Opinion
Case No. 2:02cr22 JTG.
February 7, 2005
MEMORANDUM DECISION AND ORDER
This matter is before the court on a timely Objection to the Report and Recommendation issued by Magistrate Judge Alba on September 28, 2004, regarding defendant's Motion to Suppress. Oral argument was heard on December 21, 2004, and at that time the court requested counsel to brief a narrow issue regarding the standard of review. Briefs were filed, and the matter was submitted for decision on January 7, 2005.
The court has carefully considered the circumstances of the case and the reviewed the record of the proceedings before Magistrate Judge Alba de novo, including also the filings by the parties. Being fully advised, the court now issues its Memorandum Decision and Order.
Procedural History
Defendant Jose Belen Lopez was indicted on January 9, 2002, for possession with intent to distribute a controlled substance, as well as possession of a firearm in furtherance of a drug trafficking offense. He was released on conditions set by the magistrate judge, and subsequently absconded. Defendant was rearrested on December 30, 2002, in the Southern District of Texas and since that time has remained in the custody of the U.S. Marshals.
Following his rearrest, defendant has claimed on two different occasions that his appointed counsel should be replaced. After due consideration and hearings, plaintiff was granted a new attorney. His current counsel, Mary Corporon, was appointed on September 9, 2003. Following appointment, Ms. Corporon filed a Motion to Suppress. This court referred motion to Magistrate Judge Alba under 28 U.S.C. § 636(b)(1)(B) and requested that he issue a Report and Recommendation.
Judge Alba conducted two evidentiary hearings, heard oral argument, and issued his Report and Recommendation on September 28, 2004. The court has reviewed the entire record including transcripts of testimony de novo, and after due consideration overrules defendant's objection, accepts the Report and Recommendation in all particulars, and denies defendant's Motion to Suppress.
Standard of Review
The standard of review for a magistrate judge's report and recommendation to which a timely objection has been made is as follows:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. 28 U.S.C. § 636 (b)(1).
De novo review is "statutorily and constitutionally required when written objections to a magistrate's report are timely filed with the district court." Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1992).
The court also cited Gee v. Estes, 829 F.2d 1005, 1008 (10th Cir. 1987); Jeffrey S. by Ernest S. v. State Bd. of Educ., 896 F.2d 507, 512 (11 Cir. 1990); United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985), and drew sharp distinction where timely objections have not been made, "In contrast, the district court is accorded considerable discretion with respect to the treatment of unchallenged magistrate report. In the absence of timely objection, the district court may review a magistrate's report under any standard ir deems appropriate."Id. at 1167 (citing Thomas v. Arn, 474 U.S. 140, 150, 154, 106 S.Ct. 466, 472, 474, 88 L.Ed.2d 435 (1985).
In the present case, defendant filed a timely objection to the Report and Recommendation which we regard as a general objection to the conclusions drawn by the magistrate judge. This court therefore reviews de novo the entire Report and Recommendation.
Factual Background
On November 7, 2001, police executed a search warrant which allowed them to search defendant's person, vehicle, and home. The warrant was obtained following an investigation of the defendant which included two controlled buys of cocaine using a confidential informant. The execution of the warrant took place at two separate locations: a taco stand in a grocery store parking lot and the defendant's home.
On the date in question defendant was working at a taco stand with an assistant when several plain clothes police officers approached to order tacos. Other officers approached from different locations until defendant was surrounded. Once defendant put down the kitchen knife he was using to prepare the tacos, Officer Wyant, the case agent, and the other officers drew their guns in the "low and ready" position and identified themselves as police officers. Defendant hesitated a few seconds but eventually surrendered and was taken into custody. Defendant's assistant was also taken into custody for a short period of time.
Defendant was taken to a police car by Deputy Barney where he waited approximately 10 to 15 minutes while officers secured the scene. Defendant then was given his Miranda warnings in English. At the hearing, when asked to list the rights defendant was given Officer Wyant stated: "I explained to Mr. Lopez that he had the right to remain silent, that anything he said could and would be used against him in a court of law. That he had the right to speak to an attorney before speaking to officers. That he had the right to stop speaking to officers at anytime should he choose. I asked Mr. Lopez if he understood his rights which he advised me that he did, and then he declined speaking to me." (Tr. at 20). Defendant asked Officer Wyant for advice and was told that neither he nor any other officer could provide him with any legal advice. Officer Wyant then told all other officers on the scene that defendant had invoked his right to counsel and no one was to speak with him or ask him anything.
While defendant was sitting in the police vehicle with Deputy Barney, officers searched his van and found approximately four ounces of cocaine and other drug paraphernalia and packaging materials. After these items were found defendant declared he was a "mule" and "not the big guy" and asked to speak to an officer. Officer Wyant was called back to the police vehicle and told defendant that because he had invoked his right to counsel they could not speak.
Once the scene at the taco stand was secured, officers at defendant's home were notified and a search began. The officers at the home initiated a "knock and talk" procedure. When there was no answer at the door after 30 to 45 seconds, officers made a forced entry. Defendant's wife and two young children were home. Two firearms were found in the home along with $13,000 and ammunition. One firearm was found by the bedside and the other was near the money in a dresser. The garage was also searched. It contained a firearm, ammunition, cocaine, marijuana, and plastic packaging.
Defendant's Objections
In his Motion to Suppress, defendant moved the court to suppress all evidence seized during the search of his vehicle, all evidence seized during the search of his home, and any and all custodial statements made by him. Magistrate Judge Alba concluded that no Constitutional right had been violated in the execution of the warrant and all statements made by the defendant were voluntary. The magistrate recommends that the court should deny the Motion to Suppress.
Defendant makes the following four objections to the Report and Recommendation: 1) defendant challenges Magistrate Judge Alba's conclusion that the warrant was not overly broad, and that it was sufficient to cover guns which were found even though guns are not specifically mentioned in the warrant; 2) defendant objects to the conclusion that the officers complied with the "knock and announce" rule; 3) defendant challenges the magistrate judge's conclusion that the Miranda warning analysis need not be applied because the statements made by defendant were voluntary and therefore admissible whether or not the Miranda warning as given was defective; and 4) defendant objects to the conclusion that his statements were voluntary. These will be discussed seriatim:
1. Particularity of the warrant — overbreadth
In his Motion to Suppress defendant requested all evidence seized under the warrant be suppressed because the warrant was overly broad and therefore invalid, specifically objecting to Paragraph 7 of the recitation of "Items to be Seized" in the warrant. Magistrate Judge Alba concluded that the warrant was not overly broad because Paragraph 7 was in the context of the other six paragraphs, and limited by the nature of the offense. The magistrate judge reasoned that because the nature of the crime is drug trafficking, it would be virtually impossible to describe all of the evidence that might be relevant to such a crime, and that the warrant was not so broad as to allow officers to seize anything they saw. Also, Judge Alba found that even if Paragraph 7 were determined to be overly broad it would not invalidate the entire warrant, but only the items which would fall under the last paragraph — here, the guns. However, because the officers relied on the warrant in good faith, the magistrate recommends that the guns may be allowed to be admitted in evidence under the good faith exception. Further, the magistrate recommends that since at least one of the guns was in plain view, it may be allowed to be admitted under the plain view exception.
Analysis
The Affidavit for Search Warrant and the Search Warrant were submitted and received into evidence as Government Exhibit 1 and 2 at the evidentiary hearing. Both of those documents contained an attachment entitled "Items to be Seized" which lists seven categories of items that were covered by the Affidavit and Warrant.
The seven categories of items so listed are:
1. Cocaine; a white crystal substance in powder, solid, or rock form, a Schedule II controlled substance.
2. Packaging material; to include but not limited to plastic bags, tape, paper bindles cut into squares, scales, and material used to dilute the potency of the cocaine.
3. Drug paraphernalia; to include but not limited to syringes, spoons, cotton balls, mirrors, razor blades, short straws, metal or glass pipes, tubes, and other items used to make or ingest [sic.] cocaine.
4. Residency papers' to include but not being limited to utility receipts and or bills, rental/lease agreements, and articles showing occupancy of the premises.
5. U.S. currency believed to be inclose proximity to the narcotics being searched for, and any and all items determined to be collateral or proceeds from narcotics transactions.
6. Narcotic recordations; to include but not being limited to price list, amounts sold, times, dates, amounts purchased, financial gain, and especially drug indebtedness.
7. Items determined to be fruits and instrumentalities of the crimes of possession and distribution of a controlled substance. (Emphasis added).
Defendant's objection goes only to Paragraph 7, which he claims is so broad as to make the entire warrant invalid. In the alternative, defendant claims that even if the warrant is valid, the firearms which were seized but not listed in the warrant with particularity should be suppressed.
The Tenth Circuit has ruled that:
The particularity requirement [for search warrants] ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause. Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985). In Voss, the court invalidated the warrant because the language did not restrict the items to be seized to those relating to a specific crime, "but what it gave was carte blanche for government agents to take anything that they saw." Id.
The language of the search warrant at issue in this case is not as broad as that in Voss. This court holds that the warrant in this case is not overly broad as to the first 6 paragraphs in which the items to be seized are specifically listed. By its presence in the warrant neither does Paragraph 7 invalidate the warrant as a matter of law; in the alternative defendant claims that since guns are not listed anywhere in the warrant, including Paragraph 7, they should be suppressed in any event. Paragraph 7 provides that "Items determined to be fruits and instrumentalities of the crimes of possession and distribution of a controlled substance." It is not overly broad so as to invalidate the warrant, or so as to suppress the guns which are not described in the warrant. Officer Wyant testified at the hearing: "[I]t is very commonplace for individuals that distribute narcotics and use narcotics to carry weapons." (Tr. 1/14/04 at 23-24). That is common knowledge. This court finds that guns are sufficiently commonplace in commission of drug trafficking offenses to be considered "fruits and instrumentalities" of such offenses. Accordingly, this court independently concludes that the language of the warrant is neither so broad as to invalidate the entire warrant, nor is the language in Paragraph 7 so broad as to invalidate the guns seized under it because the items seized are sufficiently connected to the charged offense.
2. Knock and Announce
Defendant argued in his Motion to Suppress that the Fourth Amendment was violated because the officers only waited 30 to 45 seconds before entering the home and were never denied admittance. Judge Alba concluded that the officers were constructively denied admittance because they had waited a reasonable amount of time before entering the home by force. Defendant now objects to such conclusion and the court reviews the issue de novo.
Analysis
The Supreme Court has ruled that fifteen to twenty seconds without a response, is a sufficient wait time when easily disposable evidence is involved. United States v. Banks, 540 U.S. 31, 38 (2003). In Banks officers had a warrant to search defendant's apartment for cocaine and evidence of drug dealing. When they arrived they called out "police search warrant" and knocked on the door hard enough for the officers in back of the apartment to hear. Id. at 33. After "15 to 20 seconds with no answer, the officers broke open the front door with a battering ram." Id. The defendant claimed that 15 to 20 seconds was not enough because he could not hear the knock on the door from the shower. However, the Court found that "the facts known to the police are what count in judging reasonable waiting time." Id. at 39. The Banks court also approved other cases that had determined "similar wait times to be reasonable in drug cases with similar facts including easily disposable evidence." Id. at 38.
In the case at bar, defendant's home was being searched for cocaine, packaging material, drug paraphernalia, and other related items. When officers arrived at the home to execute the search warrant they knocked on the door and awaited a response. When no response came they continued to knock on the door, loudly stating that the police were at the door, and demanded entry. (Tr. 3/11/04 at 112). After 30 to 45 seconds, the officers forced entry into the home with use of a door ram. (Tr. 3/11/04 at 112-113).
This court independently concludes upon review of the facts of this case that the 30 to 45 second interval of time between the officers first knock and the subsequent entry was a sufficient amount of time to elapse prior to forcible entry. The facts in this case are similar to those in Banks because the evidence to be found was the kind that was easily disposable. Given these circumstances the officers were reasonable in waiting 30 to 45 seconds without response before entering the home.
3. Claimed Defect in Rendition of the Miranda Warning.
Defendant argues that his Miranda rights were violated and that his statements should be suppressed first because the warning given him was deficient and second because the statements were not voluntary. The magistrate concluded that the statements were indeed voluntary, and therefore the judge did not consider the sufficiency of the Miranda warning. Defendant objects to this conclusion by the magistrate and reasserts before this court his arguments regarding the Miranda warning.
Defendant was detained in a patrol car while officers secured the taco stand. Deputy Barney was assigned to sit with the defendant while the taco stand was being secured. During the time Deputy Barney was in the car with defendant, defendant asked Deputy Barney what was going on and Deputy Barney explained that a search warrant was being served. After about 15 to 20 minutes Officer Wyant came to the patrol car along with other officers and defendant was advised by Officer Wyant that he was under arrest and was given his Miranda Rights. Officer Wyant then showed defendant the warrant for his person, residence, and vehicle and placed defendant under arrest. Subsequent to these actions, defendant asked Officer Wyant what he should do. Wyant told him that he was not an attorney, and that officers could not advise him. Defendant then said that he did not want to talk to the other officers. After this exchange Officer Wyant told all other officers on the scene that defendant had declined to speak with them and no one was to ask him questions. None of the officers attempted to talk to defendant following the instructions from Officer Wyant. Deputy Barny was left to guard the defendant in the patrol car.
About two to three minutes after Officer Wyant left, defendant told Deputy Barny that he was "just a mule" and "not the big guy." These statements were made without a question being asked and wholly spontaneously. Deputy Barney testified that he said nothing, but that defendant repeated this statement again. Deputy Barny informed him that he could not ask any questions or talk to him, but would bring over Officer Wyant when he was available. Officer Wyant was informed of the statements made by defendant and refused to talk to defendant because he considered that defendant had invoked his right to counsel.
Analysis
Defendant argues that the Miranda warning was defective because he was not informed that if he could not afford an attorney one would be provided to him. From what is set forth in footnote 4 it seems likely that defendant was advised of his right to counsel even though Officer Wyant's testimony in court omitted that matter. Magistrate Judge Alba did not render a finding or recommendation about that matter, since he ruled that defendant's statements were voluntary and would be admissible even if defendant were un-Mirandized. This court agrees, and likewise makes no finding as to whether there was a defect in the rendition of the Miranda warning. However, even if the Miranda warning was defective the Tenth Circuit has concluded that voluntary un-Mirandized statements are admissible where such statements were not elicited by interrogation even if the defendant is in custody. United States v. Fisher, 2002 WL 3156480 (10th Cir. 2002) (unpublished). This court rules that if the statements made by defendant to Deputy Barney were truly voluntary, failure to give the Miranda warning would not render the statements inadmissible.
Officer Wyant testified that he gave the defendant his rights from memory. When asked to recite those rights in court, Wyant stated:
"I explained to Mr. Lopez that he had the right to remain silent, that anything he said could and would be used against him in a court of law. That he had the right to speak to an attorney before speaking to officers. That he had the right to stop speaking to officers at anytime should he choose. I asked Mr. Lopez if he understood his rights which he advised me that he did, and then he declined speaking to me." (Tr. at 20).
However, Officer Wyant testified that he refused to talk to defendant after the Miranda warning was given because defendant had requested his right to counsel. So it appears that Wyant believed that defendant had invoked his right to counsel. In this regard Deputy Barny testified that as Officer Wyant recited the Miranda warning he read his copy and followed along: "I don't remember seeing if [Officer Wyant] had something in his hand reading them, but I read mine just because I am sort of a newer deputy so I read mine. I keep it in my left pocket." (Tr. 59-60). Since Deputy Barney testified that he was reading along on his own card while Officer Wyant was giving defendant his Miranda rights, it would appear likely that Barney would have corrected Wyant if part of the warning was left out.
4. Voluntariness of Defendant's Statement
The statement sought to be suppressed is defendant's unsolicited statement that he was "just a mule" and "not the big guy." Defendant argues that given the circumstances of the arrest at gun point, and that he did not know that a Spanish interpreter could be provided to him, his statements cannot be considered to be voluntary. In this regard, defendant objects to the magistrate's conclusion that he was able to understand his rights given to him in English, even though he conversed with officers in English about tacos.
Analysis
The Supreme Court has declared that "The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion." Colorado v. Connelly, 479 U.S. 157, 170 (1986). In this regard, this court has ruled that the crucial matter is whether the government has proved that an alleged statement is "voluntary, i.e., not coerced." United States v. Oldman, 156 F.Supp.2d 1252, 1260 (D. Utah 2001), citing Connelly, 479 U.S. at 168.
None of the reasons given by defendant to support the claim that his statements were involuntary are supported by the evidence. Defendant has never claimed that he was coerced by the officers to give the statements he made. While it is true defendant speaks Spanish, the officers were convinced that he could communicate in English because of conversations at the taco stand. Deputy Barney testified that he had a whole conversation in English with the defendant about carnitas meat. (Tr. 1/14/04 at 57). Further, the statements defendant seeks to suppress were made in English and show that defendant understood what was happening and the implications of the evidence seized.
After reviewing these facts, the court independently concludes that defendant's statements to Deputy Barney were voluntarily made because they were spontaneous and not the product of any interrogation or coercion. The officers strictly complied with Officer Wyant's order not to question the defendant after defendant stated that he did not want to talk to the officers. Accordingly, no interrogation took place. Determining the defectiveness of the Miranda warning is unnecessary because a truly voluntary statement which is not the product of interrogation or coercion is admissible whether or not the Miranda warning is given.
For the forgoing reasons, Defendant's Motion to Suppress is hereby
DENIED.
IT IS SO ORDERED.