United States v. Gonzalez-Espinal

• Decision Date: 26 May 2017
• Docket Number: Criminal No. 16-599 (FAB).
• Citation: 253 F.Supp.3d 409
• Parties: UNITED STATES of America, Plaintiff, v. Emilio J. GONZALEZ–ESPINAL, a.k.a. "Buster,", Defendant.
• Court: U.S. District Court — District of Puerto Rico

253 F.Supp.3d 409

UNITED STATES of America, Plaintiff,
v.
Emilio J. GONZALEZ–ESPINAL, a.k.a. "Buster,", Defendant.

Criminal No. 16-599 (FAB).

United States District Court, D. Puerto Rico.

Signed May 26, 2017

253 F.Supp.3d 411

Jose A. Contreras, United States Attorneys Office, San Juan, PR, for Plaintiff.

MEMORANDUM AND ORDER

BESOSA, District Judge.

Before the Court is defendant Gonzalez's motion to suppress contraband and his post-arrest statements. (Docket No. 28.) The United States responded to defendant Gonzalez's motion to suppress, Docket No. 32, and defendant Gonzalez replied, Docket No. 34. The Court referred the matter to Magistrate Bruce J. McGiverin. (Docket No. 30.)

The magistrate judge held a one-day hearing, during which the United States and defendant Gonzalez presented evidence and arguments. (Docket Nos. 40 & 41.) The magistrate judge later issued a Report and Recommendation ("R & R"), recommending that defendant Gonzalez's motion be granted in part, and denied in part. (Docket No. 42.) Both parties filed timely objections to the R & R. (Docket Nos. 55 & 56.) Additionally, each litigant responded to the opposing party's objections. (Docket Nos. 58 & 59.)

For the reasons set forth below, the Court ADOPTS IN FULL the magistrate judge's R & R, and DENIES IN PART and GRANTS IN PART defendant Gonzalez's motion to suppress.

I. STANDARD OF REVIEW

A district court may refer a motion to suppress evidence in a criminal case to a magistrate judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B) ; Loc. R. 72(a)(6). Any party may file written objections to the report and recommendation, and a party that files a timely objection is entitled to a de novo determination of those portions of the report to which specific objection is made. 28 U.S.C. § 636(b)(1) ; Loc. R. 72(d). In conducting its review, the Court is free to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) ; accord Loc. R. 72(d).

II. BACKGROUND

On August 24, 2016, federal law enforcement officers recovered contraband inside of defendant Gonzalez's residence after executing a warrant for his arrest.¹ DEA Agent Jose Betancourt ("Betancourt") and approximately ten to 12 armed officers from various law enforcement agencies arrived at defendant Gonzalez's residence at 5:10 a.m. (Docket No. 42 at p. 2.) Agents knocked on the residence's front door, announced their presence, and called out defendant Gonzalez's name for at least 20 minutes. Id. Defendant's mother, Raquel A. Epsinal–Solis ("Espinal"), opened the door when agents attempted to enter the house by force. Id. Defendant Gonzalez stood in the living room. Id. Agent Betancourt handcuffed and arrested defendant Gonzalez. Id.

The agents performed a protective sweep of the residence, and encountered defendant Gonzalez's step-father, Miguel Bare ("Bare"), in a separate bedroom. Id. at p. 3. Agent Betancourt escorted defendant

253 F.Supp.3d 412

Gonzalez to his bedroom, allowing defendant Gonzalez to dress himself. Id. Agent Betancourt then administered the Miranda warnings to defendant Gonzalez in his bedroom. Id. Less than ten minutes after entering the house, Agent Betancourt placed defendant Gonzalez in a patrol car. Id. U.S. Postal Inspector Eliezer Julian ("Julian") and Puerto Rico Police Department Officer Carlos Concepcion ("Concepcion") informed Agent Betancourt that law enforcement officers observed marijuana inside the residence. Id. Agent Betancourt informed defendant Gonzalez that because Agent Betancourt had no knowledge of who owned the marijuana, law enforcement officers were required to "take everyone in the house." Id. Defendant Gonzalez then admitted that the marijuana belonged to him, and agreed to show agents "everything else" (including firearms and drugs). Id.

Agent Betancourt returned to the residence, and asked Espinal for consent to search the house. Id. at p. 4. Espinal signed a consent form. Id. Inspector Julian led Agent Betancourt to the laundry room, which possessed a strong odor of marijuana. Id. Law enforcement officers recovered marijuana from a partially opened plastic bag in addition to a revolver and ammunition inside a backpack located within the laundry room. Id.

Agent Betancourt asked defendant Gonzalez if there was any additional contraband, to which defendant Gonzalez replied that there was cocaine located inside his bedroom on top of a dresser. Id. After relocating to defendant Gonzalez's bedroom, agents discovered the baggie of cocaine on top of the dresser. Id. Agent Betancourt then searched inside the dresser drawers, discovering a drug ledger and three cellular phones. Id. Agent Betancourt also seized two additional cellular phones that were on a nightstand. Id.

Subsequently, defendant Gonzalez informed Agent Betancourt that there was a firearm under his mattress. Id. Agent Betancourt then discovered a loaded Smith and Wesson firearm under the mattress. Id. Agents then transported defendant Gonzalez to the DEA office in Guaynabo. Id.

The seizure of contraband from Gonzalez's residence ultimately resulted in a federal grand jury returning an indictment charging Gonzalez with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a). (Docket No. 1.)

III. DISCUSSION

Defendant Gonzalez moves to suppress post-arrest statements and all evidence including: marijuana, a Model 22 Glock pistol, a Model 10 Smith & Wesson revolver, ammunition, cocaine, a drug ledger, and five cellular phones. (Docket No. 28) In support of his motion to suppress, defendant Gonzalez contends that: (1) law enforcement agents failed to obtain valid consent to search the residence, and that defendant Gonzalez was "mirandized" "after all the incidents occurred and the defendant made statements during the search process." Id. at p. 11.

The magistrate judge recommended that the motion to suppress be granted as to the drug ledger and three cellular phones discovered inside defendant Gonzalez's bedroom dresser, but denied the motion with respect to all other contraband. The magistrate judge based his recommendations on the following legal conclusions:

1. Defendant Gonzalez had a reasonable expectation of privacy at the residence he shared with his mother and step-father.

253 F.Supp.3d 413

2. Law enforcement agents lawfully recovered the marijuana in plain view while conducting a lawful protective sweep of the residence. (Docket No. 42 at p. 11.)

3. Defendant Gonzalez gave voluntary consent to search the residence by showing law enforcement agents "everything else," namely, the revolver and ammunition inside the backpack, the baggie of cocaine on top of the dresser, the firearm under the mattress, and two cellphones on defendant Gonzalez's nightstand. Id. at p. 13.

4. Defendant Gonzalez, however, did not give express or implied consent to search inside his bedroom dresser, which contained a drug ledger and three cellular phones, and Espinal lacked authority to provide such consent. Id. at pp. 14–15.

Defendant Gonzalez objects to the magistrate judge's second and third legal conclusions, Docket No. 56, and the United States objects to the fourth legal conclusion, Docket No. 55. The Court is unpersuaded by both party's objections. Because neither party objects to the magistrate judge's first legal conclusion that defendant Gonzalez had a reasonable expectation of privacy at the residence, the Court will adopt this recommendation without further analysis.

A. Protective Sweep

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (citation omitted). "A protective sweep conducted in conjunction with an arrest of an individual in his home" is an exception to the warrant requirement. United States v. Winston, 444 F.3d 115, 118 (1st Cir. 2006). Law enforcement officers may perform a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

In this case, during the course of the protective sweep, Inspector Julian discovered a "black plastic bag" that was "partially open" and contained a "green leafy substance that [he] suspected was marijuana."² (Docket No. 51 at p. 20.) Defendant Gonzalez moves to suppress the marijuana on grounds that the protective sweep occurred beyond the "area of immediate control of the arrestee." (Docket No. 28 at p. 7.) The Court, however, concurs with the magistrate judge's...