Opinion
Case No, 1:03-CR-62, (Consolidated for trial purposes with Case No. 1:03-CR-69)
December 1, 2003
ORDER
Raul Arturo Gaitan-Dominguez ("Gaitan") and Jesus Alberto Solis-Gaona ("Solis") were indicted for possession of a controlled substance (methamphetamine) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and for aiding and abetting, in violation of 18 U.S.C. § 2. Mr. Gaitan and Mr. Solis (collectively "Defendants") have moved to suppress all evidence obtained during a January 8, 2003 warrantless search of the premises at 1095 16th Street, Apartment #5, Ogden, Utah. Defendants assert that the police officers who conducted the search did not have probable cause or consent to search the residence. They contend that the evidence should be suppressed because it was obtained in violation of their Fourth Amendment rights to be free from unreasonable searches and seizures. For the reasons set forth below, Mr. Gaitan's Motion (1:03-CR-62 Docket No, 110) and Mr. Soils' Motion (1:03-CR-62 Docket No. 103) are DENIED,
Defendant Julio Cesar Lopez also filed a Motion to Suppress the same evidence obtained during the search. (See 1:03-CR-0062, Docket No. 123). During the evidentiary hearing on the motions, Mr. Lopez, through counsel, withdrew his motion from consideration. (See Transcript of Sept. 5, 2003 Evidentiary Hearing at 3-4).
FINDINGS OF FACT
On January 8, 2003, Officers Aaron Johnson and Todd Watanabe of the Ogden Police Department, accompanied by several other officers, went to an apartment complex at 1095 16th Street, in Ogden, Utah. (Transcript of September 5, 2003 Evidentiary Hearing ("Tr.") at 7, 9-10, 50-51.) They were there to investigate reports of possible drug activity at certain apartments in the complex. (Tr. at 10.) At that time, they did not have a search warrant to conduct a search of any apartment in the complex, (Tr. at 35-36.) Instead, they were there to conduct a "knock and talk." (Tr. at 10, 50.) A "knock and talk" is an investigatory technique where the officer goes to a home to try to gain consent to enter and search the premises without a warrant or probable cause. (Tr. at 9, 44.)
Officer Johnson initially went to Apartment No. 4 and Officer Watanabe went to Apartment No. 5. (Tr. at 10-11, 51.) When Officer Watanabe was unable to communicate with the Spanish-speaking individual who answered the door of Apartment No. 5, he summoned Officer Johnson, who speaks Spanish, for assistance. (Tr. at 12, 51.) Officer Johnson went to Apartment No. 5. (Id.)
Officer Johnson learned Spanish in connection with a church mission he served in Venezuela. (Tr. at 8.) He has been certified by the Ogden Police Department as fluent in Spanish. (Id.) He uses his Spanish speaking skills frequently to communicate with members of the Ogden Hispanic community. (Tr. at 45-46.)
Officer Johnson spoke to the individual (later identified as Mr. Gaitan) who answered the door of Apartment No. 5. (Tr. at 12-13.) Mr. Gaitan does not speak English, but Officer Johnson had no trouble communicating with Mr. Gaitan in Spanish. (Tr. at 12.) Both of the Defendants responded appropriately to Officer Johnson's statements and questions. (Tr. at 48.)
Officer Johnson told Mr. Gaitan that he and Officer Watanabe were police officers. (Tr. at 13.) Officers Johnson and Watanabe were dressed in plain clothes, but Officer Johnson was visibly identifiable as a police officer. (Tr. at 10-11.) He was wearing a shirt that had a police badge printed on it and the word "POLICE" printed across the back. (Tr. at 11.) All of the officers were wearing guns bolstered at their sides. (Id) The guns remained bolstered during the initial approach to the apartment. (Id.) Nothing in the record suggests that any officer drew his weapon during the encounter between the Defendants and the officers. (See also Tr. at 41 (noting that officer did not draw firearm when one of the Defendants attempted to flee the scene after being told he was going to be arrested).)
Officer Johnson asked Mr. Gaitan if they could come into the apartment. (Tr. at 13.) Mr. Gaitan said "Yes" and opened the door to the apartment wider to let them in. (Id.) Once inside the apartment, Officer Johnson explained, in Spanish, that the purpose for their visit was to investigate a drug complaint, and he requested permission from Mr. Gaitan to search the apartment. (Id.) Mr. Gaitan responded, in Spanish, "That's fine." (Tr. at 14.) Soon thereafter, two other officers (Skinner and Stewart) came into the apartment. (Tr. at 15.) The record does not indicate what, if anything, Detectives Skinner and Stewart did at this time in the apartment.
Officer Johnson began to walk through the apartment (Tr. at 14-15.) He went into the kitchen where he noticed a piece of a plastic grocery bag knotted up on the counter. (Tr. at 15.) Officer Johnson associated this knotted-up piece of grocery bag with possible drug packaging, (Tr. at 15-16.) Officer Johnson then climbed the stairs of the apartment and found Mr. Solis in one of the upstairs bedrooms. (Tr. at 16, 25.) He spoke to Mr. Soils in Spanish, identified himself as a police officer, and asked Mr. Solis if he could search the apartment. (Tr. at 16, 26.) Mr. Solis responded, in Spanish, that Officer Johnson would have to ask Mr. Gaitan. (Id.) At that point, Officer Johnson went back downstairs, and Mr. Solis, of his own accord, followed Officer Johnson. (Tr. at 17, 26-27, 48.)
While Officer Johnson was walking through the kitchen and upstairs area, Officer Watanabe waited in the apartment's living room. (Tr. at 52.) Mr. Gaitan, also in the living room, made several phone calls on his cellular phone. (Tr. at 52-53.) Mr. Gaitan spoke mostly in Spanish to whomever was on the other end of the conversation. (Tr. at 53-54.) Officer Watanabe does not speak Spanish and could not understand what Mr. Gaitan was saying during the telephone conversations. (Tr. at 52-53.) During the third telephone call, Mr. Gaitan handed the telephone to Officer Watanabe, indicating that he wanted Officer Watanabe to speak to the person on the line. (Tr. at 53.) Officer Watanabe briefly spoke, in English, with that person, who would not identify himself when asked. (Id.) When the unidentified person asked to speak to Mr. Gaitan, Officer Watanabe handed the phone back to Mr. Gaitan. (Id.) After Mr. Gaitan hung up, he told Officer Watanabe, in English, that he wanted the officers to stop searching the apartment. (Tr. at 54.) At about that time, Officer Johnson was walking back downstairs with Mr. Solis following. (Id.)
Officer Watanabe told Officer Johnson that Mr. Gaitan had withdrawn consent to search the apartment. (Tr. at 54.) Mr. Gaitan asked Officer Johnson whether the officers had a search warrant, (Tr. at 17.) Officer Johnson said they did not have a search warrant and they were there searching solely based on Mr. Gaitan' s permission. (Id.) Mr. Gaitan told Officer Johnson that they needed permission from an individual named "Mike" to search the apartment. (Id.) Officer Johnson told Mr. Gaitan that because Mr. Gaitan lived in the apartment, he could consent to the search. (Tr. at 37.) Mr. Gaitan said he preferred that the officers get permission from "Mike." (Id.) Officer Johnson asked how they could get Mike's permission. (Tr. at 18.) At that point, Mr. Gaitan made a phone call and handed the phone to Officer Johnson. (Id.) Officer Johnson, after identifying himself as a police officer, asked the person on the other end of the line whether he was "Mike," and the person stated that he was not, (Id.) Officer Johnson asked the person whether he lived at 1095 16th Street, Apartment No. 5, Ogden, and the person stated that he was not. (Id.) At that point, Officer Johnson handed the phone back to Mr. Gaitan. (Id.)
Officer Johnson learned that "Mike" lived in Apartment No. 7 of the same apartment complex. (Tr. at 19.) Officer Johnson told Officer Watanabe to go to Apartment No. 7, find Mike, and get Mike's consent to search Apartment No. 5. (Tr. at 19, 54-56.) Officer Watanabe went to Apartment No. 7 and spoke to a woman in the apartment. (Tr. at 55.) Mike was not there, but the woman (Margaret Fuller) called Mike and gave the phone to Officer Watanabe. Officer Watanabe then spoke to Mike. (Tr. at 55-56, 59.) While Officer Watanabe went to find Mike, Officer Johnson just stayed in the living room area of Apartment No. 5 with Mr. Gaitan and Mr. Soils. (Tr. at 19, 38.) No searching occurred during that time. (Tr. at 38,) Mr. Gaitan and Mr. Solis were apparently "walking around freely" during that time. (Tr. at 29.)
Mike, later identified as Michael Hurst, was the owner of Apartment No. 5 and was renting it out to others. (Tr. at 58-59, 78.) Mr. Hurst's original agreement was to rent the apartment to two individuals named Emilio and Javier. (Tr. at 78.) Emilio was also identified as Julio Lopez. (Tr. at 49, 78.) Weeks before the search, Emilio and Javier had left, if not abandoned, the apartment for an extended period of time (one was living in a different location in Ogden, and the other was in Mexico), and Mr. Gaitan and Mr. Solis, identified to Mr. Hurst as family, took the place of Emilio and Javier. (Tr. at 79, 83-85.) Mr. Hurst accepted partial rent (i.e., $500 of the $600 due) from Mr. Gaitan and Mr. Solis on January 3, 2003, after Emilio directed them by phone to pay Mr. Hurst. (Tr. at 81, 86-87.)
During the January 8, 2003 telephone conversation between Officer Watanabe and Mr. Hurst, Officer Watanabe told Mr. Hurst that the officers were at Apartment No. 5 investigating possible drug activity. (Tr. at 56.) Over the phone, Officer Watanabe asked Mr. Hurst for consent to search Apartment No. 5, and Mr. Hurst gave the officers permission. (Id.) Mr. Hurst also agreed to come home. (Id.)
After speaking to Mike on the phone, Officer Watanabe returned to Apartment No. 5 and told Officer Johnson that Mike had given his consent over the phone. (Tr. at 19, 56-57.) Officer Johnson then told the Defendants that Mike said it was okay to search, and the Defendants agreed that the search could resume. (Tr. at 19, 29.)
At that point, upon receiving the second consent, Officer Johnson asked each of the Defendants "Where do you sleep? Where do you stay?" (Tr. at 19.) Mr. Gaitan responded that he did not stay at the apartment often, that he slept on the couch and occasionally in one of the upstairs bedrooms. (Tr. at 20.) Mr. Solis said that he had been in Ogden, Utah, or at least in the United States, for two weeks and that he stayed in one of the upstairs bedrooms. (Id.)
Officer Johnson then looked in a closet just off the living room and found a package of what he believed to be drugs. (Tr. at 20.) The package was in a blue plastic grocery bag. (Tr. at 20-2 L) It was a round package, about the size of a cantaloupe, wrapped in cellophane with a white substance inside. (Tr. at 21, 40.) Officer Johnson suspected that the package contained illegal narcotics. (Id.)
Officer Johnson confronted Mr. Gaitan and Mr. Solis with the package, and said that "they were both under arrest and would be going to jail." (Id.) Mr. Gaitan said that "he didn't know that was there," and Officer Johnson asked, "What are you talking about?" (Tr. at 21.) At that point, Mr. Gaitan got up from the couch and ran, (Tr. at 22.) The officers physically restrained, subdued and handcuffed Mr. Gaitan. (Tr. at 22, 30-31.) Mr. Gaitan was slightly injured, and the officers called paramedics to tend to Mr. Gaitan's injuries. (Tr. at 30-31, 66-67.)
While the paramedics treated Mr. Gaitan, Mr. Hurst arrived at the apartment complex. (Tr. at 22.) Officer Johnson went over to Apartment No, 7 to meet Mr. Hurst. (Id.) There he obtained Mr. Hurst's signature on a consent form that purported to give consent to search Apartment No. 5. (Gov't Ex. 1; Tr. at 23-24, 89-90.) After Mr. Gaitan was treated, the officers continued their search and found various types and quantities of drugs. (Tr. at 32.)
The Defendants were arrested and charged. They then filed their Motions to Suppress the evidence found during the search described above on the basis that the officers did not have valid consent to conduct the search.
CONCLUSIONS OF LAW
A. Mr. Gaitan and Mr. Soils Each Have Standing to Challenge the SearchMr. Gaitan and Mr. Solis have standing to challenge the constitutionality of the search. The facts show that, at a minimum, Mr. Gaitan and Mr. Solis were social guests of the putative residents of the apartment, Emilio (Julio Lopez) and Javier, and by all appearances were tenants themselves, albeit without a lease. Mr. Gaitan and Mr. Solis each slept at the apartment and had been living there for at least a couple of weeks. The apartment's owner, Michael Hurst, and the original lessee, Emilio, both knew that Mr. Gaitan and Mr. Solis were living in the apartment. Mr. Hurst accepted a partial rent payment from them at Emilio's direction. These facts are sufficient to establish a reasonable expectation of privacy on the part of both Mr. Gaitan and Mr. Solis.See United States v. Rhiger, 315 F.3d 1283, 1286-87 (10th Cir. 2003) (holding that defendant had standing to object to federal drug agents' search of house where he had "ongoing and meaningful connection" to the house as a social guest).
B. The Search Was Reasonable Because the Officers Had Valid Consent to Search the Apartment .
The officers conducted the search after using what is referred to as the "knock and talk" investigatory technique. The Defendants do not challenge the validity of the officers' entry into the apartment.
The government relies on the Defendants' consent to justify the warrantless search of the apartment. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (affirming principle that search of property without warrant or probable cause is valid under the Fourth Amendment if proper consent to search was voluntarily given). The Defendants contend that the officers did not obtain valid consent for the search because Mr. Gaitan and Mr. Solis did not knowingly and intelligently give specific and unequivocal consent to search Apartment No. 5.
Here, the court must examine two separate moments during the Defendants' encounter with the officers where the Defendants purportedly consented to a search of the apartment. The court finds that Mr. Gaitan initially gave consent to the officers to search the apartment. Soon thereafter, he withdrew his consent and conditioned future consent on receiving consent from "Mike" (Michael Hurst, owner and lessor of the apartment). Upon the "consent" of Mike, Mr. Gaitan again gave consent to resume the search.
Whether a consent is voluntary is determined based on the totality of the circumstances. United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir. 1998). The government bears the burden of proving valid consent to a warrantless search by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 177 n. 14 (1974); United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998).
1. Mr. Gaitan's Initial Consent Was Valid.
It is clear that Mr. Gaitan had authority to give consent to search commonly or jointly used areas of Apartment No. 5, including the front room closet, where the initial quantity of drugs was found. The record establishes that he was living in Apartment No. 5 at the time of the search and was sharing it with Mr. Solis. The officers did not need Mr. Solis's consent. See Matlock, 415 U.S. at 170 171 n. 7 (noting "that any one of co-inhabitants [of the premises] has the right to permit inspection [of the premises] in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched"). It is undisputed that, at that time, Mr. Solis deferred to Mr. Gaitan on the matter of consent, Additionally, as co-resident with Mr. Solis, Mr. Gaitan's consent would be valid against Mr. Solis. United States v. Rith, 164 F.3d 1323, 1328 (10th Cir. 1999). Having determined that Mr. Gaitan had authority to grant consent, the question becomes whether Mr. Gaitan voluntarily gave his consent.
Consent is valid if it is "freely and voluntarily given."Schneckloth, 412 U.S. at 222. The government must "present `clear and positive testimony that consent was unequivocal and specific and freely and intelligently given.'" Pena, 143 F.3d at 1366 (internal citations omitted). The government must also establish that the police officers did not coerce Mr. Gaitan into granting his consent.Id.
Here, the government presented clear and positive testimony of Officer Johnson that Mr. Gaitan's initial consent was unequivocal, specific, and freely and intelligently given. According to Officer Johnson, who was a credible witness and who speaks Spanish fluently, Mr. Gaitan understood Officer Johnson's questions and responded appropriately throughout the encounter. When Officer Johnson asked Mr. Gaitan whether the officers could search the apartment, Mr. Gaitan responded, "That's fine."
The other consideration is whether Mr. Gaitan's consent to search was free from duress or coercion. To make this determination, the court considers, among other things, "physical mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant within the totality of the circumstances." United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994).
The officers did not coerce Mr. Gaitan into giving his consent to search. When Mr. Gaitan gave consent to search, Mr. Gaitan was not physically restrained. No weapons were drawn. The officers did not tell Mr. Gaitan that they had a warrant or that he had to comply with their request for his consent. There is no evidence of any intimidating conduct by the officers. The officers did not make threats. The mere presence of the two officers was not in and of itself coercive. See, e.g., Pena, 143 F.3d at 1367 (finding that district court did not err in determining that presence of four armed officers in motel room with defendant did not coerce defendant into granting consent). Officer Johnson identified himself and Officer Watanabe as police officers at the very beginning of the encounter and mentioned the purpose of their visit (to investigate a report of drug activity). Mr. Gaitan was not tricked into giving consent.
Given the totality of the circumstances, Mr. Gaitan's initial grant of consent was valid. Still, because he later withdrew that initial consent, the officers were required to obtain a second grant of consent to resume the search. As discussed below, they accomplished this.
2. Mr. Gaitan's Second Consent Was Valid.
It is clear that Mr. Gaitan revoked his initial consent when he told Officer Watanabe to stop the search. Still, an individual who has previously withdrawn or refused consent can later give a valid consent to resume the search. See, e.g., Davis v. United States, 328 U.S. 582, 593-94 (1946); United States v. Flores, 48 F.3d 467 (10th Cir. 1995).
After Mr. Gaitan withdrew his initial consent, Officer Watanabe obtained oral consent from Mike, as Mr. Gaitan had requested. When Officer Johnson told the Defendants that Mike had given consent, Mr. Gaitan gave valid consent to the officers to resume the search of Apartment No. 5. Specifically, according to Officer Johnson, when he asked both of the Defendants whether he could resume his search, both agreed. This is "clear and positive testimony" of unequivocal, freely and intelligently given consent. Pena, 143 F.3d at 1366.
Nevertheless, Defendants argue that Mr. Gaitan's second consent was not knowingly and intelligently given. They characterize Mr. Gaitan's statements and behavior as manifesting "reluctance or confusion" on the part of Mr. Gaitan. (See Def.'s Mem. in Supp. of Mot. to Suppress at 15-16.) According to Defendants, Mr. Gaitan's conduct during the entire encounter "reflects no more than a resigned acquiescence to what had clearly become obvious and inevitable to him: These officers were there to search the apartment, and they were going to do so whether he wanted them to or not." (Id. at 16 (emphasis added).)
The totality of the circumstances does not support Defendants' contention, Moreover, any alleged reluctance on the part of Mr. Gaitan did not, under the circumstances, invalidate the consent he ultimately gave. See, e.g. United States v. Rivas, 99 F.3d 170, 175 (5th Cir. 1996) (holding that defendant's consent to search was valid where he signed a consent form, despite adding the words "reluctantly" and "after officers already in house" to the form, and then responded that the officers could search the house).
The fact that Mr. Gaitan apparently conditioned any future consent on receiving Mike's consent does not change the court's conclusion. Certainly there is no legal significance to the fact that Mike gave consent to search Apartment No. 5. See Chapman v. United States, 365 U.S. 610 (1961) (holding that landlord could not validly consent to search of house he had rented to another), quoted in United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974).
Although Mike's consent has no legal significance, Mr. Gaitan told Officer Johnson that he would prefer it if the officers talked to Mike first before continuing the search. Defendants argue that Mr. Gaitan's reliance on Mike's consent indicates that he did not understand what was going on and that Mr. Gaitan thought that Mike, not he, had authority to give or refuse consent. Given the facts in the record, the court concludes that Mr. Gaitan did understand the situation and that he was consenting to a search, There is no evidence that Mr. Gaitan was incoherent, under the influence of controlled substances, mentally incapacitated, or did not understand Officer Johnson's Spanish. In fact, Officer Johnson expressly told the Mr. Gaitan that Mr. Gaitan had authority on his own to give consent because he lived in the apartment. Moreover, Mr. Gaitan demonstrated during the encounter that he knew how to give consent and how to withdraw that consent. Essentially, the officers did what Mr. Gaitan asked — that is, they obtained Mike's "okay" to let them search Apartment No. 5. When Mr. Gaitan and Mr. Solis heard that Mike had consented, they gave their consent to search. The officers needed nothing more.
3. Mr. Gaitan's Second Consent Was Not Revoked or Nullified.
Defendants argue that the nature of their situation changed so much during the search that any former consent was no longer valid. The fact that Mr. Solis and Mr. Gaitan were placed under arrest during the search does not nullify the earlier consent. Defendants also argue that Mr. Gaitan's attempt to flee the scene after being arrested was an implied withdrawal of his earlier consent. Defendants cite to no law in support of their proposition. Instead, they attempt to analogize the situation to reverse situations where granting of consent may be implied from the defendant's actions. (See Def.'s Mem. in Supp. of Mot, to Suppress at 17-18 (citing Krause v, Penny, 837 F.2d 595, 597 (2d Cir. 1988); Robinson v. United States, 325 F.2d 880 (8th Cir. 1964)).) The record supports the conclusion that Mr. Gaitan was fleeing to avoid arrest, not to impliedly send a message to the officers to stop searching. Besides, Mr. Gaitan had already demonstrated that he knew how to withdraw consent. The court finds that the circumstances cited by the Defendants do not amount to a withdrawal of Mr. Gallon's consent allowing the officers to resume their search.
ORDER
For the foregoing reasons, the Defendants' motions to suppress evidence (1:03-CR-62 Docket Nos. 103 and 110) are DENIED.