Opinion
2:04-CR-0012.
April 9, 2004
REPORT AND RECOMMENDATION
Came this day for consideration the motion to suppress filed by defendant DAVID SAUCEDO on March 18, 2004, and the motion to suppress filed by defendant ANGELA MARIE PEDROZA on March 19, 2004. On March 25, 2004, an evidentiary hearing on defendants' motions was held during which Drug Enforcement Agency (DEA) agent Clay Morris and Amarillo Police Department (APD) Officers Donald Sanders, John Perkins and Corporal John Call testified. Both defendants also testified for the limited purpose of the motions to suppress. On March 31, 2004, both the government and the defendants submitted proposed Findings of Fact and Conclusions of Law.
Upon consideration of the evidence presented at the hearing, the pleadings, and the post-hearing submission of the parties, the Court is of the opinion defendants' motion to suppress should be DENIED.
I. FACTUAL OVERVIEW
On November 9, 2003, the APD received a call about marijuana being sold out of an apartment at the Paramount Terrace Apartment complex in Amarillo, Texas. The call was from an anonymous caller who did not wish to be identified and who the police were unable to identify. The officers dispatched to respond to this call were APD Officers Perkins, Sanders, and Call. Upon arrival at the apartment complex, the officers initially looked for apartment 305-D. The officers then determined the correct apartment to be 305-B. As the officers approached Building B of the Paramount Terrace Apartments, they found the entrance to the building to be locked, but a tenant inside the building produced a key for the officer's use. The three officers gained entry into the building, proceeded to apartment 305-B, and knocked on the door. Defendant Pedroza opened the door and the officers entered. Upon entering the apartment, Officer Sanders saw a movement (shadow) and went to the bedroom of the apartment where he saw defendant Saucedo with his hands under the bedspread. Officer Sanders secured defendant Saucedo and removed him from the bedroom to the living room. Sanders returned to the bedroom, looking under the bedspread, finding baggies of methamphetamine and digital scales. The officers conducted additional searches of the apartment, finding additional methamphetamine under the bed, some marijuana in a bucket in a closet, as well as a firearm, narcotics paraphernalia and residue, and currency. Both defendants Pedroza and Saucedo were arrested and federal charges were eventually filed against both defendants. The officers did not have a warrant to enter or search the premises of apartment 305-B, which was leased to defendant Pedroza.
Both defendants filed motions to suppress contending the entry into the apartment and subsequent warrantless searches were all in violation of the Fourth Amendment, and requesting that all evidence and contraband seized should be suppressed. The government contends the initial entry into the apartment was consensual and that all subsequent searches in and of the apartment were pursuant to valid consent given by the lessee of the apartment, defendant Pedroza. The government contends her consent was freely and voluntarily given and the motions to suppress should be denied.
II. ISSUES
1. Whether the initial entry into apartment 305-B was by invitation and was consensual.
2. Whether the search conducted by Officer Sanders looking under the bedspread of the bed in the bedroom where defendant Saucedo was found and apprehended was pursuant to a valid consent.
3. Whether the search of the bedroom and of the closet in the bedroom, following the discovery of the methamphetamine under the bedspread, was pursuant to a valid consent by defendant Pedroza.
4. Whether the subsequent written consent to search the apartment by defendant Pedroza was freely and voluntarily given, and, if so, whether such written consent to search was of any consequence.
III. TESTIMONY A. Initial Entry
The testimony of the APD officers was consistent that all three officers approached the door to apartment 305-B, Officer Perkins knocked, the door was opened by defendant Pedroza who was advised by Perkins they had received a call relating to marijuana being sold, and that Perkins asked her if they could come in and talk to her about it. The testimony concerning the subsequent events varies. Officer Sanders testified defendant Pedroza responded to Perkins by stating "yes, come in," or words to that effect. Officers Perkins and Call do not recall any such specific statement, although both officers recalled she was talking, probably on a cell phone, but that they did not hear what she did or did not say. Both Officers, Call and Perkins, testified that in response to Perkins' question as to whether they could come in and talk, defendant Pedroza opened the door wider, stepped back into the apartment allowing the officers to enter, and both officers considered these acts to be an invitation to enter. Defendant Pedroza testified she did not give the officers permission to enter, she never told them to come in, and, in fact, she told them they could not come in. She also testified she did not open the door wider, but that she did step back.B. Bedspread Search
The testimony of the officer witnesses is consistent that defendant Pedroza, in response to a question, stated no one else was present in the apartment, but changed her answer to advise her boyfriend was asleep in the bedroom. The officers testified that about the time she changed her answer, either immediately prior to or simultaneously with, they observed Officer Sanders going towards the bedroom and heard him say, "show me your hands, let me see your hands," or words to that effect. Officer Sanders testified he saw a shadow in the hall outside the bedroom, went to the bedroom, and saw defendant Saucedo with his hands under the bedspread as if he were hiding something. He ordered him (Saucedo) to remove his hands, removed him from the bedroom, and took him into the living room, turning him over to Officer Call. Officer Sanders testified he then asked defendant Pedroza if he could look under the bedspread to see what her boyfriend had hidden, or words to that effect, and that she replied "yes." He then returned to the bedroom and discovered the baggies of methamphetamine and the scales under the bedspread. Officer Perkins testified he did not hear either Sander's question to defendant Pedroza or her response, and Officer Call testified similarly. Officer Call also testified it was very possible he would not have heard such an exchange. Both defendants Saucedo and Pedroza testified Officer Sanders never requested consent to look under the bedspread and that defendant Pedroza never gave consent.
C. Bedroom Search
All three officers testified that after the baggies of methamphetamine were found under the bedspread, the defendants were handcuffed and placed on a couch in the living room. The officers testified defendant Pedroza was given her Miranda rights. Officer Perkins then asked her for consent to search the apartment to which she replied "yes." Hearing her response giving consent, Corporal Call instructed Officer Sanders to go down to the police car and obtain a written consent form. Defendants Pedroza and Saucedo both testified that no consent to search the bedroom was requested at that point in time and that none was given by defendant Pedroza. While Officer Sanders was obtaining the written consent form, Officer Perkins entered the bedroom, found a five gallon bucket containing marijuana in the closet, and found two packages of methamphetamine under the bed.
D. Written Consent to Search
After Officer Sanders returned with the written consent form, he testified he sat down, went over the form with defendant Pedroza, advised her of her right to refuse consent, and that she executed the written consent to search. Both Officers, Perkins and Call, confirmed this. Defendant Saucedo and defendant Pedroza both testified the written consent was executed by defendant Pedroza only upon her being advised by the officers that it was merely an acknowledgment there were no other narcotics in the apartment other than the methamphetamine and marijuana which had already been found. After the written consent was executed, the officers searched the apartment, finding currency, a firearm, narcotics paraphernalia, and some narcotics residue.
IV. FINDINGS
Under the Fourth Amendment, a search and seizure conducted without a warrant issued on probable cause is per se unreasonable with few exceptions. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One exception is a search conducted pursuant to consent. United States v. Jenkins, 46 F.3d 447 (5th Cir. 1995). To establish such an exception, the burden is on the government to prove consent by a preponderance of the evidence. United States v. Tompkins, 130 F.3d 117 (5th Cir. 1997).
A. Bedroom Search
The undersigned finds that, in response to Officer Perkins' request, defendant Pedroza gave her verbal consent to search the apartment subsequent to her being advised of her Miranda rights, and finds her consent to have been freely and voluntarily given. The Court makes this finding after considering the factors enumerated in United States v. Shabazz, 993 F.2d 431 (5th 1993). The Court finds, based upon the testimony of all of the officer witnesses, that defendant Pedroza was unusually cooperative, that she assisted the officers continuously in their search of the apartment, specifically advising them of the location of a firearm, advising them of the location of a "black box," which they had not found, advising them as to the amounts of currency which they found, advising them as to the approximate weight of the marijuana they found, as well as to the weight of the two packages of methamphetamine found under the bed. Defendant Pedroza's cooperativeness, both before signing the written consent to search, her signing of the written consent and cooperation after signing, evidences the free and voluntary nature of the verbal consent she gave Officer Perkins to search the apartment subsequent to the discovery of the methamphetamine under the bedspread.
B. Written Consent
It is the further finding of the Court that the written consent executed by defendant Pedroza was free and voluntary. It was given after she had been advised of her Miranda rights and after she had been advised of her right to refuse consent.
C. Initial Entry
The undersigned finds the initial entry into the apartment by the police officers was consensual. In response to Officer Perkins inquiry as to whether they could come in and talk, Pedroza opened the door wider, allowing entry and stepped back into the apartment, allowing further entry. While it is true that three (3) uniformed officers were present, they asked permission to enter and did not exhibit coercive and forceful behavior. Defendant Pedroza's act in opening the door wider and stepping back was not mere acquiescence but constituted permission to enter. United States v. Hampton, 260 F.3d 835 (8th Cir. 2001).
Defendant SAUCEDO, in his post hearing submission, contends the entry by the officers into Building B was not valid. The testimony at the hearing was that a tenant of Building B gave the officers a key allowing entry into the building. Neither defendant PEDROZA nor defendant SAUCEDO have demonstrated any expectation of privacy in the "common area" of Building B. All tenants of Building B as well as any invitees of those tenants had access to the common areas and the entry into Building B by the officers, before entering the particular apartment occupied by the defendants has not been shown to be in violation of the Fourth Amendment.
D. Bedspread Search
The more difficult question in this case is whether defendant Pedroza verbally consented to Officer Sanders' request to search under the bedspread. Officer Sanders testified she did. Defendant Pedroza testified she did not, and defendant Saucedo testified she did not. Officer Perkins testified he did not hear Officer Sanders' request, nor did he hear defendant Pedroza give consent to search under the bedspread, but that he was of the opinion that Officer Sanders could search under the bedspread for the safety of the officers, to determine if any weapons were under the bedspread. Corporal Call testified he did not hear Officer Sanders ask for consent, nor did he hear defendant Pedroza give consent to search under the bedspread, but also testified it was very possible such conversation could have occurred because he was busy with defendant Saucedo at the time. Both Officers Perkins and Call testified they were physically present in an area between Officer Sanders and defendant Pedroza when Officer Sanders said he asked for and received consent to search under the bedspread. To prevail, it is not necessary that the defendants establish Officer Sanders gave false testimony on this point. It is only necessary for the defendants to establish that the government failed to prove by a preponderance of the evidence that consent was given. Although it may be slight, there is a difference in being required to establish that a proponent has failed to prove an issue by preponderance of the evidence and being required to establish a particular witness did not testify truthfully. The government fails on this point if they have not established, by a preponderance of the evidence, that consent was given by defendant Pedroza to look under the bedspread, and that such consent was freely and voluntarily given. Whether the government has carried their burden is a very close question. Were the standard of proof by clear and convincing evidence, then the government may very well have failed to meet such burden. However, under the lesser, preponderance of the evidence standard, the undersigned is of the opinion the government has met its burden.
The government also argues that even without consent officer Sanders could look under the bedspread for the safety of himself and the other officers in order to determine if a weapon was being hidden. It is not necessary to decide this issue since the Court finds such search was consensual. Further, while such a protective search for officer safety may have been valid, it loses much of its appealability in light of officer Sanders testimony on cross examination that once he [SAUCEDO] was out of the bedroom, there was no longer a safety issue.
Further, of the three officers who testified, Officer Sanders' recollection of the events was superior to either Officer Perkins or Corporal Call, although Call's recollection was good. Officer Sanders would have greater knowledge of what he said and what was said to him in response than would the other officers who were merely standing by and involved with other duties. Corporal Call testified such consent could have been requested and could have been given, and that it was not only possible, but very possible he would not have heard such verbal exchange. Also, although he changed his position when being cross-examined, Officer Sanders initially was of the opinion and stated he felt he was authorized to search under the bedspread for weapons for officer safety. The government argues such in its brief. This fact lends credibility to Sanders testimony about consent. If, at the scene, and when making his written report of the incident, he was of the opinion that the search under the bedspread was valid for reasons of officer protection, then he had little reason to fabricate the fact that defendant Pedroza consented.
CONCLUSION
Based upon all of the above, it is the opinion and finding of the Magistrate Judge that the initial entry into the apartment was consensual, that defendant Pedroza did not merely acquiesce to the officers' entry without invitation, but that she communicated her consent by opening the door wider and stepping back to allow their entry. Further, Officer Sanders' trip to the bedroom was justified based upon his belief he observed the presence or the potential presence of an unknown individual, and he was well within his right to protect his own safety as well as the safety of others, when he ordered defendant Saucedo to remove his hands from the bedspread. Officer Sanders was justified in removing Saucedo out of the bedroom and into the living room. The search under the bedspread was a consensual search, and the verbal consent subsequently given by defendant Pedroza was valid, as was the later written consent. No Fourth Amendment violation occurred.
VI. RECOMMENDATION
Based upon all of the foregoing, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the motions to suppress physical evidence filed by defendants DAVID SAUCEDO and ANGELA MARIE PEDROZA should be DENIED.
VII. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to forward a copy of this Report and Recommendation to defense counsel by facsimile, and to provide the government with a copy for immediate pickup. Any party may object to this Report and Recommendation. See 28 U.S.C. § 636(b)(1)(C).
This case is set for docket call and trial on Monday, April 19, 2004. Therefore, all objections must be filed by 1:00 p.m. on Friday, April 16, 2004. Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.