AIDA M. DELGADO-COLÓN, District Judge.
Before the Court is defendant Eduard Mercedes-Abreu's ("Mercedes") Motion to Suppress, which is joined by Mercedes' wife and co-defendant, Raquel Rodríguez ("Rodríguez," collectively, "defendants").
Defendants are charged with one count of conspiracy to possess with intent to distribute controlled substances, one count charging the illegal possession with intent to distribute controlled substances, and one count of possession of firearms in furtherance of a drug trafficking crime.
The charges arise out of an investigation that occurred at defendants' home in Canóvanas, Puerto Rico on December 30, 2017.
Upon his arrival, Agent Medina first spoke outside the home with Sergeant Melvín Ruiz, who was in custody of the scene. See
Rodríguez directed Agent Medina to the key located on the kitchen counter. Agent Medina entered the room with his weapon drawn, taking all safety precautions. Agent Medina looked inside the closet, which he described as large enough for a person to hide, and around the bed. He visually scanned the room and announced "clear" after confirming there were no people inside. At this point all premises had been fully secured. After that, the forensic officers entered the room to take photographs. Agent Medina estimated that the forensics team took around 600 photographs during their inspection of the home.
Agent Medina testified that while he conducted the safety sweep of the locked room, he observed several notable items in plain sight. He described seeing raw rice on the floor, a gun magazine on top of the dresser, a large amount of cash in a gray bag on the floor, and bags of rubber bands, boxes of ziplock bags, and empty instant coffee packets on the bed. He also described finding a large quantity of rice in plain view in the kitchen trashcan. Agent Medina explained that rice and coffee are often used to conceal the smell of drugs and that the size of the coffee packets he observed—approximately one pound bags—matched his professional experience with the size of coffee bags used in drug trafficking. He also noted that, in his experience, ziplock bags, rubber bands, firearms, and cash are associated with drug trafficking. He confirmed with defendants that they did not have gun permits. He also noted that these drug-related items, along with the execution position of the victim's body, changed his initial theory that the murder may have been home-invasion related to a theory that it was drug-trafficking related.
Upon these observations, he requested a deeper search of the home for evidence of weapons and drug trafficking. He called in a K-9 unit. Around 5:00 p.m., Agent Ortíz arrived at the home with his narcotics-detecting canine, Rex.
Agent Ortíz and Rex began searching the home. When Agent Medina, Agent Ortíz, Rex, and forensic investigators entered the master bedroom around 5:10 p.m., the dog alerted at a closed suitcase in a closet, bearing Rodríguez's name on the luggage tag.
At 10:05 p.m., the General Court of Justice, Carolina Part granted Agent Medina's application for a search warrant to open the suitcase and search the entire home for further evidence of drug trafficking.
Id. at 25-26.
A state court judge signed the search warrant that evening at approximately 10:05 p.m. Id. at 24. While executing the warrant, the government found twenty-two bricks of cocaine in the suitcase and several other stashes of money in the house, among other things. Id. at 20-21.
Defendants argue that law enforcement agents found the majority of the items underlying Agent Medina's probable cause statement through unconstitutional warrantless searches. Id. at 3. Defendants challenge the exigency of searching the bedroom that was locked from the door's outside (interior of the house) while the interior of the house and its perimeter had been cleared and secured. They also claim that the majority of the items described in the warrant—the rice, guns, gun magazine, cash, and coffee bags—were not in plain view, despite Agent Medina's testimony and sworn statement to the contrary. Id. at 2. In support of these arguments, defendants obtained the metadata for all photographs taken by law enforcement agents and introduced a series of photographs at the evidentiary hearing that were taken by the forensics team during the investigation on December 30, 2017.
The Fourth Amendment "protects `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'"
The government here relies on the exigent circumstances exception to justify its warrantless search of the home.
The "plain view" doctrine supplements the "prior justification," e.g., a protective sweep in light of exigent circumstances, for the warrantless search. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). An item is in "plain view" under this standard if it is plainly visible from a "lawfully reached . . . antage point." United States v. Paneto, 661 F.3d 709, 713 (1st Cir. 2011). An item is not in plain view if authorities took actions that "exposed" previously "concealed portions of the [dwelling] or its contents" that were unrelated to their exigent sweep. Arizona v. Hicks, 480 U.S. 321, 325 (1987). Such actions constitute "a new invasion of [a person's] privacy unjustified by the exigent circumstance that validated the entry." Id. There is a nontrivial distinction between "`looking' at a suspicious object in plain view and `moving' it even a few inches"; a "search is a search, even if it happens to disclose nothing." Id. (citation and additional internal quotation marks omitted); accord Coolidge, 403 U.S. at 466-67 (explaining that the "`plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges").
Moreover, seizure of items in plain view requires probable cause, which "exists when the incriminating character of [the] object is immediately apparent to the police." Paneto, 661 F.3d at 714 (alteration in original) (citation and internal quotation marks omitted); accord Coolidge, 403 U.S. at 466-67. "The officer need not be certain of the incriminating character of [the] object, but, rather, must have a belief based on a practical, non-technical probability that the object is evidence of a crime." Paneto, 661 F.3d at 713-14 (citation and internal quotation marks omitted).
Defendants argue that "PRPD's processing of the [murder] crime scene and removal of the corpse . . . quickly transformed into a robust, intrusive, and warrantless unconstitutional search of [their] entire home," the findings of which then formed the basis of the search warrant PRPD later obtained to search the home.
The government argues that exigent circumstances justified Agent Medina's search of the locked bedroom.
Although the room was locked from the outside, and the exterior of the house was secured, negating the notion that assailants may be hiding inside the bedroom, the Court, affording Agent Medina the benefit of the doubt, will consider not entirely frivolous the argument of exigency to sweep that room for additional victims. The exact time of Agent Medina's protective sweep is unknown. He explained that he conducted it shortly upon his 12:50 p.m. arrival to the house. Nonetheless, based on the evidence submitted, forensics began photographing the scene at 2:13 p.m. See
Although Agent Medina asserted in his sworn statement and evidentiary hearing testimony that he saw the grey bag of cash in plain view, he later testified to the opposite. He stated on cross-examination that he did not see the grey bag during his protective sweep. Rather, Agent Medina testified that the forensics officers alerted him to the bag while they were "working the room," a phrase he clarified meant "searching." According to a 4:54 p.m. photograph, officers found the bag on the bedroom floor, wedged between the wall and a large armchair and obscured by a floor-length curtain. Id. at
Agent Medina testified and asserted in his written sworn statement that he found the gun magazine on the dresser in the locked room under the corner of a red, non-transparent cloth near a wine glass. His testimony was not consistent. He also stated that he had to move the cloth to reveal the magazine, that the magazine was in plain sight, and that forensics found the magazine while they "worked" the room after the premises were secured and before obtaining the search warrant.
The first photographs taken of the dresser, at 3:42 p.m., depict an array of items resting atop and alongside a red cloth, including a wine glass. Id. at
By 4:45 p.m., a corner of the red cloth had been pushed aside, revealing a dark object that could be a gun magazine. Id. at
Agent Medina testified that he observed the coffee packets and wrappings on the bed when he entered the locked room. Initial photos of the room reveal the contrary. Photographs of the bed show the coffee bags visible only after clothing and a blanket on the bed were moved. Id. at
Agent Medina's testimony about the items found in the locked bedroom is rather remarkable. He admitted he did not see the grey bag in his safety sweep and that its incriminating contents were also not in plain view. He testified that forensics found the bag around 4:54 p.m. while "searching" the locked room. And he affirmed that he opened the bag before obtaining the search warrant, so he could rely on its contents in support of his warrant application. He swore in the search warrant application that he observed a "large sum of money," which is clearly refuted by the photographs and now by his testimony on cross-examination.
Similarly, the stipulated metadata proves that the government's search inside the dresser occurred around 4:45 p.m., long before the court issued the search warrant at 10:05 p.m. Id. at 24. Thus, the difference between when the government searched the dresser and when it obtained the warrant is, literally, a difference of night and day.
Additionally, the photographs memorializing what Agent Medina described he saw on the dresser when he conducted his safety sweep does not show an exposed gun magazine. The Court agrees that the first photograph of the dresser is not very clear, but Agent Medina's testimony was also highly inconsistent. The manner the cloth is pulled back in the other photos supports Agent Medina's initial testimony that the gun magazine was under the cloth and not on plain view. The photographs also support Agent Medina's description that the gun magazine was under a non-transparent cloth and became readily discernible once the cloth was pushed aside. Accordingly, the Court finds that the gun magazine was not in plain sight when Agent Medina conducted the protective sweep of the locked bedroom.
As for the coffee bags, the plain view finding boils down to a credibility determination between stipulated photographic evidence depicting the coffee bags as concealed under other items on the bed, and Agent Medina's testimony that they were visible from a vantage point that inexplicably was not recorded, despite there being almost 600 photos of the investigation. The Court finds the photographs more credible.
Accordingly, the Court finds that none of these items—the grey bag of cash, the gun magazine, and the coffee packets—were in plain sight during Agent Medina's protective sweep of the locked bedroom. The government's physical search that revealed these items was not supported by any recognized justification for a warrantless search under the Fourth Amendment. The exigent circumstances exception that arguably authorized the initial entry into the locked room to search for victims does not authorize a physical search. The exception allows officers to look in places where they may reasonably find a person for the brief time it takes to clear the room. According to Agent Médina, the entire house was clear when he found the gun magazine on the dresser, coffee on the bed, and the grey bag of money behind the chair. The metadata on the photographs indicate that the government's search occurred several hours after Agent Medina arrived on the scene, after the home was secured, took several hours, and was not limited to places where a person may be hiding, such as, e.g., inside a small reusable bag. See, e.g., United States v. Soto-Peguero, 252 F.Supp.3d 1, 13 (D. Mass. May 9, 2017) (holding that "manipulating an object in a vent and opening a bag goes beyond the scope of a protective sweep" because "[t]hese are not locations where a person could be hiding"); Hernández-Mieses, 257 F.Supp.3d at 181 (noting that the officers' decision to open a shoebox and to look inside a bag during a protective sweep exceeded the bounds of the exigent circumstances exception).
The government offers no other justification for the warrantless search of the bedroom and the Court finds none. The government's rummaging in the locked bedroom, moving furniture, clothing, blankets, and draperies and opening cabinets and drawers, violated the defendants' Fourth Amendment rights. See Florida v. Jardines, 569 U.S. 1, 5 (2013) ("When the Government obtains information by physically intruding on persons, houses, papers, or effects, a `search' within the original meaning of the Fourth Amendment has undoubtedly occurred." (citation and additional internal quotation marks omitted)). The items obtained in this warrantless search that were not in plain view—the gun magazine, coffee packets, and bag of cash—are therefore subject to suppression.
Agent Medina testified that he saw a large quantity of loose, raw rice in the kitchen trashcan after "someone" removed two shoeboxes from the trash.
The first photograph of the trashcan taken at 2:24 p.m., shows the shoeboxes filling the majority of the trashcan's opening and rising a few inches above the rim of the barrel. Id. at
The photographs do not foreclose the possibility that Agent Medina could observe in plain sight the rice on the shoeboxes and the number "157.700" written inside. However, as with the coffee packets, the failure of the government to provide a photograph substantiating this plain view assertion is noteworthy. Since it was the quantity of rice and its disbursement throughout the house that concerned Agent Medina, the fact that the government did not provide any photographs clearly showing rice in plain view anywhere in the home before investigators disturbed the scene, undercuts the government's claim. There are no photographs of rice on the floor, which Agent Medina attested was due to the difficulty of photographing white rice against white floors. He stated that PRPD required higher-quality photography equipment to capture such a thing. The Court finds this explanation clever but rather unconvincing, particularly given Agent Medina's questionable veracity and the caliber of camera forensic officers were using—a Nikon D7000, a 16.2 megapixel semi-professional digital SLR camera with an 18-105 mm zoom lens and the capability to operate fully manually. See id. at
Moreover, the incriminating character of these items is questionable. See United States v. Monell, 801 F.3d 34, 40 (1st Cir. 2015) (indicating probable cause to seize an item in plain sight is assessed by courts objectively, not subjectively). Agent Medina explained the relevance of rice in the drug trade as obscuring the odor of drugs. However, rice is also a kitchen item that is not out of place in the kitchen trash.
The Court acknowledges that the suspicious character of the kitchen rice may be bolstered by the fact that Rodríguez's friend when interviewed stated she had also noticed rice on the floors in the home.
Defendants challenge Agent Medina's use of the drug-sniffing dog as an extension of the illegal searches of the locked bedroom and kitchen trashcan.
The propriety of a dog sniff is evaluated similarly to the propriety of "an officer's `plain view' observation of contraband," in which "the important factor" is whether "the observing person or the sniffing canine are legally present at their vantage when their respective senses are aroused by obviously incriminating evidence." United States v. Esquilín, 208 F.3d 315, 318 (1st Cir. 2000), abrogated on other grounds by Missouri v. Seibert, 542 U.S. 600 (2004) (interpreting United States v. Place, 462 U.S. 696 (1983)). Thus, the issue turns on whether Rex and his handler were legally present in the master bedroom at the time of the dog sniff.
The Court agrees with defendants that the exigency supporting the initial search of the premises had long ceased by the time Agent Ortíz and Rex arrived around 5 p.m. Agent Medina testified that he requested a drug-sniffing dog for the sole purpose of conducting a "deeper search" of the home for narcotics. Furthermore, he confirmed that Rex searched the whole home, starting in the kitchen area. This is an entirely different search than the protective sweep justified by the exigent circumstances exception. Cf. Bilida v. McCleod, 211 F.3d 166, 171-73 (1st Cir. 2000) (rejecting the government's assertion that an officer's initial entry into a backyard in response to a silent home alarm justified a second, later entry into the backyard to seize an unpermitted pet raccoon the officer had previously observed in a cage in plain sight).
Defendants contended at the evidentiary hearing that their consent to PRPD's presence in their home was limited to the immediate vicinity of the murder scene after officers concluded their protective sweep. They assert that Rodríguez's call for emergency assistance upon discovering her brother-in-law's body in the living room did not authorize law enforcement to rummage through defendants' home for the entire afternoon. See Thompson v. Louisiana, 469 U.S. 17, 18, 22-23 (1984) (per curiam) (concluding that a 9-1-1 call reporting a possible murder/suicide did not diminish the homeowner's expectation of privacy in such a way that would authorize the homicide detectives to engage in a two-hour, warrantless "general exploratory search" of the home).
The government does not dispute defendants' description of their limited consent to PRPD's presence in their home. Rather, at the suppression hearing the government implied, and Agent Medina affirmatively testified, that his authority to request a drug-sniffing dog to conduct a "deeper search" of the home arose from the exigency of the bloody scene in the living room. The Supreme Court has definitively rejected this argument, holding that there is no "murder scene exception" to the Fourth Amendment. Mincey, 437 U.S. at 395. The government offers no other justification for the officers' presence in the marital bedroom hours after the exigency passed and without consent of the homeowners.
The Court concludes that any reasonable suspicion Agent Medina had to justify his request for a drug-sniffing dog was derived entirely from his illegal search of the locked bedroom and kitchen trashcan. Therefore, Rex, and the agents that accompanied him, did not legally occupy the master bedroom at the time Rex conducted his sniff, rendering the sniff an illegal search. Thus, the canine's findings are subject to suppression—both the firearms in the closet and suitcase.
Additionally, Agent Medina testified, and the photographs' metadata corroborate, that PRPD officers moved items in the closets where Rex had alerted. This also amounts to an illegal search. Agent Medina admitted he moved the hanging clothes in the closet to reveal what had triggered one of Rex's two alerts. He confirmed that he expected to find drugs or guns and did not move the clothes out of an exigency to ascertain, e.g., whether "a murderer was behind there." Additionally, Agent Medina had no explanation for why, as depicted in the photographs, one of the guns in the closet had also been moved from its original location sometime between the dog sniff and warrant execution. Compare
Agent Medina asserts he applied for a search warrant sometime after the canine sniff, based on his belief that the home was "being used for the storing and processing of controlled substances and firearms in violation of the law."
There are two critical problems with the search warrant in this case. First, the warrant is based almost entirely on illegally obtained evidence. Second, Agent Medina's sworn statement in support of the warrant application contains several mischaracterizations, if not outright lies, demonstrating an intent to deceive the reviewing Judge.
"Where evidence is not obtained as the direct result of an illegal search, but may have been derived from the fruits of" an initial illegal search, courts "must determine `whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the taint imposed upon that evidence by the original illegality.'" García-Aguilar v. Lynch, 806 F.3d 671, 675 (1st Cir. 2015) (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). Courts apply a two-part test to determine "whether evidence discovered in a lawful search pursuant to a warrant may be admissible in the aftermath of an unlawful entry." United States v. Jadlowe, 628 F.3d 1, 9 (1st Cir. 2010). Courts consider "(1) whether the search warrant affidavit contained sufficient information to support probable cause without any information gleaned from the unlawful search; and (2) whether the decision to seek the warrant was in fact `independent of the illegal entry,' i.e., `whether it would have been sought even if what actually happened had not occurred.'" Id. (additional internal quotation marks omitted) (quoting United States v. Murray, 487 U.S. 533, 542 & n. 3 (1988)).
Here, the government's case fails both prongs. Excluding all of the information illegally obtained by Agent Medina, his request for a search warrant did not contain sufficient information to support probable cause to open the suitcase and to search the home for evidence of narcotics and firearms. The legally obtained information in his sworn statement constitutes his plain sight observations of ziplock bags, a bag of rubber bands, and some rice on the kitchen's floors.
The Court acknowledges the possibility that "the homicide investigators in this case may well have had probable cause to search the premises" based on, i.e., the lifeless body in the living room, bullet casings, blood, and other indicia of foul play. See Thompson, 469 U.S. at 20. However, there is no basis to conclude that law enforcement planned to seek a warrant of the home in conjunction with the murder investigation or that Agent Medina would have applied for the specific warrant issued without the illegally obtained evidence and information. Indeed, prior to Agent Medina's illegal search of the locked bedroom, he testified that he considered the homicide to be home-invasion related.
Additionally, the government does not address any possible independent, legal source for the discovery of the evidence pursuant to the warrant, relying instead on the good faith doctrine to excuse any mistakes by law enforcement. The government carries the burden of proof to show by a preponderance of the evidence that there is an independent source for the challenged evidence. United States v. Siciliano, 578 F.3d 61, 68 (1st Cir. 2009). It has fallen woefully short of that standard. Accordingly, the Court concludes there is no valid independent source of the evidence obtained pursuant to the warrant, rendering all of the evidence seized pursuant to the warrant subject to suppression.
The Fourth Amendment requires that warrants be issued "upon probable cause, supported by Oath or affirmation," rendering the "affiant's good faith as its premise." Franks v. Delaware, 438 U.S. 154, 164 (1978) (citation and internal quotation marks omitted). Because a judge "must determine independently whether there is probable cause" for a search warrant, "it would be an unthinkable imposition upon [a judge's] authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless false statement, were to stand beyond impeachment." Id. at 165.
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence." Mincey, 437 U.S. at 395 (citation and internal quotation marks omitted). Rather, "[i]ts protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Id. (citation and internal quotation marks omitted).
Agent Medina's sworn statement presents to the reviewing judge a different course of events and observations, totally contradicted by the metadata of photographic evidence (photos taken by officers of the Forensic Institute) and his testimony at the evidentiary hearing. Agent Medina attested in the warrant application that he simply observed rice in the wastebasket, the numbers on the box, and "[u]pon entering into one of the bedrooms," "we found on the bed empty Café Crema wrappers," "a black firearm magazine on the dresser, several boxes of Ziplock bags, several transparent bags with pressure seals full of rubber bands," and "a large sum of money in cash."
As stated above, none of these items were actually in plain sight: the coffee bags were concealed under items on the bed, the gun magazine was concealed under a red cloth, and the kitchen trashcan was rifled through before agents could identify the contents cited in the warrant application. Most egregious is Agent Medina's description in the warrant application that he simply happened upon "a large sum of money in cash" in the locked bedroom. The cash was concealed in a closed, non-transparent bag that the forensics team later found hidden out of plain view behind a chair and under a curtain. At the evidentiary hearing, Agent Medina conceded that he had to open the grey bag to see its contents, at which time he learned that it contained a large sum of cash. Additionally, his sworn statement claiming that he simply "enter[ed] into the bedroom," contradicts his testimony that he entered the locked bedroom to conduct a protective sweep. And, it contradicts the government's entire theory in opposition to suppression, that an exigency necessitated all of the warrantless searches at issue.
Last, the Court admonishes Agent Medina's flagrant dishonesty before this Court and the court issuing the search warrant. Indeed, the Court considers his behavior sufficiently egregious to warrant a perjury and/or obstruction of justice investigation. The Court has no means to determine if this is the first time that Agent Medina lies to this Court. However, as it relates to this case, he blatantly lied to the state judiciary while submitting a sworn statement with firsthand information he clearly knew to be false. Secondly, he appeared in federal court and after taking an oath to testify truthfully, he once again testified falsely. Agent Medina's behavior and testimony may be suggestive of a routinary practice as a law enforcement officer to lie under oath and mischaracterize evidence to serve his investigatory purposes. If so, Agent Medina's disregard of constitutional rights and basic rules of criminal procedure and investigation, poses a threat to individual's rights and to the community he purports to serve and needs to be addressed and investigated.
"[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all." Hicks, 480 U.S. at 329 (alteration in original). Defendants' motion to suppress is
