Opinion
No. 2:13-cr-00310 JAM-1
07-24-2014
UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO DIAZ-PEREZ, Defendant.
ORDER DENYING DEFENDANT'S MOTION
TO SUPPRESS EVIDENCE
This matter is before the Court on Defendant Francisco Diaz-Perez' ("Defendant's") Motion to Suppress Evidence (Doc. #18). The United States (the "Government") opposes Defendant's Motion (Doc. #21) and Defendant replied (Doc. #23). On July 1, 2014, the Court held a hearing regarding Defendant's Motion to Suppress Evidence (Doc. #24). For the reasons set forth below, Defendant's motion is denied.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
This case arises out of police surveillance of Edward Soellner's residence and two executed search warrants: (1) a warrant to search Edward Soellner's residence on Walnut Avenue in
Orangevale, California; and (2) a warrant to search Defendant's residence on Verner Avenue in Sacramento, California.
On August 1, 2013, Folsom Police Officers were surveilling Edward Soellner's residence on Walnut Avenue and observed someone arriving at the house, but was sent away by Soellner. Narrative, Def.'s Ex. A, Doc. #18-1, at 1. Soon after, a light blue Nissan arrived at the house and the driver was identified as Defendant by police observation, his vehicle registration, and DMV photo. Id. Defendant was described as a Hispanic male in his early- to mid-twenties, approximately 5'7" to 5'10" tall with medium length hair and weighed approximately 120 to 150 pounds. Search Warrant and Affidavit, Def.'s Ex. D, Doc. #18-5, at 13. Defendant removed an unknown object from the car and carried it into the residence. Narrative, Def.'s Ex. A, Doc. #18-1, at 1. Approximately 6 minutes later, Defendant was seen leaving the residence without the object. Id. After Defendant left, the same individual who was sent away earlier returned to the house and went inside. Id.
Based on the officer's training and experience, he believed that Defendant was supplying drugs to Soellner. Id.
On August 13, 2013, a Sacramento Superior Court Judge signed a warrant to search Soellner's house, the occupants, and their vehicles. Id. The following day, officers arrived at the house to execute the warrant. Id. They were conducting surveillance when Defendant's light blue Nissan made a U-turn and parked in front of the house. Id. at 1-2.
An officer made contact with Defendant, who was sitting in the driver's seat of the vehicle with the vehicle running. The officer identified himself and detained Defendant outside the vehicle by placing him in double locked handcuffs and advising Defendant that he was being detained. After asking Defendant if he had any weapons on his persons and Defendant informing him that he did not, the officer noticed a bulge in Defendant's left cargo pocket. The officer advised Defendant that he was going to conduct a pat search of his person for weapons. He felt the bulge of Defendant's pocket and touched what felt like a plastic bag containing a crumbling hard substance. The bag was pushing the pocket's cover out, allowing the officer to see into the pocket. He observed a clear plastic bag containing what the officer recognized to be methamphetamine. The officer reached into the pocket, removed the bag, and placed Defendant under arrest. Id. at 2. Upon analysis, the bag was found to contain 116.1 grams of methamphetamine. Id. Later that day, an officer applied for a warrant to search Defendant's residence on Verner Avenue. Supplemental Narrative, Def.'s Ex. B, Doc. #18-3, at 2.
Defendant contends that five officers with their guns raised surrounded his vehicle when he arrived at the house and he believed he was being kidnapped. Def.'s Statement, Def.'s Ex. C, Doc. #18-4, at 1. During the July 1 hearing, the Government noted that only one officer was used to detain Defendant, but also mentioned that the detention would be valid even if the Court were to accept Defendant's allegations.
Additionally, Defendant's booking photo and arrest report describe Defendant at the time as 5' tall, weighing 115 pounds, and having close-cropped hair. Ex. E-F, Doc. ##18-6, 18-7.
II. OPINION
A. Legal Standard
Evidence obtained in violation of the Fourth Amendment must be excluded from a federal criminal prosecution. Weeks v. United States, 232 U.S. 383, 398 (1914).
The burden is on the United States to justify the warrantless arrest and search of the Defendant. United States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992), citing Katz v. United States, 389 U.S. 347 (1967). In addition, for a search warrant to be valid, it "must be supported by an affidavit establishing probable cause." United States v. Stanert, 762 F.2d 775, 778 amended, 769 F.2d 1410 (9th Cir. 1985).
B. Discussion
Defendant moves to suppress (1) a bag of methamphetamine found in his pocket, and (2) 3.6 pounds of heroin, 5.3 pound of methamphetamine, and $13,000 in cash police found in his apartment. See Opp. at 1.
1. Bag of Methamphetamine Found in Defendant's Pocket
Defendant argues that the evidence seized from his pocket should be suppressed because his arrest was unlawful under the Fourth Amendment in that the officers had no arrest warrant and no probable cause or exigent circumstances existed. The Government argues that Defendant was not arrested, but was detained and the bag of methamphetamine was in plain view/plain touch. The Government also briefly argues that the search was justified under exigent circumstances. Opp. at 1 n.1.
a. Detention Versus Arrest
Preliminarily, the Court must determine whether Defendant was detained or arrested. Defendant argues that he was arrested when the officer opened his door, ordered him out of the car at gunpoint, and handcuffed him. Contrastingly, the Government argues that the seizure was a justified Terry stop.
In determining whether a detention has ripened into an arrest, the court must consider the "totality of the circumstances." Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996) (citation omitted). In examining the totality of the circumstances, courts must "consider both the intrusiveness of the stop, i.e., the aggressiveness of the police methods and how much the plaintiff's liberty was restricted . . . and the justification for the use of such tactics, i.e., whether the officer has sufficient basis to fear for his safety to warrant the intrusiveness of the action taken." Id. (internal citations omitted). Courts must therefore "decide whether the police action constitutes a Terry stop or an arrest by evaluating not only how intrusive the stop was, but also whether the methods used were reasonable given the specific circumstances." Id. (emphasis in original).
Defendant relies on Delgadillo-Velasquez, 856 F.2d 1292, 1295 (9th Cir. 1988) and United States v. Robertson, 833 F.2d 777 (9th Cir. 1987) to argue that an arrest occurred. In Delgadillo-Velasquez, the Ninth Circuit held that the officers' show of force and detention techniques were indistinguishable from police conduct in an arrest because "[t]he agents approached with weapons drawn, cried halt, and required the three men to lie face down in the street while they were handcuffed. The agents told the men that they were under arrest and then read them the Miranda rights." 856 F.2d at 1295. Therefore, the Ninth Circuit held that the defendant in Delgadillo-Velasquez was under arrest. Id. at 1295-96. In United States v. Robertson, the Ninth Circuit held that the detention of a woman found on the premises of a house containing a meth lab was an arrest that required probable cause when they detained her at gunpoint. 833 F.2d at 781. The court in Robertson noted that nothing in the record suggested that the display of force was necessary to ensure her compliance and there was no indication she was armed. Id.
The Government relies on United States v. Davis, 530 F.3d 1069, 1080 (9th Cir. 2008), in which the Ninth Circuit broadly held that officers' authority to detain persons in proximity of a search extended to a suspect who pulled up in a car while officers were executing a search warrant. In Davis, the police executed a search warrant of a residence, where the residents were suspected of growing marijuana. Id. While the officers were searching the residence, the suspect drove onto the property, voluntarily exited his vehicle, and was questioned by officers. The seizure was considered a Terry stop because "[f]or Fourth Amendment purposes[,] . . . a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id. (citing Michigan v. Summers, 452 U.S. 692, 705 (1981)). The Ninth Circuit also held that "[a]n officer's authority to detain incident to a search is categorical; it does not depend on the 'quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure." Id. (citations omitted).
The facts in this case are distinguishable from those in Delgadillo-Velasquez and Robertson. Unlike in Delgadillo, the officers in the present case were executing a warrant when Defendant arrived at the premises. Therefore, the officers' authority to detain incident to a search was categorical under Davis. Unlike the suspect in Robertson, Defendant had previously been observed at the location of the search, he was suspected of drug trafficking, and the officers had reason to believe that he was armed. See Davis, 530 F.3d at 1082-83 (holding "[b]ecause officers reasonably suspected that [the defendant] was involved in narcotics activity, it was also reasonable for them to suspect that he might be armed"). Therefore, in this case, the officers were fully justified in effecting the stop as they did with guns drawn and placing Defendant in handcuffs. See United States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009) (intrusive means are permissible without converting a stop into an arrest if the police conduct "is a reasonable response to legitimate safety concerns on the part of the investigating officers") (internal quotation marks and citation omitted).
b. Pat Down of Pocket
Defendant argues the pat down was unjustified because there were no facts to lead the officers to believe Defendant was armed and dangerous.
An officer may frisk a person only "where he has reason to believe that he is dealing with an armed and dangerous individual." Terry, 392 U.S. at 27; Reply at 9. As mentioned above, the officers had reason to believe that Defendant was armed. See Davis, 530 F.3d at 1082-83 (holding "[b]ecause officers reasonably suspected that [the defendant] was involved in narcotics activity, it was also reasonable for them to suspect that he might be armed"). Defendant contends that Davis is distinguishable because the defendant in Davis admitted his involvement in the marijuana operation before he was frisked. Reply at 10. Although, at the time, Defendant in this case did not admit to being involved, the officers had legitimate, reasonable suspicion based on their experience that he was re-supplying the drug dealer in the house with drugs and was therefore involved in narcotics activity. Defendant also argues that the frisk occurred in a public place to which he was not connected. However, Defendant did have a connection to this location because they had seen his car previously at that house. Therefore, the officers permissibly frisked him for weapons.
Defendant further argues that the pat down was unlawful because it was not limited in scope, citing Sibron v. New York, 392 U.S. 40, 65 (1968); Reply at 9-10. Although, as Defendant argues, "Terry does not allow 'any search whatever for anything but weapons,' if, during the course of a lawful pat down, an officer feels an item he recognizes as contraband or evidence, the officer may seize the item." Davis, 530 F.3d 1069, 1083 (quoting Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979)). In Sibron, the officer, "with no attempt at an initial limited exploration for arms," "thrust his hand into Sibron's pocket and took from him envelopes of heroin." 392 U.S. at 65. This evidence was suppressed, for "[t]he search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception-the protection of the officer by disarming a potentially dangerous man." Id.
Unlike the officer in Sibron, the officer in the present case did not thrust his hand into Defendant's pocket before patting him down. He patted Defendant down and felt a bulge. By touching the pocket, the officer determined that the crumbling hard substance in a plastic bag was contraband. See United States v. Rafus, 425 F. App'x 547, 549 (9th Cir. 2011) ("An officer conducting a lawful pat down may seize from the defendant an item that the officer immediately recognizes from touch to be contraband").
Because the Terry stop and pat down were lawful, the Court denies Defendant's motion to suppress the evidence found in Defendant's pocket.
2. Evidence Discovered Through Execution of Search Warrant
Defendant also argues that the evidence seized from his apartment must be suppressed because (1) the search warrant was obtained by exploiting an unlawful arrest and (2) the supporting affidavit omitted a discrepancy in Defendant's description. In the reply, Defendant argues that the omission was material based on United States v. Hernandez, 135 Fed. App'x. 97 (9th Cir. 2005).
First, because the prior search was not unlawful for the reasons mentioned above, the officers did not obtain the search warrant by exploiting an unlawful arrest.
Second, to challenge a facially valid search warrant, the defendant must first make a "substantial preliminary showing" that the affidavit contained an actual omission, and that the omission was intentional or reckless. United States v. Chesher, 678 F.2d 1353, 1360 (9th Cir. 1982). Then it must be shown the omission was material to the finding of probable cause, that is, its addition would "leave the affidavit with insufficient content to establish probable cause." Franks v. Delaware, 438 U.S. 154, 155 (1978).
In Hernandez,
the detective (1) incorrectly reported the rental agent's description of the renter of the Dodge Caravan; (2) equated the description of the renter with Hernandez' description in a false and misleading manner; (3) overstated the strength of Officer Honomichl's identification of Hernandez; and (4) gave the false impression that Officer Honomichl positively identified Hernandez within "moments" of the incident.135 F. App'x 97, 98-99 (9th Cir. 2005). Further, the detective omitted the following facts:
(1) the owner of the rental car agency could not make a positive identification of Hernandez after seeing his picture in a photo lineup; (2) the rental agent failed to identify Hernandez even after he was specifically selected by the detective for identification; (3) Hernandez was stopped by police for a traffic violation in Tempe 12 minutes prior to the time of the rental of the Dodge Caravan in Mesa; (4) neither Mr. nor Mrs. Michael Leal could make a positive identification of Hernandez; (5) Hernandez had multiple contacts with police in December, 2002, and during these contacts Hernandez was always cooperative with them; and (6) the police conducted surveillance of his residence, and Hernandez was never seen in or near a Dodge Caravan.Id. Therefore, "because the misstatements and omissions are such," the Ninth Circuit was "compelled to conclude that the affidavit was prepared with a reckless disregard for the truth." Id. at 99.
In the present case, the discrepancy in Defendant's description is based on an initial observation of Defendant from a distance and not because the officer observed a different suspect, as Defendant suggested during the hearing. Detective Kehm made a physical description of Defendant when he arrived at the scene in his light blue Nissan on August 1, 2013. Once Detective Kehm saw Defendant's DMV photo, he confirmed it was the same driver he described earlier.
The Government does not dispute that Detective Kehm described Defendant's height and weight differently than Defendant's actual height and weight. However, there is no evidence that the omission was intentional or reckless. Moreover, unlike Hernandez, the omission in this case was neither material nor egregious. In Hernandez, there were numerous omissions and mistakes. In this case, as the Government argues, the affidavit included significant, reliable information: Detective Kehm saw the same car (the light blue Nissan with license plate number 4PIF377, which he identified in the previous affidavit) pull up to the Walnut House. Detective Kehm ran the plate and found that the car was registered to "Francisco Diaz." Officers observed Defendant drive to the Verner Avenue address and enter the residence without knocking. After the Terry stop discussed above, Detective Kehm found 116.1 grams of methamphetamine in Defendant's pocket. Finally, Defendant admitted, after being Mirandized, he knew he was delivering methamphetamine to other persons in exchange for money. Opp. at 9-10 (citing Def. Exh. D at 8-15.) The only omission was the discrepancy in Defendant's description. Therefore, compared to all the evidence presented in the affidavit, the omission is not a material fact.
Accordingly, Defendant's motion to suppress the evidence found at his apartment is denied.
III. ORDER
For the reasons set forth above, the Court DENIES Defendant's Motion to Suppress Evidence in its entirety.
IT IS SO ORDERED.
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JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE