United States v. Abarza, 1:14-cr-179-MC

• Court: U.S. District Court — District of Oregon
• Writing for the Court: MCSHANE, United States District Judge
• Citation: United States v. Abarza, 199 F.Supp.3d 1270 (D. Or. 2016)
• Decision Date: 05 August 2016
• Docket Number: No. 1:14-cr-179-MC,1:14-cr-179-MC
• Parties: UNITED STATES of America, Plaintiff, v. Giovanni Francisco ABARZA, Joseph Santino Dibrito, Lisa Renee Abarza, Defendants.

199 F.Supp.3d 1270

UNITED STATES of America, Plaintiff,

v.Giovanni Francisco ABARZA, Joseph Santino Dibrito, Lisa Renee Abarza, Defendants.

No. 1:14-cr-179-MC

United States District Court, D. Oregon, Medford Division.

Signed August 5, 2016

Judith Rose Harper, U.S. Attorney's Office, Medford, OR, for Plaintiff.

ORDER

MCSHANE, United States District Judge

I previously granted defendant Giovani Abarza's Motion to Suppress, finding that Oregon State Police troopers unreasonably prolonged the traffic stop of Mr. Abarza in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. United States v. Abarza , 143 F.Supp.3d 1082 (D.Or.2015). The government now moves for reconsideration or clarification of that order, contending that evidence seized from Mr. Abarza's passenger, defendant Joseph Dibrito, should not be suppressed.

Defendant Lisa Abarza (Ms. Abarza), Mr. Abarza's wife, subsequently moved to suppress statements she made to Oregon State Police troopers at the Abarzas' residence following her husband's arrest. Mr. Abarza joins in her motion.

I grant the government's motion to clarify the extent of the prior suppression order. All evidence seized from Mr. Abarza and his vehicle remains suppressed. Because Mr. Abarza does not have standing to challenge the search of his passenger in this case, I conclude that the search of Mr. Dibrito did not violate Mr. Abarza's Fourth Amendment rights. Evidence seized from Mr. Debrito is not suppressed.

Because the warrantless entry into the curtilage of the Abarza home by state troopers was made in violation of her Fourth Amendment rights, I grant Ms. Abarza's motion to suppress the statements she made to Oregon State Police troopers.

Finally, I conclude that even if the evidence and statements obtained from Mr. Dibrito are not suppressed, that evidence alone presents insufficient probable cause to support the issuance of the warrant authorizing the search of the Abarza home.

THE GOVERNMENT'S MOTION TO RECONSIDER OR CLARIFY

I. Prior Findings on Mr. Dibrito's Arrest

In the previous opinion, I made the following findings as to the arrest of Mr. Dibrito during the traffic stop of Mr. Abarza's vehicle:

About 16 minutes into the stop, [Oregon State Police trooper David] Chambers decided to remove Dibrito from the Acura and detain him while the vehicle was searched. Prior to removing Dibrito from the car, Chambers described to him in detail the removal and pat down procedure. Chambers warned Dibrito that the troopers would use force against him if he did not comply fully with every order.

Although the pat-down of Dibrito is not visible on the dash-cam video, the audio reflects that Dibrito was not fully compliant with the trooper's instructions and was placed in handcuffs. Dibrito then admitted that he had a knife in his back pocket. Chambers determined that the knife opened with centrifugal force. Because Chambers had been informed that Dibrito had an unspecified felony conviction, Chambers concluded he had probable cause to arrest Dibrito for being a felon in possession of a restricted weapon. Chambers gave Dibrito Miranda warnings. For the remainder of the traffic stop, Dibrito stood in handcuffs next to Sgt. Barden.

....

About 40 minutes into the traffic stop, Chambers searched Dibrito and found two one-ounce bags of methamphetamine and a loaded semi-automatic pistol that had been concealed in Dibrito's pant legs. Dibrito told Chambers that Abarza had handed him the drugs and the handgun when the car was pulled over.

Abarza , 143 F.Supp.3d at 1090–91.

II. The Search of Mr. Dibrito Did Not Violate Mr. Abarza's Fourth Amendment Rights

When the government illegally seizes evidence from a criminal defendant, the exclusionary rule generally "requires trial courts to exclude unlawfully seized evidence in a criminal trial." Utah v. Strieff, ––– U.S. ––––, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). For purposes of this motion to reconsider, the government does not dispute that the exclusionary rule requires suppression of evidence seized from Mr. Abarza during the illegal search of his car. The government argues, rather, that this court's order granting Mr. Abarza's motion to suppress does not apply to evidence and statements from Mr. Dibrito because Mr. Abarza cannot assert Mr. Dibrito's Fourth Amendment rights to be free from unlawful searches and seizures.

Mr. Abarza responds that the evidence seized from Mr. Dibrito must be suppressed because the search of Mr. Dibrito was a direct result of the illegal search of Mr. Abarza's car. Under the "fruit of the poisonous tree" doctrine, the exclusionary rule "require[s] suppression of other evidence that is derived from—and is thus tainted by—the illegal search or seizure." Lingo v. City of Salem, 832 F.3d 953, 958, No. 14–35344, 2016 WL 4183128, at *3 (9th Cir. June 27, 2016).

I conclude that this court is bound by the Ninth Circuit's holding in United States v. Kuespert , 773 F.2d 1066 (9th Cir.1985). There, police officers illegally stopped a vehicle driven by defendant Kuespert. The officers found stolen United States Treasury checks in the waistband of one of Kuespert's passengers and Kuespert's fingerprints were found on the stolen checks. The District Court granted the passenger's motion to suppress the stolen checks, but denied Kuespert's motion to suppress. Kuespert subsequently entered a provisional plea of guilty and appealed the denial of his motion.

On appeal, the Ninth Circuit affirmed, holding that "although Kuespert, as the driver of the vehicle, may have standing¹ to challenge the search of the car, this does not encompass the search of its passengers as well." Kuespert , 773 F.2d at 1068 (citation omitted).

There is no legally significant distinction between Kuespert's situation (the driver of an illegally stopped car attempting to suppress evidence seized from a passenger) and that of Mr. Abarza. I conclude that Mr. Abarza, under the facts presented here, cannot challenge the search of Mr. Debrito. Evidence seized from Mr. Dibrito is therefore admissible.

MS. ABARZA'S MOTION TO SUPPRESS

I. Background

The following background facts are taken from the parties' joint stipulation, ECF No. 134; the declarations of Oregon State Police troopers Chambers and Patrick Irish, ECF No. 141-1, -2; and the photographs and other exhibits submitted by the parties, including video from the Abarzas' home security cameras, Gov't Supp. Resp., Exs. 8 and 9, ECF Nos. 141–10, –11.

After his arrest following the illegal traffic stop, Mr. Abarza was taken to the Klamath County Jail where he was booked around 1:00 a.m.. While inventorying the contents of Mr. Abarza's wallet, Chambers seized a receipt for $300 from a Sacramento, California business that sold keys, locks, and safes.

Chambers decided to go to the Abarzas' residence immediately. Chambers already had obtained Mr. Abarza's home address more than 35 minutes into the traffic stop. Chambers now states that if he had not obtained Mr. Abarza's home address during the unreasonably prolonged traffic stop, he "would have completed additional investigation and determined where [Mr. Abarza] lived in an attempt to obtain additional evidence." Chambers Deck 1, ECF No. 141-1. This speculative belief that further investigation would have yielded additional evidence does not rise to the level of inevitability. Mr. Abarza's address and the receipt found in his wallet were obtained in exploitation of the illegal traffic stop.

Chambers and Irish arrived at the Abarzas' residence about 2:30 a.m. on March 7, 2014, driving separate Oregon State Police vehicles. The troopers were in full uniform and wore holstered handguns. Because of pitch dark conditions, each trooper carried an illuminated flashlight when they left their vehicles.

The Abarzas lived in a double-wide manufactured house. Video captures the troopers' approach to the Abarzas' house from the security surveillance cameras installed by the Abarzas at each door. Jt. Stip. 2.

The surveillance video shows the troopers walking towards the gate to the Abarzas' carport, stopping for a few seconds, and shining their flashlights on the enclosed space. No lights are visible from the house other than one porch light above the back door. Chambers walks towards the front door, which is enclosed by a three-foot high chain link fence. He opens the closed fence gate and knocks on the front door. Receiving no response, Chambers walks to the other side of the house, towards a covered carport. Going through another closed fence gate, he approaches the back door and knocks.

The government now contends, contrary to the parties' Joint Stipulation, that the two exterior doors to the Abarzas' house were not front and back doors, but simply two side doors. I agree with Defendants that the evidence confirms the Joint Stipulation's characterization of the doors. The surveillance video shows "the officers believed that the most appropriate door to contact the occupants of the dwelling was the first door that they approached—the front door on the left side of the house—not the right door, which was behind a gate that is flush with the exterior of the residence, and enclosed within a carport containing personal belongings and a motorcycle." Def. Mem. in Opp. 4-5, ECF No. 142. The area around the front door is clear of debris, in contrast to the area around the back door, which appears to be in a private area cluttered with piles of cardboard boxes on either side of the door, as well as a motorcycle and furniture.²

About 10 seconds after Chambers knocked on the back door, Ms. Abarza answered the door. She spoke briefly to Chambers, who was carrying a lit flashlight, and then let him enter the house. Chambers could see that Ms. Abarza had just awakened.

Chambers now states that even though Ms. Abarza had just awakened, she appeared to be alert and coherent. Chambers states that Ms. Abarza was cordial and did not appear to be under the influence of any intoxicants.

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