United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
MATTER comes before the Court upon the Motion to Suppress
Evidence and Statements Discovered as a Result of Unlawful
Search and Seizure, filed September 13, 2017 by Defendant
Ethan Guillen (hereinafter “Defendant” or
“Ethan”) (Doc. 31). Having
reviewed the relevant pleadings of the parties, having
considered the testimony and evidence presented at the
suppression hearing and having considered the oral and
written arguments of counsel, the Court denies the motion as
to the lawfulness of the entry into the residence and the
search, and denies Defendant's request to suppress
physical evidence seized as a result of the search. The
motion is granted only to the extent that Defendant's
initial self-incriminating statement to law enforcement is
suppressed, but the motion is denied in all other respects.
Court held a three-day hearing on the motion on January 18,
19, and 25, 2018, and the parties were given the opportunity
to submit written closing arguments, which they have done.
(Docs. 62 and 63). A hearing was held on
Monday, April 16, 2018 for oral argument on the written
closing arguments. In their written closings, the parties
tendered what amounted to requested findings of fact by
referring to the transcripts from the hearing, and submitted
what amounted to conclusions of law. The Court notes that the
facts are largely undisputed although the parties disagree on
the legal significance of those facts (for example, whether
Defendant was in custody for purposes of Miranda),
but the Court will also note where the facts are disputed
(for example, whether Defendant gave verbal consent to law
enforcement to enter the home).
motion seeks suppression of all evidence and statements made
by Ethan derived from the alleged illegal search of his home
and effects, and from unlawful seizure and interrogation.
According to the criminal complaint, on May 31, 2017, law
enforcement responded to a 911 call which came in around 3:00
p.m. from someone who was later identified as Defendant's
ex-girlfriend, “MC.” MC had found an explosive
device (a pressure cooker bomb) under her bed. A timer was
used to turn on a soldering iron that was to heat up and
start the fuse which then was to ignite the pressure cooker
bomb. Fortunately the bomb did not detonate. The Albuquerque
Police Department (“APD”) Bomb Squad was
inspecting the device at MC's home when Special Agent
Zachary Rominger (“SA Rominger”)
arrived. The pressure cooker held approximately six
pounds of black powder, nuts, bolts and a rubbery-like
substance in a plastic bag that was later identified as
“homemade napalm.” Law enforcement concluded that
the pressure cooker and its contents were an improvised
explosive device (“IED”). SA Rominger interviewed
MC and her mother about MC's past relationship with
Ethan. MC explained she had dated Ethan for about six months,
and after breaking up in June 2016 she made it clear she
wanted no further contact with him, but he continued to try
and communicate with her. For a while, the school provided
her with an escort to class in an effort to stop Ethan's
interviewing MC, four law enforcement officers went to
Defendant's home at around 9:43 p.m. that same
Of the four officers, only APD Detective Larranga had a lapel
camera video and had the good sense to have the device turned
on recording events that were occurring. The Court notes that
J. Edgar Hoover died in 1972 so perhaps the time has come for
federal law enforcement agencies such as the FBI and the ATF
to follow the lead of other law enforcement agencies such as
the APD and require agents to record most of their encounters
with members of the public. Recording such encounters assists
trial judges in making factual findings.
officers did not have a warrant to search Defendant's
house. When agents knocked on the front door, Ethan and his
brother Tyler Guillen (“Tyler”) opened it. Upon
entry the officers conducted a protective sweep of the house,
but no evidence was collected at this time. Defendant
contends that the entry was illegal because Ethan did not
consent to the entry either verbally or nonverbally.
Guillen (“Mr. Guillen”), Ethan's father,
returned home about 18 minutes from the time the agents
entered the home and was interviewed by the agents about a
pressure cooker and a soldering iron. Reynaldo said he
recently bought a pressure cooker for Ethan and he asked
Ethan where it was. Ethan told Reynaldo that it was at his
mother's house, but a call to the mother revealed that
she did not have it. Reynaldo had several conversations with
his ex-wife Lori Valdez (“Ms. Valdez”) that
evening in order to determine whether she had the pressure
cooker. Ms. Valdez said she did not know but would have to
look, and at the hearing she testified that she did not look
for the pressure cooker that evening. Tr. at 475. Ethan then
changed his story and said the pressure cooker was at the
home of his recently deceased uncle.
Guillen consented to a search of the residence and signed a
search consent form. Defendant at no time objected to the
search. The search did not uncover the soldering iron which
Mr. Guillen said he owned, but in the backyard agents found a
white plastic table with large burn marks on it and a piece
of fuse stuck on it. Agents found a backpack next to the bed,
which contained white duct tape (which matched the duct tape
found on the IED), black duct tape, latex gloves, scissors,
super glue and zip ties.
Rominger questioned Ethan at the kitchen table for about 50
minutes, during which time Ethan denied having any
involvement with making the device. SA Rominger then told
Ethan that the evidence indicated that he had made the IED,
and Ethan stated, “Yes, I made it.” At that
point, SA Rominger read Defendant his Miranda
rights. Ethan acknowledged that he understood those rights
and waived them and agreed to speak with both SA Rominger and
SA Greene. Defendant explained how he constructed the IED,
entered MC's apartment through the back door of her
balcony while MC was out and plugged the IED into a timer set
for 1:30 a.m. Ethan's post-warning statements were
recorded by Det. Larranaga's lapel camera. Ethan
described how, after putting the device in place, he then
listened to a police scanner and waited to hear about an
explosion. Ethan told SA Rominger that he wanted MC dead and
that he did not care that the explosion could have injured or
killed nearby people. The agents followed Ethan into his room
where Ethan showed them his computer and the components he
used for building the IED which were in his backpack,
including the white duct tape, the gloves and the super glue.
complaint states that officers were unable to locate both a
pressure cooker and a soldering iron which had been purchased
by Mr. Guillen, but information about the pressure cooker and
soldering iron was obtained as a result of the agent speaking
with Ethan at the house. In discovery, ATF agents disclosed
that these additional items were later obtained from
• backpack with contents
• desktop tower computer,
• laptop computer, .X-Box
• J.B. Weld (an epoxy product) from the nightstand, and
• A cell phone from Ethan Guillen's person
also disclosed in discovery that certain items were obtained
from the backyard of the residence, including:
• A plastic table (with large burns on its surface),
• A tube of caulk
• A caulking lid
• An empty bottle of isopropyl alcohol
• A burned match box and
• A burned razor blade
Fourth Amendment requires that searches and seizures be
reasonable. City of Indianapolis v. Edmond, 531 U.S.
32, 37 (2000). It is a “basic principle of Fourth
Amendment law” that searches and seizures inside a home
without a warrant are presumptively unreasonable. Payton
v. New York, 445 U.S. 573, 586 (1980). The Fourth
Amendment “applies equally to seizures of persons and
to seizures of property, ” Payton v. New York,
445 U.S. 573, 585 (1980), and only prohibits searches and
seizures that are unreasonable. City of Indianapolis v.
Edmond, 531 U.S. 32, 37 (2000). In Terry v.
Ohio, the Supreme Court held that a seizure occurs and
the Fourth Amendment applies “whenever a police officer
accosts an individual and restrains his freedom to walk
away.” 392 U.S. 1, 16 (1968); United States v.
Broomfield, 201 F.3d 1270, 1274 (10th Cir. 2000) (a
seizure occurs when the police conduct would have
communicated to a reasonable person that the person was not
free to decline the officers' requests or otherwise
terminate the encounter).
as “a reasonable person would feel free to disregard
the police and go about his business, the encounter is
consensual and no reasonable suspicion is required.”
Florida v. Bostick, 501 U.S. 429, 434 (1991).
“[I]n order to determine whether a particular encounter
constitutes a seizure, a court must consider all the
circumstances surrounding the encounter to determine whether
the police conduct would have communicated to a reasonable
person that the person was not free to decline the
officers' requests or otherwise terminate the
encounter.” Broomfield, 201 F.3d 1270 at 1274;
see also United States v. Mendenhall, 446 U.S. 544,
554-55 (1980) (“Examples of circumstances that might
indicate a seizure, even where the person did not attempt to
leave, would be the threatening presence of several officers,
the display of a weapon by an officer, some physical touching
of the person of the citizen, or the use of language or tone
of voice indicating that compliance with the officer's
request might be compelled.”).
purposes of this discussion, the Court will refer to the
transcripts for the motion hearing by their page numbers.
Volume 1 includes pages 1-202; volume 2 includes pages from
205-471 and volume 3 runs from pages 473-506.
Entry Into House and Protective Sweep
motion to suppress, Defendant argues that his Fourth
Amendment rights were violated when agents physically
intruded into the Guillen home because Tyler expressly
consented to the entry but Ethan did not. Defendant also
suggests that any consent that might have been given was not
voluntary because there was a show of force by the presence
of four detectives seeking entry into the
Larranaga captured the moments leading up to the agents'
entry into the house on his lapel camera (“lapel cam
video”), and the video was admitted as an exhibit at
the initial hearing on the motion to suppress. Ex. 1, Part 2.
The Court has reviewed this video numerous times, in
preparing for the motion hearing as well as during the
parties differ on whether Ethan gave consent for the
agents' entry into the home. The Government's
position is that Ethan ultimately did give express permission
for the entry, although he initially objected. Both brothers
opened the front door and the agents asked if they could come
inside and talk. Tyler agreed, but Ethan asked if the agents
had a warrant. Agent Greene advised him that they did not,
and Ethan asked if they could talk outside instead. When the
agents asked again if they could come inside, both brothers
appeared to be having some discussion, most of which was
inaudible on the video, and then Ethan stepped aside and said
“Sure” in response to Agent Green's question,
“Are you inviting us in”?
events surrounding the entry were described consistently by
SA Rominger (Tr. at 28-30); SA Green (Tr. at 215-216).
Neither agent had any doubt that Ethan as well as his brother
Tyler gave consent for the entry; Det. Larranaga (Tr. at
306-07) stated that he could not see which brother's lips
were moving to say “Sure” but it sounded to him
as though Ethan made that statement. The Court finds the
agents' testimony to be credible. Ethan asserts that he
objected to the entry, but was overruled by his older
brother, who shoved Ethan aside to allow the agents to enter
the home. Tyler testified at the hearing that he-not
Ethan-gave express permission to law enforcement to enter the
house. He stated that he had asked Ethan why he cared whether
the officers came into the house, and Ethan told him that he
would “prefer them not to come in” but that he
brushed off his brother's comments. Tr. at 363.
Court has viewed the lapel cam footage capturing the
agents' entry into the Guillen residence several times,
and finds this footage crucial to the Court's
determination on this issue. The discussion between the two
brothers was inaudible, but after repeated viewings, it
appears that Ethan said “Sure” to the agents'
second request to come inside, taking a step back while Tyler
stepped off to the side in order to allow the agents to come
in. See United States v. Guerrero, 472 F.3d 784
(10th Cir. 2007) (a defendant's consent must be clear,
but it need not be verbal). While it was difficult to discern
whose mouth was moving, Ethan's posture and body language
was consistent with finding that Ethan did give express
permission for the entry affirmatively, both orally and by
his actions in stepping aside. This is consistent with the
officers' testimony. Defendant's contention that
Tyler shoved Ethan aside is not visible in the video. The
videotape shows that both brothers gave oral consent, and
both cleared the way for the agents to enter. The Fourth
Amendment recognizes a valid warrantless entry and search of
premises when police obtain the voluntary consent of an
occupant who shares, or is reasonably believed to share,
authority over the area in common with a co-occupant who
later objects to the use of evidence so obtained.
Illinois v. Rodriguez, 497 U.S. 177 (1990);
United States v. Blunt, 187 Fed.Appx. 821 (10th Cir.
2006) (warrantless entry into drug suspects' residence
did not violate Fourth Amendment, where third party with
apparent authority to enter residence invited officer to
accompany her inside). In this case, there is no evidence or
testimony that Ethan ever objected to the entry, even after
the agents were in the house-except for his initial objection
when he asked the agents if they had a search warrant, which
Ethan withdrew when he stated “Sure.” A lack of
objection on Ethan's part to the officers' entrance
into the house, and later to the search, indicates consent.
See United States v. Espinosa, 782 F.2d 888, 892
(10th Cir.1986) (failure to object “may be considered
an indication that the search was within the scope of the
consent”); United States v. Pena, 143 F.3d
1363, 1368 (10th Cir. 1998) (accord).
Court also rejects Defendant's argument that even if
Ethan consented to the entry, his consent was involuntary
because of a show of force by the law enforcement agents
standing outside the door. Consent is determined through a
totality of the circumstances. United States v.
Dewitt, 946 F.2d 1497, 1500 (10th Cir. 1991). For a
consent to be valid: “(1) There must be clear and
positive testimony that consent was unequivocal and specific
and freely given; and (2) The government must prove consent
was given without duress or coercion, express or
implied.” United States v. Butler, 966 F.2d
559, 562 (10th Cir. 1992). Factors relevant to whether a
consent was voluntary include: whether officers touch or
physically restrain defendant; whether the officers are in
uniform or plain clothes; whether their weapons are
displayed; whether there are a large number of officers;
whether the officers use a harsh tone or demeanor; and
whether they have advised the defendant of his or her right
to terminate the encounter or refuse consent. United
States v. Zapata, 997 F.2d 751, 756-57 (10th Cir. 1993).
An individual also may consent through physical conduct.
“Consent may instead be granted through gestures or
other indications of acquiescence, so long as they are
sufficiently comprehensible to a reasonable officer.”
United McKerrell, 491 F.3d 1221, 1227 (10th
Cir. 2007) (an occupant who does not wish the search to occur
must expressly object in order to nullify a co-tenant's
express consent) (search context); cmp. Georgia v.
Randolph, 547 U.S. 103, 106 (2006) (physically present
co-occupant's stated refusal to permit entry renders
warrantless search unreasonable and invalid as to him).
States v. Guerrero, 472 F.3d 784, 789-90 (10th Cir.
2007). The characteristics of a defendant may also be taken
into account as well. U.S. v. Dozal, 173 F.3d 737,
796 (10th Cir. 1999).
the number of officers present may be a factor to consider
for voluntariness, it is not the only factor to consider.
See, e.g., United States v. Jones, 701 F.3d 1300,
1314 (10th Cir. 2012) (while there were three officers on the
scene, the testimony presented indicated that the
officers' presence was non-threatening and thus under a
totality of circumstances, a reasonable person would feel
free to go about one's business during the encounter).
Based on the pleadings and the evidence and testimony at the
hearing, the Court finds no indication that the officers
behaved in a coercive or threatening manner. The agents'
request to enter the home was made twice, and was done in
even tones and without raised voices. There was no menacing
insistence in either of the requests. Most of the agents were
in plain-style clothes and weapons were concealed. Tr. at
37-38. Ethan points to his characteristics as a youth who was
allegedly clinically depressed and taking antidepressant
medication, having no prior law enforcement contacts or
juvenile history, and being overruled by his brother Tyler
who is physically stronger and larger. However, the agents
would not have either known or seen any of this, and this was
certainly not obvious from the videotape from Det.
Larranaga's lapel cam video.
under the totality of the circumstances, it was reasonable
for the agents to believe that consent to enter the home was
freely given by both brothers. Accordingly, the entry did not
violate Defendant's Fourth Amendment rights.
motion to suppress, Defendant claims that the video shows
that only Tyler consented to the protective sweep conducted
by Det. Larranaga and that Ethan at no point consented to a
sweep of the house either verbally or with his behavior. Here
again, Ethan did not object to the sweep, nor is there any
suggestion that the protective sweep was not done on legal
grounds. Also, no evidence was gathered as a result of the
sweep. There was no testimony or evidence rebutting SA
Rominger's explanation for the security sweep, which was
done immediately after the agents entered the Guillen
residence. Tr. at 30 (SA Rominger stating that agents
conducted protective sweep in order to ensure that
“nobody is going to come up on you while you're
doing an interview or while you're talking.”).
See U.S. v. Owens, 782 F.2d 146, 151 (10th Cir.1986)
(a protective sweep is “appropriate only where officers
reasonably perceive an immediate danger to their
safety”). In this case, law enforcement had a
legitimate interest in ensuring that the officers' lives
would not be at risk if there were other bombs in the house,
in light of the information that had obtained from the
interview with the victim. Therefore, the agents did not
violate Ethan's Fourth Amendment rights when they
conducted a protective sweep.
Search of the Residence and Bedroom
contends that his Fourth Amendment rights were violated when
law enforcement agents conducted an unreasonable search of
his home and its curtilage, his bedroom, and his backpack. He
contends that he had an expectation of privacy in those
places and things.
enforcement officers may search a home without a warrant with
the voluntary consent of the homeowner. U.S. v.
Pikyavit, 527 F.3d 1126, 1130 (10th Cir. 2008). Whether
voluntary consent was given is a question of fact determined
by the totality of the circumstances. Id. The
government must “proffer clear and positive testimony
that consent was unequivocal and specific and freely given .
. . and must prove that this consent was given without
implied or express duress or coercion.” U.S. v.
Zubia Melendez, 263 F.3d 1155, 1162 (10th Cir.
2001).The facts relevant to the search issue are
undisputed. Upon entry into the house, the agents were
informed that Mr. Guillen, a musician, was in Santa Fe. While
the security sweep was being conducted, SA Rominger and SA
Green asked Ethan if they could talk at the kitchen table and
other agents were talking with Tyler in the back hallway.
Around 10:00 p.m., Mr. Guillen returned home. Mr. Guillen was
the owner of the home, and he provided oral and written
consent to the search of the residence. Defendant does not
expressly challenge the validity of Mr. Guillen's consent
relative to his signing the consent form. At the hearing, Mr.
Guillen testified that he did not understand he had a right
to refuse to consent to the search of the house. However,
there is no evidence that his consent was not voluntary.
First, police do not have to inform an individual of his
right to refuse to consent to a search. U.S. v.
Harrison, 639 F.3d 1273 (10th Cir. 2011). Whether an
individual was aware that he could refuse to consent is but
one factor considered in the totality of the circumstances
analysis of whether the search was voluntary. Id.
Government actions are coercive when they imply an individual
has no right to refuse consent to search. Id.; see United
States v. Collins, 683 F.3d 697, 702 (6th Cir. 2012).
Second, the consent form presented to Mr. Guillen in fact
included language informing he that he did have the right to
refuse consent and that he could consult with an attorney
before or during the search. Mr. Guillen stated that he felt
“rushed, ” but admitted that he had a full
opportunity to review the form and knew what he was signing.
Tr. at 454-55.
Search of House
contends that Mr. Guillen did not have authority to allow a
search of the house, particularly of Ethan's bedroom, in
which he had an expectation of privacy.
Fourth Amendment permits a warrantless search when one
occupant sharing the home with other parties consents.
United States v. Matlock, 415 U.S. at 170;
Fernandez v. California, 134 S.Ct. 1126, 1129 (2014)
(“police officers may search jointly occupied premises
if one of the occupants consents”). A third party has
authority to consent to a search of property if that third
party has either (1) mutual use of the property by virtue of
joint access, or (2) control for most purposes over it.
U.S. v. Rith, 164 F.3d 1323 (10th Cir. 1999).
However, that same search is unconstitutional when another
occupant of the home is present and expressly refuses
consent. Georgia v. Randolph, 547 U.S. 103 (2006);
U.S. v. McKerrell, 491 F.3d 1221 (10th Cir. 2007)
(no Fourth Amendment violation where defendant did not
expressly object to a search of the house while he was on the
scene, and there was no showing that the officers removed the
defendant from the scene to avoid his possible objection to
the search); United States v. McKerrell, 491 F.3d
1221, 1227 (10th Cir. 2007) (An occupant who does not wish
the search to occur must expressly object in order to nullify
a co-tenant's express consent).
analysis for actual or apparent authority is similar and the
Government bears the initial “burden of proving by a
preponderance of the evidence that the consenter had mutual
use of the property searched by virtue of [his] joint access
to it, or control for most purposes over it.”
United States v. Rith, 164 F.3d 1323, 1329 (10th
Cir. 1999)). As part of this fact-intensive inquiry, there is
a “normative inquiry” dependent on whether the
relationship between the defendant and the third party
“is the type which creates a presumption of control for
most purposes over the property by the third party.”
This presumption may be rebutted by facts showing an
agreement or understanding between the defendant and the
third party that the latter must have permission to enter the
defendant's room. Rith, 164 F.3d at 1331.
However, if the relationship creates a presumption of control
and is unrebutted, then the third party has authority to
consent to a search of the property. Id.at 1330
(while there were insufficient factual findings that
defendant's parents had joint access to his bedroom, and
no findings that the parents visited with defendant in his
room, cleaned his room, or otherwise went into Rith's
room uninvited, there was also a presumption that defendant
was living with his parents and was not paying rent, and that
this presumption was unrebutted).
Government contends that Mr. Guillen had apparent authority
to consent for the search of his home, starting out with a
presumption of control that exists when a child lives with a
parent. In such a situation, the parent generally has control
over the property and therefore actual authority to consent
to a search of the entire home. United States v.
Romero, 749 F.3d 900, 905-06 (10th Cir. 2014). Ethan
lived with his father, and so this relationship establishes
the presumption that Mr. Guillen had actual authority to
consent to a search of the home and its curtilage. See
Rith, 164 F.3d at 1331 (control test is satisfied on a
showing that a child lives with parents even when the child
is an adult). The Government argues that it was therefore
reasonable for the officers to rely on the presumption that
Mr. Guillen had joint access or control over the entire home,
including Ethan's bedroom. Romero, 749 F.3d 900,
907 (“when officers know facts creating a presumption
of authority to consent, the officers need not make further
inquiry into authority unless they learn additional facts
(such as that the stepson pays rent) that may undermine the
presumption.”). In this case, the officers would not