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United States v. Guillen

United States District Court, D. New Mexico

May 3, 2018



         THIS 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.

         The 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).


         Defendant's 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.[1] 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 harassment.

         After interviewing MC, four law enforcement officers went to Defendant's home at around 9:43 p.m. that same day.[2] 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.

         The 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.

         Reynaldo 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.

         Mr. 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.[3] 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.

         SA 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.

         The 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 Ethan's bedroom:

• 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

         Agents 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


         The 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 long 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.”).

         For 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.[4]

         I. Entry Into House and Protective Sweep

         In the 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 house.[5]

         Detective 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 hearing.

         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”?

         The 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.

         The 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).[6] 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).

         The 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).

         While 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.

         Therefore, 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.

         B. Protective Sweep

         In the 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.

         II. Search of the Residence and Bedroom

         Defendant 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.

         Law 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).[7]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.

         A. Search of House

         Defendant 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.

         The 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).

         The 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. 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).

         The 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 have ...

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