U.S. v. Tirado

Full title: United States Of America, Plaintiff, vs. Celso Tirado, Defendant

Court: United States District Court, D. Nebraska

Date published: Oct 4, 2001

4:01CR12 (D. Neb. Oct. 4, 2001)

Opinion

4:01CR12

October 4, 2001

MEMORANDUM AND ORDER ON THE DEFENDANT'S OBJECTION TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATON

WARREN K. URBOM, United States Senior District Judge

This matter is before me on the defendant's objection to the report and recommendation of the magistrate judge regarding his motion to suppress, filing 32. I find that the objection must be overruled.

The case arises out of an investigation conducted by officers of the Dawson County, Nebraska, Sheriff's Office and the United States Immigration and Naturalization Service (INS) on October 31, 2000. The officers were investigating death threats that were made against investigators Jeff and Paul Schwarz and their families by Celso Tirado and another individual. It was rumored that the threats were to be carried out on Halloween night, October 31, 2000. The five officers followed a trail of information leading them to Number 2, Price's Trailer Court in Lexington. As the officers approached the home at this address, they were able to see inside the open front door. An individual named Quezada, who was not fluent in the English language, made contact with the officers at the door of the trailer. INS Agent Gil Johnson, who understands Spanish, spoke with Quezada. Johnson asked Quezada for identification, and Quezada responded affirmatively, turned, and moved rapidly inside to the back of the home. Johnson and Jeff Schwarz followed Quezada inside. The officers testified that they were concerned that Quezada might flee using the back door of the home, and that they did not know that other officers were positioned at the rear of the home. Jeff Schwarz also testified that Quezada was followed for safety purposes, and that in his experience he has never allowed an individual to move out of sight in order to retrieve something in a house. (Hr'g Tr. at 51:6-16.) Quezada retrieved a video store identification card from the closet of the south bedroom of the home. While standing in the doorway to the south bedroom, Jeff Schwarz and Johnson observed a roll of cellophane wrapping paper and cut straws consistent in appearance with straws used for snorting narcotics. Johnson asked Quezada if the room was his and if the officers could search it. Quezada stated that he stayed in the room the previous night and consented to the search. During the course of this search, scales, additional "snorting tubes," and bags containing substances which appeared to be marijuana and methamphetamine were found.

Tirado soon arrived at the home and was placed under arrest by Investigator Paul Schwarz. Sergeant Montgomery approached and asked Paul Schwarz to ask Tirado which bedroom was his and whether the officers could search it. Paul Schwarz testified that Tirado informed the officers that he slept in the north bedroom and that the officers could search it. Tirado testified that he did not consent to a search. A search commenced, and in a blue and black book bag in the closet of the bedroom officers found scales and bags of a substance believed to be methamphetamine. A more detailed and thorough summary of the background facts appears in the magistrate judge's report and recommendation, and need not be repeated here.

I. STANDARD OF REVIEW

The defendant has filed an objection to the magistrate judge's report and recommendation. (Filing 32.) Specifically, the defendant objects to the magistrate judge's conclusion that the defendant voluntarily consented to the search of his book bag, and argues that the law enforcement officers had no lawful reason to enter the defendant's residence. I shall focus my de novo review of the report and recommendation upon the issues raised by the defendants. Sims v. Wyrick, 552 F. Supp. 748, 750 (W.D.Mo. 1982); Branch v. Martin, 886 F.2d 1043, 1045 (8th Cir. 1989); 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."). In conducting this de novo review, I must "consider the record developed before the magistrate [judge] and make [my] own determination on the basis of that record, without in any way being bound to adopt the findings and conclusions proposed by the magistrate [judge]." Sims v. Wyrick, 552 F. Supp. at 750.

II. ANALYSIS

I have reviewed the magistrate judge's entire report and recommendation (filing 28), the transcript of the hearing before the magistrate judge regarding the defendant's motion to suppress, and the exhibits admitted into evidence at that hearing. I have also studied the briefs submitted by counsel in connection with the motion to suppress and the defendant's objection to the magistrate judge's report and recommendation. The magistrate judge's report is well-reasoned and thorough, and I find that it should be adopted in its entirety. I shall also specifically address the objections raised by the defendant.

A. Whether Law Enforcement Officers Lawfully Entered the Defendant's Residence

The defendant first argues that the officers who first noticed the straws and cellophane in Quezada's bedroom had no authority to be in the bedroom or kitchen, and therefore the evidence obtained as a result of their pursuit of Quezada into the home must be excluded.

The defendant's argument hinges upon the notion that law enforcement had no right to enter the residence unless the officers had reason to believe that Quezada was lying to them about Tirado's whereabouts or that the defendant was actually inside the residence at the time. This argument must be rejected. In United States v. Hill, 730 F.2d 1163, 1165 (8th Cir. 1984), a team of state and federal agents assembled to execute a warrant to search a 171-acre farm for marijuana growing outdoors. As officers Castleberry and Casteel approached the home, Frazier, one of the defendants, came out to meet them. Id. Frazier was presented with the search warrant and was asked if anyone else was inside the home. Id. Frazier responded in the affirmative, but hesitated to call defendant Hill outside. Id. One of the officers therefore approached the sliding glass door and called for Hill. Id. As Hill responded, the officer spotted a pistol on a bookcase across from the glass door. Id. The officer immediately entered the home and found Hill in the kitchen. Id. The officer's partner followed inside to provide backup. Id. Upon entering the house, the officers spotted what appeared to be cut marijuana, scissors, a cutting tray, and a number of weapons throughout the living room. Id. The Eight Circuit concluded:

[W]e decline to dodge the difficult issue of the admissibility of the living room evidence by saying any error in its admission would be harmless. Were it not for the initial seizure of incriminating items from the living room, Frazier might never have consented to the reentry which uncovered similar items in the bedroom.

Under the particular circumstances of this case, we hold that officers Casteel and Castleberry legitimately entered the living room of the Frazier residence when first arriving at the farm and were entitled to seize the cut marijuana, scissors, and cutting tray observed in plain view as a result of that entry. In limited cases, we have recognized the validity of "sweep searches" or "protective sweeps" of premises for the safety of law enforcement personnel during the lawful arrest of dangerous felons. E.g., United States v. Bruton, supra, 647 F.2d at 822-823 (sweep search of locked mobile home after shootout with and arrest of defendant outside the structure); United States v. Young, 553 F.2d 1132, 1134 (8th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278 (1977) (search of house for accomplices after shootout with and arrest of defendant). Accord United States v. Baker, 577 F.2d 1147, 1152 (4th Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 154, 58 L.Ed.2d 153 (1978) (protective sweep of defendant's house after arrest of defendant and confederate in front of it). We believe the rationale of these cases applies equally strongly to protective sweeps made during the execution of search warrants when accompanied by facts such as those here present. See United States v. Tabor, 722 F.2d 596, 597-599 (10th Cir. 1983) (protective sweep of barn during execution of search warrant covering house held justified under particular circumstances).

The government admits that the warrant to search for growing marijuana on Frazier's farm did not authorize any officer to enter the house on that property. In addition, that the warrant involved drugs was not an exigent circumstance sufficient of itself to justify a protective sweep of the inside of the house. Cf. United States v. Hatcher, 680 F.2d 438, 444 (6th Cir. 1982) (sweep search of entire residence after arrest on drug charge merely because "the subject of drugs is a dangerous one" held unreasonable). In the instant case, however, the district court also found that Frazier hesitated when asked to call "Ted" out of the house when the search began. After this hesitation, Casteel observed a weapon in the living room through the sliding glass door. Under these circumstances, we hold that the entry into the living room to locate Hill was justified to protect the officers commissioned to execute the search warrant on the property surrounding the house. The items of evidence from the living room which were observed in plain view during that lawful entry could subsequently be seized as contraband and evidence of criminal activity.

United States v. Hill, 730 F.2d at 1169-70. The case presently before me is analogous to Hill. Jeff Schwarz and Johnson were attempting to execute a valid bench warrant for the arrest of Tirado when they encountered Quezada at the residence. The officers testified that Quezada became nervous during the course of their questioning about Tirado, and that Quezada turned and moved suddenly into the back of the home when asked to produce identification. It must also be recalled that the officers were investigating death threats against two of them allegedly made by Tirado and one of Tirado's associates, and there was testimony regarding a recent "ambush" of an officer and an informant by Tirado. (Hr'g Tr. at 61:3 — 62:8.) Under these circumstances, the entry into the living room of the home to observe Quezada as he retrieved his identification was justified to protect the officers executing the bench warrant for the arrest of Tirado, and Tirado's argument that the officers were not lawfully within the home must be rejected. The evidence observed in plain view during that lawful entry is therefore admissible, even assuming that Tirado has standing to challenge the admissibility of this evidence. The magistrate judge correctly determined that Quezada gave consent to search his own bedroom, but no other portion of the home, and I shall adopt his recommendation that the evidence seized from the cupboards of the kitchen be excluded.

B. Whether the Contents of Tirado's Book Bag must Be Suppressed

The defendant argues that the contents of the book bag must be suppressed, because a typical person giving consent to search his room would not have understood that he was consenting to the search of a closed bag in the room. It is true that "[t]he standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). However, I find that a reasonable person would understand that the granting of consent to search a bedroom would include consent to search a book bag located in that room under the circumstances of this case. See, e.g., Florida v. Jimeno, 500 U.S. 248, 251-52 ("We think that it was objectively reasonable for the police to conclude that the general consent to search respondent's car included consent to search containers within that car which might bear drugs"). I therefore reject the defendant's argument that the book bag, which was located in the defendant's bedroom, falls outside of the scope of the consent to search the bedroom.

The defendant refers me to United States v. Ho, 94 F.3d 932 (5th Cir. 1996), in support of the proposition that consent to search may be limited or revoked. While this proposition is supported by law, there is no evidence that the defendant withdrew his consent to search his room prior to the discovery of the book bag and the evidence therein. The defendant testified at the hearing on the motion to suppress, and stated that he did not consent to the search of his bedroom. This statement contradicted the testimony of Investigator Paul Schwarz that the defendant voluntarily consented to the search of his room, and of Sergeant Montgomery that the defendant appeared to give his consent to Schwarz, although Montgomery admitted that he did not hear the defendant state his consent to the search. The magistrate judge gave credence to the testimony of the officers on this point, as do I. As there is no evidence that the defendant limited his consent to search his bedroom so as to exclude a search of a closed bag located in the closet of that room, and since there is no evidence that the defendant objected to the search or otherwise withdrew or revoked his consent after the search had begun, the defendant's argument that the evidence found within the book bag must be suppressed is rejected.

IT IS ORDERED that:

The petitioner's objection to the magistrate judge's report and recommendation, filing 32, is overruled;

The magistrate judge's report and recommendation, filing 28, shall be supplemented by the above memorandum, and is otherwise adopted in full; and

The petitioner's motion to suppress, filing 21, is granted to the extent that any items found in the kitchen cupboard are suppressed, but the motion is otherwise denied.