United States v. Portillo-Saravia
| Decision Date | 10 May 2019 |
| Docket Number | CRIMINAL NO. 4:18-0650 |
| Citation | 379 F.Supp.3d 600 |
| Parties | UNITED STATES of America, v. Jose Blademir PORTILLO-SARAVIA, and Jose Efrain Mateo. |
| Court | U.S. District Court — Southern District of Texas |
Richard Wesley Bennett, Financial Litigation, U.S. Attorney's Office Southern District of Texas, Houston, TX, for United States of America.
Amr Adnan Ahmed, Office of the Federal Public Defender, Federal Public Defender, Houston, TX, for Jose Blademir Portillo-Saravia.
Chukwudi Ifeanyi Egbuonu, Attorney at Law, Houston, TX, Houston Interpreter, for Jose Efrain Mateo.
Before the Court are Defendants Jose Blademir Portillo-Saravia's ("Portillo") and Jose Efrain Mateo's ("Mateo") Motions to Suppress and Request for Evidentiary Hearing ("Motions to Suppress" or "Motions") [Docs. # 24, # 25]. The Government filed a response,1 the Court held a two-day evidentiary hearing,2 and the parties submitted supplemental briefing.3 The Motions are now ripe for decision. Based on the evidence and testimony introduced at the hearing, the parties' briefing, counsels' arguments, and pertinent legal authority, the Court grants in part and denies in part both Motions to Suppress.
On October 31, 2018, a federal grand jury charged Defendants Mateo and Portillo with unlawful possession of a firearm by an illegal alien.4 See 18 U.S.C. § 922(g)(5)(A).
In February 2019, Defendants Mateo and Portillo each filed a Motion to Suppress. Defendants contend that the Court should suppress: (1) bullets seized from their persons during a traffic stop, (2) handguns seized from the car they previously occupied, and (3) their statements made at the scene of their arrests. On February 28, 2019, the Government filed a single Response opposing both Motions.
The Court held a two-day evidentiary hearing on Defendants' Motions.5 Over the course of the two days, three Houston Police Department ("HPD") officers testified, and the officers' body camera footage was introduced.6 Defendants did not testify or call witnesses. Instead, they cross-examined the officers, played segments of the officers' camera footage, presented still images from the footage, introduced transcripts of that footage,7 and introduced a police report by Officer Cruz and its supplement.8 Following the hearing, the Government and Defendants submitted supplemental briefing.
Officer Joseph Cruz is a 10-year veteran of the HPD.9 On October 3, 2018, Officer Cruz was assigned to District 17 in southwest Houston, a high crime area with a heavy gang presence.10 At about 4:24 p.m., while driving solo in his patrol car eastbound on Gustine Lane toward South Gessner Road, Officer Cruz saw a maroon Nissan Sentra driving westbound.11 The Nissan had four occupants, none of whom wore seatbelts.12
Officer Cruz made a U-turn and sped up to catch the Nissan.13 Traveling behind the Nissan, Officer Cruz testified he observed two occupants appear to move their hands under the car seats, which led Officer Cruz to believe they were hiding objects.14 After following the Nissan a short distance, Officer Cruz activated his emergency lights and body camera. The Nissan pulled into a nearby apartment complex and parked facing a low concrete curb.15 Officer Cruz pulled up and parked his patrol car directly behind the Nissan.16
After parking, Officer Cruz stayed in his vehicle and radioed for backup. He also requested a "fingerprinting machine"—a device used to determine whether suspects appear in an HPD mugshot database.17 The apartment complex where the Nissan and Officer Cruz were parked was a high-crime area with a substantial gang presence—including Mara Salvatrucha, also known as MS-13.18 Officer Cruz radioed backup that the occupants were "cool, calm, and collected," and he told backup 19
Roughly a minute and a half after Officer Cruz parked, the driver and front passenger opened their car doors.20 Officer Cruz got out of his vehicle and ordered them to close the doors.21 Both quickly complied.22 Officer Cruz walked to the side of the Nissan and observed that the occupants were wearing clothing consistent with that worn by the MS-13 gang.23 Officer Cruz reentered his patrol car and again radioed that the Nissan's occupants appeared "cool."24 After his approach, Officer Cruz ran the Nissan's temporary license plate.25 Officer Cruz testified that the license plate was not a match for a maroon Nissan Sentra.26
A little over seven minutes after Officer Cruz parked, HPD Officers Moises Saldana and Eddie Castillo arrived in their patrol car.27 The three officers removed, handcuffed, and patted down the Nissan's four occupants. The front passenger and rear driver's side passenger—neither of whom are defendants in this case—were separately detained in the two HPD patrol vehicles.
Of particular relevance is Officer Saldana's pat down of the Nissan's driver, Defendant Mateo. After Mateo stepped out of the Nissan, Officer Saldana handcuffed and frisked Mateo while questioning him in Spanish, asking for Mateo's name, age, where he lived, and if he had weapons on him or in the car.28 As part of the frisk, Officer Saldana grabbed Mateo's front right pants pocket.29 Officer Saldana's grab lasted less than two seconds. Officer Saldana testified that as soon as he grabbed the pocket, he immediately felt that the pocket contained bullets.30 Officer Cruz told Officer Saldana to "document these guys real good," meaning to document them as gang member.31 Officer Saldana then looked under Mateo's tee shirt's short sleeves and lifted the bottom of the shirt nearly to its neckline in search of gang tattoos.32
Officer Saldana escorted Mateo to Officer Cruz's patrol car and frisked him again.33 Officer Saldana testified that he frisked Mateo a second time because he was not confident after the first frisk whether Mateo had a weapon on his person.34 After the second frisk, Officer Saldana removed from Mateo's front right pocket a small bag filled with .22 caliber bullets.35 Officer Saldana testified that after the second pat down and the removal of bullets from Mateo's pocket, he still was not satisfied that Mateo had no weapons on his person.36 Officer Saldana told Officer Cruz, who was escorting the front passenger to a police car, that he had discovered bullets.37
At the same time Officer Saldana patted down and questioned Mateo, Officer Castillo patted down and questioned Defendant Portillo, who had previously been sitting in the Nissan's rear passenger-side seat. Officer Castillo testified that when he patted down Portillo's front right pants pocket, he felt that the pocket contained bullets.38 Officer Castillo asked Portillo in Spanish where the gun was and told Portillo that it would be worse for him if he did not talk.39 Portillo did not respond. Officer Castillo jostled the outside of Portillo's front right pocket so that the bullets inside made an audible clinking noise, and again asked Portillo where the gun was.40 Portillo then admitted that there was gun under the car seat.41 Officer Castillo relayed the information to Officer Cruz, who then searched the car.42 Officer Cruz recovered a Glock 9 mm handgun from under the front passenger seat and a .22 caliber revolver from under the driver's seat.43 The officers detained Portillo and Mateo in police vehicles.
Roughly 30 minutes after Officer Cruz recovered the first gun from the Nissan, Officer Cruz removed Mateo from the police vehicle and questioned him, using Officer Saldana as a translator.44 During the questioning, Officer Cruz offered to allow Mateo to call his mother, but asked whether there was anything Mateo wanted to let the officers know about the guns. Mateo said there was not. Officer Cruz held out Mateo's cell phone to have Mateo unlock it.45 When Mateo did, Officer Cruz took the cell phone, and began asking Mateo questions about the phone's contents, stating that various songs and contacts on the phone indicated Mateo was part of the MS-13 gang. Mateo denied being part of the gang. The Officer Cruz told Mateo not to lie and that if he lied they would not let him make a phone call. Officer Cruz asked Mateo if he joined MS-13 for protection. Mateo admitted to being a MS-13 gang member, explaining he joined MS-13 for protection against the Cholo gang. Officer Cruz said that Mateo might have to go to jail for not having a driver's license and for the seatbelt violation. Mateo admitted that the Nissan's other occupants were also MS-13. Officer Cruz's questioning of Mateo lasted over eleven minutes.
Some fifteen minutes after completing the questioning of Mateo, Officer Cruz removed Portillo, who was still handcuffed behind his back, from the patrol car and questioned him, again using Officer Saldana as a translator.46 Officer Cruz started with general questions (where he was sitting in the Nissan, what his name was, where he lived, etc.). Officer Cruz then asked Portillo why he had a gun. Portillo responded that he had the gun for protection against the Cholos. Officer Cruz accused Portillo of being a MS-13 gang member and explained that Mateo had said everyone in the Nissan was in the gang. After Portillo denied being a gang member, Officer Cruz continued to press him, asking why Mateo would say Portillo was in MS-13 and why Portillo wore clothes consistent with MS-13. Officer Cruz said that if Portillo continued to lie there would be "issues." Officer Cruz offered to call Portillo's parents and let them know Portillo was going to jail for a seatbelt violation. Portillo's questioning lasted roughly eleven minutes.
Officer Cruz testified that when he questioned the Defendants, he had already decided to charge them with unlawful carrying of a weapon.47 No Miranda warnings were given to either Mateo or Portillo.48
Defendants move to suppress the Glock 9 mm handgun and 9 mm...
To continue reading
Request your trial
- United States v. McIntosh
-
United States v. Childers
... ... ” Terry , 392 U.S. at 24, 88 S.Ct. 1868 ... United States v. Johnson , 921 F.3d 991, 1000-01 ... (11th Cir.), cert. denied , 140 S.Ct. 376 (2019); ... see also United States v. Portillo-Saravia , 379 ... F.Supp.3d 600, 618 (S.D. Tex. 2019) (marks and citation ... omitted) (“After recognizing the Defendants possessed ... bullets, the officers were entitled to seize the bullets for ... their protection. Bullets are an essential part of a lethal ... weapon ... ...
-
United States v. Derryberry
...Cir. 1993)). However, “[t]his burden . . . shifts to the Government if the search or seizure in question was performed without a warrant.” Id. (citing States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001)); see also United States v. Martinez, 486 F.3d 855, 859-60 (quoting Roch, 5 F.......
-
Washington v. Smith
... BRUCE WASHINGTON, ET AL. v. RANDY SMITH, ET AL. Civil Action No. 22-632 United States District Court, E.D. Louisiana November 8, 2022 ... SECTION ... Portillo-Saravia , 379 F.Supp.3d 600, 613 (S.D. Tex ... 2019) (quoting Rodriguez v. United States , 575 U.S ... ...