Salcido, Joe Sainato and another agent approached the
front door and knocked. [Doc. 75, 68:13 to 69:2]
14.
Regarding the knock:
a. Defendant described the knock as obnoxious, not casual,
and stated that it alarmed or concerned him. [Doc. 81,
32:6-20]
b. On the other hand, Agent Salcido testified “I
don39');">39;t knock hard.” [Doc. 75, 83:3-4]
c. The Court finds this discrepancy immaterial.
15.
Defendant answered the door and stepped outside. [Doc. 75,
69:5-9 (Salcido); Doc. 81, 32:23 to 33:2 (Defendant)]
16.
Regarding the encounter at the front door:
a. Defendant testified that when he stepped outside he saw
“[a] gun in my face, a rifle.” Defendant
testified that he saw five to six people, armed and
“all pointing guns at me.” [Doc. 81, 33:3-25]
b. On the other hand, Agent Salcido testified that he did not
have his gun drawn when he approached the residence to knock.
He drew his weapon when he entered the home to search for Ms.
Gutierrez. After detaining Ms. Gutierrez he holstered his
weapon and did not draw it again that day. [Doc. 75, 74:12 to
75:13, 79:20 to 80:1]
c. The Court finds this discrepancy immaterial given
subsequent events as described herein, below.
17.
Regarding whether Defendant gave officers permission to
search for Shauna Gutierrez:
a. Agent Salcido told Defendant that they were police, they
were looking “for Shauna, ” and asked whether she
was in the house. [Doc. 75, 69:5-9]
b. Agent Salcido testified that Defendant answered Agent
Salcido “no” when asked if Shauna Gutierrez was
in the house. [Doc. 75, 70:11-15]
c. Agent Salcido then asked “Do you mind if we
search?” and, according to Agent Salcido, Defendant
answered “Go ahead.” [Doc. 75, 70:13-17]
d. According to Agent Salcido, as Defendant gave consent to
enter to search for Shauna, Defendant stepped down the steps
to the doorway, making room for Agent Salcido to enter. [Doc.
75, 85:15-21]
e. On the other hand, Defendant testified that officers were
yelling “Is Shauna Gutierrez in the house?” when
Defendant answered the door. Defendant testified that he told
them, “There39');">39;s nobody here by that name.”
[Doc. 81, 36:10-15]
f. Defendant testified that officers next asked “Is
there any girls in the house, ” to which he responded
yes, and that an officer then went to get a wanted poster to
show him the woman. At that point in time, Defendant heard
someone yell from inside his house, “I found
her.” [Doc. 81, 36:2 to 37:12]
g. Defendant denied that he consented to entry into his house
to find Ms.Gutierrez or anyone. [Doc. 81, 39');">39:24 to 40:1]
Defendant testified that officers “shooed” him
off the stairs and had him sit on a log outside of his home,
with Mr. Miramontes. [Doc. 81, 39');">39:4-12]
h. The Court finds the Agents39');">39; testimony concerning his
consent to search for Ms. Gutierrez credible and
Defendant39');">39;s testimony not credible.
i. The Court finds that Defendant consented to Agents39');">39;
entry into his residence to look for Ms. Gutierrez.
j. The Court finds that no agent entered Defendant39');">39;s
residence prior to obtaining Defendant39');">39;s consent to
search for Ms. Gutierrez.
18.
When Defendant exited the front door, Agent Howard determined
that “it was a friendly encounter” and thus
lowered his rifle, and he did not raise it again that day.
[Doc. 75, 38:20-23]
19.
Agent Howard spoke to Defendant and either Agent Howard or
another officer asked Defendant to “stay
outside.” [Doc. 75, 37:13-16]
20.
Agent Howard walked with Defendant to “the bottom of
the trailer, ” where there were railroad ties. Agent
Howard and Defendant “started having small talk.”
[Doc. 75, 37:14 to 38:1]
21.
Agent Howard testified that “There was no hostility
from Mr. Warwick; there was none from us. This was not an
encounter where I felt there needed to be a verbal judo or
that I thought we were going to have an altercation or
anything. He was very pleasant. His demeanor was fine.”
[Doc. 75, 39');">39:16-20]
22.
Defendant testified that officers used their rifles to direct
him where to go and told him to “sit there and stay
there.” [Doc. 81, 40:7 to 1');">41:12] The Court finds this
testimony not credible.
23. At
one point, Defendant asked to go in his house and get a
cigarette because he was upset but he was told he could not
do so. [Doc. 81, 1');">41:13-24]
24.
While Agent Howard stayed with Defendant, Agent Sainato,
Agent Salcido and Officer Myers entered the residence to
search for Ms. Gutierrez and eventually searched the bedroom
to the left of the front entrance, marked as B1 on GEX 48.
[Doc. 75, 70:19 to 71:4 (Salcido)]
25.
Agents opened the closet door in the bedroom and found Shauna
Gutierrez hiding in the closet with her hands up. [Doc. 75,
71:6-20]
26.
While retrieving Ms. Gutierrez from the closet, Agent Salcido
observed two firearms in the closet. [Doc. 75, p. 71:16-25]
27.
Agent Sarah Rich then entered the residence to do a
“thorough pat-down of Ms. Gutierrez.” [Doc. 75,
72:2-5 (Salcido)]
28. Law
enforcement officers continued to search the residence
“to make sure there was nobody else hiding.”
[Doc. 75, 72:20-24 (Salcido)]
29.
Agent Salcido then stayed with Ms. Gutierrez inside the
residence until Defendant signed a consent-to-search form.
[Doc. 75, 73:16-21]
30. At
some point prior to Defendant signing a consent-to-search
form, Agent Acee entered the residence and spoke to Ms.
Gutierrez. [Doc. 75, 89:16 to 90:3 (Salcido), 75, 103:9-25
(Acee)]
31.
After Ms. Gutierrez was detained, and before Defendant signed
a consent-to-search form, Agent Howard went into the trailer
and observed the firearms in the closet. [Doc. 75, 1');">41:18-21]
32. In
the meantime, when Agent Acee arrived on the scene, he went
to the right side of the property (as shown on GEX 48). He
found a man working on a truck next to the residence. The man
was later identified as John Miramontes. [Doc. 75, 98:15 to
99:5]
33.
Agent Acee39');">39;s encounter with Mr. Miramontes was friendly
and he did not give Mr. Miramontes any commands or have his
weapon drawn, though his SWAT rifle was hanging on a sling
off his shoulder pointing at his feet and he had on a
ballistic tactical vest. [Doc. 75, 99:14 to 100:8, 100:23 to
101:5]
34.
Agent Acee showed Mr. Miramontes a photograph of Shauna
Gutierrez, and Mr. Miramontes stated something like
“That looks like Sally.” [Doc. 75, 100:1-20]
35.
Agent Acee asked whether Mr. Miramontes lived at the
residence, and Mr. Miramontes stated he did. Mr. Miramontes
also stated that Bill or William and Sally also lived at the
residence. [Doc. 75, 101:8-17]
36.
Agent Acee spoke to Mr. Miramontes for approximately a little
over a minute before other law enforcement officers announced
on the radio that they had Ms. Gutierrez in custody. [Doc.
75, 102:1-16]
37.
Agent Acee then asked Mr. Miramontes to walk toward the front
of the residence and left him with another agent while Agent
Acee entered the residence. Agent Acee went into the
residence to speak with Ms. Gutierrez and ask her to identify
the other individuals at the residence because he suspected
she would be with other gang members. [Doc. 75, 102:12-22,
104:1-8]
38.
Agents did not handcuff Defendant or Mr. Miramontes during
their time at 93 Cielo Azul on August 3, 2016, however, they
escorted Defendant and Mr. Miramontes and did not let
Defendant enter his home while they searched it. [Doc. 75,
43:7-16, 54:19-24 (Howard), 103:1-8, 105:4-22 (Acee)]
39');">39.
Agent Acee described his encounter with Mr. Miramontes as
“friendly” and “almost a casual encounter,
except that I39');">39;m dressed tactically.” [Doc. 75,
99:14, 100:7-8] He also testified that Mr. Miramontes was not
“aggressive or rude” and that he was “very
cooperative, polite.” [Doc. 75, 102:23-25]
40.
After Agent Acee spoke with Ms. Gutierrez in the residence,
he went out and introduced himself to Defendant. [Doc. 75,
105:1-11]
1');">41.
Defendant did not know Ms. Gutierrez39');">39;s actual identity.
[Doc. 75, 106:2-9]
42.
Agent Acee told Defendant that the agents would be present
“a little while” and mentioned that there were
guns in the closet where they found Ms. Gutierrez. Agent Acee
had not determined whether Defendant had prior felony
convictions at the time of this discussion. [Doc. 75, 106:10
to 107:2]
43.
Agent Acee testified that, in response to his statement,
Defendant “told me kind of his feelings on the Second
Amendment and the right to have guns, and we got in a little
bit of conversation about that, and I kind of eased out of
that.” [Doc. 75, 107:3-10]
44.
Agent Acee testified that Defendant also
“volunteered” that the guns were his, not Ms.
Gutierrez39');">39;s. [Doc. 75, 107:12-16]
45.
Prior to obtaining Defendant'');">39;s consent to search the
residence, Agent Acee ran Defendant'');">39;s ...