United States v. Villanueva

• Decision Date: 29 May 2019
• Docket Number: CR. 17-50049-02-JLV
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO VILLANUEVA, a/k/a "Gumby," a/k/a "Pancho," Defendant.
• Court: U.S. District Court — District of South Dakota

UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO VILLANUEVA, a/k/a "Gumby," a/k/a "Pancho," Defendant.

CR. 17-50049-02-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

May 29, 2019

ORDER

INTRODUCTION

A grand jury indicted Francisco Villanueva, together with three other defendants, in a multiple count superseding indictment. (Docket 129). Mr. Villanueva is charged with count I: first degree premediated murder in violation of 18 U.S.C. §§ 1111(a), 2, 1152 and 1153; count II: first degree felony murder in violation of 18 U.S.C. §§ 1111(a), 2, 1152 and 1153; count III: conspiracy to commit assault in violation of 18 U.S.C. §§ 113(a)(3), 1152, 1153 and 371; count IV: use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and count VI: prohibited person in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Id.

Pending before the court is defendant's motion to suppress all evidence seized from his residence. (Docket 107). The United States opposes defendant's motion. (Dockets 150 & 266).

Defendant's suppression motion was referred to Magistrate Judge Daneta Wollmann for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the court's April 1, 2018, standing order. An evidentiary hearing was held on August 29-30, 2018. (Dockets 248 & 251). Following post-hearing briefing, Magistrate Judge Wollmann issued a report and recommendation ("R&R") on defendant's motion to suppress. (Docket 289). The magistrate judge recommended defendant's motion to suppress "be denied in full." Id. at p. 16. The defendant timely filed his objections to the R&R. (Docket 293). The government filed a response to defendant's objections. (Docket 298).

For the reasons stated below, the court finds the R&R is an appropriate application of the law to the facts presented by the parties at the suppression hearing. Defendant's objections are overruled and the R&R is adopted in its entirety.

DEFENDANT'S OBJECTIONS

Defendant's objections to the R&R are summarized as follows:

1. Mr. Villanueva objects generally to all factual findings and legal conclusions made by the magistrate judge.

2. Mr. Villanueva objects to the magistrate judge's conclusion that Tenth Circuit and Eighth Circuit case law are the same on the objective findings required to support a protective sweep.

3. Mr. Villanueva objects to the magistrate judge's finding that during an earlier shooting the Metro Gang Task Forcecontacted the Denver Police Department about defendant's arrest warrant.

4. Mr. Villanueva objects to the magistrate judge's finding that the warrantless entry into his home was the result of his arrest inside his home.

5. Mr. Villanueva objects to the magistrate judge's conclusion that the officers were uncertain as to whether there were other dangerous people inside the home after his arrest.

6. Mr. Villanueva objects to the magistrate judge's lack of objective findings to support a protective sweep of his home.

(Docket 293). "For the foregoing reasons," Mr. Villanueva argues "the district court should not accept the Magistrate Court's [R&R] . . . and should grant Defendant's Motion to Suppress." Id. at p. 17.

Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. See also Fed. R. Crim. P. 59(b)(3). The court completed a de novo review of those portions of the R&R to which objections were filed.

Each of defendant's objections will be separately addressed.

ANALYSIS

The court completed a de novo review of the transcripts of the suppression hearing, the three video and audio recordings ("video recording")produced by three law enforcement officers' body cameras and two affidavits in support of search warrants. (Dockets 248 & 251 and suppression hearing Exhibits 1-3, 102 & 106; see also Docket 236). The court takes judicial notice of the arrest warrant for the defendant issued on November 22, 2017, in this case. (Docket 50). Unless otherwise indicated, the court's findings of fact are consistent with the findings made by the magistrate judge.

1. MR. VILLANUEVA OBJECTS GENERALLY TO ALL FACTUAL FINDINGS AND LEGAL CONCLUSIONS MADE BY THE MAGISTRATE JUDGE.

"Congress has mandated that the district court give de novo review to those portions of a Magistrate's report and recommendation to which objections are made." Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994) (referencing 28 U.S.C. § 636(b)(1)). "There is a court-created exception in some circuits: '. . . [T]he district court need not conduct de novo review when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate judge's proposed findings and recommendations.' " Id. (citing Johnson v. Knable, 934 F.2d 319 (4th Cir. 1991) (unpublished opinion) (citing Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982); United States v. Merz, 376 U.S. 192, 199, 84 (1964); Pendleton v. Rumsfeld, 628 F.2d 102, 105-06 (D.C. Cir. 1980)). "There is language in an Eighth Circuit case which indicates this Circuit's approval of such an exception." Id. (referencing Branch v. Martin, 886 F.2d 1043 (8th Cir. 1989) ("In the present case, plaintiff's objections to the magistrate's factualconclusions were timely filed and specific enough to trigger de novo review). See, e.g., Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984) (per curiam) (no de novo review if objections are untimely or general)"). "[D]e novo review is not required 'when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate judge's proposed findings and recommendations.' " Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (citing Belk, 15 F.3d at 815) (citations omitted).

The court will address Mr. Villanueva's specific objections to the R&R as they are "certainly definite enough to require de novo review." Id. (citing Belk, 15 F.3d at 815). The court is not compelled to evaluate defendant's generalized and conclusory objection.

Defendant's first objection to the R&R is overruled.

2. MR. VILLANUEVA OBJECTS TO THE MAGISTRATE JUDGE'S CONCLUSION THAT TENTH CIRCUIT AND EIGHTH CIRCUIT CASE LAW ARE THE SAME ON THE OBJECTIVE FINDINGS REQUIRED TO SUPPORT A PROTECTIVE SWEEP

Mr. Villanueva argues the magistrate judge should have applied the standard of the United States Court of Appeals for the Tenth Circuit in United States v. Nelson, 868 F.3d 885 (10th Cir. 2017) as opposed to the standard of the United States Court of Appeals for the Eighth Circuit in United States v. Alatorre, 863 F.3d 810 (8th Cir. 2017). (Docket 293 at pp. 7-13). Mr. Villanueva submits "the warrantless entry was a violation of Prong Two of the [Maryland v. Buie, 494 U.S. 325 (1990)] standard as the Government cannotmeet its burden as properly described in [Nelson, 868 F.3d 885]." Id. at p. 10. Defendant argues Nelson is the proper standard:

In Buie, the Court recognized two exceptions to the general rule that police must obtain a warrant to search a home. Under the first exception (Prong One) the police may, in conjunction with an arrest in a home, "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." . . . Under the second exception (Prong Two), police may conduct a "protective sweep" beyond areas immediately adjoining the arrest if there are "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."

(Docket 293 at pp. 6-7) (citing Buie, 494 U.S. at 334-35). Mr. Villanueva contends Nelson compels the following analysis:

Under Prong Two, the government is required to articulate specific facts giving rise to the inference of a dangerous third person's presence. [Buie, 494 US at 337]. As we've previously explained, "there could always be a dangerous person concealed within a structure. But that in itself cannot justify a protective sweep, unless such sweeps are to be permitted as a matter of course. . . ." United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir. 2004); seeUnited States v. Roof, 103 Fed. Appx. 652, 658 (10th Cir. 2004) (unpublished) ("A mere absence of information about whether anyone remains in a home does not justify a protective sweep."). In short, " '[n]o information' cannot be an articulable basis for a sweep that requires information to justify it in the first place." United States v. Colbert, 76 F.3d 773, 778 (6th Cir. 1996). Accordingly, if the deputies had no knowledge regarding the potential presence of a third person, then the government is per se unable to make the affirmative showing that Buie requires.

Id. at pp. 8-9. Mr. Villanueva believes Nelson supports his argument that the magistrate judge "failed to identify any scene specific facts which gives rise tothe inference that a dangerous person was inside the apartment." Id. at p. 11. "As for the unattended sleeping child," Mr. Villanueva argues "the Magistrate Court has never provided a single case nor authority supporting the legal conclusion that an unattended child in and of itself authorizes warrantless entry into a home." Id. at p. 9.

The government opposes Mr. Villanueva's objection. (Docket 298). The government "agrees with the [R&R] that, in this particular area of the law, there is no split between the 8th and 10th Circuits. . . . Both have adopted substantially the same standard outlined in [Buie], which...