Opinion
Case No. 1:04CR68 TC.
February 28, 2005
ORDER
The Federal Grand Jury for the District of Utah has charged Luis Angel Santos-Garcia with unlawful reentry into the United States by a deported alien, in violation of 8 U.S.C. § 1326. Mr. Santos-Garcia has moved to suppress all evidence obtained and statements made during the encounter with officers that eventually led to the charges. He contends that the officers' entry into his wife's home and subsequent entry into a closed bedroom within the home violated the Fourth Amendment. Mr. Santos-Garcia argues that the alleged constitutional violations are sufficient to warrant the suppression of his statements made to the officers, his fingerprints, and the immigration and criminal records discovered as a result of his evidence of identity.
For the reasons set forth below, Defendant's motion to suppress is DENIED.
Findings of Fact
Unless otherwise noted, all facts are taken from the evidentiary hearing which began on November 4, 2004, and concluded on November 15, 2004.
At approximately 7:58 a.m. on April 18, 2004, the Roy City Police received a call reporting a possible domestic dispute taking place at 4642 South 1900 West, Apartment # 17, Roy, Utah. The unidentified caller stated that she was calling from within the apartment. (She was later identified as Maria Cruz.) (Transcript of November 4, 2004 Hrg. ("Tr.1") at 11 82).
The night before the call, Carmen Cordova, Mr. Santos-Garcia's wife, had several friends at her apartment for "a get-together." (Transcript of November 15, 2004 Hrg. ("Tr.2") at 6) The get-together apparently lasted into the morning of the next day, April 18, the day of the incident. Mr. Santos-Garcia, who did not live full-time at the apartment, was present. Two of Ms. Cordova's friends, Maria Cruz and Brenda Barrandey, testified at the suppression hearing. Another friend of Ms. Cordova, Adrian Rivera, who had been staying at the apartment for approximately two-weeks at the time of incident, did not testify.
According to Ms. Barrandey, on the morning of April 18, 2004, Ms. Cordova and Mr. Santos-Garcia were in the back bedroom of the apartment. Ms. Barrandey "heard loud noises, like if they were dropping stuff on the ground, like breaking stuff." (Id. at 10). She then asked Ms. Cruz to call the police because she "was afraid that there might be some physical violence." (Id.). Ms. Barrandey also testified that she heard arguing and yelling coming from the back bedroom. (Id. at 25-26).
While Ms. Cruz was calling the police, Ms. Barrandey went to the back bedroom. When she returned she told Ms. Cruz that everything was fine, but Ms. Cruz had already hung up the phone. Ms. Cruz did not contact the police again to let them know that everything was alright.
Because the caller reported a domestic dispute, the police dispatcher who received the call categorized it as "a priority one call." (Tr.1 at 10-11). A priority one call is the most urgent of five classifications established by the Roy City Police. (Id. at 62-63). A call that involves a potentially dangerous situation is placed in a priority one category. When responding to a priority one call, officers typically proceed to the scene, assure the safety of all involved, and question witnesses later.
Officers Chans Malay and Broc Gresham responded to the call. Both officers testified at the hearing. The dispatch told the officers that "the complainant was in a separate room and heard the verbal arguing and thought that they could hear the arguing getting more violent and thought they could also hear things being thrown around." (Id. at 64). The dispatcher told the officers that the "family fight" was taking place in the back bedroom of the apartment. (Id. at 63).
B. Standing
At the evidentiary hearing Carmen Cordova testified that she had known Mr. Santos-Garcia for eight years and they had been married for three years. Ms. Cordova testified that she alone signed the apartment lease. Ms. Cordova and Mr. Santos-Garcia had been separated for approximately one year as of April 18, 2004. Mr. Santos-Garcia maintained a separate residence.
Ms. Cordova testified that Mr. Santos-Garcia came and went freely from the apartment, spending four or five nights a week there. He had a key to the apartment. He kept clothes at the apartment. He helped her pay the rent.
C. Entrance Into Apartment
Officers Malay and Gresham arrived at the apartment at 8:02 a.m. and knocked on the door. Mr. Rivera, who had recently awakened, answered the door and spoke briefly to the officers. In some fashion, Mr. Rivera indicated that the dispute was taking place in the back bedroom. While it is not crystal clear exactly what Mr. Rivera did to indicate that the events were taking place in the back bedroom, Officer Malay testified that he "believed he [Mr. Rivera] pointed us to the bedroom." (Id. at 17). Mr. Rivera did not attempt to prevent the officers from entering the apartment. No one in the apartment told the officers that everything was alright or that they could, or should, leave.
D. Entrance Into Bedroom
Once inside the apartment the officers went to the back bedroom. It appears that the bedroom door was closed. Neither officer heard any fighting while standing outside the bedroom door. Both officers testified that it would have been their usual practice to knock, identify themselves as police officers and then enter the room. Because of the nature of the complaint, they wouldn't have waited for a response before entering the room.
Ms. Cordova, who was in the bedroom with Mr. Santos-Garcia, testified that she did not hear the officers knock and was only aware of their presence after they had entered the bedroom. She testified that if she had heard anyone knocking, she wouldn't have answered it. She explained: "I was too busy. He [her husband] was my first priority. I wanted to get him calmed down first before anything else." (Tr.2 at 82).
When the officers entered the bedroom, Ms. Cordova was lying on top of Mr. Santos-Garcia on the bed. Officer Malay testified that Ms. Cordova told them that they "got into an argument. And [Mr. Santos-Garcia] was throwing stuff off the entertainment center and things like that. And so she grabbed him to hold him down . . . on the bed. . . ." (Tr.1 at 23).
Ms. Cordova testified that her husband was very drunk when he arrived at her apartment. According to Ms. Cordova, she held him on the bed, trying to calm him. She explained, "Well, because he was trying to knock things over, and I didn't want him knocking things over. And so I would grab him, push him down, say, `Everything is okay. Will you, you know, be quiet and chill out.' And I was on top of him holding him down so. . . ." (Tr.2 at 80).
Ms. Cordova told the officers that she had not been assaulted. After a brief examination of the room and Ms. Cordova, Officer Malay decided that an arrest was not warranted on the domestic violence complaint. (Tr.1 at 25). Despite the decision not to arrest Mr. Santos-Garcia for the domestic dispute, the officers requested the identification of both Mr. Santos-Garcia and Ms. Cordova pursuant to Roy City Police policy. (Id.). It is standard policy for Roy City Police Officers to give the dispatcher the names of parties to a dispute to check for outstanding warrants. (Id.).
The dispatcher reported that there was an outstanding warrant, for a traffic violation, from Clearfield, Utah, for Mr. Santos-Garcia. The officers arrested Mr. Santos-Garcia on the warrant. (Tr.1 at 26). Mr. Santos-Garcia was taken to the Weber County Correctional Facility where he claimed Mexican citizenship. Because of his citizenship, Mr. Santos-Garcia's information was sent to Special Agent Melissa Kopp at the Bureau of Immigration and Customs Enforcement. Ms. Kopp then conducted an investigation of Mr. Santos-Garcia which led to the current charges.
Conclusions of Law
Mr. Santos-Garcia has challenged the lawfulness of the officers' entrance into the apartment and the bedroom. He contends that the evidence of his identity (and status in the United States) must be suppressed because it was obtained as a result of the officers' violation of his Fourth Amendment rights.A. Standing
A defendant attempting to suppress evidence discovered as a result of a police search must first establish that he has standing to object to the search. U.S. v. Salvucci, 448 U.S. 83 (1980). Whether a defendant has standing to challenge a search rests on a determination of whether the defendant had a subjective expectation of privacy in the residence searched and whether society is prepared to recognize that expectation as reasonable. U.S. v. Higgins, 282 F.3d 1261, 1270 (10th Cir. 2002) (citing U.S.V. Conway, 73 F.3d 975, 979 (10th Cir. 1995); see also U.S. v. Doods, 946 F.2d 726, 728 (10th Cir. 1991). A defendant bears the burden of establishing that he had a personal Fourth Amendment interest implicated by the search. U.S. v. Jones, 213 F.3d 1253, 1260 (10th Cir. 2003).
In U.S. v. Rhiger, 315 F.3d 1283 (10th Cir. 2003), the Tenth Circuit held that a social guest has a sufficient expectation of privacy to challenge unreasonable searches of his host's home. The Tenth Circuit, in determining the defendant had standing, considered his regular presence at the home, his overnight stays, the discovery of his receipts in the house, and his comfort in entering the residence unannounced and taking a nap. Rhiger, 315 F.3d at 1287. The court found that these factors supported a "determination that [the defendant] had an ongoing and meaningful connection [to the homeowner] as a social guest."Id.
In the present case, there is significant evidence of an "ongoing and meaningful" connection between Mr. Santos-Garcia and Ms. Cordova. Credible evidence established not only that the two are married but that Mr. Santos-Garcia often spent the night at the apartment, that he kept clothes at the apartment and even helped pay the rent. This is sufficient to show Mr. Santos-Garcia had an expectation of privacy in Ms. Cordova's home to raise a Fourth Amendment challenge to the search.
B. Consent to Entry
Mr. Rivera, who was not a permanent resident of the apartment, allowed the police officers to enter the apartment. The government contends that the entry was lawful because Mr. Rivera had either actual or apparent authority. Mr. Santos-Garcia disputes this.
A government official, acting without a warrant, may conduct a search based on an individual's voluntary consent, and any evidence discovered during the search may be seized and admitted at trial. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In general, the "consent of a third party to a search of common premises is effectual if the third party has either the actual authority or the apparent authority to consent to a search."U.S. v. Guttierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir. 1992); see also U.S. v. Kimoana, 383 F.3d 1215, 1221 (10th Cir. 2004). The government has the burden of proving the effectiveness of a third-party's consent. Illinois v. Rodriguez, 497 U.S. 177 (1990).
The test for actual authority is whether the person has "mutual use of the property[,] . . . generally ha[s] joint access or control for most purposes[,] . . . and [whether] the others have assumed the risk that one of their number might permit the common area to be searched." U.S. v. Matlock, 415 U.S. 164, 171 n. 7 (1974); see also Kimoana, 383 F.3d at 1221. In Kimoana, the Tenth Circuit concluded that a man who had a key to a hotel room, had stayed there with others the previous night, and left possessions there, had actual authority to consent to entry.Kimoana, 383 F.3d at 1223.
Here, Mr. Rivera was only a temporary guest at the apartment having resided there for approximately two weeks before April 18, 2004. He did not possess a key to the apartment, did not eat at the apartment, and had no access to Ms. Cordova's bedroom. In light of these facts, the court concludes that Mr. Rivera did not enjoy full unrestricted use of the apartment and the government has failed to establish that he had actual authority to give the officers consent to enter either the apartment or the bedroom. See Matlock, 415 U.S. at 171 n. 7 (requiring mutual use and joint access for a determination of actual authority).
Ms. Cordova testified that her bedroom door had a lock and also that Mr. Rivera only entered her room after knocking.
Even though Mr. Rivera did not have actual authority to give consent, the entrance into the apartment was lawful if the officers reasonably, but erroneously, believed that Mr. Rivera had authority to consent to the entry. See Illinois v. Rodriguez, 497 U.S. 177, 186-188 (1990); see also Gutierrez-Hermosillo, 142 F.3d at 1230. To determine whether the officers' belief was reasonable, the court must ask whether: "the facts available to the officer at the moment . . . warrant a man of reasonable caution [to believe] that the consenting party had authority over the premises. . . ." Kimoana, 383 F.3d at 1222 (quoting Rodriguez, 497 U.S. at 188) see also U.S. v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992) ("analysis of this subject . . . rests entirely on the reasonableness of the officer's belief").
The officers arrived at the apartment at 8:02 a.m. on April 18, 2004, relatively early on Sunday morning. They were greeted at the door by a man who had just recently awakened and who, without apparent pause, indicated to the officers that the dispute was occurring in the back bedroom of the apartment. Mr. Rivera let the officers enter the apartment and did nothing to indicate to the officers that he did not have the authority to grant them access to the common area of the apartment.
Based on the above the court concludes it was reasonable for the officers to conclude that Mr. Rivera had sufficient authority to grant access to the common areas of the apartment See Kimoana, 383 F.3d at 1223 (apparent authority where officer knew the third party had a key to the hotel room and that he had stayed there, although he was not a registered renter of the hotel room); Guttierez-Hermosillo, 142 F.3d at 1231 (apparent authority where third party appeared over the age of fourteen, answered the hotel room door and the officers knew she was traveling with her father); U.S. v. Logan, 241 F.Supp.2d 1164, 1179 (D.Kan. 2002) (apparent authority found when it appeared third party was living at the house, gave permission to walk around, and accompanied the officer around the home and "did not place any qualifications on where the officers could look or what doors could be opened"); see also Gould, 364 F.3d at 589 (third party had apparent authority to search a trailer when he answered the door and told the officers "you are more than welcome to come in and check it out").
C. Entrance into the Bedroom
The United States argues that the officers' entry into the bedroom was justified by exigent circumstances. U.S. v. Davis, 290 F.3d 1239, 1242 (10th Cir. 2002) ("Probable cause accompanied by exigent circumstances will excuse the absence of a warrant." quoting Howard v. Dickerson, 34 F.3d 978, 982 (10th Cir. 1994)).
The Tenth Circuit has explained:
The government bears the burden of establishing exigency. In our assessment of whether the burden is satisfied, we are guided by the realities of the situation presented by the record. We should evaluate the circumstances as they would have appeared to prudent, cautious and trained officers.U.S. v. Rhiger, 315 F.3d 1283, 1288 (10th Cir. 2003) (internal quotations and citations omitted). See also Davis, 290 F.3d at 1242. In order to demonstrate exigent circumstances, the government must show that: (1) the law enforcement officers had reasonable grounds to believe that there was an immediate need to protect their lives or the lives of others or their property or that of others; (2) the search was not motivated by an intent to arrest and seize evidence; and (3) there was some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be searched. Davis, 290 F.3d at 1242. The determination of whether exigent circumstances exist "ultimately depends on the unique facts of [the] controversy." U.S. v. Wicks, 995 F.2d 964, 970 (10th Cir. 1993).
Exigency is not assumed when officers approach a scene of reported domestic violence. Davis, 290 F.3d at 1244 ("an officer's warrantless entry of a residence during a domestic call is not exempt from the requirement of demonstrating exigent circumstances"). Other courts have allowed officers a great deal of discretion in responding to domestic disputes because of the inherently combustible nature of such disputes. Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998) ("Courts . . . have accorded great latitude to an officer's belief that warrantless entry was justified by exigent circumstances when the officer had substantial reason to believe that one of the parties to the dispute was in danger.").
In Davis the Tenth Circuit found that the officers' entrance into defendant's residence was not justified by exigent circumstances. The officers approached the residence on a report of possible domestic violence and saw both the defendant and his girlfriend, who said they had been arguing. After refusing to allow the officers into his home, Mr. Davis retreated into his home and ordered his girlfriend outside to speak with the officers. The officers then entered the home. In finding that the officers' entrance into Davis' home was not justified, the Tenth Circuit stated:
There was no evidence . . . that indicated the officers believed Mr. Davis had a reputation for violence. Nor had he displayed a threatening or aggressive manner when he initially contacted the officers. . . . [T]he only manifestation of resistance . . . was [Mr. Davis'] insistence on keeping the officers outside. As the district court noted, even [Mr. Davis' girlfriend], "the suspected victim was trying to prevent" the officers from entering. . . .Davis, 290 F.3d at 1243. Additionally, the court noted that the officers could have checked on Mr. Davis' girlfriend's condition outside of the residence and there was no need to enter for that purpose. Id.
In contrast, the court in Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998), found entrance into a home reasonable where the officer, responding to a call of domestic violence, arrived to a silent house with a broken window. The officer was told by the neighbors that the shouting had stopped before his arrival. The court concluded that the officer was justified because he reasonably feared that someone in the residence was injured or in danger, and he had been trained that domestic violence calls were "priority" and to expect violence. Tierney, 133 F.3d 197.
Here, the facts of the situation justify the warrantless entry into Ms. Cordova's bedroom. The initial information provided to Officers Malay and Gresham indicated an ongoing and increasingly violent domestic dispute within a particular closed area of the apartment. The call was designated "priority one." This information was obtained from a then-unidentified person inside the apartment, lending it a degree of credence.
Unlike Davis, the officers had no knowledge of whether Mr. Santos-Garcia had a reputation for peacefulness. The officers did not have the opportunity to observe either Mr. Santos-Garcia or Ms. Cordova before their entrance into the bedroom in order assess what action was needed. Unlike the facts of Davis, no person in the apartment tried to prevent the officers from entering the bedroom and Officers Malay and Gresham had no means of assuring that Ms. Cordova was unharmed.
The situation confronting Officers Malay and Gresham was more closely parallels that in Tierney than that in Davis. Officers Malay and Gresham, like the officers in Tierney, were responding to a "priority" call based on credible evidence of a loud and possibly violent dispute. The officers, upon arrival, did not hear any evidence of the dispute from outside. Tierney, 133 F.3d 189. It was reasonable for the officers to enter to determine what events had occurred leading to the conclusion of a previously noisy dispute. Id. In neither Tierney nor the present case was there an indication that the situation had changed or that the possible victim was safe from violence. Id.
Accordingly, the court concludes that the officers' entrance into the apartment and the bedroom did not violate the Fourth Amendment.
Additionally, even if Mr. Rivera lacked either actual or apparent authority to grant consent, exigent circumstances justified the officers' entry into the apartment.
ORDER
For the foregoing reasons, Defendant Santos-Garcia's motion to suppress is DENIED.