Opinion
No. CR-18-00806-TUC-RCC (LCK)
10-29-2018
United States of America, Plaintiff, v. Sheila Bautista and Orlando Unito, Defendants.
REPORT AND RECOMMENDATION
Pending before the Court are Defendant Unito's Motion to Suppress Evidence Based on Illegal Search (Doc. 47), which Defendant Bautista joined (Doc. 60); and Defendant Unito's Motion to Suppress Identification (Doc. 56), which Defendant Bautista joined (Doc. 65). This matter came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on October 2 and 3, 2018. (Docs. 88, 89.) This matter was submitted following the conclusion of oral argument on October 9, 2018. (Doc. 90.)
Defendants allege a search of the Bautista property was illegal, and they seek suppression of the government agents' discovery of a car, a hat, and statements of Defendants. Defendants also allege the identification of Defendants by a material witness was unduly suggestive and unreliable. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, grant in part and deny in part both of Defendants' motions.
I. FACTUAL BACKGROUND
On April 13, 2018, around 4:45 a.m., Agent David Serrato, who was manning a surveillance truck, notified other agents that four people had loaded into a car from the desert near South Komelik. (RT 10/3/18 at 8; RT 10/2/18 at 5; Ex. 60.) The agent noted that the car was a four-door sedan and had an irregular headlight; the driver's side was brighter than the other. (RT 10/3/18 at 14, 46-47.) Agent Serrato reported that the car headed east to the end of a dirt road near a residence, where he lost visual for about seven minutes, then it headed west on the same road. (Id. at 8-9.) Agent Dominguez was two miles away from South Komelik and, after waiting several minutes for further information, it took him two to three minutes to enter the village heading east. (RT 10/2/18 at 62-63, 88). He saw headlights heading west, one of which was brighter than the other. (Id. at 64, 93.) The car turned north into a residential driveway ("Bautista property"). (RT 10/3/18 at 9, 18; RT 10/2/18 at 7; Ex. 60.) Agent Serrato saw the vehicle go east behind the house and out of sight. (RT 10/3/18 at 18-19.) He then saw two people on the north side of the house where they appeared to be hiding before entering the Bautista residence. (Id. at 19-20.)
"RT" refers to an unofficial version of the Reporter's Transcript of testimony from the evidentiary hearing. Due to time constraints, the Court worked from a transcript containing solely testimony; therefore, the page citations will not necessarily match those of the official transcript. A copy of these unofficial transcripts will be provided to the District Court with the Report and Recommendation.
When he arrived, Agent Dominguez parked on the road by the Bautista property; he could not see any vehicles from his parking location on the west side of the property. (RT 10/2/18 at 63, 68, 80.) At approximately 5 a.m., he entered the property from the road through a pedestrian gate in the fence and walked around the east side of the house. (Id. at 66-67, 80; RT 10/3/18 at 23; Ex. 28.) He approached a Chrysler Sebring, determined the hood was warm, and, using a flashlight, saw a camouflage ball cap on the rear seat. (RT 10/2/18 at 69-71; Exs. 6, 7.) He was not invited on the property and Agent Dominguez did not recall speaking to the property owners at that time. (RT 10/2/18 at 95-96.) While he was on the property, Agents Perry and Goutzounis arrived. (Id. at 72, 87.) Agent Serrato saw one of the agents approach within ten feet of the house. (RT 10/3/18 at 24-25.)
Agent Goutzounis was the second to arrive at the Bautista residence; he also entered the property around 5 a.m. and approached the Sebring. (RT 10/2/18 at 132, 134; RT 10/3/18 at 24.) He saw footprints from the vehicle to the house and noted the camouflage hat in the rear of the vehicle. (RT 10/2/18 at 134.) He did not approach or knock on any doors of the residence. (Id. at 140.) Agent Goutzounis testified that he subsequently remained on the road in or near his vehicle in front of the Bautista residence until after the illegal aliens had been apprehended. (Id. at 75, 138-39, 140-41.)
When Agent Perry heard the call from Agent Serrato it took him about fifteen minutes to drive to South Komelik, arriving at the Bautista property just after 5 a.m. (Id. at 101; RT 10/3/18 at 26.) He parked on the road in front of the house. (RT 10/2/18 at 102.) Agent Perry testified that the agents checked the Sebring and walked the perimeter of the house from a distance of five to ten feet and then returned to the road. (Id. at 104.) Around 5:23 a.m., Agent Serrato saw someone again walk from the front of the Bautista property, where the border patrol vehicles were parked, to the north side of the house. (RT 10/3/18 at 33-35.) The agents could not have made their observations about the Sebring, the footprints, warmth of the engine, or location of the hat, without entering the property. (RT 10/2/18 at 85-86, 134.)
By 5:12 a.m., Agent Dominguez headed east on foot down the road in South Komelik; it took about five minutes to arrive at the residence on the east end of the village. (RT 10/2/18 at 92-93.) It took Agent George Flores ten to fifteen minutes to drive to South Komelik, where he met up with Agent Dominguez. (Id. at 6, 36.) Around 5:42 a.m., the agents received notice from the surveillance truck that four people were seen near that eastern residence of South Komelik. (Id. at 73-74, 93; RT 10/3/18 at 35.) Around 6 a.m., Agents Flores, Dominguez, and Perry located four illegal aliens in a nearby wash, all of whom were wearing camouflage hats with the exception of Joshua Tapia-Torralba. (RT 10/2/18 at 11-12, 32, 38-40.) When asked by Agent Dominguez, Tapia-Torralba stated that his hat fell in the rear seat area of the car that dropped them off. (Id. at 12, 40, 76.)
Next, Agent Flores drove his vehicle through a gap in the fence at the Bautista property, up the driveway, and parked on the northeast side of the house. (Id. at 13-14, 15; Exs. 9, 17.) Agent Flores agreed that the fence-line through which he drove was lined with trees and bushes. (RT 10/2/18 at 43-44; Exs. 12, 18.) Agent Flores looked through the window of the Sebring and saw a camouflage hat on the rear floor of the car; he does not know who else saw the hat. (RT 10/2/18 at 51-52.) Mrs. Bautista, an owner of the residence, approached the agents and asked why they were there. (Id. at 22, 116-17.) When asked about the Sebring, she stated that her daughter, Sheila Bautista, and her boyfriend had just returned from Tucson in it. (Id. at 22, 117.) The Sebring was registered to Robert Bautista and, ultimately, it was seized. (Id. at 32.) The camouflage hat in the rear of the vehicle was the only physical evidence corroborating the illegal aliens' presence in the vehicle. (Id. at 40-41.)
The Sebring was parked behind the house next to another vehicle; to Agent Dominguez, the Sebring appeared to be parked in an area the family used for parking. (Id. at 19, 85; Ex. 1.) Agent Flores estimated the Sebring was 10-15 yards from the house (RT 10/2/18 at 17, 42; Ex. 8); Agent Dominguez estimated the Sebring was 20-25 feet from the house (RT 10/2/18 at 68); Agent Perry said the Sebring was "right next to" the house, estimated at 10-15 yards (id. at 105-06); and Agent Goutzounis estimated the car was 25 yards from the house (id. at 137). There are some shrubs to the east of the Sebring and something cast a partial shadow shading the vehicle where it was parked. (Id. at 46-47, 85.) From some points on the road, the Sebring would have been at least partially visible. (Exs. 2, 28, 29.)
The Bautista property is bordered all around by a barbed wire fence. (RT 10/2/18 at 144, 146-47; Exs. 32, 67.) The shrubbery along the Bautista's fence line decreased visibility into the property. (RT 10/2/18 at 148.) An investigator for the defense described an internal perimeter of vegetation around the driveway of the Bautista home. (Id. at 153- 54; Exs. 4, 54.) From the surveillance truck, Agent Serrato could see vegetation surrounding but not blocking the Bautista house, and south of the house there were mesquite trees and brush blocking his view. (RT 10/3/18 at 61-62.)
Inside the front gate, behind the shrubbery along the southern fence line, there were children's toys. (Id. at 149; Ex. 47.) East of where the Sebring was parked is a storage area and a garden area with fruit trees, which is bordered to the east by some fencing that separates the home of a family member. (RT 10/2/18 at 150-51, 157; Exs. 49-52.) Mrs. Bautista waters the garden area and the shrubbery on the southern fence line. (RT 10/2/18 at 166.) To the north of the home, approximately parallel and west of where the Sebring was parked is a clothes line. (Id. at 151-53; Exs. 53-55.) Between the clothesline and where the Sebring was parked were some items that appear to have been discarded, tires, 50-gallon drums, an appliance, and a recycling bin. (RT 10/2/18 at 171-72; Ex. 53.) North of the clothesline (and north of the parking area), near some trees, there is an outdoor oven and some seating; some of the Bautistas reported using the grill area over July 4th of that year and for family gatherings. (RT 10/2/18 at 154-55, 157, 163; Exs. 56-58.) Entering South Komelik from the west, driving into the Bautista's driveway and approaching the front door, a person cannot see the area where the Sebring was parked. (RT 10/2/18 at 159.)
Soon after arriving at the Bautista property, Agent Flores asked to speak to Defendant Bautista. (Id. at 23.) After she came out, Agent Flores asked her to bring out her boyfriend, Defendant Unito. (Id. at 24.) He read Defendant Unito his Miranda rights and he waived them. (Id. at 26.) Agent Flores told Defendant Unito that he knew he had been a passenger in the vehicle, that they had picked up four people and dropped them off, and that one of those people indicated he left his hat in the car, and it was in plain view in the rear of the car. (Id. at 26-27.) Agent Flores asked Defendant Unito what he was going to be paid, and he responded, "what if I say I was driving?" (Id. at 28.) When the agent told him he knew that wasn't true, Defendant Unito said, "what if I take the blame?" (Id. at 29.) Agent Flores based his statements on one of the illegal aliens telling him that a younger woman was the driver. (Id.) Mr. Unito eventually stated that he would be paid $10-$13 per person. (Id.) He admitted to being the passenger in the vehicle. (Id. at 32.) Agent Flores then read Defendant Bautista her Miranda rights and she waived them. (Id. at 30.) He told her that they knew she was driving the vehicle when four illegal aliens entered and were transported east, prior to her and Defendant Unito returning to the residence; he did not recall if he mentioned the hat to Defendant Bautista. (Id. at 31, 54.) Upon questioning, she stated that she did not know how much she would be paid in relation to those four individuals but typically she would be paid $1300 to $1400 per person. (Id. at 31.) Defendant Bautista stated that she dropped them at a residence where they would wait until it was time to move them further north. (Id.) Defendant Bautista admitted to being the driver of the Sebring. (Id.) Agent Flores placed the two Defendants under arrest. (Id. at 32.) Defendant Unito was continuously detained and did not consult an attorney prior to giving a recorded statement later that day. (Id. at 49-50.)
Agent Perry drove two of the illegal aliens, including Tapia-Torralba, to the Bautista residence, so they could see Defendants who had been apprehended. (RT 10/2/18 at 12-13, 108-09, 110.) He ultimately parked his vehicle at the northwest corner of the house, facing east. (Id. at 125-26, Ex. 9.) The agent asked Tapia-Torralba where his hat was located and he pointed towards the cars parked at the Bautista residence. (Id. at 111, 115-16.) When Defendants came into view after being arrested and placed in handcuffs, the two illegal aliens ducked and tried to hide; when queried about their reaction, they identified those two as the drivers. (Id. at 112, 122.)
Agent Edgar Martinez conducted a video recorded interview of material witness Tapia-Torralba on April 13, 2018. (RT 10/3/18 at 68; Ex. 35.) Tapia-Torralba stated that a car arrived to pick them up in South Komelik and it turned off its lights. (Ex. 59 at 20.) He described the car as a large 4-door sedan but he did not see the color of the car because it was dark. (Id. at 21, 22-23, 31.) There were two people in the car that picked them up, a man and a woman. (Id. at 22, 25.) He did not see them and could not identify which one was driving. (Id. at 24-26.)
Tapia-Torralba stated that the people that picked them up in the car were arrested. (Id. at 33.) After he was apprehended, agents drove him to "her house" and he saw the woman's "husband" talking to agents by the truck, apart from the woman. (Id. at 33-34.) He said he saw them from behind and did not see their faces. (Id. at 34.) He described the woman as tall (same height as him), chunky, with long hair. (Id. at 34-35.) He said the man was chubby, tall, and bald. (Id. at 36.) Immediately thereafter, the agents told him they would show him some pictures and he should tell them if he recognized one. (Id. at 36.) Agent Martinez showed him a six-pack lineup of men. (RT 10/3/18 at 74; Ex. 45.) Tapia-Torralba said, "the truth is I don't know, but I think that it's number two." (Ex. 59 at 37.) They then asked him to circle the picture and "write down who he was." (Id.) In response, he said "I don't know who he was. Just that, they arrived to bring us," that he was one of the two that arrived. (Id. at 37-38.) At the agent's direction, he wrote in Spanish, "person who was involved." (RT 10/3/18 at 76; Ex. 59 at 38; Ex. 45.) The agent then showed him a six-pack lineup of women for "the other person involved." (RT 10/3/18 at 74; Ex. 59 at 38.) Tapia-Torralba immediately choose number 5, which he again circled and wrote "person who was involved." (RT 10/3/18 at 76; Ex. 59 at 38-39; Ex. 34.) He then indicated concern that someone would come looking for him and said his family had told him to stay quiet. (Ex. 59 at 39.) He stated, "that one I didn't see, but, uh huh (yes)," and then confirms that yes, she was involved. (Id.) Tapia-Torralba selected both Defendants from the photo arrays. (Exs. 34, 45.)
II. DISCUSSION
Defendants request suppression of the physical evidence, Defendants' statements, and the identification of Defendants by material witness Tapia-Torralba.
MOTION TO SUPPRESS EVIDENCE AND DEFENDANTS' STATEMENTS
The Fourth Amendment of the Constitution guarantees, "the right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures." Any evidence unlawfully obtained in violation of the Fourth Amendment is not admissible. Mapp v. Ohio, 367 U.S. 643, 654 (1961).
A. Search of Bautista Property
Defendants argue that the agents' search of the Bautista property, including the Sebring, was within the curtilage of the home and violated the Fourth Amendment.
The Fourth Amendment protection applies to a person's home as well as the curtilage, the property "immediately surrounding and associated with the home." Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). In contrast, no expectation of privacy attaches to open fields surrounding a home. Oliver, 466 U.S. at 179-80. The overriding query in identifying the curtilage is whether the area encompasses "the intimate activity associated with the sanctity of a man's home and the privacies of life." United States v. Dunn, 480 U.S. 294, 301 (1987) (quoting Oliver, 466 U.S. at 180). The Supreme Court focuses on four factors to determine whether a particular area qualifies as curtilage: proximity to the house; whether it is included within an enclosure around the house; how the area is used; and the occupant's efforts to restrict the area from view. Id.
Agents Serrato and Perry estimated that the search took agents within ten feet of the house. There is no measurement of the distance from the house to the Sebring. However, agents estimated the Sebring was parked from 10 to 25 yards from the house, with Agent Perry characterizing it as "right next to the house." Review of the pictures and testimony, including the measurement scale on Exhibit 9, suggests the car was no more than 10 yards from the house. (See Exs. 1, 2, 4, 9.) Agents Dominguez, Perry, and Goutzounis entered the Bautista property from the front of the house, either through the pedestrian gate or the driveway, walking around the front of the house to reach the vehicle. The video from the mobile surveillance truck shows agents searching the entire perimeter of the home. The Ninth Circuit has noted that larger areas may be encompassed within the curtilage of a rural home, such as the Bautista property, than one in an urban location. See United States v. Johnson, 256 F.3d 895, 902 (9th Cir. 2001). In this case, the agents' search around the home and vehicle were within such close proximity to the house that this factor unquestionably indicates the search was within the curtilage regardless of the rural character of the property.
The home and Sebring were within a fence that enclosed the entirety of the Bautista property. Given the substantial size of the property, the entire fenced area is certainly not curtilage. However, the home is located less than 40 feet from the fence along the south edge of the property, which borders the road. (Ex. 9.) The agents had to walk through a gate or opening in the fence to approach the home and vehicle. There was a small fenced section of the yard enclosing a storage area and garden, just east of where the car was parked. The areas closer to the home, including the area in which the vehicle was parked, were delineated by thicker vegetation than the outlying areas of the property. See Johnson, 256 F.3d at 902 (noting that in a rural area, thicker vegetation may denote the curtilage).
The government argued that the case of United States v. Dunn, 480 U.S. 294 (1987), is instructive because the Court found it was lawful to cross fences and approach a barn on a large piece of property. That case is not analogous because the agents did not enter within the fence around the home and the barns they approached were behind separate fences 60 yards from the house. Id. at 302.
The Sebring was parked to the northeast of the home, next to another vehicle, suggesting the family uses that area to park their cars. Cf. Collins v. Virginia, 138 S. Ct. 1663, 1675 (2018) (noting that a garage or carport is not required for a location in which a person parks their vehicle to qualify as curtilage). Directly to the east is a storage and garden area. To the west and north is a clothes line and outdoor grill area. The Bautista property is large and most of it appears to be wholly undeveloped. (Ex. 67.) A small portion of the property from the southern fence line in front of the house to the grill area and garden area appears to encompass the area used by the family. This includes the area in which the Sebring was parked. The government argued that a parking area is not something indicative of home life, in contrast to some of the areas surrounding the parking area. The Sebring is a functioning car that the family uses to leave and return to their home, thus, a parking location is not precluded as a location bearing indicia of the family's home life.
The Bautista home had an open fence made of barbed wire around the property. However, along the southern fence, which parallels the road, they water and maintain trees and shrubs, which affords some privacy. The Sebring was parked to the rear of the house but was viewable, at least in part, from certain portions of the road. Although courts rely upon the steps a homeowner has made to shield an area from view when determining curtilage, the ability to see within a curtilage or to freely enter it does not mean entry without a warrant is permitted. See United States v. Perea-Rey, 680 F.3d 1179, 1186 (9th Cir. 2012).
Although the Bautista property is large and some portions might qualify as open fields, the Sebring was not parked on that part of the land. The agents walked through the front yard, close to the home, and the Sebring was parked within the sphere of the area intimately associated with the home, which contained the clothes line, outdoor cooking area, and garden. At oral argument, the government seemed to concede that the storage area is designated as something affiliated with the home but argued that the parking area next to it, which is closer to the house, does not qualify as being within the curtilage. If the Bautistas had created an interior fence that extended west from the fencing of the storage area, it would have encompassed the land on which the Sebring was parked. This reinforces the conclusion that the parking area was within the curtilage. Considering the relevant factors and all of the testimony, the Court finds the search was conducted within the curtilage of the home.
The government argued that Defendants Unito and Bautista did not have standing to challenge the search of the car, if it was outside the curtilage, because they did not own or lease the car. However, the government concedes Defendants have standing to challenge the search of the car if it was within the curtilage because they lived at the house. Therefore, the Court does not evaluate further the issue of standing.
The government argued that, if the Court found the Sebring was outside the curtilage, the search was legal pursuant to the automobile exception because there was probable cause to search, and the hat was visible from the outside of the vehicle. Because the vehicle was within the curtilage of the home, the automobile exception does not apply. See Collins, 138 S. Ct. at 1671.
B. Exclusionary Rule
Evidence obtained by violating the Fourth Amendment is barred from use at trial by the exclusionary rule. United States v. Shetler, 665 F.3d 1150, 1156 (9th Cir. 2011) (citing Wong Sun v. United States, 371 U.S. 471, 484-85 (1963)). The exclusionary rule applies to the physical evidence found during an illegal search, as well as other evidence (physical or statements) that was procured based on the search if it "bear[s] a sufficiently close relationship to the underlying illegality." Id. at 1157.
Physical Evidence
The government argues that the discovery of the physical evidence Defendant seeks to suppress - the vehicle, observations about the vehicle, and its contents - were inevitable and independent. These are two exceptions to the exclusionary rule, in addition to the attenuated basis exception that is discussed in the next section. See United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir. 1989).
First, if evidence is obtained legally by means unrelated to the illegal conduct then it qualifies as "independent source" and is not treated as fruit of the poisonous tree. Id. The hat, car, and observations related to the car (the temperature of the hood and nearby footprints) were not identified by legal means; they were discovered through the illegal search. Therefore, the independent source exception does not apply. See United States v. Lundin, 817 F.3d 1151, 1161 (9th Cir. 2016) (independent source applies only if evidence "actually" obtained through lawful means not tainted by illegal search) (citing Murray v. United States, 487 U.S. 533, 537-38 (1988)).
The government did not argue this exception at oral argument. However, because it was included in the written briefing, the Court addresses it.
Second, the "inevitable discovery" exception allows the government to use evidence if it proves by a preponderance that the evidence's discovery was inevitable through lawful means. Id. The temperature of the hood and footprints from the car to the house were not a matter of inevitable discovery, as they could not have been observed when the car was later seized. Further, the inevitable discovery exception does not apply if there was probable cause to obtain a warrant for the search. Id. at 1162 (allowing inevitable discovery when a warrant could have been procured would obviate the need to ever require a warrant). Here, the government argues there was probable cause to request a warrant for the vehicle. The Court agrees. Therefore, the inevitable discovery exception does not apply.
The government has not argued an applicable exception to the exclusionary rule regarding the physical evidence. Therefore, the physical evidence, the car, the hat, and the agents' observations about the car, should be suppressed.
Defendants' Statements at the Bautista Property
The Court determines if evidence is "fruit of the poisonous tree" by asking if it was a "product of the illegal searches," and if so "whether [it was] nonetheless so attenuated from the searches that suppression was not warranted." Shetler, 665 F.3d at 1157. When evaluating whether a defendant's statements made after an illegal search were the product of the search, the Court must consider (1) if there was probable cause to arrest and question the defendant, separate from any evidence obtained during the search; (2) whether agents confronted the defendant with evidence illegally seized; and (3) whether the defendant's answers during interrogation were influenced by his knowledge of the evidence procured during the illegal search. Id. at 1157-58. If the illegally obtained evidence plays only a de minimis role in the defendant's inculpatory statements, the statements are not a product of the illegal search. See United States v. Green, 523 F.3d 968, 972 (9th Cir. 1975). It is the government's burden to demonstrate any statements were not the product of an illegal search. Shetler, 665 F.3d at 1157-58. This includes producing "evidence demonstrating that the defendant's answers 'were not induced or influenced by the illegal search.'" United States v. Nora, 765 F.3d 1049, 1057 (9th Cir. 2014) (quoting Shetler, 665 F.3d at 1158).
First, the agents had probable cause to question Defendants Bautista and Unito, even without the evidence related to the car. Agents knew that a 4-door sedan had picked up and transported four individuals that were discovered to be illegal aliens. That vehicle entered the driveway of the Bautista home. Immediately thereafter, two individuals were seen peaking around the house before going inside. The material witnesses had stated that a young woman was driving the vehicle and was accompanied by a male. Further, Mrs. Bautista told agents that her daughter and boyfriend had just returned from using the family's sedan. This was sufficient evidence for a reasonable person to believe Defendants had committed a crime. See Bailey v. Newland, 263 F.3d 1022, 1031 (9th Cir. 2001) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
Second, Agent Flores confronted Defendants with several pieces of evidence - Bautista was driving and Unito was a passenger in a vehicle that picked up and transported four illegal aliens (who had been detained by agents), one of those people left a hat in the car, and the hat was in plain view in the rear of the car. Also, when Defendant Bautista was questioned, she was aware that Agent Flores had already questioned Defendant Unito. Only the fact of the hat being found in the car was obtained illegally.
Agent Flores stated that he did not know if he confronted Defendant Bautista with the fact of the hat being found in the car. For purposes of this motion, the Court assumes that he did.
Third, the Court looks at whether Defendants' responses to Agent Flores's questions were impacted by their knowledge that the hat was seen in the car. The other evidence Agent Flores relied upon was very weighty. Defendants knew that agents had reliable circumstantial evidence identifying them as the people that had transported four illegal aliens that were now in custody. Those facts, if proven, establish the crime, regardless of the hat. Each Defendant admitted to having been the driver or passenger and provided information on how much they expected in payment. Neither Defendant mentioned the hat in response to Agent Flores's questions. In light of the legally obtained evidence presented to Defendants, the fact that agents had seen the hat inside the vehicle had no more than a de minimis impact on their inculpatory statements. Weighing all three factors, the Court finds Defendants' statements at the house were not the fruit of the poisonous tree.
Defendant Unito's In-Custody Statement
Later the same morning, Defendant Unito gave a second statement, which he also challenges as fruit of the poisonous tree. The agent conducting the interview stated that, "I'm kind of aware of some of the stuff that happened earlier, just based on what the agents told me." (Ex. 61.) Then he asked Defendant Unito to tell him what happened earlier that day. (Id.) The hat located in the car was never mentioned during the second interrogation by the agents or Defendant. (Id.)
During the recorded interview, the illegally obtained evidence was not referenced and nothing in Defendant Unito's answers suggested he was influenced by knowledge that agents had seen the hat in the vehicle. Therefore, the Court finds this statement was not fruit of the poisonous tree.
MOTION TO SUPPRESS IDENTIFICATION
Defendants move to suppress material witness Tapia-Torralba's identifications of them, arguing that they were unduly suggestive. The government contends Defendants are precluded from challenging the identifications based on stipulations they each signed along with their counsel.
A. Stipulation
On May 8, 2018, the parties stipulated to the return of the material witnesses to their countries of origin and "that the government may elicit hearsay testimony from any agent regarding any statements made by the above-referenced material witnesses contained in the disclosure, and such testimony shall be admitted as substantive evidence in any hearing or trial in the above captioned matter." (Exs. 19 & 20, ¶ 5.)
The Ninth Circuit has previously held that "[s]tipulations freely and voluntarily entered into in criminal trials are as binding and enforceable as those entered into in civil actions." United States v. Technic Servs., Inc., 314 F.3d 1031, 1045 (9th Cir. 2002) (quoting United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986)), overruled on other grounds by United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010); see also United States v. Molina, 596 F.3d 1166, 1169 (9th Cir. 2010). The court also has held that "stipulations serve both judicial economy and the convenience of the parties, [and] courts will enforce them absent indications of involuntary or uninformed consent." Molina, 596 F.3d at 1169 (quoting CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir. 1999)). Further, "[a] 'defendant who has stipulated to the admission of evidence cannot later complain about its admissibility' unless he can show that that the stipulation was involuntary. Id. at 1169 (quoting Technic Servs., Inc., 314 F.3d at 1045.) A stipulation should be interpreted as to carry out the parties' intentions. United States v. Petty, 80 F.3d 1384, 1387 (9th Cir. 1996).
The government cites Ninth Circuit cases finding valid stipulations that waive the constitutional right to confront a person when the defendant stipulates to admission of their statement. See United States v. Gamba, 541 F.3d 895, 900-01 (9th Cir. 2008); United States v. Ferreira-Alameda, 815 F.2d 1252, 1253 (9th Cir. 1996). The government argues the same reasoning applies equally to other constitutional challenges to stipulated testimony or evidence, including identification. (Doc. 96 at 3.) In Gwaltney, the Ninth Circuit held that a party entering into a valid voluntary stipulation cannot then challenge the evidence to which he stipulated. 790 F.2d at 1386 (a defendant who stipulated to admission of evidence that he and a woman friend had visited "secluded spot" near murder scene could not raise a challenge that the prejudicial effect of the evidence outweighed its probative value). The Court finds persuasive Gwaltney's rationale and believes it extends to other constitutional challenges.
In Molina, the court found the defendant entered into a voluntary stipulation under circumstances almost identical to the instant case. The Molina court found persuasive the fact that the stipulation "clearly stated that the hearsay evidence of the material witnesses would be admissible in any hearing or trial in the defendant's matter" and that the defendant had the advice of counsel prior to signing the stipulation. 596 F.3d at 1169. In looking at the intent of the parties to the stipulations currently before this Court, the stipulations are not limited in scope as they allow for the admissions of "any statements" by material witnesses. (Exs. 19 & 20, ¶ 5.) Defendants had notice of the statements prior to entering the stipulation. The constitutional challenges regarding identification existed and should have been known prior to entering into the stipulation; therefore, those challenges were waived by the language of the stipulation. In Molina, as here, there was no evidence that the stipulations were not voluntarily entered into by the defendants after reviewing the contents of the stipulations with their attorneys. Therefore, the statements are deemed admissible and not subject to challenge on the basis that the identifications by Tapia-Torralba are unduly suggestive and unreliable.
Defendants argue that paragraph three of the stipulations is vague, ambiguous, and should not be relied upon to establish identity. The Court agrees. Paragraph three reads as follows:
3. Material witnesses, Alma Lilia Chavez-Lucas, Pedro Pablo Lopez-Acevedo and Joshua Tapia-Torralba, were found in the vehicle where defendant Orlando Unito [Sheila Bautista] was a passenger [the driver];Defendants cite to Jeffries v. United States, 477 F.2d 52, 55 (9th Cir. 1973), where the Ninth Circuit found a judge acted appropriately in deleting facts from a stipulation where the facts no longer remained tenable after evidence was presented. With respect to Defendants Bautista and Unito's case, the evidence presented at the evidentiary hearing indicated that the material witnesses were not found in the vehicle but were found hiding in a wash. Additionally, Defendants were not found in the vehicle but were located at their home, several houses away from the wash. The evidence regarding the material witnesses' transportation in a vehicle, and who was in the vehicle with them, comes from the statements of the material witnesses and/or Defendants. Therefore the Court agrees that paragraph three should not be entered into evidence as it does not conform to the evidence presented. However, this does not preclude the parties from admitting any statements from the material witnesses and Defendants.
B. Identification
Even if the Court found that the stipulation was not enforceable and that the parties were entitled to challenge the identification by material witness Tapia-Torralba, the Court finds that the material witness identifications were not impermissibly suggestive.
The Due Process Clause is implicated if police used an identification procedure that was unnecessarily suggestive. See Neil v. Biggers, 409 U.S. 188, 201 (1972); Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012). If the identification procedure is not impermissibly suggestive, the inquiry ends and there is no due process violation. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). However, even if a defendant is able to show that the procedure was impermissibly suggestive, "suppression of the resulting identification is not the inevitable consequence." Perry, 565 U.S. at 239. Instead, the Court must evaluate whether the improper procedure created a "substantial likelihood of misidentification." Biggers, 409 U.S. at 201. The analysis focuses on reliability because "reliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114 (1977). In deciding if the identification is nevertheless reliable, the Court evaluates the totality of circumstances, including:
Courts use "unnecessarily," impermissibly," and "unduly" suggestive interchangeably, with the focus on whether the identification is so suggestive as to undermine reliability. Perry v. New Hampshire, 565 U.S. 228, 254 n.2 (2012) (Sotomayor. J., dissenting).
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.Biggers, 409 U.S. at 199-200. "Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Brathwaite, 432 U.S. at 114. The identification should be suppressed only if the "identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Biggers, 409 U.S. 197 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).
The photos in each array were the same size and depict people who were reasonably similar in appearance and dress (Exs. 34, 45); such photo arrays have been found admissible. United States v. Love, 746 F.2d 477, 479 (9th Cir. 1984). Counsel for Defendant Bautista elicited testimony regarding the red shirt she was wearing as depicted in the photo array (RT 10/3/18 at 91-92; Ex. 34), however, nothing in the testimony indicated that fact was of significance. The other photos depict females with similar characteristics with respect to stature, hair, and size, and each female was wearing a colored shirt, most with writing and sufficiently similar to that of Defendant Bautista. (Ex. 34.) The Court finds that the photo arrays themselves were not impermissibly suggestive. Further, there is no evidence that Agent Martinez influenced the material witness with respect to his identification of either Defendant.
Defendants' main argument with respect to the photo-array identification is that it was rendered impermissibly suggestive by the "show-up" at the Bautista residence. A show-up - characteristically known as a witness being shown a handcuffed suspect and asked whether he or she is the perpetrator - by its very nature is suggestive. However, show-ups under more suggestive circumstances than here have been found not to be impermissibly suggestive. See Bagley, 772 F.2d at 492-93 (one-on-one show-up where defendant was handcuffed, seated in a police car, and surrounded by officers was not impermissibly suggestive); United States v. Kessler, 692 F.2d 584, 585-86 (9th Cir. 1982) (show-up where defendant was handcuffed, accompanied by a large number of officers, and referred to as "suspect" was not impermissibly suggestive).
Defendants argue that the show-up tainted the identifications because material witness Tapia-Torralba claimed that he did not see the faces of the people at the time they picked him up in the car. Defendants contend that the only opportunity the witness had to observe any suspects was at the Bautista property after Defendants had been taken into custody. In fact, during his videotaped deposition, Tapia-Torralba claimed not to have seen Defendants' faces during the show-up at the Bautista property. Based on his testimony, the witness never saw the suspects' faces either in the car or during the show-up. This conclusion, however, is inconsistent with Tapia-Torralba's ability to identify both Defendants Bautista and Unito in the photo arrays. The identifications suggest (although Defendants argue otherwise) that the material witness was able to observe Defendants either in the vehicle or at the Bautista residence, or both. At the time of the show-up and during his interview, Tapia-Torralba provided a reason he may have been hesitant to fully admit his knowledge. He expressed fear that Defendants would know he had identified them, both after observing Defendants at the Bautista residence and again after identifying them in the photo arrays.
Without question, the "identification" is a bit convoluted as to whether the agents asked Tapia-Torralba to identify the individuals in the car that transported him and/or the individuals at the Bautista property. Tapia-Torralba identified the individuals "involved." If Tapia-Torralba saw the drivers' faces while in the car, the show-up was not impermissibly suggestive because he had seen the suspects shortly before at the time of the crime. This possibility is supported by the fact that Tapia-Torralba tried to hide when he saw Defendants at the Bautista residence and told Agent Perry that those individuals were the drivers. Further, at the time of his taped interview Tapia-Torralba stated that the people that picked them up in the car were the ones arrested and the ones he saw at the Bautista property. On the flip side, if Tapia-Torralba did not see any faces while in the car, then his identification during his interview was only of the individuals he saw at the Bautista residence. Thus, viewing them for the first and only time was not suggestive and the identification is not probative evidence that Defendants committed the crimes charged. Resolution of the identified factual questions is for trial and does not support pretrial suppression of the identifications.
For all of the above-stated reasons, the Court concludes the identification procedures were not impermissibly suggestive and the identifications are admissible.
III. CONCLUSION AND RECOMMENDATION
The Court finds the Sebring and its contents were within the curtilage of the Bautista home and no exception to the exclusionary rule applies to this evidence; therefore, it should be suppressed. The Court concludes that Defendants' statements were not products of the illegal search; therefore, suppression of the statements should be denied. Finally, the Court concludes Defendants are barred by the stipulation from challenging the identification of them by material witness Tapia-Torralba. Further, Tapia-Torralba's identifications were not unduly suggestive; therefore, they are admissible at trial.
It is recommended that, after its independent review of the record, the District Court grant in part and deny in part Defendant's Motion to Suppress Evidence (Doc. 47). The Court recommends suppressing the physical evidence - the car, the hat, and the observations agents made about the car. The Court recommends denying suppression of Defendants' statements. It is recommended that, after its independent review of the record, the District Court grant in part and deny in part Defendant's Motion to Suppress Identification (Doc. 56). The Court recommends suppressing paragraph three of the stipulation. The Court recommends denying suppression of Tapia-Torralba's identifications.
At an August 6, 2018 status conference, counsel agreed to expedite the filing of objections in light of the dates for the evidentiary hearing and trial. (Doc. 61.) The Court indicated the parties would be allowed 5-7 days for objections. Therefore, any party may serve and file written objections by 12 p.m. on Monday, November 5, 2018. No response briefs will be allowed if the trial remains set for November 6. If the district court continues the trial date during the November 1 status conference, the parties may request that the district judge set new deadlines for objections and responses at that time.
Dated this 29th day of October, 2018.
/s/_________
Honorable Lynnette C. Kimmins
United States Magistrate Judge