Opinion
Criminal 04-0031(HL).
November 10, 2004
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2003, a warrant was issued to arrest José Ríos-Ramírez, who then resided at 129 Lirio Street, Urbanización Jardines de Bayamón, Bayamón Puerto Rico. The arrest warrant was issued based on information concerning a criminal organization that was producing counterfeit identification and credit cards. On December 9, 2003, federal and state agents arrested the defendant outside his residence. The agents conducted a search of the defendant's house in which they found 500 grams of cocaine, two rifles, ammunition, and a false identification card.
The indictment does not mention the false identification card.
On June 23, 2004, the defendant was indicted by a grand jury. The indictment consists of three counts. In the first count, the defendant is charged with willfully, knowingly, intentionally and unlawfully possessing with the intent to distribute in excess of 500 grams (gross weight) of cocaine, in violation of 21 U.S.C. § 841 (a)(1). In the second and third counts, and given that defendant had been previously convicted of a crime punishable by imprisonment for a term exceeding one year, he was indicted for violations of 18 U.S.C. §§ 922(g)(1) and 924(c)(2). Specifically, the indictment charges defendant with knowingly possessing, receiving or using two Ruger Mini-14 Autoloading rifles, .223 caliber, while possessing with the intent to distribute, 500 grams of cocaine. The rifles contained 30 rounds of ammunition and the serial numbers were removed. (Docket No. 1.)
On July 21, 2004, the defendant filed a motion to suppress the evidence seized from his home. (Docket No. 21.) The United States filed an opposition to the motion to suppress on September 22, 2004. (Docket No. 31.) A hearing was held on October 14, 15 and 18, 2004. Additional supporting jurisprudence was submitted by defendant on October 25, 2004. (Docket No. 44.) Having heard the evidence and the argument, I now enter the following:
II. FINDINGS OF FACT
1. On December 9, 2003, at approximately 5:00 a.m., a task force comprised of the FBI and state police agents arrived at defendant's home to execute an arrest warrant against the defendant. The arresting team was composed of two to three FBI agents and three Puerto Rico state police agents. The state police agents were Agent Luz Rosario, Agent Elvín Echevarría and an Agent Pacheco. The identity of the FBI agents is unknown.
2. At about 5:00 a.m., Diana Cintrón, (hereinafter "Cintrón"), defendant's common law wife, was feeding her seven week old baby when she heard radios and saw bright lights in front of her house. After hearing the commotion, Cintrón, carrying her baby, looked through the window and saw the police pointing guns at the house. Vehicles were facing the residence with headlights on. Immediately thereafter, an agent, using a loudspeaker, called out defendant's name. Cintrón proceeded to go to her bedroom and tell defendant that the police were outside.
3. At this time, Cintrón walked to the balcony door to let the police know that the defendant was getting dressed and he would be out shortly. Simultaneously, the defendant was walking towards the balcony door from the master bedroom.
4. The police, using the loudspeaker, told Cintrón to open the gate. Cintrón told the police that the gate was an electric gate and that she would have to go to the kitchen to be able to open it. (See Ex. 1.)
5. The defendant exited the inside of the residence through the balcony door. Meanwhile, Cintrón proceeded to open the electric gate with a beeper that was located in the kitchen.
6. When she opened the gate, the defendant exited the residence through the carport gate and walked down the driveway. (See Ex. 3.) The defendant was instructed to approach the agents with his back towards them. He was told to kneel on the sidewalk. He was promptly arrested and placed in a police vehicle, a Jeep Cherokee, which was facing the front of his house. He was placed in the back seat.
7. Immediately after the defendant exited the residence, five or six agents, with weapons drawn, entered the house to conduct what they referred to as a security sweep. While conducting said security sweep, at least two agents were wearing masks and one additional agent carried a shield to cover his face. At least one agent had a flashlight.
8. The protective sweep was allegedly done for security purposes. It became a complete and extensive search of the house.
9. The sweep commenced with the master bedroom. The agents checked the closets and their contents. During the sweep, they found a license with defendant's picture on it. However, the license had a different name than the defendant's.
10. The entire time, Cintrón was sitting in the dining room table with Agent Luz Rosario and another agent. She was not allowed to move. She was wearing a men's T-shirt that came down to her hips and her underwear. She felt uncomfortable dressed like this and requested permission to change. Shortly thereafter, she was escorted to her bedroom by Agent Rosario. There, she witnessed the search that was being conducted.
11. Agent Rosario and a male agent that was conducting the search did not leave the room so she could change. She changed her clothes in their presence.
12. Agent Rosario and Cintrón went back to the dining room. Agent Pacheco asked Cintrón if they could search the house. Cintrón replied that she, Agent Pacheco, needed to ask the defendant. Agent Pacheco left and returned later.
13. When Agent Pacheco returned, the agents continued searching the house.
14. The agents then moved to search Cintrón's children's rooms. In order to be able to conduct a thorough search of the bedroom, the agents moved the children to the master bedroom because it had already been searched. The result of the search of these rooms was fruitless.
15. While the agents were conducting the search, Agent Rosario asked Cintrón for identification. Cintrón got her purse and showed Agent Rosario her driver's license which had expired.
16. The last two areas to be searched were the kitchen and the living room. When the agents searched the kitchen, an agent opened a cabinet located on top of the refrigerator and found a kilo of cocaine wrapped in a supermarket bag. When the agent found the kilo he screamed, "Bingo"! Then, the agents began to search the living room area. They encountered a big radio speaker. Inside the speaker there was a bag which contained two Ruger rifles, three magazines and ammunition. The totality of the sweep lasted between twenty and twenty-five minutes.
17. When the drugs and weapons were found, Agent Rosario asked Cintrón if she knew those things were in her house, to which Cintrón replied no. Agent Rosario told Cintrón that she had three kids and that she needed to think about them. She also told Cintrón that if she knew something about her husband's illegal activities she should tell them because they could help her. Cintrón was very nervous.
18. Meanwhile, the defendant, who was handcuffed and inside a police vehicle, was complaining about the number of agents that were there. He told Agent Echevarría on various occasions that his wife was wearing her underwear and that he wanted them to get out of the house. Agent Echevarría told defendant that if he had anything illegal in his house to let him know and they would seize it and leave. The defendant informed Agent Echevarría that they should look on top of the refrigerator and in the living room.
19. When Agent Echevarría was going to inform the agents conducting the search about what defendant had told him, the agents were coming out of the residence with the drug and weapons.
20. After the search was over, Agent Pacheco asked Cintrón to sign a consent form which she did. (See Ex. 5.) Cintrón claims that she signed the form so they would leave quickly.
21. The total amount of time the agents spent on the premises was between 40 and 45 minutes.
22. On the way to being processed, the defendant told the agents that the drugs and the rifles were not his and that he was getting paid $500 for safekeeping them.
23. Later that day, Agent Pacheco called Cintrón on the phone and told her to meet him in court because he needed to talk to her. She met him in the court's parking lot. He asked her to sign a receipt of the items that had been seized from defendant's house. After she signed it, he gave her a copy. (See Ex. 6.)
III. Discussion
The crux of the defendant's argument is that the police entered his home illegally and therefore such illegal search taints the written consent to search that Cintrón gave. The defendant highlights the inapplicability of three exceptions to the warrant requirements: (1) the search incident to an arrest; (2) protective sweep; and (3) consent. Specifically, the defendant claims that the police had no right to conduct a protective sweep of the residence because he was arrested on the sidewalk. Defendant points out that the police agents were not allowed to search the home as a search incident to an arrest because the house does not fall within the "vicinity of the arrest." Furthermore, the defendant claims that Cintrón's consent is not valid because her consent was given after the search was conducted and because it was the product of an illegal entry. Therefore, the defendant claims that the evidence seized should be suppressed.
The government initially claimed that the defendant does not have standing to request the suppression of the evidence because he did not claim a possessory interest in the evidence seized. Also, it is the government's assertion that the police, for their security, entered defendant's home to conduct a protective sweep. After the suppression hearing, the government focused on the issue of consent to search. With respect to the consent issue, the government argues that Cintrón had the proper authority to consent to the search. The government submits that the consent was given before the search was conducted. Consequently, the consent given was valid and the evidence should not be suppressed.
A. Standing
The government raises the issue of standing in its opposition to the motion to suppress. (Docket No. 31.) Specifically, it argues that the defendant does not have standing to move to suppress the evidence because he did not claim a possessory interest in the items seized. During the suppression hearing, the government did not stress this argument but I will still discuss it.
"More than a decade ago the Supreme Court laid to rest the persistent notion that fourth amendment `standing' and `reasonable expectation of privacy' are interchangeable concepts." United States v. Bouffard, 917 F.2d 673, 675 (1st Cir. 1990) (citing Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v. Illinois, 439 U.S. 128, 140-48 (1978)). Even though the legal field is reluctant to change this concept, "standing" can no longer connote "a legitimate expectation of privacy in the evidence seized or the premises searched." United States v. Bouffard 917 F.2d at 675. Rakas and Rawlings have expanded that notion to say that "it is incumbent upon the defendant to establish not only unlawful police conduct but that the unlawful conduct intruded upon some legitimate expectation of privacy on the part of the defendant who challenges it." Id. "Such an expectation of privacy is a threshold standing requirement that a defendant must establish before the court can proceed with any Fourth Amendment analysis." United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir. 1994) (citing United States v. Cruz Jiménez, 894 F.2d 1, 5 (1st Cir. 1990)). Nonetheless, the reformulation of standing does not change the traditional test. The courts still recognize that the person must possess (1) a subjective expectation of privacy in the area searched, United States v. Bouffard, 917 F.2d at 677 (citingUnited States v. Cruz Jiménez, 894 F.2d at 5); (2) which society is prepared to recognize as reasonable. United States v. Bouffard, 917 F.2d at 677 (citing California v. Greenwood, 486 U.S. 35, 39 (1988)).
After reviewing the evidence in the record, I find that the defendant has standing to assert a Fourth Amendment claim. "[P]roperty rights are neither the beginning nor the end of [the relevant] inquiry." United States v. Sugar, 322 F. Supp. 2d 85, 94 (D. Mass. 2004) (quoting United States v. Salvucci, 448 U.S. 83, 91(1980)). "The court must inquire `not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.'" United States v. Salvucci, 448 U.S. at 92.
Here, the agents executed an arrest warrant at defendant's residence. After arresting him on the sidewalk, the police entered the defendant's home and performed a sweep and search. The Fourth Amendment recognizes "[t]he right of people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." U.S. Const. amend. IV. The courts have held that people have a strong expectation of privacy in their homes. United States v. Beaudoin, 362 F.3d 60, 65 (1st Cir. 2004). At this point, it is irrelevant if the items seized belonged to the defendant. The police searched an area in which defendant has an expectation of privacy. Therefore, the defendant has standing to seek suppression of the evidence seized.
B. SEARCH INCIDENT TO AN ARREST
The government does not attempt to justify the search of the home as a search incident to an arrest. However, the defendant raises this and stresses that this warrant exception is not applicable to this case and therefore does not justify the search.
A warrantless search is presumptively unreasonable under the Fourth Amendment. United States v. Beaudoin, 362 F.3d at 65 (citations omitted). Courts have generally held that searches may not be conducted inside someone's home without a warrant based on probable cause. United States v. Beaudoin, 362 F.3d at 65. However, a warrantless search may be conducted if an exception to the search warrant requirement exists. A search incident to an arrest has been recognized by the courts as an exception to the search warrant requirement. See United States v. Marshall, 348 F.3d 281, 286 (1st Cir. 2003). The Supreme Court has held that a search may be incident to an arrest "only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest." Shipley v. California, 395 U.S. 818, 819 (1969) (quoting Stoner v. California, 376 U.S. 483, 486 (1964)). Additionally, if the police searches a house "as [an] incident to an arrest, [the] arrest must take place inside the house, . . . not somewhere outside — whether two blocks away, . . . twenty feet away, . . . or on the sidewalk near the front steps." Vale v. Louisiana, 399 U.S. 30, 34 (1969) (internal citations omitted).
"[T]he immediate vicinity of the arrest" does not include the interior of the home. Vale v. Louisiana, 399 U.S. at 33-34 (quoting Shipley v. California, 395 U.S. at 819); United States v. Wilson, 36 F.3d 205, 208 (1st Cir. 1994). To the contrary, the courts draw a fine line in these cases. Precisely, courts have held that when a person is arrested on the sidewalk, near the front steps, the police cannot search the person's home.Vale v. Louisiana, 399 U.S. at 33-34. The items that the defendant seeks to suppress were found inside his home. Thus, these items do not fall within the "immediate vicinity of the arrest." Therefore, I find that the search of the defendant's home does not qualify as a search incident to an arrest.
C. PROTECTIVE SWEEP
The government contends that the agents initially entered the house to conduct a protective sweep for their protection and to explain to Cintrón the purpose of their visit. The defendant argues that the agents were not authorized to perform a protective sweep because the defendant was arrested outside his house. In essence, the defendant is arguing that the initial entry to defendant's home was illegal because the defendant was arrested outside his home and therefore, a protective sweep was not merited. Furthermore, the police's illegal entry tainted the consent subsequently given by Cintrón. Therefore, it is defendant's argument that the evidence obtained as a result of the entry should be suppressed.
The courts have consistently held that "the Constitution permits police officers, entering a house with an arrest warrant, to conduct a protective sweep of the house provided that the officers possess a `reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.'" United States v. Daoust, 916 F.2d 757, 759 (1st Cir. 1990) (quoting Maryland v. Buie, 494 U.S. 325, 337 (1990)). However, a protective sweep is limited to a quick search of premises. United States v. Weems, 322 F.3d 18, 21 (1st Cir.), cert. denied, 124 S. Ct. 223 (2003). Moreover, this search "must be `narrowly confined to a cursory visual inspection of those places in which a person might be hiding' . . . and can last `no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.'" United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003) (quoting Maryland v. Buie, 494 U.S. at 335-36)). A protective sweep does not entail a full search of the premises; any items seized during the protective sweep must be in plain view. United States v. Luna-Rojas, 28 F. Supp. 2d 54, 61 (D.P.R. 1998). "[A] `protective sweep' is `no more lightly taken than any other instance where the government seeks to justify an unwarranted search. . . .'" United States v. Gerry, 845 F.2d 34, 36 (1st Cir. 1988) (quoting United States v. Hatcher, 680 F.2d 438, 443 (6th Cir. 1982)).
In this case the agents arrested the defendant on the sidewalk. Immediately after arresting the defendant and without permission from anyone, the agents went inside his residence with absolutely no articulable facts in mind, to perform a protective sweep and to question Cintrón about her husband's illegal activities. Protective sweeps can only be conducted when the arrest is performed inside the residence, not somewhere outside — whether two blocks away, twenty feet away, or on the sidewalk near the front steps. Vale v. Louisiana, 399 U.S. at 33-34. The arrest was performed on the sidewalk. The agents were not authorized to conduct a protective sweep because the arrest did not occur inside the home. The agents did not have a need to go inside to question or to talk to Cintrón. If they needed to talk to Cintrón they could have asked her to step outside the residence or asked to enter. They did neither. Thus, the agents had no valid reason to be inside defendant's home. Therefore, the agents were not authorized to conduct a protective sweep in defendant's home. Consequently, the initial entrance into defendant's home was fatally tainted and illegal.
D. CONSENT
"[O]ne of the specifically established exceptions to the [ Fourth Amendment] requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." United States v. Meléndez, 301 F.3d 27, 32 (1st Cir. 2002) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). "[A] search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant." Groh v. Ramírez, 124 S. Ct. 1284, 1291 (2004) (quoting Cámara v. Municipal Court, 387 U.S. 523, 528-29 (1967)). A warrantless search is not unreasonable "where voluntary consent has been obtained, either from the individual whose property is searched, . . ., or from a third party that possesses common authority over the premises." United States v. Torres, 188 F. Supp. 2d 155, 157-58 (D.P.R. 2002) (citations omitted); see also Illinois v. Rodríguez, 497 U.S. 177, 181 (1990). Courts have held that when consent is given by one "who possesses common authority over the premises or effects," this consent will be deemed valid "against the absent, non-consenting person with whom that authority is shared." United States v. Marshall, 348 F.3d at 284 (quoting United States v. Matlock, 415 U.S.164, 170 (1974)). Furthermore, when using a consent form to obtain consent to search, the form must be signed before the search is conducted; otherwise the consent is invalid. See United States v. Tibbs, 49 F. Supp. 2d 47, 53 (D. Mass. 1999). Additionally, in order for consent to be valid it must be given voluntarily.United States v. Weidul, 325 F.3d 50, 53 (1st Cir. 2003). In examining the voluntariness of the consent, the courts look at the totality of the circumstances. United States v. Luciano, 329 F.3d 1, 7 (1st Cir. 2003); United States v. Coraine, 198 F.3d 306, 309 (1st Cir. 1999); United States v. Barnett, 989 F.2d 546, 554-55 (1st Cir. 1993). When looking at the totality of circumstances the court pays close attention to individualized factors bearing on the vulnerability of the consenting party which "are age, education, experience, intelligence, and knowledge of the right to withhold consent."United States v. Barnett, 989 F.2d at 555. Courts have held that a search can not be justified as lawful when consent has been obtained following government misconduct. Bumper v. North Carolina, 391 U.S. 543, 548 (1968); see also United States v. López-Arias, 344 F.3d 623, 629 (6th Cir. 2003); United States v. Benezario, No. Crim. 03-262 (SEC), 2004 WL 2331660, at 5 (D.P.R. 8, 2004) (holding that "[a]n otherwise valid consent may not be sufficient to render a search constitutional if it follows from prior government misconduct. In such circumstances, the unlawful conduct `taints' the later-given consent.").
The police did not have any indication that exigent circumstances existed that would merit their entry into the defendant's residence without a warrant. The police relied solely on the protective sweep to enter the residence. An added purpose was to "explain" to Cintrón that the agents were executing an arrest warrant, an extreme courtesy, and for me, a courtesy of first impression. The protective sweep was the vehicle used to gain initial access to the residence. However, this was merely an excuse to gain entry to the residence and search. After they entered defendant's house, the police did not limit themselves to conduct a protective sweep. They went further and searched the defendant's master bedroom's closets and contents. In essence, they transformed the sweep into a search. Protective sweeps are limited to a visual inspection of the premises. See United States v. Paradis, 351 F.3d at 29. After they were done searching the master bedroom, an agent asked Cintrón for consent to search. Notwithstanding that they did not obtain consent from her or the defendant, they kept on searching. The initial courtesy of the agents in explaining the arrest contrasts with the lack of privacy Cintrón had when she got dressed. It is not after they seized the cocaine, the rifles and the false identification card that they requested Cintrón to sign the consent form. It is uncontroverted that Cintrón was very nervous at the time she signed the consent form, whether she signed it in the middle of the search or near its end.
The police clearly acted unlawfully when they entered defendant's home claiming that they were going to conduct a protective sweep of the residence. Police are not allowed to conduct a protective sweep of a house when the defendant is arrested on the sidewalk. See Vale v. Louisiana, 399 U.S. at 33-34. Moreover, there is no evidence that exigent circumstances existed or that a valid consent was obtained from the defendant or his wife to enter the residence. This initial entry was unlawful.
In regards to unlawful police conduct tainting a later-given consent, this circuit has not directly addressed this issue. However, the Supreme Court and other circuits have concluded that when the police acts unlawfully and then obtains consent, this consent is tainted by their unlawful conduct. United States v. Benezario, 2004 WL 2331660, at 5. In the suppression hearing, there were contradicting versions about when the consent form had been signed. Cintrón testified that she signed the consent form after the police searched the house because she wanted them to leave. I credit Cintrón's version. Therefore, it is my conclusion Cintrón's consent was tainted by the police's illegal entry.
However, even if I would not credit her testimony, as I do, the totality of the circumstances and Agent Rosario's testimony indicates that Cintrón was nervous and uncomfortable with the police's presence, wanted them to leave, and wanted to take care of her seven week old baby. She thought that by signing the consent form they would leave; she was right. I find that the consent form was signed after the search was initiated and while it was being conducted. I need not carry further owls to Athens. I find that the initial entry into the defendant's home was illegal, that the protective sweep was an unbridled violation of the Fourth Amendment, and that such entry and sweep tainted the consent that Cintrón gave while the search was conducted. Following the doctrine of the fruits of the poisonous tree, the post-arrest statement made by the defendant as a result of the search of his house should also be suppressed.
IV. Conclusion
Therefore, it is my recommendation that the motion to suppress the physical evidence seized in the defendant's home be granted.
Under the provisions of Rule 72(d), Local Rules, District of Puerto Rico, any party who objects to this report and recommendation must file a written objection thereto with the Clerk of this Court within ten (10) days of the party's receipt of this report and recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such objections. Failure to comply with this rule precludes further appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988); Borden v. Sec'y of Health Human Servs., 836 F.2d 4, 6 (1st Cir. 1987); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983);United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).