United States v. Hernandez-Penaloza
| Decision Date | 20 August 2012 |
| Docket Number | Case No. 8:11–CR–581–T–17TBM. |
| Citation | 899 F.Supp.2d 1269 |
| Parties | UNITED STATES of America, v. Ever HERNANDEZ–PENALOZA. |
| Court | U.S. District Court — Middle District of Florida |
OPINION TEXT STARTS HERE
Donald L. Hansen, U.S. Attorney's Office, Tampa, FL, for Plaintiff.
Dionja L. Dyer, Federal Public Defender's Office, Tampa, FL, for Defendant.
This cause is before the Court on:
Dkt. 19 Motion to Suppress
Dkt. 21 Opposition
Dkt. 31 Supplemental Memorandum
Dkt. 35 Supplemental Memorandum
Dkt. 42 Report and Recommendation
Dkt. 43 Objection (United States)
Dkt. 44 Objection (Defendant)
The assigned Magistrate Judge conducted an evidentiary hearing, and has entered a Report and Recommendation in which it is recommended that the Motion to Suppress be granted in part and denied in part.
The Court has independently reviewed the pleadings and the record. The Court listened to the digital recording of the evidentiary hearing. The Government and Defendant have filed timely objections to the Report and Recommendation.
The District Court reviews de novo the portions of the Report and Recommendation or specified proposed findings to which an objection is made. The District Court may accept, reject, or modify in whole or in part the report and recommendation of a magistrate judge, or may receive further evidence, or may recommit the matter to the magistrate judge with instructions.
A district court may not override essential, demeanor-intensive fact finding by a magistrate judge without hearing the evidence itself or citing an exceptional justification for discarding the magistrate judge's findings. Rejecting credibility findings made by a magistrate judge without holding a new hearing is permissible only when there is an “articulable basis for rejecting the magistrate's original resolution of credibility.” Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1250 (11th Cir.2007) (citing U.S. v. Marshall, 609 F.2d 152, 155 (5th Cir.1980)).
The Government has made the following objections:
1) the Government objects to the determination that, although the detectives had probable cause to arrest the defendant, the warrantless arrest itself occurred inside the home in violation of the Fourth Amendment; the facts show the arrest was made outside the residence and was not illegal;
2) the Government objects to the determination that Ms. Moreno was detained in violation of the Fourth Amendment; she was interviewed but not unlawfully detained;
3) the Government objects to the determination that the consent to search granted in writing by Ms. Moreno and by Defendant Hernandez–Peneloza was insufficient to warrant introduction of the firearm and ammunition found after that consent. The Government contends the consent was knowingly and voluntarily given and, if it was given after an illegal arrest or an illegal security sweep, their consent was not fruit of the poisonous tree and it warranted introduction of the evidence found after that consent.
As to the Government's first objection, in the Report and Recommendation, the assigned Magistrate Judge acknowledges that Defendant was arrested on the front doorstep of his residence and not inside the residence. However, the Magistrate Judge found that the rationale of Payton dictates the same legal conclusion, based on the occupants' coerced exit from the residence at gunpoint. The Magistrate Judge notes that:
The Government argues that Knight v. Jacobson, 300 F.3d 1272 (11th Cir.2002) closely mirrors the facts of this case and is controlling precedent under which the Court should find that the arrest of Defendant Hernandez–Penaloza did not violate the Fourth Amendment. The Court notes that Knight involved a vocal direction by one officer that Knight step outside his apartment, without coercive tactics, unlike the factual scenario in U.S. v. Morgan, 743 F.2d 1158, 1166–67 (6th Cir.1984) (). In this case, a team of eight deputies went to the residence to make the arrest. All had guns, and some wore masks. Some deputies were placed around the house. Woods and other deputies, with guns held in the low-ready position, went to the front entrance, knocked, and loudly announced their presence. When Ms. Moreno opened the front door, with Defendant Hernandez–Penaloza standing behind her, deputies told them to step outside with their hands up or visible, and they did so. The facts of this case are closer to Morgan than Knight.
In McClish v. Nugent, 483 F.3d 1231, 1240–41 (11th Cir.2007), the Eleventh Circuit Court of Appeals discusses warrant requirement for seizing a person within the sanctity of the home, and the few exceptions to the warrant requirement. Other courts have relied on the cases cited in the Report and Recommendation to support the Magistrate Judge's conclusion, e.g. Orosco v. State of Texas, 394 S.W.3d 65, 2012 WL 2924473 (1st DCA Texas 7/12/2012). After consideration, the Court overrules the Government's objection as to this issue.
The Government objects to the Magistrate Judge's determination that Ms. Moreno was detained in violation of the Fourth Amendment. The Government argues that Ms. Moreno was interviewed but not unlawfully detained. The Government argues that the questioning by Detective Woods was appropriate under the circumstances; Detective Woods asked about whether anyone else was in the house or if there were guns in the house. The Government argues that these questions were consistent with officer safety and the fact that officers were going to make a quick security sweep of the premises in connection with the arrest of Defendant Hernandez–Penaloza. According to Detective Woods, Ms. Moreno indicated there was a gun in the bedroom. Deputies entered the house, conducted a security sweep, and determined that no one else was inside. Detective Woods told Ms. Moreno that Defendant was involved in home invasions and was going to be arrested. Detective Woods then sought consent from Ms. Moreno and from Defendant to search the house for guns.
In the Report and Recommendation, the Magistrate Judge notes that the deputies ordered Ms. Moreno out of her house at gunpoint, and, at that time, the deputies had no information to suggest Ms. Moreno's involvement in any criminal activity or any other justification for ordering her out of her house and detaining her for an hour without a warrant.
An investigatory stop must be justified at its inception, and its scope must be reasonably related to the circumstances that permitted the intrusion at the outset. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Personal encounters between law enforcement officers and citizens are “seizures” on occasions “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Without physical contact, the show of authority must cause the individual to submit to the asserted authority. California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).
The touchstone of the Fourth Amendment is reasonableness. The reasonableness of a stop turns on the facts and circumstances of each case. There is “ ‘[n]o ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ ” 392 U.S. at 21, 88 S.Ct. 1868. Although the conduct of the officer in Terry involved a “severe, though brief, intrusion upon cherished persona! security”... [the Supreme Court] found that the conduct was reasonable when [the Supreme Court] weighed the interest of the individual against the legitimate interest in “crime prevention and detection,” ....and the “need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they lack probable cause for an arrest.”....When the officer has a reasonable belief “that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Michigan v. Long, 463 U.S. 1032, 1046–47, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (citations omitted).
The Court notes that “[P]olice may take reasonable action, based on the circumstances, to protect themselves ... or to maintain the status quo.” U.S. v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir.1985). However, in this case, considering the fact that Ms. Moreno was forcibly removed from her residence at gunpoint, that the deputies did not suspect Ms. Moreno of involvement in criminal activity, that there was sufficient time to obtain a warrant, and exigent circumstances were not present, the Court finds no error in the determination that Ms. Moreno was detained in violation of the Fourth Amendment. Ms. Moreno's detention was not justified at...
To continue reading
Request your trial
-
Hill v. Hoover Co.
... ... Case No. 1:06CV00096SPM. United States District Court, N.D. Florida, Gainesville Division. Oct. 1, 2012 ... [899 F.Supp.2d ... ...