US v. Martinez

• Decision Date: 16 November 2009
• Docket Number: No. CR 09-2439 JB.,CR 09-2439 JB.
• Citation: 686 F. Supp.2d 1161
• Parties: UNITED STATES of America, Plaintiff, v. Joseph MARTINEZ, Defendant.
• Court: U.S. District Court — District of New Mexico

686 F.Supp.2d 1161

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

No. CR 09-2439 JB.

United States District Court, D. New Mexico.

November 16, 2009.

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

Sam Bregman, Eric Loman, Bregman & Loman, P.C., Brad D. Hall, 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, filed September 9, 2009 (Doc. 17). The Court held an evidentiary hearing on October 29, 2009. The primary issues are: (i) whether the police were justified, pursuant to the exigent-circumstances exception to the warrant requirement, to enter Defendant Joseph Martinez' home to check for individuals who might be injured or in need of assistance; (ii) whether the scope of the search conducted by the police officers was reasonable under the circumstances; (iii) whether, if the entry and/or search were unconstitutional, the Court should suppress the evidence seized in the house; (iv) whether the subsequently obtained search warrant was valid; and (v) whether the second, warrant-authorized search of the house eliminates the need to exclude the evidence seized in the house. The Court concludes that: (i) the police did not have an objectively reasonable basis to believe that there was an immediate need to protect the life or safety of someone in the Martinez home; (ii) because the Court decides that the entry and search violated the Fourth Amendment, the Court need not decide whether the police executed the search in a manner that was reasonable under the circumstances; and (iii) the warrant affidavit, however, excluding any information garnered from the initial, warrantless search, established probable cause to search Martinez' home. Based on the limited question that Martinez asks the Court to resolve in this motion, the Court will deny the motion and decline to suppress the challenged evidence at this time.

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. 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 (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.

1. Martinez resides at 10 Dairy Lane, Tijeras, New Mexico. See Transcript of Hearing at 221:18-23 (taken October 29, 2009)(Rees, Hartsock)("Tr.")¹; Transcript of Hearing at 27:21-24 (taken October 14, 2009)(Hartsock)("Detention Tr.").

2. Martinez' residence is a two-story dwelling that sits off the road on a couple of acres of land. See Tr. at 54:11 (Lind); Detention Tr. at 34:25-35:4 (Hartsock); Government Exhibit 59.

3. The residence is approximately 3,000 to 4,000 square feet. See Tr. at 67:19-20 (Lind); id. at 181:20-21 (Torrez, Kmatz).

4. On Friday, April 14, 2009, at approximately 1:30 p.m., the Bernalillo County Emergency Communication Center ("911") received a call from the residence at 10 Dairy Lane that was an "open line"—a call in which the dispatcher answers and there is nobody on the other end of the call. Id. at 47:24-48:3, 48:19-49:4 (Rees, Lind); Government Exhibit 2 ("MARTINEZ, JOSEPH... 09/04/14 13:27 STATIC ...").

5. No person initiated the 911 call from Martinez' home.

6. According to Bernalillo County Emergency Communications Center Standard Operating Guidelines § 7.2.10:

If a 9-1-1 call results in a hang-up or is disconnected before the ECO Emergency Communications Operator can determine the reason for the call, the ECO will obtain the caller's number from the ANI display, dial that number to attempt to contact and inquire if an emergency exists. If a satisfactory answer is not received, or there is no answer, or if the line is busy, the ECO will dispatch the appropriate law enforcement agency to the location to check the welfare of the person(s) there and/or notify the appropriate agency.

Response Exhibit A, at 5, filed September 21, 2009 (Doc. 23-2).

7. In the open-line call, the 911 dispatcher who received the call heard only static, and no one verbally responded to the dispatcher. See Tr. at 97:21-99:8 (Bregman, Lind); id. at 199:10-200:1 (Bregman, Kmatz); Government Exhibit 2, at 1.

8. The dispatcher disconnected the line and called back to the residence. See Tr. at 49:2-8 (Rees, Lind); id. at 199:10-200:1 (Bregman, Kmatz).

9. When the dispatcher returned the call, she heard only static and received no answer. See id. at 49:2-8 (Rees, Lind); id. at 199:10-200:1 (Bregman, Kmatz).

10. When no one answered, the dispatcher dispatched and sent, at approximately 1:36 p.m., Sergeant Robert Lind and Deputy Nathan Kmatz, both with the Bernalillo County Sheriff's Office, to Martinez' residence at 10 Dairy Lane, from which the 911 call originated. See id. at 49:18-49:25 (Lind); id. at 172:24-176:4 (Torrez, Kmatz).

11. The dispatcher conveyed to the responding officers that the 911 call had consisted solely of static. See id. at 98:12-99:5 (Bregman, Lind); id. at 161:13-17 (Court, Lind); id. at 199:10-200:1 (Bregman, Kmatz).

12. Roughly half of the open-line or hang-up 911 calls to which Lind has been dispatched have turned out to involve no emergency. See id. at 165:17-23 (Court, Lind).

13. In responding to 911 calls, Bernalillo County Sheriff's Deputies do not distinguish between hang-up/incomplete-information calls and open-line static calls. See id. at 160:24-161:12 (Court, Lind); id. at 163:4-8 (Lind); id. at 236:7-11 (Rees, Hartsock).

14. Lind knew that line problems or bad weather can sometimes cause static-only calls. See id. at 99:11-22 (Bregman, Lind).

15. Officers in the Bernalillo County Sheriff's Department were generally aware that bad weather or line problems sometimes cause static-only calls. See KOB.com: Phantom 911 Calls Blamed on Rain, http://www.kob.com/article/stories/s 1239088.shtml (last visited Nov. 11, 2009).²

16. The responding officers went to Martinez' home. See Tr. at 50:20-25 (Lind); id. at 99:24-100:1 (Bregman, Lind); id. at 174:7-176:9 (Torrez, Kmatz).

17. The 911 call was not a priority call. See id. at 176:14-16 (Kmatz).

18. Priority calls are ones that involve situations in which a person's life may be in immediate danger, such as felonies in progress, or when the 911 dispatcher hears screams or gunshots during the 911 call. See id. at 205:22-206:7 (Kmatz).

19. The responding officers traveled to the Martinez home at the speed limit, obeying traffic laws, and without lights or sirens. See id. at 176:14-16 (Kmatz); id. at 205:16-206:7 (Court, Kmatz).

20. The officers did not have a subjective belief that anyone at 10 Dairy Lane was in immediate need of protection. See id. 108:21-109:5 (Bregman, Lind)("Q: So now . . . do you actually come to the conclusion that because I see a TV box there's an emergency? A: This whole time I have thought there is a possibility of emergency situation yes, sir. Q: A possibility. But at that time . . . do you actually believe that there is an emergency? A: I believe there is a probability there is something going on; probably there's a possible emergency at that point. Q: Probably there's a possible emergency."); id. at 167:19-23 (Court, Lind)("THE COURT: Now, looking at . . . the Bernalillo County Sheriff's policy, when did you believe, if you did, that you . . . needed to enter to save a life? THE WITNESS: We needed to enter to check to make sure that nobody in that house was hurt . . . ."); id. at 167:22-168:4 (Lind)("I didn't have evidence that somebody was hurt, but I didn't have any evidence to the contrary, either."); id. at 168:5-9 (Court, Lind)("THE COURT: So was it your belief that it could be either way at that point? It could be that you needed to safe a life or it may be something else? THE WITNESS: Yeah it could be we could also need to catch the individual that was burglarizing the residence."); id. at 206:8-12 (Court, Kmatz)("THE COURT: So just with the information . . . that you had a static call, that wasn't enough for you to believe that a life was in danger, correct? THE WITNESS: Correct.").

21. Lind and Kmatz arrived at the residence at approximately 1:56 p.m. See id. at 50:8 (Lind); id. at 176:5-9 (Torrez, Kmatz); Government Exhibit 2.

22. Upon arrival at the residence, the officers found the gate to the property closed. See Tr. at 50:20-25(Lind); id. at 176:23-24 (Kmatz).³

23. The officers found an opening onto the property, however, that any person could enter. See id. at 51:1-5 (Rees, Lind); id. at 176:23-177:3 (Kmatz).

24. The officers approached the front door, repeatedly knocked and announced their presence, but received no answer. See id. at 56:6-23 (Rees, Lind); id. at 104:6-105:15 (Bregman, Lind); id. at 177:4-178:9 (Kmatz).

25. When no one answered, the officers walked around the house's perimeter and searched the outside of the house. See id. at 57:6-58:11 (Rees, Lind); id. at 178:10-23 (Torrez, Kmatz).

26. In walking the perimeter of the house, and looking in through windows, the officers found no signs of forced entry, and neither saw nor heard anybody inside. See id. 101:17-10...