U.S. v. Torres-Castro

Decision Date04 April 2005
Docket NumberNo. CR 04-2537JB/MCA.,CR 04-2537JB/MCA.
PartiesUNITED STATES of America, Plaintiff, v. Victor Manuel TORRES-CASTRO, Defendant.
CourtU.S. District Court — District of New Mexico

David C. Iglesias, United States Attorney for the District of New Mexico, David

M. Walsh, Assistant United States Attorney for the District of New Mexico, Albuquerque, NM, for the Plaintiff.

Phillip Medrano, Assistant Federal Public Defender, Albuquerque, New Mexico, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER came before the Court on Defendant's Motion to Suppress Evidence and Supporting Memorandum filed on February 8, 2005 (Doc. 15). The Court held an evidentiary hearing on this Motion on February 25, 2005. The primary issues are: (i) whether the protective sweep of Defendant Victor Manuel Torres-Castro's residence was incident to his arrest; and (ii) whether the Court must suppress the evidence and statements that the officers subsequently obtained as "fruit of the poisonous tree." Because the Court concludes that the protective sweep's unlawfulness did not taint Torres-Castro's voluntary statements or consent to search the residence for weapons, the Court will deny Torres-Castro's motion.

FINDINGS OF FACT

1. At approximately 12:30 a.m. on December 2, 2004, Officer Dan Phel of the Albuquerque Police Department ("APD") encountered a juvenile running down Central Avenue in Albuquerque, New Mexico. See Transcript of Hearing at 4:10-20 (taken February 25, 2005).1

2. Phel observed that the juvenile2 appeared upset, scared, and out of breath from running. See Transcript of Hearing at 5:7-10.

3. During the officer's initial encounter with the juvenile, the juvenile provided the officer with the following information:

a. her boyfriend was chasing her;

b. her boyfriend was going to beat her;

c. her boyfriend was over 20 years old;

d. she was 14 years old;

e. she did not live in the area; and

f. her parents did not know what was going on.

See Transcript of Hearing at 4:20 — 5.6.

4. Upon receiving this information, the officer took the juvenile to the police substation and called her parents. See Transcript of Hearing at 5:11-24.

5. While waiting for the juvenile's mother to arrive and pick her up from the substation, the officer obtained the following additional information from the juvenile:

a. her boyfriend was Victor Torres-Castro;

b. her boyfriend was an illegal alien and had been deported once before;

c. her boyfriend had engaged in sexual intercourse with her;

d. her boyfriend had a gun;

e. her boyfriend had beaten her a few times in the past, and when she tried to leave her boyfriend in the past, he would lock her up or hit her; and

f. her boyfriend would not allow her to contact her family or friends, and had threatened to shoot anyone who attempted to take her away.

See Transcript of Hearing at 5:25 — 7:5; 8:6-9.

6. While at the police substation, the juvenile also was able to provide Torres-Castro's birth date and identify him from a photograph that Phel retrieved from police records, which allowed Phel to verify Torres-Castro's age and become familiar with his appearance. See Transcript of Hearing at 7:2-7.

7. Phel also verified the juvenile's age by reviewing her school identification card and questioning her mother when she arrived at the substation. See Transcript of Hearing at 7:8-12.

8. The juvenile's mother told the officer that the juvenile was having a relationship with Torres-Castro and that she tried to keep him away from the juvenile but had not been successful in doing so. She also explained that she was in the process of attempting to get a restraining order against Torres-Castro to prevent him from taking the juvenile. See Transcript of Hearing at 7:18 — 8:5.

9. Based on the information that he obtained from the juvenile, her mother, and police records regarding Torres-Castro, Phel decided to conduct an investigation at Torres-Castro's residence. See Transcript of Hearing at 8:10 — 9:8.

10. At approximately 7:00 p.m. on December 4, 2004, Officer Phel and two other APD officers (Elder Guevara and Mark Elrick) went to a residence identified as "301 General Chenault" in Albuquerque, New Mexico. Phel briefed the other officers on his investigation before their arrival, including the juvenile's allegations that Torres-Castro had a gun and had engaged in domestic violence. See Transcript of Hearing at 8:10 — 10:1; 12:3-15; 26:17 — 28:9; 37:22 — 39:03.

11. At the time the officers approached the residence, Phel had not formed the intention to arrest Torres-Castro and had not obtained an arrest warrant. See Transcript of Hearing at 16:11-14; 18:7-15.

12. The residence at 301 General Chenault is located in a neighborhood known to the officers as a high-crime area, where drugs and prostitution are present, and where the officers frequently receive calls for "shots fired." See Transcript of Hearing at 8:23 — 9:2; 38:16-21.

13. The residence at 301 General Chenault has a large picture window beside the front door and walkway, which was open with the lights on as Phel and Guevara initially approached the residence. See Transcript of Hearing at 10:2-9; 17:16-23; 39:4-10.

14. Looking through the front picture window, Phel and Guevara could see and identify Torres-Castro, along with several other unknown male individuals, seated in the living room. Guevara also observed that one of the individuals looked out of the window at the officers and then said something to the other occupants, whereupon some of them began walking toward the rear of the residence. See Transcript of Hearing at 10:2-9; 39:4-15.

15. After he made these observations through the window, Phel knocked on the front door of the residence, and Torres-Castro answered by opening the door. See Transcript of Hearing at 10:10-17; 39:16-20.

16. The officers were in uniform and did not draw their weapons or make any other show of force when Torres-Castro opened the door. See Transcript of Hearing at 21:7-8; 23:10-21; 25:3-4; 33:8-18; 48:15-21.

17. Phel then asked in English: "Is it O.K. if we come in and have a word with you?" Torres-Castro understood the officers' request and responded by saying: "Sure, come on in." Under the totality of the circumstances, Torres-Castro voluntarily consented to the officers' entry into the residence. See Transcript of Hearing at 10:18 — 11:07; 15:14-20; 39:16 — 40:6.

18. The front door of the residence opened into a living room area, and upon receiving Torres-Castro's permission to enter, Phel and Guevara walked into the living room of the residence, with Elrick trailing behind them a few steps while the front door was still open. See Transcript of Hearing at 10:18 — 11:04; 22:17-19; 28:10-21.

19. Upon entering the living room, Phel explained the purpose of his investigation and asked Torres-Castro in English whether he knew the juvenile, what their relationship was, and whether he knew the juvenile's age. According to Phel, Torres-Castro responded that he knew the juvenile, she was his girlfriend, and he knew how old she was. See Transcript of Hearing at 11:8-14.

20. While Phel was conversing with Torres-Castro in the living room, Torres-Castro was not handcuffed or physically restrained. See Transcript of Hearing at 23:10-21; 33:8-18; 48:2-21.

21. When Phel first entered the residence and began conversing with Torres-Castro, the officers noticed that some of the individuals they had previously seen through the picture window had disappeared from view and were no longer in the living room. See Transcript of Hearing at 11:14-16; 17:24 -18:1.

22. The officers also observed that there were other rooms in the residence, including a front bedroom with a wall adjoining the living room, one or two back bedrooms, and a kitchen area behind the living room. The doors or entrances to these other rooms were open, and Elrick and Guevara observed that some individuals were in plain view in one or more of the back rooms. See Transcript of Hearing at 22:17-24; 28:22 — 29:22; 34:8 — 35:2; 40:7 — 43:19; 54:2-25.

23. While Phel remained in the living room area with Torres-Castro, Guevara and Elrick conducted a brief "protective sweep" of the residence's other rooms and directed the individuals who had moved into the other rooms to return to the living room area and have a seat. The officers identified themselves as police officers, but did not draw their weapons or make any show of force while conducting this protective sweep. See Transcript of Hearing at 12:16 — 13:8; 23:16-21; 25:3-4; 28:22 — 29:22; 33:8-18; 40:19 — 43:19.

24. Neither Torres-Castro nor any of the residence's other occupants resisted or objected to the officers' presence in the living room or any of the residence's other rooms. The occupants were cooperative and assembled in the living room in accordance with the officers' request. See Transcript of Hearing at 55:11-18.

25. During the protective sweep of the front bedroom adjoining the living room area, Elrick saw a box of shotgun shells in plain view on a shelf in an open closet in the front bedroom. This open closet was adjacent to the door leading from the front bedroom to the living room area where Torres-Castro and other individuals were standing at the time. Further, the door to that front bedroom was located directly around a blind corner that the officers could not see from their vantage point within the living room. Thus, the shotgun shells in the open closet would have been within arms reach of a person standing in the threshold of the door to the front bedroom, directly around the blind corner from the living room. See Defendants Exhibits 1, 2; Transcript of Hearing at 21:3-6; 29:9 — 30:5; 32:25 — 33:3; 42:16 — 43:19; 45:19 — 46:4.

26. Elrick...

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