Opinion
Case No. 00-20117-JWL
January 11, 2001
MEMORANDUM AND ORDER
This case comes before the court on Hipolito Pacheco's motion to suppress (Doc. 33), Delicia Galvan's motion to suppress (Doc. 35), and Delicia Galvan's motion to sever (Doc. 37). For the reasons set out below, the motions to suppress are granted in part and denied in part and the motion to sever remains under advisement.
Background
The motions to suppress challenge three searches: (1) a search of 355 S. Bethany on April 7, 2000, (2) a search of 355 S. Bethany on April 17, 2000, and (3) a search of 309 N. 15th Street on September 13, 2000. Police had a warrant to search only for the April 17 search. The defendants argue that the warrant was based on insufficient facts to establish probable cause and listed items to be seized with insufficient particularity. The prosecution argues that warrants were not needed for the April 7 and September 13 searches. On December 20, 2000, this court held an evidentiary hearing on the motions. Evidence was presented by the prosecution and by Delicia Galvan.
Ms. Galvan's motion to sever trials is based on her intent to call Mr. Pacheco to testify in her defense. Ms. Galvan does not offer an affidavit or other evidence that Mr. Pacheco will agree to testify for Ms. Galvan or that Mr. Pacheco's testimony would be helpful to Ms. Galvan's defense.
Findings of fact
On April 7, 2000, police received a phone call from 355 S. Bethany reporting that Hipolito Pacheco had shot himself. Paramedics and police responded and found Mr. Pacheco wounded and lying on the floor in a bedroom. Delicia Galvan and her child were also present in the house. Ms. Galvan told police that Mr. Pacheco had shot himself. Police walked through the house to ensure that no one else was present. While walking through the house, police saw expensive clothing, cellular phones and significant amounts of cash. After Mr. Pacheco was taken away from the scene, police searched the bedroom and adjoining hallway where they found Mr. Pacheco and where they believed the shooting had occurred. Witnesses for the prosecution said that the search was conducted pursuant to procedure for processing a crime scene. In the course of the search, police found two handguns and a rifle.
On April 17, 2000, DEA agents executed a search warrant at 355 S. Bethany. The warrant was based on the affidavit of DEA agent Timothy McCue setting out the events of April 17. According to the affidavit, Mark Cardwell checked into a room at Best Western in Kansas City, drove to a Mexican restaurant, met two men in the parking lot and switched cars with the men. The men drove Cardwell's car to 355 S. Bethany and parked in front of the house. DEA agents approached as the driver and passenger stepped out of the car. The driver was identified as Juan Zubia and the passenger as Jamie Ramirez. Ramirez told agents that he "had met with Zubia inside the residence at 355 S. Bethany earlier in the morning on the same day." The agents searched the car after obtaining consent and found approximately five kilograms of a substance that tested positive for cocaine. Agents went to Cardwell's room at Best Western and Cardwell told the agents that he knowingly transported cocaine from Mexico and had done so approximately one month before. Cardwell said that, on the prior trip, he drove to 355 S. Bethany where he met Juan Zubia and a man known as "Polo" and that Zubia and Polo drove Cardwell back to his room at Best Western while his car remained at 355 S. Bethany. The affidavit also said that a set of keys found in the car that Mark Cardwell drove from the restaurant to the Best Western contained a key to the residence at 355 S. Bethany.
Agent McCue swore in his application for a warrant that he had reason to believe that "illegal narcotics, U.S. currency, documents, scales, packaging materials, firearms, ledgers, cellular telephones, paging devices, cameras and film, and similar items" were concealed in the residence. Agent McCue genuinely believed that Zubia and Ramirez were taking the cocaine to 355 S. Bethany, that there were drugs and paraphernalia in the house and that the facts presented in the warrant were sufficient to establish probable cause for this belief. Agent McCue also believed that the warrant gave him authority to search for the specific items listed in the application.
On September 13, 2000, DEA agents arrested Mr. Pacheco and Ms. Galvan as they arrived at 309 N. 15th Street. Ms. Galvan testified that officers ran up to the car with guns drawn, placed her and Mr. Pacheco in handcuffs, and told her that she would be making her situation worse if she did not consent to a search. Agent McCue, agent Ronald Anson, and officer Norma Lorenzo testified that the agents walked towards the car, did not have weapons drawn, and that they obtained consent to search the residence from Mr. Pacheco. Officer Lorenzo testified that she read Miranda rights to Mr. Pacheco in Spanish and that Mr. Pacheco responded that he understood his rights. Agent Anson testified that he had a calm conversation with Mr. Pacheco where Mr. Pacheco said that he was the owner of 309 N. 15th and consented to a search of the residence. According to agent Anson, he translated a consent to search form into Spanish for Mr. Pacheco and Mr. Pacheco acknowledged that he understood and signed the form. The testimony of agents McCue and Anson and officer Lorenzo regarding the manner of the arrest were consistent, and their demeanor and recall of detail indicated that they were telling the truth. The testimony of Ms. Galvan, on the other hand, was devoid of detail and Ms. Galvan has a strong motive to exaggerate. The court, therefore, accepts the version of events told by agents McCue and Anson and officer Lorenzo to the extent that they conflict with the testimony of Ms. Galvan.
Discussion
The reasonableness of the three searches must be considered by the court individually. The two searches conducted without a warrant are invalid unless they fall within one of the well-delineated exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967). The prosecution bears the burden of proving that an exception applies to a warrantless search. United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994).
April 7 search
The prosecution argues that the warrantless entry into 355 S. Bethany was justified by exigent circumstances, that the protective sweep was justified to protect officer safety and that the search of the bedroom and hallway was justified because it was a crime scene. Under the exigent circumstances exception to the warrant requirement, police may enter a dwelling without a warrant to render emergency aid and assistance to a person they reasonably believe to be in distress and in need of assistance. United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986). Police were called to 355 S. Bethany to aid Hipolito Pacheco and their entry into the house without a warrant, therefore, was justified by exigent circumstances.
Police subsequently walked through the house to determine if anyone else was present. "Protective sweeps" are an exception to the warrant requirement under the Fourth Amendment permitted to ensure officer safety. Maryland v. Buie, 494 U.S. 325, 327 (1990). A protective sweep is valid if officers have "a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger" to those present. Id. at 337. "That an officer's life or the lives of those around him might be in danger" justifies a "sweep search or a security search." United States v. Tabor, 722 F.2d 596, 597 (10th Cir. 1983). Here, police arrived at the scene of a shooting and had not yet determined whether the gun shot wound was self-inflicted. Police were justifiably concerned by the possibility that the shooting was not self inflicted and that the shooter could still be in the house. For the safety of those present, police were justified in conducting a quick "sweep" of the house to determine if there were any other persons present. Any evidence in plain view of officers conducting a protective sweep is admissible. United States v. Flores, 149 F.3d 1272, 1277 (10th Cir. 1998).
Once police render assistance and exigent circumstances no longer exist, police may not conduct a full search of what they believe to be a crime scene without a warrant or another exception to the warrant requirement. There is no crime scene exception to the warrant requirement. See Mincey v. Arizona, 437 U.S. 358 (1978); Flippo v. West Virginia, 528 U.S. 11 (1999). Here, exigent circumstances did not justify a warrantless search of the bedroom and hallway and the prosecution offers no other exception to justify the search. Evidence discovered in the search of the bedroom and hallway that was not in plain view, therefore, must be suppressed.
April 17 search
In reviewing challenges to a warrant, courts have the discretion to proceed directly to an analysis of the good-faith exception without first addressing the underlying Fourth Amendment questions. United States v. Danhauer, 299 F.3d 1002, 1005 (10th Cir. 2000). Even if a warrant is not based on probable cause or fails to list the items to be seized with particularity, it must be upheld unless an executing officer would not have reasonable grounds to believe the warrant was properly issued. United States v. Leon, 468 U.S. 897 (1984). The rationale for this good faith exception is that the purpose of exclusion is to deter intentional police misconduct, not to cure error committed by a magistrate. Id. at 916. There is no deterrence from excluding evidence obtained when an officer acts in good faith. Id. 916-17.
"Great deference" is owed to a probable cause finding by a neutral magistrate. Id. at 914. An officer is generally entitled to rely on such a finding. Id. at 921. The Supreme Court recognizes only four situations in which an officer will not have reasonable grounds to believe a warrant was properly issued. Id. at 922-23. The good-faith exception does not apply if:
1. The affidavit in support of the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id.
2. The warrant is "so facially deficient" such as "failing to particularize the place to be searched or the things to be seized" that the executing officer "cannot reasonably presume it to be valid." Id.
3. The magistrate was misled by false information submitted by the affiant with knowledge of its falsity. Id.
4. The magistrate wholly abandoned his judicial role in the matter. Id.
The four situations do not apply to this case. The warrant was not so lacking in indicia of probable cause as to render belief in its existence unreasonable. The affidavit submitted by agent McCue establishes probable cause to believe that the vehicle driven by Zubia and Ramirez to 355 S. Bethany contained cocaine. The affidavit also establishes that Mark Cardwell had delivered cocaine to the residence one month earlier. A reasonable inference can be drawn that on the previous occasion the cocaine was taken into the residence and that Zubia and Ramirez intended to take the cocaine into the residence on April 17, 2000. While this may be insufficient to establish probable cause to believe that drugs were present in the residence on April 17, 2000, this is not determinative of whether the good faith exception applies.
The Tenth Circuit has declined to decide whether probable cause exists to search an individual's home when police have probable cause to believe that the individual is selling drugs. United States v. Nolan, 119 F.3d 1180, 1185 (10th Cir. 1999). In Nolan, a magistrate judge issued a warrant to search the defendant's home based on an officer's affidavit that alleged that the defendant had sold drugs to an informant and that "drug traffickers sometimes maintain records and quantities of narcotics in easily accessible locations." The Nolan court noted that the law on this point was unsettled and held that a "reasonable officer not versed in the intricacies of the law" could not be expected to know that the warrant might not be constitutional.
Agent McCue had probable cause to believe that the residence was used in the trafficking of drugs. Probable cause may exist to search a residence on the grounds that a residence involved in drug trafficking often contains drugs or instrumentalities of drug trafficking. The Nolan decision left this question unresolved. Agent McCue cannot be expected to know that Tenth Circuit precedent on this point is unsettled and that a court may later determine that probable cause did not exist.
The warrant in this case was also not "so facially deficient," in that it failed to particularize the things to be seized, that the executing officer could not "reasonably presume it to be valid." The application for the search warrant specified that agents believed that the residence contained "illegal narcotics, U.S. currency, documents, scales, packaging materials, firearms, ledgers, cellular telephones, paging devices, cameras and film, and similar items." The defendants do not challenge this list of items as not sufficiently particular. There is no suggestion that officers seized any items beyond what was listed on the application and agent McCue believed that the warrant authorized him to search for and seize only these items. In United States v. Guidry, 199 F.3d 1150, 1155 (10th Cir. 1999), the Tenth Circuit upheld a search warrant that arguably was invalid for failure to list items to be seized with sufficient particularity. In Guidry, the court pointed to the knowledge of the executing officer as evidence that the officer knew the object of the search and that the officer did not conduct a general rummaging. In the present case, agent McCue prepared the warrant and requested that he be allowed to search for the items listed in the application. There is no reason to believe that agent McCue was not acting in good faith when he executed the warrant or that he did not limit the search to those items.
Finally, there is no suggestion that the magistrate abandoned his judicial role or that any false information was presented to the magistrate. Because the four situations where a police officer would not have reason to believe a search warrant is valid do not apply to this case, the search of the residence and seizure of evidence will not be suppressed pursuant to the good faith exception to the exclusionary rule.
September 13 search
It is well settled that "one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Valid consent is that which is freely and voluntarily given. Id. at 222. Whether a defendant freely and voluntarily gave consent to a search is a question of fact and is determined from the totality of the circumstances. United States v. Santurio, 29 F.3d 550, 552 (10th Cir. 1994).
Agent Anson testified that Mr. Pacheco consented to a search of the residence after being read a consent to search form. The evidence presented at the hearing, in addition to agent Anson's testimony, leads this court to believe that consent to search was freely and voluntarily given by Mr. Pacheco. Even if this court were to accept Ms. Galvan's testimony about the nature of the arrest, her version of events does not show that Mr. Pacheco's consent was not given freely and voluntarily.
Motion to sever
The following factors are relevant to a court's determination of whether to grant a severance to allow exculpatory testimony by a codefendant: (1) the significance of the testimony in relation to the defendant's theory of defense; (2) the exculpatory nature and effect of such testimony; (3) the likelihood that the codefendant's testimony would be impeached; (4) the extent of prejudice caused by the absence of the testimony; and (5) the timeliness of the motion. United States v. McConnell, 749 F.2d 1441, 1445 (10th Cir. 1984). Ms. Galvan has not shown the court that Mr. Pacheco's testimony would be helpful to her case or that he will testify on her behalf. The government, however, does not oppose the motion to sever. Because the government does not oppose severance, this court will empanel two juries, as elaborated on in open court, in order to allow Mr. Pacheco to testify on behalf of Ms. Galvan after the case against Mr. Pacheco has been submitted to a jury, but only if Mr. Pacheco agrees in advance to waive his Fifth Amendment right to remain silent and testify. At the hearing on the motions, this court set a deadline of January 18, 2000 for Mr. Pacheco to inform the court of whether he intends to waive his Fifth Amendment privilege and testify on behalf of Ms. Galvan. Until that date, Ms. Galvan's motion will remain under advisement.
A defendant retains the right to assert the Fifth Amendment privilege to remain silent through sentencing. See Mitchell v. United States, 526 U.S. 314, 324 (1999).
IT IS THEREFORE ORDERED BY THE COURT THAT Hipolito Pacheco's motion to suppress (Doc. 33) and Delicia Galvan's motion to suppress (Doc. 35) are granted in part in that evidence not in plain view that was discovered during the search of the bedroom and hallway of 355 S. Bethany on April 7, 2000, is suppressed and denied in part in that evidence discovered during the protective sweep of 355 S. Bethany on April 7, 2000, the search of 355 S. Bethany on April 17, 2000, and the search of 309 N. 15th Street on September 13, 2000, is not suppressed. It is further ordered that Delicia Galvan's motion to sever (Doc. 37) remains under advisement.
IT IS SO ORDERED this ___ day of January, 2001.