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United States v. Cotto

United States District Court, D. New Mexico

March 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
OMIL COTTO, Defendant.

          MEMORANDUM OPINION AND ORDER

         On August 14, 2018, a federal grand jury returned an indictment charging Defendant Omil Cotto with one count of unlawfully, knowingly and intentionally possessing with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); one count of knowingly using, carrying and discharging a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 34). On September 6, 2018, Defendant filed a Motion to Suppress Evidence Derived as a Result of an Invalid Search Warrant for 1314 Apodaca St. S.W., Albuquerque, New Mexico (Doc. 39) (Motion), asking the Court to suppress all physical evidence that officers seized pursuant to a search of the residence located at 1314 Apodaca Street S.W. executed on May 31, 2018. The United States opposes the Motion, and it is fully briefed.[1]

         The Court heard evidence and argument from counsel at a hearing on November 28, 2019. Assistant United States Attorney Peter Eicker appeared on behalf of Plaintiff, United States of America. Defendant was present in the courtroom and represented by Attorney Erlinda Ocampo Johnson. At the close of the hearing, the Court granted leave for the parties to submit additional briefing specifically on applicability of the inevitable discovery doctrine to this case.[2] Having considered the parties' briefs, arguments, evidence, and relevant case law, the Court will deny Defendant's Motion.

         I. BACKGROUND

         At approximately 2:39 p.m. on May 31, 2018, the Bernalillo County Sheriff's Office received multiple calls reporting a possible road rage incident that occurred near the intersection of Edith and Montano in Albuquerque involving shots being fired from a vehicle. Law enforcement officials, including Bernalillo County Sheriff's Office Detectives Ryan Zamora and Nick Marrujo with the Violent Crimes Unit, responded to the calls. Detective Marrujo and another officer reviewed surveillance camera footage from a nearby business that had captured the incident. The footage showed a black SUV strike a yellow Camaro from behind. The male driver of the yellow Camaro then got out and fired multiple shots at the SUV as it fled. A few moments later, a red Camaro with a female driver arrived on the scene. The male driver of the yellow Camaro removed items from the yellow Camaro, placed them in the red Camaro, and left the area in the red Camaro. The female who had driven up in the red Camaro then entered the driver's seat of the yellow Camaro and waited for officers to arrive. The female on scene in the yellow Camaro was identified as Karen Perez-Morales. She advised officers that her husband, Omil Cotto-Gomez, was the driver of the other Camaro and that he had left the area. The address associated with Karen Perez's driver's license was 1314 Apodaca Street S.W. in Albuquerque, New Mexico.

         After viewing the surveillance footage, Detective Marrujo was tasked with drafting an affidavit for a search warrant of the residence located at 1314 Apodaca Street S.W. (Apodaca Street residence) in Albuquerque, New Mexico. He returned to the station to begin drafting the affidavit while simultaneously monitoring radio communications between the detectives who had gone to the 1314 Apodaca Street location. While listening to these communications, Detective Marrujo heard officers describe that Defendant was on the property and that he and other people were in and out of the Apodaca Street residence on at least one occasion. One of the detectives on scene later included in his report that he saw Defendant entering and exiting the house at least one time. Sometime later, Detective Marrujo learned through the radio communications that officers had taken Defendant into custody at the Apodaca Street location.

         Like Detective Marrujo, Detective Ryan Zamora had also been dispatched to the scene of the alleged road rage incident a little after 3:00 p.m. Upon arrival, he noted a disabled yellow Camaro that had damage consistent with a crash. Detective Zamora also observed bullet casings on the ground where the yellow Camaro had come to a rest. After viewing the scene at Edith and Montano, Detective Zamora accompanied another detective to the location where the black SUV, the other vehicle involved in the incident, was stopped. The black SUV contained a female driver and her minor child who was in the back seat. The other detective interviewed the female driver. Detective Zamora was then dispatched to the Apodaca Street residence for the purpose of interviewing two people there, Rubi Perez and Jorge Lopez Sandoval.

         Detective Zamora arrived at the Apodaca Street residence a little after 6:00 p.m. He interviewed Jorge Lopez Sandoval first at approximately 6:16 p.m. (See Def. Ex. G, Transcript of Interview with Jorge Lopez Sandoval). Mr. Lopez Sandoval was taken into custody at the same time as Defendant, was in handcuffs, and was not free to leave. Detective Zamora directed him to a police truck on scene and the two entered the vehicle for the interview. Before questioning, Detective Zamora advised Mr. Lopez Sandoval of his Miranda[3] rights. With those rights in mind, Mr. Lopez Sandoval agreed to speak with Detective Zamora. Mr. Lopez Sandoval explained that he lived at the Apodaca Street residence with his wife Rubi Perez and the couple's children. Rubi Perez is Karen Perez-Morales' sister. Karen Perez-Morales is Defendant's wife.

         Mr. Lopez Sandoval recounted that when he got home from work, Defendant was at the Apodaca Street residence dropping his daughter off to stay with Mr. Lopez Sandoval's wife Rubi Perez. Although Defendant's red Camaro was parked at the Apodaca Street residence, Defendant had asked Mr. Lopez Sandoval for a ride to Defendant's house to pick up a car and possibly some diapers for Defendant's daughter. As the interview progressed, Mr. Lopez Sandoval revealed that when the two men first got to Defendant's house, Defendant asked if he could retrieve a rifle. Mr. Lopez Sandoval agreed. Defendant emerged from his house with a large bag which he placed in the trunk of Mr. Lopez Sandoval's white Nissan. However, Defendant did not get his car because he had forgotten the keys. The men then stopped at a store to buy some dinner groceries and returned to the Apodaca Street residence. According to Mr. Lopez Sandoval, once at the Apodaca Street residence, Defendant removed from the trunk of the white Nissan the bag he had told Mr. Lopez Sandoval contained a rifle. Defendant then placed the bag in a corner room that had a television inside the Apodaca Street residence. Mr. Lopez Sandoval stated that he never actually saw the rifle, just the large bag Defendant had told him held a rifle. The two men returned from the Apodaca Street house to the white Nissan so Mr. Lopez Sandoval could take Defendant back to his house again now that Defendant had the car keys. As soon as Mr. Lopez Sandoval put the Nissan in reverse, the police arrived with guns drawn, took Defendant and Mr. Lopez Sandoval into custody, and placed the men in handcuffs. Mr. Lopez Sandoval recalls that he was in handcuffs for several hours. He was released after speaking to Detective Zamora.

         Detective Zamora next interviewed Mr. Lopez Sandoval's wife, Rubi Perez, around 6:39 p.m. (See Def. Ex. H, Transcript of Interview with Rubi Perez). Ms. Perez was standing outside of the Apodaca Street residence while Detective Zamora interviewed her. Ms. Perez recalled that sometime around 4:30 or 5:00 p.m., officers arrived at the house with guns drawn and removed all occupants from inside of the house to conduct a protective sweep. Ms. Perez was not handcuffed but she was also not allowed to leave. Nevertheless, Ms. Perez testified that the officers who spoke with her were respectful. As with Mr. Lopez Sandoval, Detective Zamora advised Ms. Perez of her Miranda rights before conducting the interview. Ms. Perez acknowledged that she understood these rights and agreed to speak with Detective Zamora.

         Ms. Perez told Detective Zamora that Defendant showed up at the Apodaca Street residence asking to leave his daughter with her and declaring that Ms. Perez's sister, Karen Perez-Morales, had been in an accident. Ms. Perez observed that Defendant had a red and black Jordan backpack while he was in the living room, but she did not notice whether Defendant took the bag with him or left it somewhere inside the house. She heard Defendant go into her room but did not know the reason. Following the approximately nine-minute-long interview, Ms. Perez was released. However, officers did not allow Ms. Perez or the other Apodaca Street occupants to reenter the house until after the search was completed.

         Based on the investigation, Detective Marrujo completed the search warrant affidavit. (See Gov't Ex. 1, Search Warrant & Affidavit). The search warrant affidavit described the property to be searched and contained a request to seize: (1) “any and all firearm evidence to include pistols, revolvers, rifles, shotguns, etc., as well as any spent casings, live ammunition, holsters, etc.” and (2) any cell phones located in the home. After recounting his training and experience as a law enforcement officer, Detective Marrujo set forth several facts and circumstances meant to establish probable cause for the search of the Apodaca Street residence, as well as sheds, storage bins, bags, or vehicles associated with the property, for evidence of crimes relating to the alleged road race incident, including the crime of shooting at or from a motor vehicle.

         The affidavit stated that deputies were dispatched to a possible road rage incident where shots were fired. Officers arrived to find Karen Perez-Morales sitting inside of a disabled yellow Camaro with rear end damage. She explained that she was driving the yellow Camaro when a black SUV struck her from behind and fled. She also informed officers that her husband, Omil Cotto, was driving a red Camaro that had also left the area. Detective Marrujo next described what he and the other detective had viewed on the surveillance footage. The affidavit concludes with four sentences specific to Defendant:

Deputies on scene researched Omil Cotto-Gomez and found him to be a convicted of at least one felony crime within the past 10 years.
Omil was later apprehended at 1314 Apodaca St. SW. after he arrived as a passenger in a white Nissan car bearing NM plate [redacted].
Prior to being taken into custody, Omil was seen reaching toward the floor board of the Nissan, in a possible attempt to reach for something or to hide something.
It should be noted that the red Chevy Camero [sic] that Omil fled the scene in was also located at 1314 Apodaca St. SW.

         Detective Marrujo submitted the warrant affidavit to his supervisor and obtained approval. At approximately 6:32 p.m. on May 31, 2018, an assistant district attorney also approved the search warrant and affidavit, and at approximately 7:42 p.m. Second Judicial District Court Judge William Parnall telephonically approved issuance of the search warrant. While executing the warrant, detectives located a red and black Jordan backpack in a bedroom. Detectives found two large bundles wrapped in black electrical tape inside the backpack. Based on his training and experience, Detective Marrujo believed the bundles contained illegal narcotics. Because the original warrant application did not address seizure of illegal drugs, Detective Marrujo applied for an amended warrant for authority to seize the bundles and related paraphernalia. The amended warrant application contained the same information that was in the original application, but it had additional information pertaining to the bundles that officers had found. Around 9:30 p.m., the same assistant district attorney who had approved the earlier warrant approved the amended warrant affidavit, and at 9:40 p.m. Judge Parnall approved issuance of the amended warrant permitting officers to search for and seize any illegal drugs, packaging, scales or cash. (See Gov't Ex. 2, Amended Search Warrant & Affidavit).

         Detectives seized the two bundles which later field-tested positive for methamphetamine. (Doc. 42 at 7). Detectives also located a .40 caliber Glock pistol, the license plate for the red Camaro, and identification bearing Defendant's name and photo. (Doc. 42 at 7). Additionally, Detectives found a rifle and ammunition inside the Apodaca Street residence. (Doc. 42 at 7). After waiving his Miranda rights and agreeing to speak with detectives, Defendant made incriminating statements. Defendant now seeks to suppress all physical evidence derived from the search of 1314 Apodaca Street S.W. claiming the search violated his Fourth Amendment rights. (Doc. 39).

         II. LEGAL STANDARD

         “Suppression of evidence is an appropriate remedy only when the search violates a person's constitutional rights.” United States v. Gama-Bastidas, 142 F.3d 1233, 1238 (10th Cir. 1998). “The proponent of a motion to suppress has the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search.” Id. (internal quotation marks and citation omitted). However, it is the government's burden to show the admissibility of the evidence it seeks to introduce. See United States v. Mikolon, 719 F.3d 1184, 1189 (10th Cir. 2013).

         III. ANALYSIS

         Defendant's Motion[4] raises several issues. The primary issues are: (1) whether Defendant has standing to challenge the search of the Apodaca Street residence; (2) whether the search warrant was supported by probable cause that established a nexus between the Apodaca residence and the alleged illegal activity; (3) whether the warrant was overbroad; (4) whether, if the warrant lacked ...


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