United States v. Lopez, 3:17-cr-238 (VAB)
| Decision Date | 13 August 2019 |
| Docket Number | No. 3:17-cr-238 (VAB),3:17-cr-238 (VAB) |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES OF AMERICA, v. ALBERT LOPEZ, Defendant. |
On February 6, 2018, Albert Lopez ("Defendant") moved to suppress evidence of a firearm seized by officers with a joint task force of the U.S. Marshals Service and the Bridgeport Police Department on October 12, 2017, during a search of the bedroom he slept in while staying at his mother's house. Motion to Suppress, dated Feb. 6, 2018 ("Suppression Mot."), ECF No. 15; Memorandum in Support of Suppression Mot., dated Feb. 6, 2018 ("Def.'s Mem."), annexed to Suppression Mot., ECF No. 15-1. Mr. Lopez challenges both the lawfulness of searching his bedroom without his consent, as well as the officers' claims that his mother's consent was sufficient to authorize the search.
On February 20, 2018, the United States of America (the "Government") opposed Mr. Lopez's suppression motion. Government's Opposition to Suppression Mot., dated Feb. 20, 2018 ("Gov't Opp."), ECF No. 18.
On April 9, 2018, the Court conducted an evidentiary hearing on the motion, which was continued to June 26, 2018. Minute Entries, dated Apr. 9, 2018 & Jun. 26, 2018, ECF Nos. 25 & 35; Transcript of Suppression Hearing, filed Jun. 4, 2018 (Vol. I) & Jul. 23, 2018 (Vol. II) (collectively, "Tr."), ECF Nos. 30 & 43.
After the evidentiary hearing concluded, the parties submitted post-hearing briefs. Defendant's Post-Hearing Memorandum of Law, dated Aug. 3, 2018 ( ), ECF No. 44; Government's Memorandum in Opposition to Def.'s Post-Hrg. Mem., dated Aug. 24, 2018 ( ), ECF No. 45.
For the following reasons, Defendant's motion to suppress is DENIED.
On August 3, 2011, a grand jury returned a one-count indictment charging Mr. Lopez with possession of a firearm by a convicted felon.2 Indictment, dated Aug. 3, 2011, No. 3:11-cr-139 (SRU), ECF No.
On August 11, 2011, Mr. Lopez was arraigned before United States Magistrate Judge Holly B. Fitzsimmons and entered a plea of not guilty.3 Minute Entry, dated Aug. 11, 2011, No. 3:11-cr-139 (SRU), ECF No. 4.
On September 4, 2012, Mr. Lopez, under the terms of a plea agreement signed that same day, pleaded guilty to count one of the indictment before United States District Judge Warren W. Eginton.4 Minute Entry, dated Sept. 4, 2012, No. 3:11-cr-139 (SRU), ECF No. 33; Plea Agreement, dated Sept. 4, 2012, No. 3:11-cr-139 (SRU), ECF No. 34.
On January 4, 2013, United States District Judge Stefan R. Underhill sentenced Mr. Lopez to a term of imprisonment of sixty months, to run consecutively to a sentence imposed for a supervised release violation in Criminal Case No. 3:07-cr-60, to be followed by thirty-six months of supervised release. Gov't Ex. 1 at 1. Judge Underhill also imposed the following Special Conditions of supervised release:
Id. Judge Underhill also imposed the following Standard Condition of supervised release:
6. The defendant shall notify the probation officer at least ten days prior to any change in residence or employment, or if such prior notification is not possible, then within five days after such change[.]
On February 24, 2017, the Bureau of Prisons released Mr. Lopez from its custody and Mr. Lopez began serving his term of supervised release. Petition for Warrant or Summons for Offender Under Supervision, dated Sept. 22, 2017 ("Pet. for Fed. Warrant"), annexed to U.S. District Court for the District of Connecticut Arrest Warrant, dated Sept. 22, 2017 ("Fed. Warrant"), admitted as Gov't Ex. 2, at "Date Supervision Commenced."
On February 27, 2017, Mr. Lopez met with United States Probation Officer Keith Barry. Tr. 11:3-14. Mr. Barry testified that he reviewed the conditions of supervised release with Mr. Lopez, and that Mr. Lopez signed a document acknowledging that he had read and understood the conditions. Id.
At some time after that meeting, Mr. Lopez reported to Mr. Barry that he would be residing at 702 Maplewood Avenue, Bridgeport, Connecticut. Tr. 11:15-22. Mr. Barry testified that he visited Mr. Lopez several times at that residence. Tr. 11:23-25. Mr. Barry also testified that Mr. Lopez did not ever discuss changing that residence with him, and that he did not ever visit him at any other residence in the following months of Mr. Lopez's supervised release. Tr. 12:8-14.
On September 22, 2017, Mr. Barry sought and obtained an arrest warrant for Mr. Lopez because Mr. Lopez had violated three conditions of his supervised release. Pet. for Warrant. Mr. Barry testified to having received information from a detective with the Bridgeport Police Department. Tr. 15:13-16:10. Mr. Barry alleged that Mr. Lopez violated the special condition that he "shall not possess a firearm, destructive device or other dangerous weapon":
A Bridgeport, Connecticut Police incident report states that on September 9, 2017, the Bridgeport, Connecticut Police Department responded to a gun shot victim at St. Vincent's Hospital. The victim informed law enforcement officials that Albert Lopez a former employee had called the victim demanding $4,000 as a loan. On the day of the incident Mr. Lopez showed up at the victim's home demanding $4,000 dollars. When the victim wanted to give the defendant $1,000 of the $4,000 Mr. Lopez reportedly refused the money, pulled out a silver colored firearm from his waistband, fired a shot at him hitting him in the leg telling him to keep the $1,000, he would need it for the hospital bill. Mr. Lopez then fled the scene.
Pet. for Fed. Warrant at 1, "Charge #1." Mr. Barry also alleged that Mr. Lopez: (1) unlawfully possessed controlled substances, in violation of mandatory condition two, by testing positive forboth marijuana and cocaine; and (2) failed to participate in a substance abuse treatment program, in violation of special condition one, insofar as he was discharged by Connecticut Renaissance in Bridgeport, Connecticut for lack of participation on September 21, 2017. Id. at 1-2, "Charge #2" & "Charge #3."
On September 22, 2017, the Court ordered that an arrest warrant be issued for Mr. Lopez. See Pet. for Warrant at 2. That same day, the Clerk of the Court issued an arrest warrant directing "[a]ny authorized law enforcement officer" to arrest and bring Mr. Lopez before United States magistrate judge "without necessary delay," based on the offense described in the petition. Fed. Warrant at 1.
Shortly thereafter, Deputy United States Marshal Adam Mackey, who was leading a joint task force of state, local, and federal law enforcement officers charged with apprehending fugitives with active warrants, received a copy of the federal warrant. Tr. 28:10-29:11; 30:9-20. Deputy Marshal Mackey also received a copy of a warrant sought by the Bridgeport Police Department and Senior Assistant State's Attorney Howard S. Stein on September 20, 2017, and signed by Connecticut Superior Court Judge Robert Devlin on September 22, 2017. Tr. 30:24-32:12; Superior Court Arrest Warrant, dated Sept. 22, 2017 ("State Warrant"), admitted as Gov't Ex. 3, at BPD_000007, BPD_000009.
The state warrant sought Mr. Lopez's arrest on charges of: (1) assault in the first degree, in violation of CONN. GEN. STAT. § 53a-59; (2) carrying a pistol without a permit, in violation of CONN. GEN. STAT. § 29-35(b); and (3) unlawful discharge of a firearm, in violation of CONN. GEN. STAT. § 53-203. State Warrant at BPD_000007. In the application for the warrant, Detective Barbara A. Gonzalez of the Bridgeport Police Department attested to the facts of her investigation between September 9, 2017 (the date the alleged victim, Juan Moreno, wasallegedly shot by Mr. Lopez) and September 15, 2017 (the date Ms. Gonzalez allegedly spoke with Mr. Barry to discuss the incident). See Application for Arrest Warrant, annexed to State Warrant, at BPD_000010-13.
After reviewing both warrants, reviewing Mr. Lopez's rap sheet, and conducting further investigation, Deputy Marshal Mackey determined that it was important to be "extra cautious" in attempting to arrest Mr. Lopez in light of his criminal history of unlawful firearm possession. Tr. 33:10-36:5.
Deputy Marshal Mackey testified that he then attempted to determine where Mr. Lopez was staying. Through examining the state court warrant and several posts made by Mr. Lopez on social media, Deputy Marshal Mackey determined that Mr. Lopez was staying at the home of his mother, Lucila Olmo, located at 174 East Avenue, Bridgeport, Connecticut. Tr. 36:6-22, 38:7-40:13; Photographs, admitted as Gov't Exs. 5 & 6. Deputy Marshal Mackey also determined, based on a video display depicted in the lower left-hand corner of one of the photographs, that the residence had a video surveillance system installed. Tr. 40:14-41:9; see Gov't Ex. 6.
On October 12, 2017, at approximately 5:30 a.m., Deputy Marshal Mackey and about nine other law enforcement officers met at the Bridgeport Police Department to review the warrants they planned to execute that day, beginning with the warrant for Mr. Lopez. Tr....
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