United States v. Warwick

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO Chief United States District Judge.

         THIS MATTER is before the Court on Defendant&#39');">39;s Motion to Suppress Fruits of Illegal Search of Residence [Doc. 33] regarding a search that took place on November 7, 2016 and Defendant&#39');">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 parties&#39');">39; submissions, and the relevant law, and is otherwise fully informed. For the following reasons, the Court GRANTS Defendant&#39');">39;s Motion to Suppress Fruits of Illegal Search of Residence [Doc. 33] and DENIES Defendant&#39');">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 Defendant&#39');">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 Defendant&#39');">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 don&#39');">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, “There&#39');">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 Agents&#39');">39; testimony concerning his consent to search for Ms. Gutierrez credible and Defendant&#39');">39;s testimony not credible.

i. The Court finds that Defendant consented to Agents&#39');">39; entry into his residence to look for Ms. Gutierrez.

j. The Court finds that no agent entered Defendant&#39');">39;s residence prior to obtaining Defendant&#39');">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 Acee&#39');">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 I&#39');">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. Gutierrez&#39');">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. Gutierrez&#39');">39;s. [Doc. 75, 107:12-16]

         45. Prior to obtaining Defendant&#39');">39;s consent to search the residence, Agent Acee ran Defendant&#39');">39;s ...