470 F.3d 992 (10th Cir. 2006), 05-2357, United States v. Torres-Castro

Docket Nº:05-2357.
Citation:470 F.3d 992
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Victor Manuel TORRES-CASTRO, Defendant-Appellant.
Case Date:December 12, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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470 F.3d 992 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Victor Manuel TORRES-CASTRO, Defendant-Appellant.

No. 05-2357.

United States Court of Appeals, Tenth Circuit.

December 12, 2006


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Sasha Siemel, (Laura Fashing, Assistant United States Attorney and David C. Iglesias, United States Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff - Appellee.

Phillip P. Medrano, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant - Appellant.

Before TACHA, Chief Judge, KELLY, and MURPHY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Victor Manuel Torres-Castro appeals from his convictions for possession of an unregistered firearm (sawed-off shotgun) (count 1), 26 U.S.C. §§ 5481, 5681(d) & 5871, and possession of a firearm by an illegal alien (count 2), 18 U.S.C. §§ 922(g)(5) & 924(a)(2). He was tried before a jury, found guilty, and sentenced to concurrent 46 month terms of imprisonment and concurrent two-year terms of unsupervised release. On appeal, Mr. Torres-Castro contests the district court's denial of his motion to suppress certain evidence and statements obtained by Albuquerque police officers at his home on December 4, 2004. See United States v. Torres-Castro, 374 F.Supp.2d 994 (D.N.M. 2005). He agrees with the district court's holding that the police conducted an unlawful protective sweep of his home, but he argues that the sweep and the shotgun shells observed during the sweep tainted his consent to search for a shotgun, discovery of the shotgun, and his later post-arrest statements to police. Accordingly, he argues that the district court erred in refusing to suppress the shotgun shells, the shotgun, and the statements made by him as fruit of the poisonous tree. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.


On December 2, 2005, Albuquerque police encountered a fourteen-year-old girl running down Central Avenue in Albuquerque, New Mexico. The girl told police

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that her boyfriend was twenty years old, that he had been chasing her, and that he had threatened to beat her. The police transported the girl to a police substation where she identified her boyfriend as Mr. Torres-Castro. She informed the police that Mr. Torres-Castro was an illegal alien who had been once deported, that she and Mr. Torres-Castro had engaged in sex, that he possessed a gun, that he had beaten her in the past and restrained her from leaving, and that he had threatened to shoot anyone who tried to take her away. While at the station, the girl identified a photograph of Mr. Torres-Castro, which allowed police to verify his age and familiarize themselves with his appearance. Later that night, the girl's mother informed police that she was in the process of obtaining a restraining order against Mr. Torres-Castro.

Based on this information, police officers Dan Phel, Elder Guevara, and Mark Elrick decided to visit Mr. Torres-Castro's home. They arrived at around 7:00 p.m. on December 4, 2004, intending to question him but not to arrest him. The officers had neither an arrest warrant nor a search warrant. Before arriving at the home, Officer Phel told Officers Guevara and Elrick that Mr. Torres-Castro had a gun and had engaged in domestic violence. As the officers approached the house, they identified Mr. Torres-Castro through a front window and noticed that several other individuals were seated in the front room. While the officers were looking through the window, one of the individuals in the home saw the officers and said something to the other individuals, whereupon some left the front room and moved elsewhere in the house.

Officer Phel then knocked on the front door, which Mr. Torres-Castro opened. The officers were uniformed but did not draw their weapons. Officer Phel asked permission for all officers to enter and talk to Mr. Torres-Castro. Mr. Torres-Castro agreed, and all three officers entered the house. Officer Phel began to question Mr. Torres-Castro about his relationship with his juvenile girlfriend. During this time, Officers Elrick and Guevara noticed that several individuals were in plain view in one or more back rooms. Officers Elrick and Guevara then conducted a brief protective sweep of the other rooms in the house and directed all individuals in the other rooms to return to the front room and be seated. None of the individuals or Mr. Torres-Castro objected and all individuals located in the home were assembled in the front room.

While conducting the protective sweep, Officer Elrick saw a box of shotgun shells in a clear plastic bag on a shelf in an open closet in a bedroom. Officer Elrick told the other officers about the shells but did not remove them. Officer Elrick remained near the bedroom door while the other officers spoke with the individuals in the front room.

Officer Guevara then asked each of the individuals if they had any weapons and if they would consent to a search of the residence. During this questioning, Officer Guevara specifically advised Mr. Torres-Castro in Spanish that he did not have to answer. Officer Guevara testified that officer safety issues prompted his questioning and that such safety issues arose after discovery of the shells and with the officers' prior knowledge that Mr. Torres-Castro had a gun. R. Vol. III, at 44-45 (Tr. February 5, 2005). Officer Phel testified that he did not intend to arrest Mr. Torres-Castro based on the discovery of the shells because he did not know it was illegal for him to possess them.

Officer Guevara eventually asked Mr. Torres-Castro, "Is there a shotgun in the house? Where is the shotgun at?" Mr.

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Torres-Castro responded in Spanish that there was a shotgun located under a mattress in the bedroom where the shells were located, and he gave consent for the officers to search the house for weapons. The district court determined that such consent was voluntary under the totality of the circumstances. At some point, while the individuals were assembled in the front room, the officers conducted a pat-down search of each male for weapons.

Officer Guevara located the shotgun in the bedroom and noticed that it appeared to be an illegal sawed-off shotgun. About five minutes elapsed from the officers' entry into the home until their discovery of the shotgun. Because the officers knew it was illegal for Mr. Torres-Castro to possess a sawed-off shotgun, they notified Agent Francisco Ortega of the Bureau of Alcohol, Tobacco, and Firearms (ATF), who arrived at the house shortly thereafter. Before Agent Ortega...

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