Opinion
Criminal No. 14-278
01-14-2016
UNITED STATES OF AMERICA v. RAFAEL BALANQUET-HERRERA, Defendant.
MEMORANDUM OPINION
This matter is before the Court on a Motion to Suppress Evidence filed by Defendant Rafael Balanquet-Herrera, (Docket No. 29), and the Government's Opposition thereto. (Docket No. 36). A federal grand jury returned a two count Indictment against Defendant on December 16, 2014, charging him with one count of possession with intent to distribute 500 grams or more of cocaine in violation of 18 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count One) and with one count of possession with intent to distribute heroin in violation of 18 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Two). (Docket No. 1). Defendant filed his Motion to Suppress Evidence on August 4, 2015, (Docket No. 29), and the Government filed its response on August 31, 2015. (Docket No. 36). On September 22, 2015 and October 1, 2015, this Court held an evidentiary hearing on Balanquet-Herrera's motion. (Docket Nos. 38, 40). The official transcripts of those proceedings, (Docket No. 42, 43), have been reviewed and considered by the Court. The parties then submitted proposed findings of fact and conclusions of law on December 2, 2015, (Docket Nos. 44, 45), and Defendant filed a reply to the Government's proposed findings of fact and conclusions of law on December 14, 2015. (Docket No. 46). As the matter has been fully briefed and argued, it is now ripe for disposition. Upon consideration of all of the parties' submissions and the evidence of record, and for the following reasons, Defendant's Motion to Suppress (Docket No. 29) is denied. I. PROCEDURAL HISTORY AND BACKGROUND
Also pending are Defendant's "Motion for Early Disclosure of Jenks Material," "Motion for Discovery," and "Motion to Produce Evidence Which the Government Intends to Use Under Federal Rules of Evidence 404(b) and 609," (Docket Nos. 31, 32, and 33, respectively), and the Government's opposition thereto, (Docket No. 36). The Court will issue a separate written order addressing said Motions.
The Official Transcript of day one of the hearings (Docket No. 44) is referred to as (Tr. 9/22/15 at ___); day two is referred to as (Tr. 10/1/15 at ___).
The motion to suppress evidence challenges the constitutionality of a warrantless search of Balanquet-Herrera's marital residence he shares with his wife, Ms. Yazmin Ocampo, on November 18, 2014, that resulted in the seizure of drugs, money, jewelry and certain identifying documents contained in two hidden locked safes. (Docket No. 29). In Defendant's motion, he originally asserted that the warrantless search and seizure violated his Fourth Amendment rights based on several arguments, namely that:
• on the date in question Officer Brian Hoebel entered his home without either a warrant or other lawful authority;(Docket No. 29, ¶¶ 5(a)-(g)). After the hearing, Defendant indicated in his Reply that for purposes of his motion to suppress he does not challenge the consent given to enter and search the marital home, agreeing that a spouse ordinarily can consent to such a search, (Docket No. 46 at 2), but rather challenges the actual and apparent authority of his wife to give consent to search the two locked safes contained within the marital residence. (Docket No. 46). The Government does not contend that the search on November 18, 2014 was pursuant to a warrant, as it cannot, and instead contends that the search was a lawful consent search. (Docket No. 44 at 18).
• the entering and search were over his objection;
• any consent came after the initial warrantless entry and search;
• any consent extended only to a search for evidence of a sexual assault;
• to the extent any consent was given to search for a firearm such consent terminated upon Defendant's arrest; and
• finally, that Ms. Ocampo, the individual purporting to give consent, did not have actual or apparent authority to consent to the search of Defendant's hidden locked safes.
The Government presented evidence as to the reasonableness of the search and seizure at the suppression hearing, including the testimony of Allegheny County Police Detectives Barry Anderson and Anthony Felicion, as well as a Consent to Search Form executed by Ms. Ocampo on the night in question and stating that she authorized the officers to perform "a complete search of the premises," which was the marital residence she shared with Defendant. Ex. 1 (under seal)(the Allegheny County Police Department ACP Form 5, Consent to Search). (Tr. 9/22/15; Tr. 10/1/15).
Ms. Ocampo was present on day one of the hearings, (Tr. 9/22/15 at 6), but did not testify. Defendant did not call any witnesses to testify to undermine or challenge the detectives' version of events, but submitted several photographs which were admitted into evidence. At the close of the hearing, the parties submitted a stipulation as to the testimony of Sharpsburg Police Officer Brian Hoebel had he been called to testify. (Tr. 10/1/15 at 89-90). II. FINDINGS OF FACT
See Ex. A (Photograph of void in bottom of linen closet with floorboards removed and containing a black safe), (Tr. 9/22/15 at 42-43, 45-46), Ex. B (Close up photograph of void in bottom of linen closet and containing additional white safe)(Tr. 9/22/15 at 47-48), Ex. C (Photograph of white safe in void in bottom of linen closet)(Tr. 9/22/15 at 47-48), Ex. D (under seal) (Photograph of identifying documents located in one of the safes)(Tr. 9/22/15 at 51-53), Ex. E (under seal) (Photograph of passport located in one of the safes)(Tr. 9/22/15 at 52-53), Ex. F (Photograph of set of keys used to open the safes, the firearm and a safe)(Tr. 10/1/15 at 58), Ex. G (Photograph of void in the linen closet and the removed piece of laminate with closed black and white safes)(Tr. 10/1/15 at 60), Ex. H (Photograph of open safes depicting first safe with contents, including identifying documents, money and jewelry, and second safe with drugs and money)(Tr. 10/1/15 at 66, 67).
At the close of the hearing, the parties put on the record a stipulation as to the matters to which Officer Brian Hoebel would have testified. As the matters in that stipulation are mostly duplicative and not necessary to our decision, the Court does not discuss it further.
Detective Barry Anderson is a Detective of the Allegheny County Police Department and has twenty-four years of law enforcement experience, twelve of which were with the County Police Department. (Tr. 9/22/15 at 9). Prior to joining the County Police Department, he worked as a uniformed patrol officer for twelve years. (Tr. 9/22/15 at 9). Detective Anderson also has a criminal justice degree. (Tr. 9/22/15 at 62). Detective Anthony Felicion is a Detective of the Allegheny County Police Department, has eighteen years of law enforcement experience, approximately ten of which were with the County Police Department. (Tr. 10/1/15 at 4-6). Detective Felicion previously served for over eight years as a United States Army military police officer and has some college education but no degree, being approximately twelve (12) credits shy of a bachelor's degree. (Tr. 10/1/15 at 6, 76). He also served as a field training officer, which encompasses training newly assigned patrolmen regarding rules and regulations governing police officers. (Tr. 10/1/15 at 76-77). Both Detectives Anderson and Felicion are assigned to General Investigations, responsible for major crimes such as rape, robbery, burglary, physical abuse and fraud cases. (Tr. 9/22/15 at 9). They were partners working the 4:00 p.m. to 12:00 a.m. shift on the night in question. (Tr. 9/22/15 at 9). In working that shift they are responsible for investigating major crimes, interviewing victims and witnesses and collecting evidence. (Tr. 9/22/15 at 10; Tr. 10/1/15 at 6).
"It is well-settled that at a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." United States v. Richardson, 501 F. Supp. 2d 724, 734 (W.D.Pa. 2007) (internal citations and quotations omitted). In this Court's estimation, based on their demeanor and testimony in response to the questioning of the attorneys and the Court at the suppression hearing, both Detectives Anderson and Felicion were forthright and offered credible testimony to the Court concerning their version of the events that unfolded on the date in question. See United States v. Garcia, 521 F. App'x 71, 73 (3d Cir. 2013) (citing Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)) (trial court's findings are based on credibility determinations regarding witnesses and only the trial judge can assess demeanor and tone of witness as that bears heavily on the listener's belief and understanding as to testimony); accord United States v. Harris, 507 F.2d 197 (3d Cir. 1975)(per curium). In addition to finding them credible, the Court also finds both detectives to be experienced police officers. With that ruling, the Court turns to its specific findings of fact, based on the credible evidence presented at the evidentiary hearing.
On the evening of November 18, 2014, at approximately 4:29 p.m., Detectives Anderson and Felicion responded to a call to assist the Sharpsburg Police Department regarding a sexual assault. (Tr. 9/22/15 at 11). The detectives proceeded to UPMC St. Margaret's Hospital in Aspinwall to interview the alleged victim (hereinafter "victim") and investigate. (Tr. 9/22/15 at 11). Detective Anderson spoke with Sharpsburg Police Officer Hoebel over the phone prior to responding. (Tr. 9/22/15 at 11). They learned that the Defendant was the alleged assailant. (Tr. 9/22/15 at 18; Tr. 10/1/15 at 13). Upon arriving at the Emergency Room of the hospital, Detective Anderson observed that the victim was in tears, fearful and visibly upset. (Tr. 9/22/15 at 11-12). The victim was at the hospital with her step-mother, Yazmin Ocampo, who is Defendant's wife and the mother of his three minor children. (Tr. 9/22/15 at 12, 35). Upon questioning Ms. Ocampo, Detective Felicion and Officer Hoebel determined that Defendant lived with Ms. Ocampo, his wife of twenty years, and their three minor children at the residence in Sharpsburg. (Tr. 9/22/15 at 24, 29-30, 33, 35; Tr. 10/1/15 at 12, 15-16, 31, 90; Ex. 1).
While Ms. Ocampo initially was at the Emergency Room, Defendant was then at home alone with the minor children. (Tr. 9/22/15 at 18-19). At the Emergency Room, Ms. Ocampo appeared extremely excited, fearful, expressed great concern for the victim, her step-daughter, and her own minor children, and was fearful of the children being left at home with Defendant. (Tr. 9/22/15 at 17-18; Tr. 10/1/15 at 78, 79). Ms. Ocampo, who spoke in and understood English, also was very concerned and relayed that concern to the detectives that a firearm that she lawfully owned was present in the home where Defendant was located. (Tr. 9/22/15 at 17-18, 20-21, 32; Tr. 10/1/15 at 32). She asked the police to retrieve the weapon, both before and after Defendant's arrest, as she remained concerned about its location and securing it. (Tr. 9/22/15 at 18-19, 24, 34-36, 37, 59, 62; Tr. 10/1/15 at 13-14).
Officer Hoebel was dispatched to arrest Defendant at his residence and to find Ms. Ocampo's firearm. (Tr. 10/1/15 at 30; Tr. 9/22/15 at 19). In requesting that the officers locate her firearm, Ms. Ocampo had indicated that the firearm would most likely be in the possession of Defendant or in the master bedroom. (Tr. 9/22/15 at 19). At approximately 6:53 p.m., Officer Hoebel arrested Defendant at the residence. (Tr. 9/22/15 at 18-20; Tr. 10/1/15 at 13-14, 30-31). Officer Hoebel then conveyed to Detective Felicion that he had taken Defendant into custody and that Defendant did not have a firearm on his person. (Tr. 10/1/15 at 34). Even after Defendant's arrest, she still expressed her concern to the police regarding the whereabouts of her firearm and requested that the police search for and locate the whereabouts of the firearm in the marital residence. (Tr. 9/22/15 at 28, 35-37. 59).
Initially, Ms. Ocampo pleaded with Detective Anderson to have Officer Hoebel search for the firearm. (Tr. 9/22/15 at 20, 22). Officer Hoebel then proceeded to search the residence for the firearm, but was unable to find it where Ms. Ocampo had suggested it would be in either the master bedroom nightstand or dresser. (Tr. 9/22/15 at 20, 22; Tr. 10/1/15 at 34-35). In addition to providing verbal consent to the officers to search the residence, at 7:15 p.m., which was after Defendant had been arrested, Ms. Ocampo executed a written consent to search. (Tr. 9/22/15 at 20-22, 22-24, 30, 35-36; Ex. 1 ("the Consent Form")). The Consent Form specifies that Detectives Anderson and Felicion were authorized "to conduct a complete search" of the marital residence and further acknowledges that Ms. Ocampo was informed that she "may refuse to consent," that "she may revoke [her] consent to search at any time," that she understood these rights, and that she wished to consent to the complete search of her residence. (Ex. 1).
Detectives Anderson and Felicion arrived at the residence at approximately 8:00 p.m. to investigate and process the scene (Tr. 9/22/15 at 63, 10/1/15 at 85), with Detective Anderson focusing on obtaining evidence of the assault and Detective Felicion focusing on finding the firearm for Ms. Ocampo as she requested. (Tr. 9/22/15 at 24, 38, 57; Tr. 10/1/15 at 40). Prior to searching the residence, Detective Felicion had not investigated Defendant, (Tr. 10/1/15 at 75), and when searching was not looking for drugs. (Tr. 10/1/15 at 75). He had never had any calls, reports, or complaints regarding the residence prior to that evening. (Tr. 10/1/15 at 80).
Detective Anderson testified that at the Emergency Room Ms. Ocampo had expressed a concern that the children might have access to the firearm, (Tr. 9/22/15 at 18), although she did not repeat this concern to Detective Felicion. (Tr. 10/1/15 at 39). When the detectives arrived, the three minor teenage children were with a female officer in the living room area for their safety when the residence was searched after the arrest of Defendant. (Tr. 9/22/15 at 30, 63-64; Tr. 10/1/15 at 36, 38, 42-43). The children did not appear to be in any imminent danger, (Tr. 9/22/15 at 67), or subject to any threat to their safety, other than the unlocated firearm in the residence. (Tr. 10/1/15 at 37, 87). It does not appear that the search for the firearm in the marital residence as requested by Ms. Ocampo was for the purpose of seizing the firearm, but rather to determine its whereabouts and potentially secure it or recover it for Ms. Ocampo, as the firearm was lawfully owned by Ms. Ocampo, and indeed, was not seized and taken into evidence when ultimately located. (Tr. 9/22/15 at 57-58).
After Detective Felicion briefly searched for the firearm upstairs in the bedroom where the firearm was supposed to be located, he went downstairs and asked the children in what location would their father hide items, (Tr. 10/1/15 at 17, 39), and one of the children described a loose floor board in the linen closet in response. (Tr. 10/1/15 at 17, 41). The child further informed the detective that his father, the Defendant, would tell the children to go to their rooms when he wanted to access this location and would not allow anyone else to see what he was doing when he accessed it, (Tr. 10/1/15 at 43), yet the child knew of not only the location but of the loose floor board in the linen closet. (Tr. 10/1/15 at 17, 18). As described by the detectives and depicted in the photographic exhibits, this linen closet was directly adjacent to the upstairs bathroom, did not have a door on it, had open access, and contained towels, linen and toiletries. (Tr. 9/22/15 at 25-26, 40-41; Tr. 10/1/15 at 18). The linen closet searched by Detective Felicion was believed by the detective to be Defendant's hiding spot in the residence, from which he made attempts to exclude access to it by the children. (Tr. 10/1/15 at 48).
Detective Felicion searched the linen closet and by tapping with his foot located a loose floorboard covering a void, wherein he found the two "Century style safes" underneath the loose floorboards. (Tr. 10/1/15 at 18-19, 45-46; Ex. A; Tr. 9/22/15 at 26, 43, 44-46). The safes appeared to be of the type that people store valuables in, (Tr. 9/22/15 at 47), and were of a size that they could contain the missing firearm. (Tr. 9/22/15 at 59). Upon finding the safes, Detective Felicion removed them and determined that they were locked. (Tr. 10/1/15 at 21; Tr. 9/22/15 at 26-27). He then placed the safes on the bed in the master bedroom. (Tr. 10/1/15 at 47, 49, 53; Tr. 9/22/15 at 27). At about this time, Ms. Ocampo arrived at the house, (Tr. 10/1/15 at 21), and appeared to Detective Felicion to be physically drained from the day's events. (Tr. 10/1/15 at 82).
Detective Felicion believed the firearm was or might be located in one of the safes and immediately spoke with Ms. Ocampo to obtain her consent to look in the safes for her firearm, before attempting to open them. (Tr. 9/22/15 at 59; Tr. 10/1/15 at 22-23, 47, 53). Ms. Ocampo told Detective Felicion that he could go ahead and open the safes, (Tr. 10/1/15 at 23, 61), and provided consent for him to open the safes. (Tr. 10/1/15 at 4-6). He did not have the means at that moment to open the safes as they were locked, and Ms. Ocampo told him she did not have a key. (Tr. 9/22/15 at 56; Tr. 10/1/15 at 27, 54). At some point prior to them being opened, Ms. Ocampo had told the detective that she was not aware of the hiding spot or of the safes' existence. (Tr. 9/22/15 at 54-55; Tr. 10/1/15 at 54). On this point, Detective Felicion found her to be less than forthcoming given her demeanor and his experience. (Tr. 10/1/15 at 23-24, 26). Specifically, he did not believe her because of her non-verbal reaction to seeing the safes. (Tr. 10/1/15 at 23-24, 26).
Detective Felicion found a set of keys in the bedroom to which he had removed the safes but they were not Century safe keys. (Tr. 10/1/15 at 27, 52). He therefore went downstairs and asked Ms. Ocampo if she had the keys to the safes. In response, one of the children readily produced a set of keys that he told the detective he had obtained from a living room end-table within eyeshot of Detective Felicion. The keys, which the child had identified as his father's, had been located with Defendant's things including his cell phone. (Tr. 10/1/15 at 27, 55, 63, 83). The set of keys, which appeared to be a personal key chain with multiple keys and other items on it, included two Century safe keys. (Tr. 10/1/15 at 28, 56, 59). Detective Felicion took the keys upstairs and opened the safes, which contained the following inventory: illegal narcotics, money, jewelry and identifying documents, all of which appeared to belong to Defendant, but no firearm. (Tr. 9/22/15 at 50-54; Tr. 10/1/15 at 28-29, 63-67, 69). At the time the safes were opened by Detective Felicion, Detective Anderson believed that they belonged to Defendant. (Tr. 9/22/15 at 55). Ms. Ocampo was present when the safes were opened and did not object. (Tr. 9/22/15 at 60; Tr. 10/1/15 at 23, 61).
After finding the money, drugs, and jewelry, which Detective Felicion removed from the safes in order to determine if the safes included the firearm, the search for the missing firearm continued with Ms. Ocampo's assistance until Detective Felicion was notified that the firearm had been located. (Tr. 9/22/15 at 28, 59; Tr. 10/1/15 at 29, 51, 65). The firearm, once located in the closet in the master bedroom, was deemed safe to remain at the residence with Ms. Ocampo. (Tr. 9/22/15 at 28, 59; Tr. 10/1/15 at 73). The only purposeful search at the residence was for the firearm and the evidence of assault. (Tr. 10/1/15 at 74). Once the firearm was located the search of the residence was concluded. (Tr. 10/1/15 at 74).
The Court expressly rejects Balanquet-Herrera's challenge to the credibility of Detective Felicion in probing as to his true motive for wanting to open the safes. Although defense counsel attempted through questioning to elicit that the true motive in searching the safes was to find evidence of drugs or other such criminal activity, on this point Detective Felicion was clear—the purpose of his focused search was to find the missing firearm for Ms. Ocampo and that search ceased upon determining its whereabouts. As stated previously, this Court found Detective Felicion credible. Thus, locating the missing firearm as Ms. Ocampo requested was his motive in searching the locked safes. III. LEGAL STANDARD
The Government has the burden to show by a preponderance of the evidence that Ms. Ocampo's consent to the search was legally sufficient to warrant admission of the seized evidence. United States v. Matlock, 415 U.S. 164, 177 (1974). At a hearing on a motion to suppress, it is the duty of the trial judge to assess witness credibility and determine the weight to be given the evidence, together with any inferences, deductions and conclusions to be drawn therefrom. United States v. Richardson, 501 F. Supp. 2d at 734. IV. DISCUSSION
In his motion to suppress, Balanquet-Herrera challenges the admissibility of evidence seized in this case under the Fourth Amendment to the United States Constitution. (Docket No. 29). The Government maintains that the evidence should not be suppressed as it was not obtained in violation of Defendant's constitutional rights. Rather, the Government argues that the evidence was seized after the officers obtained valid consent to search the home and the safes. The Court will discuss the parties' positions as to the constitutionality of the officers' search and seizure of the challenged evidence, in turn.
A. Fourth Amendment
The Fourth Amendment protects citizens against unreasonable searches and seizures. U.S. CONST. AMEND. IV; see also United States v. Ubiles, 224 F.3d 213, 216 (3d Cir. 2000). Warrantless searches are per se unreasonable subject only to a few specifically established and well delineated exceptions. Horton v. California, 496 U.S. 128, 133 (1990). Because no warrant authorized the search here, the burden is on the Government to prove by a preponderance of the evidence that the search fell within one of the recognized exceptions to the warrant requirement. United States v. Herrold, 962 F.2d 1131, 1137 (3d Cir. 1992). Ordinarily, any evidence obtained pursuant to a search that does not meet a recognized exception to the warrant requirement must be suppressed as "fruit of the poisonous tree." United States v. Brown, 448 F.3d 239, 244 (3d Cir. 2006) (citing Wong Sun v. United States, 371 U.S. 471, 487-88 (1963)).
United States v. Herrold, 962 F.2d 1131 (3d Cir. 1992), provides:
Where an individual possesses a reasonable expectation of privacy in a given area, typically the government must obtain a warrant prior to searching that area. As the Supreme Court has stated, searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions. Horton v. California, 496 U.S. 128, 133 n. 4, 110 S.Ct. 2301, 2306 n. 4, 110 L.Ed.2d 112 (1990) (quoting Katz v. United States, 389 U.S. at 357, 88 S.Ct. at 514). Thus, in this case if the government had to rely on the warrantless entry to uphold the search and seizure it would have the burden of demonstrating that the search and seizure were permissible under an exception to the Fourth Amendment's warrant requirement. United States v. Morgan, 743 F.2d 1158, 1162 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985); Carter v. United States, 729 F.2d 935, 940 (8th Cir.1984); United States v. Kane, 637 F.2d 974, 979 (3d Cir.1981). If the government could not make this showing, then the exclusionary rule would generally bar the admission of the illegally obtained evidence. Weeks v. United States, 232 U.S. 383 (1914).Herrold, 962 F.2d at 1136-37.
B. Consent Exception to the Warrant Requirement
One such exception to the warrant requirement is consent. United States v. Stabile, 633 F.3d 219, 230 (3d Cir. 2011). Consent to a search must be voluntarily given. 633 F.3d at 230. Consent may be given by the individual whose property is searched or by a third party possessing common authority over it, see Illinois v. Rodriguez, 497 U.S. 177, 181 (1990), and may be given to search closed containers, in addition to premises. See Florida v. Jimeno, 500 U.S. 248, 251 (1991). The ability of a third party to consent is based on the conception that a person who shares common authority over property with another assumes the risk that another with that common authority may consent to a search of the property. United States v. Matlock, 415 U.S. 164, 170 (1974); Stabile, 633 F.3d at 231.
Where the consent to search is given by a third party, the government has the burden of showing by a preponderance of the evidence that the third party had common authority over the property such that they had the authority to consent to the search. Rodriguez, 197 U.S. at 181. This common authority does not rest on property rights, but rather rests on the third party's mutual use of the property searched and that third party's "joint access or control for most purposes." Rodriguez, 197 U.S. at 181 (quoting U.S v. Matlock, 451 U.S. at 171 n.7); Stabile, 633 F.3d at 230-231. Where, however, one has not relinquished his privacy regarding certain property, a third party lacks such authority to grant consent to the government for a search of it. 633 F.2d at 232.
The Court in United States v. Conley, 856 F.Supp. 1010 (W.D. Pa. 1994), held that the defendant had a reasonable expectation of privacy in certain locked compartments inside of video poker machines such that a warrant for their search was required even though the machines were stored in locations at which the defendant did not have a proprietary or possessory interest. Id. at 1015, 1020. The locked compartments were inside of the poker machines, had separate locks, and did not reveal in plain view their contents. Id. at 1015. The defendant in Conley gave only limited access to the upper locked compartments to a few persons for circumscribed purposes and did not give access to the upper locked compartments to the operators of the locations wherein the video poker machines were located. Id. The owners of the locations where the machines were stored did not have keys to access the locked compartments, and only certain employees of defendant had such keys. Id. The defendant in Conley thus exercised dominion and control to the exclusion of the public and the government over the locked compartments. Id. at 1020. Conley specifically held that the defendant had an expectation of privacy in the upper locked compartments of the video poker machines and that such expectation was one society would recognize as reasonable. Id. at 1017. In Conley, the police had obtained search warrants and it was the validity of those search warrants and not any consent that was at issue. Id. at 1022.
The Government contends that if Defendant's hiding place was meant to be secret then Defendant would have kept his keys on his person or in another private place where his children could not have accessed them as opposed to out on the end table in the living room and he would have had a different hiding place that the children did not know about. (Docket No. 44 at 21). This does not mean, however, that Defendant did not have a reasonable expectation of privacy in his locked safes. As such, consent to search was required.
1. Voluntary Consent
In Stabile, the Court of Appeals examined the totality of the circumstances to determine that the consent to search was voluntary where the third party giving consent not only signed a consent form, but also told investigators to go ahead and search and even provided assistance to the officers, including finding the officers a screwdriver to aid them in extracting the hard drive from the computer to be searched. 633 F.3d at 231. Similarly here, Ms. Ocampo not only signed a consent form giving consent to a complete search of her residence, she repeatedly requested that the officers search her residence and even suggested to the officers where to look for her firearm. (Tr. 9/22/15 at 19-24, 34-37, 59, 62; Ex. 1). When faced with the locked safes and a request for permission to open them, she readily and specifically told Detective Felicion to go ahead and open them. (Tr. 10/1/15 at 4-6, 23, 61). Thus, the Court finds that the consent given by Ms. Ocampo was voluntary. Ms. Ocampo's consent, even her express consent to open the safes, however, does not answer the question as to whether she could give such consent, having actual or apparent authority to do so.
2. Authority to Consent
The parties' initial dispute concerned whether the police had proper consent to enter and search the residence, including the locked safes, in the first instance. As referenced supra, Balanquet-Herrera now only challenges the search of the safes, asserting that his wife did not have actual or apparent authority to consent to the search of the locked safes because he had a heightened expectation of privacy in his private secured containers. (Docket No. 46 at 2).
The Court accepts Defendant's concession and agrees that Ms. Ocampo clearly had actual authority to consent to the broad search of her residence, as stated in the written waiver. See Ex. 1. --------
The authority of a third party to consent is derived from mutual use of property or personalty and joint access or control. Matlock, 415 U.S. at 171 n.7; United States v. King, 604 F.3d 125, 135 (3d Cir. 2010). Where a person has not relinquished his privacy or control, that third party lacks authority to give such consent. Stabile, 633 F.3d at 232; King, 604 F.3d at 137. The Government argues that the location of the safes and the requirement by Defendant that the children be in their rooms when he accessed the location evidenced intent to exclude the children and those outside of the home, such as the police, from the safes, but not to exclude Ms. Ocampo. (Docket 44 at 21). Defendant did not provide any evidence that Ms. Ocampo was excluded from access to the locked safes, and given their location under the common closet, (Tr. 9/22/15 at 26, 43, 44-46; Tr. 10/1/15 at 18-19, 45-46; Ex. A), the Court concludes from the credible evidence that Ms. Ocampo had common authority over them. While Ms. Ocampo denied knowledge regarding the locked safes, the Court does not find this determinative.
On the issue of authority of a spouse, the Government further points out that a marital relationship can raise a presumption regarding the mutual control and access over the marital residence and its contents. Indeed, the authority of the spouse to consent to a search of the marital residence and all of its areas exists even when the couple are estranged. (Docket 44 at 16, 17). For example, United States v. Rith, 164 F.3d 1323, 1330 (10th Cir. 1999), observed that certain relationships, such as that of husband and wife as opposed to one of mere co-tenants "raises a presumption about the parties' reasonable expectations of privacy in relation to each other in spaces typically perceived as private in a co-tenant relationship." Rith involved the search of an adult son's room. The Court observed that there was no agreement between the adult son and his parents providing that the parents could not enter his room without consent. Id. at 1331. The Court in Rith further commented that "if a relationship creates such a presumption of control and is unrebutted, [the spouse] has authority to consent to a search." 164 F.3d at 1330.
Here, there simply was no credible evidence put on by Defendant to establish exclusion of Ms. Ocampo from the locked safes, by agreement or otherwise, and the Court declines to find such exclusion. The evidence does establish the location of the locked safes being under a common area, the linen closet with no doors. (Tr. 9/22/15 at 26, 43, 44-46; Tr. 10/1/15 at 18-19, 45-46, Ex. A). Moreover, the evidence established that the keys to the safes were out in the open in another common area, the living room. (Tr. 10/1/15 at 27, 55, 63, 83). Given the locale of each, and ready access thereto, the Court determines that Ms. Ocampo had access to and common authority over the searched safes. Thus, this Court holds that both the items searched and the means to search them, the keys, were within Ms. Ocampo's access, authority and control.
Defendant attempts to distinguish the cases of United States v. Price, 2008 WL 2900089 (W.D. Pa. July 24, 2008), and United States v. Amratiel, 622 F.3d 914 (8th Cir. 2010), relied on by the Government. Defendant argues that Price found that the wife had actual authority to consent, Price at *4, as that case involved only a search of a room in the defendant's garage at the residence, to which the defendant's wife had access, though she infrequently accessed it, and regarding which she testified she had authority to consent to the search. Id. at *2. Price notably involved forcible entry as the defendant's wife did not have access to the key to the locks on the door. Again, here, the hiding place was under the common open linen closet in the hallway next to the bathroom with the keys to the safes being out on a table in the common living room. (Tr. 9/22/15 at 26, 43, 44-46; Tr. 10/1/15 at 18-19, 27, 45-46, 55, 63, 83; Ex. A). Further, no credible evidence was produced that the key chain was personal or exclusive to Defendant and this Court declines to so hold.
As to Amratiel, Defendant argues that in that case the Court found that the wife had actual authority to consent to the search of the safe based on facts that her firearm was in the safe, she knew where the key to the safe was, and she had used the key to open the safe in the past. (Docket No. 46 at 4). See Amratiel, 622 F.3d at 915. Consideration of Amratiel does not alter the Court's conclusion because Ms. Ocampo's firearm was reasonably believed by Detective Felicion to be found in the safes. Additionally, the keys to unlock them were available to all members of the household and readily provided to Detective Felicion. (Tr. 9/22/15 at 59; Tr. 10/1/15 at 27-28, 55-56, 59, 83). Furthermore, in Amratiel, unlike the instant case, the police had to retrieve the keys from Defendant's person in the police car where he was immediately after arrest.
Defendant also argues that the Government did not establish that Ms. Ocampo had common authority over the hidden and locked safes because it cannot and did not show that she had access, control or use of them. (Docket No. 46 at 2). The Court does not deem her knowledge as to the safes determinative, but will address it further. The Government suggests that Ms. Ocampo knew about the safes, despite her statement to Detective Felicion to the contrary. (Docket No. 44 at 19). The Court observes that Detective Felicion testified that the demeanor of Ms. Ocampo noticeably changed when she was made aware that he had found the two locked safes. (Tr. 10/1/15 at 23-24, 26). Although his testimony stopped short of asserting that he believed Ms. Ocampo was being untruthful and actually knew about the safes, her actions collectively support such an inference. She provided an equivocal denial of knowledge of the safes as Detective Felicion whom the Court finds credible did not believe her to be forthcoming on the matter. (Tr. 10/1/15 at 23-24, 26). Moreover, she also consented to opening the safes in order to find the weapon and accompanied the detective when he used the keys to do so. (Tr. 9/22/15 at 60; Tr. 10/1/15 at 23, 61). Based on such action, they apparently agreed that her firearm might be located in the safes as it had not been found elsewhere and could have fit into the safes. (Tr. 10/1/15 at 22-23, 51-54, 61). Given these facts and circumstances, in this Court's estimation, her claimed lack of knowledge of the safes does not negate Ms. Ocampo's authority to consent to the search.
According to Defendant, the cases cited by the Government actually undermine their contention that Ms. Ocampo had actual authority to consent, citing United States v. Duran, 957 F.2d 499 (7th Cir. 1992)(recognizing that although marriage is most intimate relationship the ideal does not reflect reality in practice or in the law); United States v. Rith, 164 F.3d 1323, 1331 (10th Cir. 1999)(parents' authority to consent rebutted by lock placed by adult son on his bedroom door); U.S. v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991)(a mother lacked authority to consent because search was of son's bedroom closet and government did not show mother had mutual use of the bedroom). On review of these cases, the Court is not persuaded by Defendant's argument.
Although the Defendant aptly argues that spouses do not merely share or even surrender their individual privacy rights, the relationship clearly informs the inquiry. To be certain, where the individual is married and the parties share a marital residence, the individual does assume the risk that his or her spouse will consent to search of the marital residence, as well as many items within that marital residence, and although that does not extend to each and every secured container found therein, the Court finds under these unique facts that it extends to the safes.
The matter of the keys requires further consideration. Conley, discussed supra, recognized that the limited access to the upper locked compartments in the video poker machines, with keys only given to a select few, evidenced that the defendant had a reasonable expectation of privacy to the exclusion of others. In United States v. Block, 590 F.2d 535 (4th Cir. 1978), the Court suppressed the evidence found in the defendant's locked footlocker located in his bedroom within his mother's residence, where the mother gave her consent to the search, the footlocker was identified as the defendant's footlocker, the mother did not have a key and the authorities had to forcibly break into the footlocker to determine its contents. Id. at 537-538. The Court determined that, although the mother had the authority to give consent to the search of the defendant's bedroom, the mother's authority stopped at the locked footlocker—a decidedly secured container. Id. at 540-541. As observed by the Court in Block, the mother's consent did not give the authorities the right to search the footlocker without a warrant because the circumstances did not provide a reasonable basis for belief that the mother had authority to give consent. Although she had some appearance of authority in that the footlocker was located within her residence, the circumstances evidenced that the son retained an expectation of privacy in the footlocker and the mother disclaimed access by indicating that she did not have the key.
Considering Amratiel, whether Ms. Ocampo possessed the keys to the safe does not in itself answer the question of whether she had authority to consent, but is highly relevant to and supportive of such a finding. As remarked above, the Court found that a wife had authority to consent to the search of defendant's gun safe where the wife did not have the keys and the keys actually were found on the defendant's person. 622 F.3d at 915. The locked gun safe in Amratiel was located in a common area, the keys were easily obtained, and the wife never indicated to the officers that she did not have access to the safe or was excluded from it by the defendant. Here, in the case before this Court, the safes were found in a space in the hallway accessed through the common linen closet with no doors, albeit located in a spot under it, the location was readily identified by the children, and the keys were located in plain view in the living room. (Tr. 9/22/15 25-26, 40-41; Tr. 10/1/15 at 17-18, 20-22, 27, 34-35, 55, 63, 83). Further, Ms. Ocampo readily told Detective Felicion to open the safes as she had been imploring the detective to continue looking for and was herself assisting in the search for her missing firearm. (Tr. 9/22/15 20, 22; Tr. 10/1/15 at 23, 34-35, 61).
Defendant argues that somehow the detectives knew that the safes belonged to him and the safes and hiding spot were accessed and controlled by Defendant alone. He continues that any presumption of Ms. Ocampo's actual authority to consent to the search of the locked safes was rebutted by the facts within the knowledge of the Detectives prior to the safes being searched. (Docket No. 46 at 3). This Court is constrained to disagree. Defendant did not present evidence to establish that Ms. Ocampo was excluded from the hiding spot which was in her shared residence and known to the children or was excluded from the locked safes themselves as the keys to the safes were left out in a common area.
The Court of Appeals for the Third Circuit in United States v. Stabile, 633 F.3d 219 (3d Cir. 2011), considering whether a third party could consent to the search and seizure of shared hard drives on a computer posed a conceptual question, as to whether a computer should be considered "more like a shared duffel bag or more like a locked footlocker under the bed[.]" Id. at 232. The consent of the third party to a search of the shared duffel bag being valid under Frazier v. Cupp, 394 U.S. 731 (1969), and the consent to forcibly open an adult son's locked footlocker under the bed being invalid under United States v. Block, 590 F.2d 535 (4th Cir. 1978). In determining the issue, the Court considered: the identity of the mutual users of the property in question, a computer; whether added protection from invasion into the portion of the computer storing the seized evidence was used, such as password protection; and the location of the computer in the house. 633 F.3d at 232. The Third Circuit in Stabile further observed that the Court had determined previously in United States v. King, 604 F.3d 125 (3d Cir. 2010), that the defendant who had placed his hard drive in another's computer which the two of them shared and who did not take the added step of password protecting the hard drive stored on that computer, assumed the risk that the other individual would consent to a search of that hard drive, and thus, the third-party's consent was valid. 633 F.3d at 232-233. Stabile commented further that the failure to use password protection was a relinquishment of privacy to the shared user to the contents of the hard drive, 633 F.3d at 233, and the location of the computers containing the seized hard drives was in the common areas of the home readily accessible to others as opposed to a private bedroom. Considering the totality of the circumstances, the Court thus held that the facts weighed in favor of determining that the third party had the authority to consent to the search and seizure of the hard drives. In the instant matter, the evidence established that the safes and keys were located within the marital residence and that consent to search the entirety of the premises was provided by Ms. Ocampo; the safes were located under the common linen closet with no door; a child in the household knew the hiding spot's location; and the keys to the safes, which were not hidden, provided ready and easy access. (Tr. 9/22/15 at 26, 43, 43-46; Tr. 10/1/15 at 18-19, 27, 43, 45-46, 55, 65, 83; Ex. A; Ex. 1). By analogy, if a person password protected their hard drive, yet left the password written down in a spot for others to see, that really would be as if there were no password protection at all. The same reasoning applies here with keys left available for use by others.
Having fully considered the parties' positions and viewing the totality of the facts and circumstances based on the credible evidence of record, the Court finds that Ms. Ocampo had actual authority to consent to the search of the safes. The Court now considers whether, assuming arguendo, Ms. Ocampo lacked actual authority, she nevertheless had apparent authority such that the evidence would not be suppressed on this basis.
3. Apparent Authority to Consent
Relying on United States v. Price, 2008 WL 290089 (W.D. Pa. July 24, 2008), the Government asserts that based on the marital relationship, the Court also may find that the officers had a reasonable good faith belief that Ms. Ocampo had the authority to consent to the search of the locked safes; hence, the evidence should not be suppressed. Citing United States v. Rodriguez, 497 U.S. 177 (1990), United States v. Barber, 2015 WL 428173 (11th Cir. Feb. 3, 2015)(finding apparent authority), and Amratiel, the Government argues that if Ms. Ocampo lacked actual authority to consent, the search will not result in suppression of the evidence if Detective Felicion had the mistaken yet reasonable perception that Ms. Ocampo had such authority. (Docket No. 36 at 4). The Court finds on this record and from the credible testimony that Detective Felicion had a reasonable good faith belief, mistaken or otherwise, that Ms. Ocampo had the authority to consent to the search of the locked safes for the missing firearm.
The reasonableness of the actions of Detective Felicion in acting on the consent of Ms. Ocampo must be considered under the totality of the circumstances. United States v. Katzin, 769 F.3d 163, 178 (3d Cir. 2014)(en banc). The United States Supreme Court in Rodriguez instructs in considering whether a third party has authority to consent to a search that the court must consider whether the facts would warrant a man of reasonable caution in the belief that the person consenting has authority to give that consent. Rodriguez, 497 U.S. at 188. Ms. Ocampo was not only consenting to a complete search of the marital residence to find her lawfully owned firearm, she was helping to direct the search and more importantly requested the police to do so. (Tr. 9/22/15 at 18-19; Ex. 1). Detective Felicion searched the house and with one of the children easily pointing it out, found the void hidden beneath the linen closet, the safes, and then the keys to the safes. (Tr. 9/22/15 at 26, 43, 44-46; Tr. 10/1/15 at 17-19, 23, 28, 41, 45-46, 56, 59, 61; Ex. A). Upon asking Ms. Ocampo, he was told to go ahead and open the safes. Id. The ready offering of the keys and location of the hiding space coupled with Ms. Ocampo's assistance and at times direction to determine the location of her firearm within her abode convinces the Court that a reasonable officer would not have known that Ms. Ocampo lacked authority to consent.
As indicated above, Ms. Ocampo actually gave consent to a complete search of the residence at 7:15 p.m. (Ex. 1.) She was told of her constitutional rights. She was told she could refuse. She was told she could revoke her consent to search. She signed that she understood these rights. (Ex. 1). Later, she was asked by Detective Felicion if he could open the safes. She did not refuse. Further, Ms. Ocampo clearly could have opened the safes herself and understood as she agreed in writing that she did not need to provide consent. As the Government points out, the keys were not on Defendant's person when he was arrested, such as being in his pocket, were not hidden and instead were on the table in the common living room. The Court finds that Detective Felicion acted reasonably on Ms. Ocampo's apparent authority under the totality of the circumstances in proceeding to open the safes under these circumstances.
The Court gleans further support for its decision in other portions of the record. To this end, Detectives Anderson and Felicion were initially presented with a situation at the Emergency Room where Ms. Ocampo, Defendant's wife, was in an extremely excited, agitated and fearful state being concerned about the location of her firearm in her home. (Tr. 9/22/15 at 17-18, 29, 32; Tr. 10/1/15 at 78-70). Her concern continued until that firearm was located. She gave consent to the search of the marital residence, not challenged here, and in the course of the search at the residence, which included the search for her firearm at her request and at times direction, one of the detectives found two locked safes conceivably housing the missing firearm. (Tr. 9/22/15 at 18, 26, 29, 32, 43-46, 59; Tr. 10/1/15 at 18-19, 44-46; Ex.1). The Court finds based on the credible testimony presented that Detective Felicion indeed was acting in good faith in searching for Ms. Ocampo's firearm, and as he specifically testified, that he intended to open the safes for that very purpose and not as a pretext to search for evidence of other unlawful activity by Defendant. (Tr. 9/22/15 at 59; Tr. 10/1/15 at 22-23, 47, 53).
The Government's position is that "from a reasonable officer's perspective, the void and safes were intended to be a hiding place from non-residents of the home (i.e. the police), not a true hiding place from every person but the defendant (i.e. his family and co-residents)." (Docket No. 44 at 21). As discussed supra, Detective Felicion testified as to his perception that Ms. Ocampo's demeanor changed when she saw the safes, and her equivocal denial about same. Yet, she proceeded to consent to the officers' search of the safes and encouraged them to do so. (Tr. 10/1/15 at 23-24, 26, 61). In any event, it would be reasonable for a detective to conclude under these circumstances that Ms. Ocampo had authority to consent to a search of the locked safes.
The question under United States v. Leon, 468 U.S. 897, 922 n.23 (1984), is whether a reasonably trained officer would have known that the search was illegal. Put another way here, whether Detective Felicion would have known that Ms. Ocampo did not have authority to consent to the search of the safes. As the Court finds that Detective Felicion acted with a reasonable and good faith belief that Ms. Ocampo had authority to consent to the opening of the safes, and she, in fact, did consent, the evidence should not be suppressed.
Having fully considered the parties' positions and the credible evidence of record, the Court finds that if Ms. Ocampo did not have actual authority, she had apparent authority to consent to the search. Detective Felicion in acting with all the information available to him would not have known that Defendant's wife did not have the authority to and could not have given the requisite consent for the search of the Defendant's safes under these circumstances.
4. Whether a Violation Here Would Require Suppression
Finally, the Government argues that even if the Court were to find the consent was invalid, the Court is not required to suppress the evidence because, as it asserts, the purposes of the exclusionary rule—to deter further Fourth Amendment Violations, Davis v. United States, 131 S.Ct. 2419, 2426 (2011)—will not be served. Davis does provide that "when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and exclusion cannot pay its way." Davis, 113 S.Ct. at 2427-2428 (internal citations and quotations omitted). Recently, the Court of Appeals for the Third Circuit in United States v. Katzin likewise provided that in considering suppression, the Court must consider whether a reasonably well trained officer would have known that the questionable search was illegal. Specifically, Katzin, states:
The whole of our task is . . . to consider the totality of the circumstances to answer the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal. To exclude evidence simply because law enforcement fell short of relying on binding appellate precedent would impermissibly exceed the Supreme Court's mandate that suppression should occur in only "unusual" circumstances: when it furthers the purposes of the exclusionary rule.Katzin, 769 F.3d at 177-178 (internal citations, quotations and alterations omitted). "In the context of suppression, . . . the Supreme Court has unequivocally held that deterring isolated negligence is not worth the social cost of excluded evidence. Only if mistakes of this nature recur with some frequency will a criminal defendant be in a position to argue that the calculus has changed." United States v. Wright, 777 F.3d 635, 641-642 (3d Cir. 2015). Where the officer acted in good faith yet was grossly negligent, the evidence nevertheless should be suppressed. Virgin Islands v. John, 654 F.3d 412 (3d Cir. 2011).
As to the warrant requirement, the Court must consider under the very specific context of this case, even if Ms. Ocampo did not have actual or apparent authority to consent, whether the failure of Detective Felicion to obtain a warrant prior to opening the safes was an unreasonable search under the circumstances such that the evidence found therein must be suppressed. The evidence establishes that the search for the missing firearm had gone on for some time; its whereabouts in the marital residence was unknown; Ms. Ocampo appeared very concerned about it being missing in her home and with minor children present; and she implored the police to continue to assist her in finding it. Detective Felicion had the ready means to and opened the safes to determine if the firearm, which reasonably could have been contained therein, was actually located therein only after asking and being given Ms. Ocampo's permission. Under the unique circumstances of this case, this Court finds that a reasonably well trained officer, such as Detective Felicion, would not have known that the search of the safes under these circumstances was illegal. Moreover, the Court further finds that Detective Felicion's conduct was not grossly negligent as he acted reasonably under the circumstances. Indeed, Detective Felicion was not looking for anything other than Ms. Ocampo's lawfully owned firearm in the safes to assist her in determining its location as there was great concern that her firearm could not be found. As such, the Court opines that exclusion here would not serve a deterrent purpose. V. CONCLUSION
Based on the foregoing, Defendant's Rafael Balanquet Herrera's Motion to Suppress is denied. An appropriate Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge Date: January 14, 2016 cc/ecf: All counsel of record.
Rafael Balanquet-Herrera (c/o Kenneth J. Haber)