Opinion
CR 21-617 TUC-CKJ (JR)
12-13-2021
United States of America, Plaintiff, v. Peter Gregorio Castro, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M, Rateau, United States Magistrate Judge.
This matter was referred to Magistrate Judge Rateau for pretrial matters. On October 17, 2021, Defendant Peter Gregorio Castro (“Defendant Castro”) filed a Motion to Suppress Evidence. (Doc. 29). Attached to the motion are three investigation reports. (Docs. 29-1, 29-2). The Government filed a response on November 1, 2021. (Doc. 32). Defendant Castro did not reply. A hearing was conducted on December 7, 2021. (Doc. 34). Defendant Castro, who is in custody, was present by video and represented by counsel. One witness testified at the hearing (Doc. 36) and one exhibit was admitted by the Government. (Doc. 35). Having considered the matter, the Magistrate Judge recommends that Defendant Castro's motion be DENIED.
The Court did not request that a transcript of the hearing be prepared.
Trial is scheduled for January 19, 2022 and the plea deadline is December 30, 2021. (Doc. 31). On December 7, 2021, Defendant Castro filed an unopposed request for a continuance. (Doc. 37).
I. Findings of Fact
Special Agent David Korn (“Agent Korn”) testified that he has been an agent with the Bureau of the Alcohol, Tobacco, Firearms and Explosives (“ATF”) since 2002. In January of 2021, he was working on a joint task force with the Tucson Police Department (“TPD”) called the “29th Street Initiative.” The purpose of the task force was to target the area of 29th Street and Craycroft in Tucson, Arizona, in an effort to reduce firearm offenses and investigate and prevent future shootings.
On January 8, 2021, a shooting occurred at the Knights Inn on Craycroft Road in Tucson, Arizona. Surveillance camera footage showed that a man fired shots from a second-floor balcony near room 222 in the direction of room 123. The man who was inside room 123 fired back towards room 222. By the time police arrived, the man from room 222 had fled the area on foot and the man from room 123 had driven away in a maroon Chrysler PT Cruiser with an Arizona temporary license tag of 1XA3A1A (“the Cruiser”). Neither man was captured and after a search of both rooms, neither weapon was recovered. Nor were agents able to locate the Cruiser.
During their investigation, agents learned that room 123 was rented and occupied by Defendant Castro. Defendant Castro was detained, Mirandized and interrogated in room 123 shortly after police arrived. He willingly spoke to agents and denied all participation in the shooting. Defendant Castro was not charged.
Agents continued to investigate the shooting, search for the gunmen and search for the Cruiser. Agent Korn, a member of task force, was tasked with surveilling the Knights Inn area in an unmarked police car.
On January 12, 2021, the Cruiser was spotted back at the Knights Inn. Agent Korn and a TPD Officer followed the Cruiser as it travelled northbound on Craycroft Road. When it pulled into the drive-thru lane of a local fast-food restaurant, the TPD Officer, who was travelling in a marked police unit, pulled in behind the Cruiser and activated his lights. Agent Korn parked his unmarked car at a second entry to the restaurant. The TPD Officer approached the driver's side window and Agent Korn, wearing a police vest, approached the passenger's side window. When Agent Korn approached, the TPD Officer was commanding the occupants to make their hands visible. When the passenger did not comply, Agent Korn knocked on the passenger's side window. The passenger, later determined to be Defendant Castro, placed his hands on the dashboard but then removed his right hand and moved it to his lap area. Agent Korn told him to move his hand back to the dashboard and he complied. Both occupants were removed from the car. Defendant Castro allegedly advised that he had a firearm on his person. A loaded handgun was allegedly recovered and seized from his sweatshirt pocket.
After confirming the interstate nexus and learning that Defendant Castro allegedly had several prior felony convictions, he was charged and subsequently indicted on April 7, 2021, with one count of being a felon in possession of a firearm and ammunition. (Doc.20.)
In the present motion, Defendant Castro seeks to suppress the handgun and ammunition allegedly possessed by him during the stop and search of the Cruiser. The defense argues that the stop was based on a hunch and not upon any identifiable reasonable suspicion. . . .
II. Conclusions of Law
The Fourth Amendment protects a person against unreasonable searches and seizures. United States v. Hensley, 469 U.S. 221, 226 (1985). Consistent with the Fourth Amendment, police may stop persons in the absence of probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1, 88 (1968). The police may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity. Hensley, 469 U.S. at 226. Reasonable suspicion exists when an officer is aware of specific articulable facts, that, together with rational inferences drawn from them, reasonably warrant a suspicion that the person to be detained has committed or is about to commit a crime. United States v. Cortez, 449 U.S. 411, 416-18 (1981). “A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” United States v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013).
When assessing the reasonableness of the police officer's actions, the court must consider the totality of the circumstances which confronted the officer at the time of the stop. United States v. Sokolow, 490 U.S. 1, 8 (1989). This consideration allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that could elude an untrained person. United States v. Arvizu, 534 U.S. 266, 273 (2002).
Under the collective knowledge doctrine, a court may impute police officers' collective knowledge to the officer conducting the stop, search, or arrest. United States v. Villasenor, 608 F.3d 467, 475 (9th Cir. 2010). So long as the officer who orders the arrest or search has knowledge of facts establishing probable cause, it is not necessary that the officers actually making the arrest or conducting the search be personally aware of those facts. United States v. Massenburg, 654 F.3d 480, 493 (4th Cir. 2011).
When officers stop a car, they are authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop. Hensley, 469 U.S. at 235. This includes the ability to search the area of the car that is within the occupants' immediate control and seize any weapons found. Id.
Guided by these factors the Court must determine whether the factors cited by the Government in support of the stop constitute reason to believe that the occupants of the Cruiser had committed a crime or were about to commit a crime.
Here, the circumstances confronting the officers who were conducting the “29th Street Initiative” were as follows: On January 8, 2021, a shooting occurred at a hotel in Tucson, Arizona. The footage from surveillance cameras at the hotel showed a man in room 222 shooting in the direction of room 123. Someone in room 123 is seen shooting back. Both men flee before police arrive. The man in room 222 flees on foot. The man in room 123 gets into and drives away in the Cruiser. Police were unable to locate the Cruiser but knew its exact color, make and model and, most importantly, knew the exact number of its Arizona temporary license tag. Police were unable to locate either of the shooters and after searching both hotel rooms, were unable to find the two weapons used by the shooters.
With this knowledge, the task force continued to investigate the unsolved shooting. They looked for the shooters and searched for the Cruiser. Four days later, on January 12, 2021, police saw the same Cruiser back at the same hotel. They followed it to a local fast- food restaurant and detained the occupants. Defendant Castro was a passenger in the Cruiser.
The Court notes that the Complaint filed in this case mistakenly states that Defendant Castro was encountered by law enforcement officers while he as a passenger in a vehicle that was stopped for a traffic violation. (Doc. 1). In fact, as correctly argued by the defense and established at the evidentiary hearing, there was no traffic violation. The Cruiser was approached by police as it sat in the drive-thru lane of a fast-food restaurant. The Government does not contest that for Terry purposes, a “stop” did occur.
Giving due weight to the collective knowledge of the agents involved along with the reasonable inferences drawn by Agent Korn, the Court finds that there was reasonable suspicion to detain the occupants of the Cruiser.
After the stop, Agent Korn approached the passenger's side window. Defendant Castro failed to comply when he was told to keep his hands visible to police. Instead, he removed his hand from the dashboard and moved it to his lap. He ultimately obeyed and placed his hand back on the dashboard. Agent Korn took the appropriate necessary step to protect his safety and that of the public--he removed Defendant Castro from the Cruiser. After Defendant Castro allegedly told Agent Korn that he had a gun, Agent Korn conducted a search and seized the weapon Defendant Castro allegedly had in his sweatshirt.
The defense makes much of the fact that Defendant Castro, having denied any participation in the shooting, had already been questioned and released. The fact that four days after the shooting, he was riding as a passenger in the get-away car certainly gave police a reason to think he knew more than he was saying. Additionally, the fact that the weapons involved in the shooting had not been recovered, provided a basis for police to seize the weapon allegedly carried by Defendant Castro.
III. Recommendation
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local Rule Civil 72.1, Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge recommends that the District Court, after an independent review of the record, DENY Defendant's Motion to Suppress Evidence. (Doc. 29).
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have ten (10) days within which to file a response to the objections. No. replies are permitted without leave of court. If any objections are filed, this action should be designated case number: CR 21-617-TUC-CKJ.
Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).