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United States v. Salazar

United States District Court, D. New Mexico

January 23, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
ERIC SALAZAR, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          M. CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on the United States' Objections to Proposed Findings and Recommended Disposition of Defendant Eric Salazar's Motion to Suppress Evidence [Doc. 32].[1] The Court has considered the written submissions of the parties, the record in this case, the applicable law, and is otherwise fully advised. With regard to the Proposed Findings and Recommended Disposition [Doc. 31] the Magistrate Judge entered, the Court has conducted a de novo review of those portions to which objections have been made, 18 U.S.C. § 636(b)(1), and finds itself in agreement with the Magistrate Judge, as set forth more fully below.

         The United States does not object to any of the Magistrate Judge's factual determinations. The United States does, however, make a number of legal arguments. The Court will address these arguments in turn.

         I. Evidence Found During an Illegal Search Must be Suppressed

         The United States quotes the Supreme Court's admonition in Herring v. United States, that “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” 555 U.S. 135, 144 (2009). The United States then argues that any police misconduct that occurred in this case was not so egregious as to warrant the suppression of evidence. [Doc. 32 at 3] In so arguing, the United States fails to recognize that “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573 at 586, 100 S.Ct. 1371 (1980). Moreover, in United States v. Bagley, 877 F.3d 1151, 1156 (10th Cir. 2017), the Tenth Circuit recently determined that an illegal search conducted under circumstances similar to those that occurred in this case required suppression of evidence discovered during the search. There, the United States' basis for arguing that the search was not illegal was similar to the United States' current basis for arguing that there was no misconduct sufficient to justify the suppression of evidence. Specifically, the United States in Bagely argued that Deputy U.S. Marshals conducted a protective sweep because they “had no way of knowing, one way or another, whether anyone besides Mr. Bagley was still in the house. This uncertainty, according to the government, would have concerned the officers because they might have been subjected to an attack if someone else had remained inside.” Id. at 1156. Similarly, the United States argues here that, even if the Court ultimately finds the protective sweep invalid, law enforcement officers conducted the sweep to protect themselves and such conduct should not result in the suppression of evidence. As the United States acknowledges, however, Herring “apparently has not been applied to a case factually similar to this case and the Tenth Circuit has limited the good faith exception to cases involving reliance on a third party mistake . . ..” [Doc. 32 at 3] The Court finds that Bagley, and the binding precedent on which it relies, forecloses the United States' Herring argument.

         II. Exigent Circumstances did not Justify Seizure of the Firearm

The United States argues that exigent circumstances justify the seizure of the firearm and asserts two bases in support of its argument. First, it asserts that “it was entirely reasonable to secure the loaded firearm for the safety of the others . . ..” [Doc. 32 at 4] This argument, however, assumes that law enforcement discovered the firearm while lawfully in the place where they made the discovery. If law enforcement saw the gun in plain view from a place they were lawfully positioned, the United States' argument would have some strength. However, it is “an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Horton v. California, 496 U.S. 128, 136 (1990). The Magistrate Judge recognized this distinction that the United States fails to address. He stated:

With regard to whether it would be justified to seize a weapon, I agree with the United States that it would be if the weapon was found in plain view somewhere where [police] were legally authorized to be. So, for instance, if the police entered the house because [] exigent circumstances were found to exist, and right there in the entryway was a loaded gun, the police would certainly be able to take custody and secure that firearm. That is supported by the Tenth Circuit's decision in United States v. Gordon, 741 F.3d 64 at 70-71 (10th Cir. 2014). But in this case, the gun was not found in plain view until the bathroom was searched. So the real question is whether or not Deputy Cornell had justification to go into the bathroom.

[Doc. 31-1 at 150-51]. The United States acknowledges that Deputy Cornell did not find the gun until he searched the bathroom Defendant had vacated. [Doc. 32 at 2 (“Deputy Cornell went inside the bathroom and discovered a loaded .22 Ruger pistol inside a beanie cap underneath the sink, the butt of which was visible through a cabinet door that was partially ajar.”)]. Because the gun only came into plain view when Deputy Cornell went into the bathroom, seizure of the gun under the plain view doctrine is only permissible if Deputy Cornell was lawfully in the bathroom at the time he saw and seized the gun.

         This leads to the United States' next argument: that it has met the Tenth Circuit's two part test for determining whether exigent circumstances justify the entry and search of the bathroom. [Doc. 32 at 5]. This test requires the Court to ask “whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable . . ..” United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006). The United States asserts the first prong of the test has been met because “[t]here was a bona fide 911 call, along with defendant's suspicious behavior . . ..” [Doc. 32 at 5].

         The Magistrate Judge considered the existence of the 911 call to be an important factor in finding that exigent circumstances existed to justify the initial entry into the apartment. [Doc. 31-1 at 136-38]. By the time Deputy Cornell entered the bathroom, however, police had obtained additional information that reduced the significance of the 911 call Lydia Sanchez, the alleged victim's mother, made. First, Deputy Armijo testified that, while he was meeting with Ms. Sanchez, she got on the phone with her daughter and told her, “I know nothing happened between you.” [Id. at 66]. The significance of the 911 call was further dispelled when Deputy Armijo approached the front door to the apartment and heard two females and a male “conversing normally . . . [n]o one was arguing, no voices were raised, they just seemed to be talking normally.” [Id. at 66]. After Monica Salazar (the suspected victim) opened the door, Deputy Armijo and at least one other police officer entered the apartment. [Id. at 67-68]. Ms. Salazar then explained that her mother dislikes her boyfriend and that she had a slight argument with him earlier in the night about a lost sweater. [Id. at 67-68]. Ms. Salazar then answered in the negative when Deputy Armijo asked her “if there was any hitting, any threats, anything like that . . ..” [Id. at 68]. When Defendant came out of the bathroom, he also stated that he and Ms. Salazar had had an argument over a sweater and that there was no violence at all. [Id. at 70-71]. Although Deputy Armijo looked, he did not see any injuries on anybody he encountered in the apartment. [Id. at 80].

         Deputy Cornell testified that Defendant was sitting on the toilet when he arrived at the apartment. [Id. at 25-26]. Deputy Cornell could see Defendant because the door was ajar and Defendant remained on the toilet for a period of time after Deputy Cornell's arrival.[2] [Id. at 26, 49]. Defendant then closed the door for a brief period (45 seconds to a minute) during which he said he was wiping. [Id. at 27, 51]. Deputy Cornell then heard the toilet flush and Defendant came out. [Id. at 27]. The record is not clear whether Deputy Cornell then immediately went into the bathroom or whether he first helped pat Defendant down for weapons.[3] Deputy Cornell's belt tape, however, demonstrates that Defendant came out of the bathroom at eight minutes and seventeen seconds into the recording and Deputy Cornell completed his search of the bathroom about one minute and twenty-three seconds later when he came out of the bathroom and questioned Defendant about why he had lied to him about not having a gun. [Gov. Exh. 2].

         The United States' argument that these facts provide exigent circumstances that support the warrantless entry and search of the bathroom is unpersuasive. First, as the Tenth Circuit recognized in Najar, a 911 call does not always “justify a warrantless entry upon the arrival of law enforcement.” Najar, 451 F.3d at 720 n.7. Second, everything police learned from the time they responded to the 911 call dispelled the notion that there was an ongoing domestic violence dispute. Indeed, by the time Deputy Cornell searched the bathroom, he had already learned that the alleged victim denied that any domestic violence had taken place. [Gov. Exh. 3 at 3-5].[4] No one in the apartment had any sign of injury and the United States presented no evidence to support the existence of an ongoing domestic violence situation once police entered the apartment. During the eight minutes that Deputy Cornell was in the apartment waiting for Defendant to come out of the bathroom, Defendant asked one of the officers “What are you guys doing tonight besides coming over here?” [Gov. Exh. 3 at 12]. The officer responded that he was about to get a cup of coffee, that he was on his way to Dunkin Donuts, and that “as soon as you come out we get all this cleared up I can head back to Dunkin.” [Id. at 12]. This casual conversation as well as all information police learned in the apartment during the several minutes they stayed in the apartment without incident while Defendant was in the bathroom are all inconsistent with the existence of exigent circumstances. This remains true even when the 911 call is combined with the initial suspicious circumstance of Defendant retreating to the bathroom when law enforcement announced their presence. The Court agrees with the Magistrate Judge's determination that the United States has failed demonstrate “an objectively reasonable basis to believe there [was] an immediate need to protect the lives or safety of themselves or others” when Deputy Cornell searched the bathroom. Najar, 451 F.3d at 718.

         This is particularly true in light of the Tenth Circuit's affirmation that a mere uncertainty and concern that others might be in a particular room does not constitute specific, articulable facts that someone is concealed. Bagley, 877 F.3d at 1156. Although Bagley addressed whether a protective sweep was valid in light of a defendant's arrest, the question the Tenth Circuit considered was similar to the question Najar requires courts to ask when determining whether exigent circumstances exist to justify a search: ...


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