Opinion
Crim No. 19-0139 (DRD)
12-05-2019
UNITED STATES of America, Plaintiff, v. Carlos Elvin LEBRON-LAVIENA, Defendant
Edwin E. Leon-Leon, San Juan, PR, for Defendant. Jonathan L. Gottfried, United States Attorney's Office, San Juan, PR, for Plaintiff.
Edwin E. Leon-Leon, San Juan, PR, for Defendant.
Jonathan L. Gottfried, United States Attorney's Office, San Juan, PR, for Plaintiff.
OPINION AND ORDER
Daniel R. Dominguez, UNITED STATES DISTRICT JUDGE
"The Fourth Amendment and the personal rights it secures have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."
-Hon. Potter Stewart, Associate Justice of the United States Supreme Court (1958-1981)
Pending before the Court is Defendant, Carlos Elvin Lebron-Laviena's (hereinafter "Lebron-Laviena" or "Defendant") Motion to Suppress and Request for Evidentiary Hearing (Dkt. No. 35). The United States (hereinafter the "Government") filed its respective response in opposition thereto. (Dkt. No. 39). The Defendant essentially argues, "that his arrest and search of his domicile and workshop were without a warrant, without probable cause, and his consent was not free or intelligently made." (Dkt. No. 35 at ¶ 6). The Government argues that the lack of warrant and probable cause arguments fail, as the Defendant gave both oral and written consent to search the residence. (Dkt. No. 39 at p. 2).
For the reasons stated herein, the Court DENIES the Defendant's Motion to Suppress. (Dkt. No. 35).
I. FACTUAL BACKGROUND
The Court includes herein the Affidavit's version of the finding of facts:
On February 13, 2019, around 8:20 AM, the Department of Public Safety Bureau of the Police of Puerto Rico, Humacao Intelligence Division (hereinafter "PPR Agents") received a confidential information from an unknown source indicating in the town of Humacao, specifically at Barrio Mariana # 3. Road 98, Km 7.2 was a mechanic known as AKA Carly
who possesses a black colored firearm and sells Marijuana in his workshop, to include the gun shots ha[d] been heard coming from the workshop.
At approximately 10:35 AM that same morning, PPR Agents arrived at the above-mentioned location to investigate and observed that the house is a two-level residence. Since the agents could not find an area to conduct surveillance, they approached the property and announced their presence; an individual came out of the first level residence, who was informed by the PPR Agents of the confidential information. The individual told the PPR Agents that in his property was a workshop and his nephew is a mechanic who resides in the second level of the residence, who then gave the agents permission to approach the second level of the residence.
Once PPR Agents arrived at the second level of the residence, they knocked and announced their presence and a Hispanic male later identified as Carlos Elvin Lebron-Laviena, came out of the house, who then was informed by the PPR Agents the exact information received from an anonymous tip. Lebron-Laviena gave the PPR Agents written consent to search the workshop and his domicile, to include that he admitted that he possessed a firearm and [n]arcotics.
(Dkt. No. 1-1 Affidavit at ¶ 4,5, and 6).
Accordingly, PPR Agents seized the following contraband: "one black in color firearm described as a .40 caliber Glock, Model 23 bearing serial number BXY250US loaded with thirteen rounds of .40 caliber ammunition found inside the bedrooms closet; one empty high capacity pistol magazine; one box containing five rounds of .40 caliber ammunition found on top of a furniture's chest in the master bedroom; one pistol magazine loaded with ten rounds of .40 caliber ammunition found on top of the same furniture's chest in the master bedroom; one plastic zip lock bag containing green colored leafy substance, later filed tested resulting positive to Marihuana, found inside a red fanny pack located on top of a sofa in the living room; $835.00 in US currency, found inside a red fanny pack located on top of a sofa in the living room; one plastic zip lock bag containing green colored leafy substance, later filed tested and resulting positive to Marihuana, found in the workshops restroom; one 8mm black pistol Make Kimar found inside a metal toolbox in the workshop and undermined amount of paraphernalia such as small zip lock baggies and medium size zip lock plastic bags." (Id. at ¶ 6). Thereafter, PPR Agents arrested the Defendant, read him his Miranda rights, and then transported him to the Humacao Narcotic Division for processing. (Id. at ¶ 7).
II. ANALYSIS
a. Standing
It is well settled that "the [Fourth] amendment's prohibition against unreasonable searches and seizures extends only to protect those places and interests in which the accused can be characterized as having a legitimate expectation of privacy." United States v. Cruz-Jimenez, 894 F.2d 1, 5 (1st Cir. 1990). In order to make such a demonstration, the defendant must show both a subjective expectation of privacy and that society accepts that expectation as objectively reasonable. United States v. Mancini, 8 F.3d 104, 107 (1st Cir. 1993). The defendant must demonstrate a privacy expectation in both the item seized and the place searched. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) ("[W]e must ... engage in a conscientious effort to apply the Fourth Amendment by asking not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.")(internal quotations omitted); United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988) ("Before embarking upon the merits of a suppression challenge, a criminal defendant must show that he had a reasonable expectation of privacy in the area searched and in relation to the items seized.").
The Defendant bears the burden to demonstrate a privacy expectation in the area searched or the items seized. Accordingly, the Defendant attached a statement under penalty of perjury signed by himself and another signed by his mother, stating that this mother is the owner of the property, and that he was renting said apartment to live with his consensual wife and son. (Dkt. Nos. 35-1 & 35-2). As the Government did not contest that the Defendant, in fact, has standing to challenge the admission of illegal items seized from his house, and the Court finds that in effect, the Defendant has certainly met the requirements for standing, the Court need not proceed further as to this issue.
b. Fourth Amendment
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend IV. It is hornbook law that the protection conceded by the Fourth Amendment is greater in the privacy of a person's home. To that effect, the Supreme Court has held that,
"The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home—a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Payton v. New York, 445 U.S. 573, 589–90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961) )(Emphasis ours).
It is critical to note that "the area ‘immediately surrounding and associated with the home’—what our cases call the curtilage— [is regarded] as ‘part of the home itself for Fourth Amendment purposes.’ " Fla. v. Jardines, 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013)." In fact, " ‘[t]he protection afforded [to] the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.’ " Collins v. Virginia, ––– U.S. ––––, 138 S. Ct. 1663, 1670, 201 L. Ed. 2d 9 (2018) (quoting Californiav. Ciraolo, 476 U.S. 207, 212-213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). The police cannot breach the reasonable expectation of privacy that people have in their homes without consent or a search warrant, unless one of the exceptions to the search warrant requirement applies.
Herein, an analysis of what amounts to probable cause is unwarranted, as neither the Defendant nor the Government aver that the search of Lebron-Laviena's residence was based on a warrant. In the case at bar, the Government has met the burden of showing that the warrantless search and seizure was reasonable and falling under one of the exceptions to the Fourth Amendment's warrant requirement, in this case, consent which is discussed in detail below.
c. Consent
The Fourth Amendment prohibits unreasonable searches and seizures. Thus, a warrantless search of a suspect's premises is, per se , unreasonable under the Fourth Amendment unless the government shows that the search falls within one of a carefully defined sets of exceptions, such as a valid consent. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; United States v. Tibolt, 72 F.3d 965, 968–69 (1st Cir. 1995), cert. denied , 518 U.S. 1020, 116 S.Ct. 2554, 135 L.Ed.2d 1073 (1996). Accordingly, the Government has the burden of proving whether the consent obtained from the Defendant was voluntarily given. See United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
To be valid, such consent must be provided by a suspect by either word or act, but the words or conduct must be unambiguous, and the consent must be freely and voluntarily given. Although in some circumstances courts may infer consent from Defendant's cooperative attitude, it is the Government the one bearing the burden of proof to establish consent. Royer, 460 U.S. at 497, 103 S.Ct. 1319 ; Schneckloth, 412 U.S. at 222, 93 S.Ct. 2041 (1973). However, a search conducted pursuant to consent may not exceed the scope of the consent sought and given. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ; United States v. Donlin, 982 F.2d 31, 33 (1st Cir. 1992). Furthermore, the question of voluntariness is one of facts to be determined from the totality of the circumstances. United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ; United States v. Barnett, 989 F.2d 546, 554–555 (1st Cir. 1993) (finding that defendant's consent to search was voluntary); United States v. Ramdihall, 859 F. 3d 80, 88 (1st Cir. 2017) (finding that defendant voluntarily gave consent to search of trunk of automobile).
Among the factors that courts have considered in evaluating the voluntariness of the consenting party are: the suspect's age, education, experience, intelligence, and knowledge of the right to withhold consent; whether the person was advised of his constitutional rights; whether permission to search was obtained by coercive means or under inherently coercive circumstances; whether the person was in custody and Miranda Rights have been given; whether the person was told a search warrant could be obtained; and the length and nature of the detention and interrogation. See United States v. Barnett, 989 F.2d at 554–555 ; United States v. Al–Azzawy, 784 F.2d 890, 895 (9th Cir. 1985), cert. denied , 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986) ; United States v. Alfonso, 759 F.2d 728, 741 (9th Cir. 1985) ; United States v. Salvador, 740 F.2d 752, 757–58 (9th Cir. 1984), cert. denied , 469 U.S. 1196, 105 S.Ct. 978, 83 L.Ed.2d 980 (1985). However, it is important to note that no single factor will, by itself, be conclusive as to the voluntariness of the consent. Further, the question of voluntariness is one of the facts to be determined from the totality of the circumstances.
Finally, as further guidance, the Court recurs to the guidelines established by the Ninth Circuit that enable the trial judge to determine whether effective consent was obtained prior to conducting a warrantless search,
"It must show that there was no duress or coercion, express or implied. The consent must be ‘unequivocal and specific’ and ‘freely and intelligently given’. There must be convincing evidence that defendant has waived his rights. There must be clear and positive testimony. ‘Courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights'. Coercion is implicit in situations where consent is obtained under color of the badge, and the government must show that there was no coercion in fact. The government's burden is greater where consent is claimed to have been given while to defendant is under arrest." United States v. Page, 302 F.2d 81, 83–84 (9th Cir. 1962) (Emphasis ours).
Following the legal principles stated above, we now turn to the question of whether the PPR Agents received the Defendant's consent to enter and search the residence and, if so, whether the consent was voluntarily given by Defendant. The applicable standard requires the consent to be freely and voluntarily provided by the defendant when entering the property that is not subject to a search warrant. At the outset, consent was given after police identification and prior to the search and prior to the arrest (emphasis added). Herein, there was consent both on behalf of the uncle who received the PPR agents and later, by the Defendant who received them on the second floor. PPR knocked on the door and Lebron-Laviena's uncle answered. Lebron-Laviena explained what happened during a recorded questioning by federal agents:
Ok, I was sleeping. Eh, My uncle woke me up, because stolen vehicles was at my workshop. Ehh... they were waiting for me because they wanted to... they told my uncle they wanted to check for stolen vehicles in my workshop or something. Then, since I was sleeping, once they talk with my uncle, they came up. They got to, right, to... my door, but they did not come in, my uncle was the one that came in. I woke up and he told me, "Hey, stolen vehicles is looking for you, go outside". Well, I get up normal, I got dressed, brushed my teeth and when I went out to them, they introduce themselves to me. Ehh... at that moment they tell me, we're from the firearms and drugs division. Ehh, we have information that... that there are firearms here, that there are drugs here, that, that... and many other things. Then, the agent asked me that, if he can search the house, with, you know with, my consent. I said yes, that there was no problem, because I didn't have anything out of the ordinary in the house. Then, we proceed to enter the house... (Dkt. No. 39-1).
Defendant, who was 34 years old at the time of the search and has a high school education, consented to the search of his residence. In Defendant's own admission, as illustrated in Dkt. No. 39-1 , he admits his uncle is the person who told him that the police were from the Stolen Vehicles Unit, yet the police directly told him that they were from the Firearm and Drugs Division prior to the Defendant's consent. In addition to the oral consent by the Defendant to search the residence, Defendant signed a written consent form stating that:
I understand that I have the right to refuse to give my consent to a search without a warrant and that I may stop the same at any time prior to its termination. My consent to this search has been given voluntarily without promises, threats, coercion, or force of any kind whatsoever, and I fully understand that any contraband or evidence of a crime found during the search can be seized and used against me in any court of law or other proceeding. (Dkt. No. 39-2).
Accordingly, the Court finds that consent provided by the Defendant was knowing, freely and voluntarily given.
III. CONCLUSION
The Court finds that the Government has established that Lebron-Laviena gave the agents consent to search the residence. Furthermore, the Court deems that an evidentiary hearing is unnecessary as the documents presented by the Government fail to raise any doubts. Therefore, the Defendant's Motion to Suppress and Request for Evidentiary Hearing is DENIED.
IT IS SO HEREBY ORDERED.
See Dkt. No. 39-1 Exhibit A Transcription and Certified Translation of Recorded ATF Interview and Dkt. No. 39-2 Exhibit B Written Consent Form.