U.S. v. Gutierrez-Casada

Decision Date14 May 2008
Docket NumberNo. 07-40154-01-SAC.,07-40154-01-SAC.
Citation553 F.Supp.2d 1259
PartiesUNITED STATES of America, Plaintiff, v. Noel GUTIERREZ-CASADA a/k/a Noel Gutierrez-Casado, Defendant.
CourtU.S. District Court — District of Kansas

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for Plaintiff.


SAM A. CROW, Senior District Judge.

The one-count indictment charges that defendant was found in Shawnee County, Kansas, is an alien who had previously been convicted of an aggravated felony of possession of narcotic drugs for sale, was deported from the United States on June 21, 2007, and knowingly and unlawfully reentered the United States on or about July 1, 2007 without the consent of the Attorney General of the United States, in violation of 8 U.S.C. § 1326(a).

This case comes before the court on defendant's motion to suppress statements and evidence. (Dk. 12). Defendant contends that law enforcement officers illegally entered into and searched his residence in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Payton established, and the Tenth Circuit has recently reaffirmed,1 that warrantless entries into a person's home are unreasonable even where based upon probable cause, unless exigent circumstances are also shown. Defendant contends that the circumstances leading to his discovery in the United States and flowing from it, including his identification and his fingerprints, should be suppressed as fruits of the poisonous tree.

Among other arguments, the government counters that the defendant, as an illegal alien2 who is a previously deported aggravated felon, lacks standing to raise a Fourth Amendment challenge. (Dk. 14). As the Supreme Court explained in Minnesota. v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), "the definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Accordingly, the court will first examine this issue, by examining substantive law.

General Fourth Amendment

As the Tenth Circuit has recently articulated, the Fourth Amendment prohibits only searches and seizures which are unreasonable. Reeves v. Churchich, 484 F.3d 1244, 1260 (10th Cir.2007). Using traditional standards of reasonableness, the court assesses "on the one hand, the degree to which [the search] intrudes upon an individual's privacy and, on the other, the degree to which [the search] is needed for the promotion of legitimate governmental interests." Virginia v. Moore, ___ U.S. ___, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (citations omitted) (holding that regardless of state law, warrantless arrest based on probable cause for any crime committed in the presence of an arresting officer is constitutionally reasonable.)

The "capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Minnesota v. Carter, 525 U.S. at 88, 119 S.Ct. 469 (citing Rakas, 439 U.S. at 143, 99 S.Ct. 421). The defendant bears the burden of establishing a Fourth Amendment violation. United States v. Chavira, 467 F.3d 1286, 1290 (10th Cir. 2006); United States v. Patterson, 472 F.3d 767, 775 (10th Cir.2006). To avail himself of the protection accorded by the Fourth Amendment, the defendant must prove that his subjective expectation of privacy in the area searched was also objectively reasonable. Rakas, 439 U.S. at 130-31, n. 1, 99 S.Ct. 421. "The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Id.

The government argues that defendant lacks standing to challenge the arrest and search because he is a "previously convicted aggravated felon who was previously deported and who has entered the United States again without permission." Dk. 14, p. 3. Despite having filed multiple briefs regarding this matter, defendant's sole challenge to the factual predicates of the prosecutor's argument is a conclusory statement that "there is no evidence in the record" of his illegal status. Dk. 16, p. 8. Defendant is correct.

Nonetheless, defendant's conviction of the aggravated felony of possession of narcotic drugs for sale, (No. 05-CR-20, Shawnee County Kansas, on or about April 1, 2005), and defendant's order of deportation (from the United States to the Republic of Mexico on June 21, 2007), are subject to judicial notice. Neither fact is subject to reasonable dispute, and both facts are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. See Fed.R.Evid. 201; St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979) (noting that "federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue"). See also Pompa v. American Family Mut. Ins. Co., 520 F.3d 1139, 1149 (10th Cir.2008) (holding court could have taken judicial notice of litigant's state court conviction); City of Wichita, Kan. v. United States Gypsum Co., 72 F.3d 1491, 1496 (10th Cir.1996) (finding administrative regulations subject to judicial notice); Opoka v. Immigration & Naturalization Service, 94 F.3d 392, 395 (7th Cir.1996) (taking judicial notice of immigration service's decision); Tran v. Com. of Northern Mariana Islands, 780 F.Supp. 709 (D.N.Mariana Islands, 1991) (taking judicial notice of court filings in deportation proceedings involving the same litigant.) Because defendant has failed to offer any facts contrary to those above which the court judicially notices, defendant's status is for purposes of this motion as the government asserts.

A reasonable expectation of privacy is determined by examining the totality of the facts and circumstances of each case. Rakas, 439 U.S. at 152, 99 S.Ct. 421 (Powell, J. concurring). "While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated, property rights are neither the beginning nor the end of ... [the] inquiry." United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628 (1980) (citation omitted). The principal object of the Fourth Amendment is the protection of privacy rather than property, and the Supreme Court has "increasingly discarded fictional and procedural barriers rested on property concepts." Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). "The Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88, S.Ct. 507, 19 L.Ed.2d 576 (1967). Other relevant factors include whether the defendant was legitimately on or in possession of the premises, the history of the Fourth Amendment, and society's recognition of permissible conduct in particular places. Rakas, 439 U.S. at 152-53, 99 S.Ct. at 435; United States v. Abreu, 730 F.Supp. 1018, 1026 (D.Colo.1990).

Generally, an individual has a reasonable expectation of privacy in the interior of one's own home. Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). But a Fourth Amendment search does not occur-even when the explicitly protected location of a house is concerned-unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." (Citation omitted). Kyllo, 533 U.S. at 33, 121 S.Ct. 2038.

As the Supreme Court has noted, a person may lack a reasonable expectation of privacy in a place in which his presence is "wrongful."

Obviously, however, a "legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as "legitimate." His presence, in the words of Jones, 362 U.S., at 267, 80 S.Ct., at 734, is "wrongful"; his expectation is not "one that society is prepared to recognize as `reasonable.'" Katz v. United States, 389 U.S., at 361, 88 S.Ct., at 516 (Harlan, J., concurring). Rakas, 439 U.S. at 143, n. 12, 99 S.Ct. 421 (holding passengers in car had no reasonable expectation of privacy in car's glove compartment or area under seat of vehicle where seized items were found).


"The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in most instances," Kyllo, 533 U.S. at 33, 121 S.Ct. 2038, but the antecedent question whether this defendant can invoke the protections of the Fourth Amendment is less clear. Neither the Supreme Court nor the Tenth Circuit, nor any other Circuit has decided whether a previously deported aggravated felonious illegal alien is protected by the Fourth Amendment. Most cases in this circuit which have touched upon similar issues have avoided deciding them. See e.g., United States v. Esparza-Mendoza, 386 F.3d 953, 955 (10th Cir.2004) (affirming on merits instead of reaching the illegal alien standing issue addressed at length by district court); United States v. Iribe, 11 F.3d 1553 (10th Cir.1993) (not discussing the standing issue addressed by the district court in 806 F.Supp. 917, 919 (D.Colo.1992)); United States v. Cota-Herrera, 75 Fed.Appx. 695 (10th Cir.2003) (not mentioning standing); United States v. Medina-Ortega, 2000 WL 1469314, 1-2 (D.Kan.2000) (assuming, without deciding, that an illegal alien defendant has standing to challenge a search under the Fourth Amendment.) Assumptions of standing "are not binding in future cases that directly raise the questions." Verdugo-Urqui...

To continue reading

Request your trial
6 cases
  • People v. Nishi
    • United States
    • California Court of Appeals Court of Appeals
    • July 13, 2012
    ...can have no reasonable expectation of privacy in premises on which they are wrongfully present....” ( United States v. Gutierrez–Casada (D.Kan.2008) 553 F.Supp.2d 1259, 1270; see also United States v. McRae (6th Cir.1998) 156 F.3d 708, 711;Dodds, supra, at pp. 728–729.) Defendant's unlawful......
  • United States v. Loera
    • United States
    • U.S. District Court — Eastern District of New York
    • August 29, 2018
    ...of papers and effects of a foreign national. A handful of district courts have adopted this approach. See United States v. Gutierrez-Casada, 553 F.Supp.2d 1259, 1265-66 (D. Kan. 2008) ; United States v. Esparza-Mendoza, 265 F.Supp.2d 1254, 1273 (D. Utah 2003). But this reading of Verdugo-Ur......
  • United States v. Aispuro-Haros
    • United States
    • U.S. District Court — District of New Mexico
    • October 24, 2012
    ...protections applied to the defendant. Id. More recently, the Kansas District Court examined the issue in United States v. Gutierrez-Casada, 553 F. Supp. 2d 1259 (D. Kan. 2008). There, the Government came forward with, and the court took judicial notice of, evidence of defendant's prior felo......
  • United States v. Murray
    • United States
    • U.S. District Court — Virgin Islands
    • August 2, 2010
    ...that as a squatter' Mr. Gowdy had any reasonable expectation of privacy in the room(s) he occupied .”); United States v. Gutierrez–Casada, 553 F.Supp.2d 1259, 1270 (D.Kan.2008) (“Because a person can have no reasonable expectation of privacy in premises on which they are wrongfully present ......
  • Request a trial to view additional results
1 books & journal articles
  • Due Process in Removal Proceedings After Thuraissigiam.
    • United States
    • Stanford Law Review Vol. 74 No. 4, April 2022
    • April 1, 2022
    ...265 F. Supp. 2d 1254 (D. Utah 2003), aff'd on other grounds, 386 F.3d 953 (10th Cir. 2004); United States v. Gutierrez-Casada, 553 F. Supp. 2d 1259 (D. Kan. 2008); and United States v. Ullah, No. 04-cr-00030, 2005 WL 629487 (W.D.N.Y. Mar. 17, (194.) See id. at 109-10 (quoting Esparza-Mendoz......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT