US v. Martinez

• Citation: 696 F. Supp.2d 1216
• Decision Date: 25 February 2010
• Docket Number: No. CR 09-2439 JB.,CR 09-2439 JB.
• Parties: UNITED STATES of America, Plaintiff, v. Joseph MARTINEZ, Defendant.
• Court: U.S. District Court — District of New Mexico

696 F. Supp.2d 1216

UNITED STATES of America, Plaintiff, v. Joseph MARTINEZ, Defendant.

No. CR 09-2439 JB.

United States District Court, D. New Mexico.

February 25, 2010.

Gregory J. Fouratt, United States Attorney, Presiliano Torrez, Stephen R. Kotz, Charlyn E. Rees, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.

Brad D. Hall, Albuquerque, NM, Sam Bregman, Eric Loman, Bregman & Loman, P.C. Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Suppress and Supporting Brief, filed December 1, 2009 (Doc. 46). The Court held an evidentiary hearing on October 29, 2009. The primary issues are: (i) whether Defendant Joseph Martinez' statements were attenuated from the taint of the Fourth-Amendment violation and were not a fruit of the poisonous tree; (ii) whether the evidence found within Martinez' house would have inevitably been discovered notwithstanding the Fourth-Amendment violation; and (iii) whether the good-faith exception to the exclusionary rule applies. The Court finds that the taint of the illegal search was not attenuated at the time that Martinez made his confession, that the police would not have inevitably discovered Martinez's confession or the evidence from his home if not for the illegal search, and that the good-faith exception does not apply when law enforcers violate the constitution and then pass off the illegally acquired information to another officer to put into the search warrant that is eventually found invalid. The Court will thus grant Martinez' motion to suppress.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) ("When factual issues are involved in deciding a pretrial motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269-70.

A. THE INITIAL SWEEP.

1. The Court incorporates by reference its factual findings in the Memorandum Opinion and Order which resolved Martinez' first motion to suppress. See Memorandum Opinion and Order which resolved Martinez' first motion to suppress. See Memorandum Opinion and Order, 686 F.Supp.2d 1161, 1167-77 (D.N.M.2009); Transcript of Hearing at 4:3-24 (taken January 21, 2010)(Court, Rees, Bregman)("Jan. 21 Tr.")(stipulating to the testimony and exhibits proffered as evidence in the prior motion to suppress).¹

2. Sergeant Robert Lind (#208) and Deputy Nathan Kmatz (#252) were both with the Bernalillo County Sheriff's Office ("BCSO"). See Jan. 21 Tr. at 119:1-12 (Bregman, Hartsock).

3. According to the Computer Aided Dispatch ("CAD") sheet and Lind's and Kmatz' testimony, Lind and Kmatz entered Martinez' residence at 2:00 p.m. and exited at approximately 2:05 p.m. See Government Exhibit 2 ("CAD Sheet") at 1 (dated September 9, 2009); Transcript of Hearing at 63:3-65:3 (taken October 29, 2009)(Rees, Lind)("Oct. 29 Tr."); Oct. 29 Tr. at 180:19-181:3 (Torrez, Kmatz).

4. Lind and Kmatz gained entry into Martinez' house by opening an unlocked sliding glass door on the second-story balcony. See Oct. 29 Tr. at 58:3-13 (Rees, Lind); id. at 86:11-12 (Rees, Lind); Government Exhibit 16.

5. Lind and Kmatz secured Martinez' residence, and, at approximately 2:26 p.m., asked for a detective to respond to the residence. See CAD Sheet at 1 (". . . 14:26 208 Lind . . . PER S10. CONTACT SVU AND HAVE THEM 21 @ CELL").

6. Lind and Kmatz based their entry and search on what they believed were exigent circumstances. See Oct. 29 Tr. at 64:17-65:3 (Rees, Lind).

B. DETECTIVES ARRIVE TO INVESTIGATE.

7. Detective Kyle Hartsock (# 201) is a BCSO employee. See Jan. 21 Tr. at 7:6-12 (Rees, Hartsock).

8. Since the October 29, 2009 hearing on Martinez' first motion to suppress, Hartsock has changed assignment within the BCSO from working with the Special Victims Unit to working for the Regional Computer Forensics Lab, a task force run jointly with the Federal Bureau of Investigation and local law-enforcement agencies. See Jan. 21 Tr. at 7:6-18 (Hartsock).

9. Before Hartsock arrived, Lind told him by telephone about the entry into the house, the reasons for the entry, the contraband items that Lind and Kmatz had seen inside, and where they had seen those items. See Oct. 29 Tr. at 82:5-83:16 (Rees, Lind); id. at 212:17-213:12 (Rees, Hartsock).

10. Hartsock arrived at the residence to take a physical description for purposes of a search-warrant application at approximately 3:42 p.m. See Jan. 21 Tr. at 12:8-11 (Rees, Hartsock); CAD Sheet at 1 ("15:42 Stat SO/201 Hartsock . . . Location: 10 DAIRY LN").

11. When Hartsock arrived, he went up to the balcony of Martinez' home, where the sliding glass door that Lind and Kmatz used to gain entry to Martinez' house was still standing open. See Jan. 21 Tr. at 12:23-13:10 (Rees, Hartsock); id. at 134:8-23 (Court, Hartsock).

12. While on the balcony of Martinez' home, Hartsock could smell marijuana while standing by the open sliding glass door. See Jan. 21 Tr. at 12:23-13:10 (Rees, Hartsock); id. at 134:24-135:2 (Court, Hartsock)("THE COURT: And from that position of being outside the open door you could smell marijuana? THE WITNESS: I could smell marijuana standing right there.").

13. From the smell of marijuana at the doorway, Hartsock could have, and would have, gone and acquired a search warrant to search Martinez' house for illicit drugs and paraphernalia. See Jan. 21 Tr. at 13:2-14:10 (Rees, Hartsock).

14. If officers had searched the house looking for illicit drugs and drug paraphernalia, they would have found the photographs of child pornography during the search. See Jan. 21 Tr. at 15:8-16:17 (Rees, Hartsock); id. at 50:17-20 (Rees, Hartsock).

C. THE ARRIVAL AND INVESTIGATION OF MARTINEZ' TRUCK.

15. Hartsock and other officers later— but before any contact with Martinez— noticed a suspicious truck parked in a dead-end, separate cul-de-sac west of Martinez' property. See Jan. 21 Tr. at 16:24-18:16 (Rees, Hartsock); id. at 145:19-147:4 (Torrez, Dudewicz).

16. The location of the truck was not near any houses and had an advantageous vantage point over the officers. See Jan. 21 Tr. at 21:4-14 (Hartsock); id. at 31:12-22 (Hartsock); id. at 123:5-24 (Rees, Hartsock); id. at 238:24-239:7 (Rees, Gaitan).

17. The officers had not seen this truck upon their arrival, did not know to whom the truck belonged, and became concerned for their safety because of the truck's location. See Jan. 21 Tr. at 19:19-20:5 (Rees, Hartsock)(Hartsock testifying that he did not know whom the driver of the truck was nor where the truck belonged); id. at 27:6-28:11 (Rees, Hartsock); id. at 66:11-22 (Bregman, Hartsock); id. at 145:19-147:4 (Torrez, Torres); id. at 166:11-167:17 (Torrez, Dudewicz); id. at 237:7-24 (Rees, Gaitan).

18. Hartsock believed that the truck was somehow connected to the Martinez' residence. See Jan. 21 Tr. 66:8-67:21 (Bregman, Hartsock).

19. The truck's windows were not tinted, and the interior of the truck is visible from the outside, if one can get up high enough. See Jan. 21 Tr. at 90:10-24 (Bregman, Hartsock).

20. To ensure their safety, and not knowing who, if anyone, was in the vehicle, Hartsock and other officers approached the truck in a crouch and opened the door with guns drawn, based on what they believed were exigent circumstances and on officer safety concerns, concerned that someone was inside who could do them harm. See Jan. 21 Tr. at 27:2-30:8 (Rees, Hartsock); id. at 31:20-22 (Hartsock)("So absolutely my gun is drawn and Detective Gaitan's gun is drawn as we approached the car."); id. at 36:5-14 (Hartsock); id. at 125:8-126:9 (Rees, Hartsock); id. at 237:25-238:23 (Rees, Gaitan).²

21. The officers did not obtain a search warrant before opening the door of the truck and looking inside. See Jan. 21 Tr. at 69:9-11 (Bregman, Hartsock).

22. The officers, approaching in a crouch, did not attempt to look in the window before opening the truck's door to look inside. See Jan. 21 Tr. at 90:25-91:24, 92:16-93:8 (Bregman, Hartsock).

23. The officers did not request radio silence—a so-called "10-3"—when approaching the truck as Lind and Kmatz did before sweeping Martinez' house. Jan. 21 Tr. at 87:9-16 (Bregman, Hartsock); CAD Sheet at 1.

24. The officers did not perceive approaching the truck to be as dangerous as doing a sweep of the house, and there were fewer officer-safety concerns justifying entry into the truck than there were justifying entry into the house. See Jan. 21 Tr. at 87:17-18, 89:2-90:9 (Bregman, Hartsock)(Hartsock admitting that he did not perceive approaching the truck to be as dangerous as doing a sweep of the house and that there were fewer officer-safety concerns justifying entry into the truck than there were justifying entry into the house).

25. The officers did not contact dispatch to report their investigation of the truck. See Jan. 21 Tr. at 87:20-88:3 (Bregman, Hartsock); CAD Sheet at 1.

26. Officers are aware of a high number of...