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United States v. Solano-Mendoza

United States District Court, M.D. Alabama, Northern Division

June 29, 2018




         Pending before the court is the Motion to Suppress (Doc. 30) filed by Defendant Adrian Solano-Mendoza. The court held an evidentiary hearing on the motion on May 30 and June 6, 2018, and has reviewed the Government's response to the motion (Doc. 46), along with the parties' evidentiary materials. For the reasons stated herein, the Magistrate Judge RECOMMENDS that the Motion to Suppress be GRANTED in part and DENIED in part.

         I. BACKGROUND

         A Grand Jury sitting within the Middle District of Alabama indicted Solano-Mendoza on a single count for reentry into the United States by a deported alien. Doc. 14. The Grand Jury later returned a Superseding Indictment adding counts for possession of a firearm by a convicted felon and possession of a firearm while illegally residing in the United States. Doc. 24. Solano-Mendoza claims in his motion to suppress that the Government obtained the critical evidence supporting these new charges through illegal surveillance and an illegal search of his residence. Doc. 30. Specifically, Solano-Mendoza seeks to suppress information about the location of a certain vehicle at his residence, along with two rifles, a handgun, ammunition, and documents identifying him as a citizen of Mexico. Doc. 30. The court recommends that the motion to suppress be denied as to the information about the location of this vehicle and the seizure of an assault rifle, but granted as to all other items.

         II. FACTS

         The testimony and evidentiary materials offered at the evidentiary hearing on Solano-Mendoza's motion established the following facts.

         A. Surveillance

         On January 3, 2018, Scott Skillern, an Enforcement and Removal Operations Officer with the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), conducted surveillance of a home off of County Road 173 in Chilton County, Alabama, in response to a lead received by his agency. Transcript of May 30, 2018 Hearing (“Tr. I”) at 9-11. The home was situated on a 486-acre piece of property owned by a man who does not live on the land but allows Solano-Mendoza to live there and employs him as a caretaker. Doc. 43 at 20.[1] As Skillern approached the home on County Road 173, the roadway transitioned from a paved surface to a dirt road. Tr. I at 12. He then drove through an open gate that had been painted green.[2] Tr. I at 16. There were signs posted on either side of the road indicating that trespassing onto the property was prohibited. Tr. I at 18-19. There was another open gate on the roadway about half of a mile past the first gate, this one painted white. Tr. I at 25-27; Doc. 57-4 at 41. Skillern initially took a right turn at this intersection, but it led him to a home that did not appear to be the residence he was looking for, so he stopped to review his notes. Tr. I at 26.

         From the spot where Skillern parked, in the distance he could see a manufactured home with a white pickup truck parked outside. Tr. I at 29. This truck matched the description of the vehicle he was looking for, so he drove back to the intersection with the white fence and down the other fork in the road. Tr. I at 30. He drove past the front of the house on the roadway without stopping, and this vantage point gave him a better view of the truck and its personalized license plate, which matched one of the license plates identified in his paperwork. Tr. I at 30 & 36. Skillern then drove another 50 to 75 yards past the manufactured home, turned around, and drove back by the house and out of the property the same way he had entered. Tr. I at 39. Skillern was able to obtain an arrest warrant for Solano-Mendoza using the information he gathered during this surveillance. Tr. I at 40-41.

         B. Arrest

         Skillern returned to Solano-Mendoza's home early on the morning of January 8, 2018, and this time he was accompanied by fellow ICE officers Chris Purdy, Waylon Hinkle, Duke McDonald, Chris Cannon, Michal Kocian, Charles Anderson, and Officer Benson, as well as a Chilton County Sheriff's Office deputy. Tr. I at 41 & 80-81. The officers were armed with service handguns, displaying their badges, and dressed in body armor and other tactical gear. Tr. I at 239-40; Transcript of June 6, 2018 Hearing (“Tr. II”) at 108. Because he had been there before, Skillern drove the lead car in a caravan of six or seven cars that carried the officers to Solano-Mendoza's home that morning. Tr. I at 41 & 46. This time, the green gate was closed so Skillern and Hinkle slid it open to allow the cars to enter the property. Tr. I at 43. They continued up the same road Skillern had used on January 3, through the open white gate, and toward the manufactured home. Tr. I at 45. Solano-Mendoza's truck and another car were parked outside of the home. Tr. I at 211. It was a cold and rainy morning and it was still dark when the officers arrived. Tr. I at 43 & 222.

         The plan had been for the officers to set up a perimeter, knock on the door and announce their presence, break down the door, and take Solano-Mendoza into custody. Tr. I at 167. However, just as Skillern drove past the home, the porch light illuminated, and Skillern could see that a man was standing in the doorway of the home. Tr. I at 46. Skillern recognized the man as Solano-Mendoza and ordered him onto his knees. Tr. I at 47 & 223. At this point, Hinkle and Anderson had just parked and were approaching from the yard and also speaking to Solano-Mendoza. Tr. II at 113. Hinkle commanded Solano-Mendoza to put his hands up. Tr. II at 113. Hinkle, Anderson, Purdy, and Skillern were soon on the porch with Solano-Mendoza. Tr. II at 116-17. With Solano-Mendoza kneeling on the porch, Hinkle and Anderson handcuffed him. Tr. II at 117. To form a barrier shielding Hinkle and Anderson from any threats inside, Skillern and Purdy positioned themselves between the arresting officers and the front door. Tr. II at 117.

         While the officers approached the home and arrested Solano-Mendoza, a number of people gathered inside the front door of the home. Tr. I at 48 & 98; Tr. II at 117. These people were later determined to be Solano-Mendoza's two daughters, Jasmin and Alejandra, and his wife, Paula Munoz.[3] All three were lined up in the doorway watching the arrest. Tr. I at 102-03. Some of the family members opened the door and were beginning to step out onto the porch, [4] so Skillern asked them in English to go back inside the home, which they did. Tr. I at 48.

         As Hinkle and Anderson finished arresting Solano-Mendoza and walking him to a police vehicle parked outside, Skillern spoke to both daughters, who were fluent in English. Tr. I at 49. The daughters asked him what was happening on the porch, and in response Skillern asked them if they could “go inside and . . . explain to [them] what was happening.” Tr. I at 49 & 170-71. Skillern, Purdy, and Cannon each testified that it was necessary for their safety that they keep the family and Solano-Mendoza in separate locations while he was still on the scene. Tr. I at 189 & 217; Tr. II at 117 & 135-36. The daughters allowed Skillern to enter the house. Tr. I at 50.

         According to Skillern, Jasmin “took over the conversation” and he then spoke exclusively with her. Tr. I at 183 & 200. Munoz corroborated the fact that Skillern spoke primarily with Jasmin and not Alejandra. Tr. I at 138. Jasmin “looked like an adult, she spoke like an adult, [and] she acted like an adult, ” and she served “as a spokesperson” for the family. Tr. I at 183-84. At this point, Skillern was standing in the living room, just inside the front door, with Jasmin, Alejandra, and Munoz. Tr. I at 53-54 & 200. Skillern did not speak to Munoz. Tr. I at 200-01. He asked Jasmin if the officers “could make a quick search [to] make sure nobody else was in the house and if [the people in the living room were] everybody that lives there.” Tr. I at 52. Her response was “sure.” Tr. I at 52. At this time, Skillern did not know who the people in the room were. Tr. I at 185. His immediate concern was to determine whether there was any threat to the officers' safety, so he identified everyone only after conducting an initial search for any other people in the home. Tr. I at 185.

         Around the same time, Purdy heard one of his fellow officers say “hey, we just got consent.” Tr. I at 223. Purdy interpreted this statement to mean that the officers had consent to enter the home and “look for any other threats that may be in the home, ” so he and two other officers entered the home and began what they characterize as a protective sweep of the residence.[5] Tr. I at 223-24 & 246. Purdy was particularly concerned about threats in Solano-Mendoza's house because the officers knew from his criminal history that he had possessed firearms in the past. Tr. I at 249. It was a chaotic scene at that moment, and Purdy does not remember who told him that they had consent to enter the home. Tr. I at 226 & 245-46.

         Skillern testified that the purpose in speaking to the family was to explain what had occurred and how they could contact Solano-Mendoza, and that the reason he wanted to have this conversation inside the home was to eliminate the possibility of “family members running up to the vehicle where we just put somebody in who is getting arrested or get[ting] involved in the arrest situation.”[6] Tr. I at 188. At some point in his conversation with Jasmin, Skillern learned that she and Alejandra were Solano-Mendoza's and Munoz' daughters. Tr. I at 193.

         Kocian testified that he was on the scene for an hour or an hour and a half and was first stationed outside the home to provide perimeter security. Tr. II at 4 & 26. He was summoned by other officers after Solano-Mendoza had been arrested and placed inside the police vehicle. Tr. II at 24-25. At that time, Cannon, Benson, and Hinkle were with Solano-Mendoza at the vehicle. Tr. II at 25. He also saw Anderson positioned just inside the front door of the home. Tr. II at 27. Kocian had a brief encounter with Solano-Mendoza in which he recited his Miranda rights in Spanish before being called into the home by a fellow officer. Tr. II at 26. Solano-Mendoza invoked this right to counsel, and the interview terminated. Tr. II at 13.

         C. Initial Search

         As Skillern stood in the living room with Jasmin, Alejandra, and Munoz, Purdy began his search by entering the bedroom shared by Solano-Mendoza and Munoz, which was adjacent to the living room. Tr. I at 159 & 226-27. Purdy walked into the master bathroom and its adjoining closet, and on the floor of the closet he saw an assault rifle. Tr. I at 182. The rifle was not concealed in any way and was visible to him upon walking into the closet area. Tr. I at 227-28. Purdy notified Hinkle that he found the weapon. Tr. I at 229. Purdy then walked back into the living room to ask the other officers if they needed help with sweeping the rest of the home. Tr. I at 230. This process--from Purdy's entry into the home to his return to the living room--took approximately 90 seconds. Tr. I at 230. The next thing Purdy recalls is that one of his fellow officers read Miranda rights to Munoz while she was seated on a couch in the living room.[7] Tr. I at 230-31 & 252. Purdy did not discover any other weapons while inside the home. Tr. I at 265-66.

         After his conversation with Jasmin, Skillern searched the living room for anyone who might be hiding while Purdy entered the bedroom. Tr. I at 158-59. Once Purdy found the assault rifle in the bedroom closet, Skillern stood in the doorway between the master bedroom and the living room. Tr. I at 182.

         Outside, Hinkle handcuffed Solano-Mendoza and secured him in a police vehicle within approximately the first five minutes of the officers' arrival at the residence. Tr. II at 88. McDonald then entered the home after being told that consent to enter was given. Tr. II at 89. He does not remember who told him that they had consent. Tr. II at 89 & 96-97. He took a position in the living room facing the dining room, with his back toward the master bedroom. Tr. II at 93. At this point, he believes Purdy and Skillern were in the master bedroom and Hinkle was in the living room speaking to Munoz. Tr. II at 94-95 & 102. McDonald eventually entered the bedroom to take photographs after three firearms were found, but does not remember how much later that occurred. Tr. II at 98. He photographed two rifles and a handgun on the bed. Tr. II at 98-99. Anderson was standing just inside the front door at the time. Tr. II at 102-103.

         Cannon testified that Skillern and Purdy entered the house immediately after Hinkle handcuffed Solano-Mendoza. Tr. II at 118. Hinkle then took Solano-Mendoza to his police vehicle and had Kocian read his Miranda rights in Spanish. Tr. II at 118. Because Solano-Mendoza was shivering and was not wearing a shirt, one of the officers asked him if he wanted a shirt. Tr. II at 118. He said that he did, so Cannon entered the home for the first time and spoke with either Jasmin or Alejandra, who retrieved a hunting shirt as Cannon followed her into the master bedroom. Tr. II at 118. While in the bedroom, another officer, whose identity Cannon cannot recall, told him that there was a firearm under the bed. Tr. II at 119-20. At the time, Purdy was in the master bathroom area with another weapon. Tr. II at 120. Cannon took the shirt to Solano-Mendoza, went briefly back inside with a copy of the warrant, and returned to the car to leave with Benson and Solano-Mendoza between 5:10 a.m. and 6:00 a.m. Tr. II at 120-21. He estimates that 10 to 20 minutes elapsed between when he arrived on the scene and when he left with Solano-Mendoza. Tr. II at 121-22.

         D. Interview of Munoz

         After translating for Solano-Mendoza, Kocian was summoned into the home to translate for Munoz. Tr. II at 13-14. As he entered the home, Munoz was standing[8] in the master bathroom with Skillern and Hinkle. Tr. II at 14-15 & 29. Hinkle directed Kocian to read Munoz' rights to her in Spanish. Tr. II at 32. Kocian recited her Miranda rights in Spanish from a card and then explained the rights in “common language” to make sure she understood. Tr. II at 16. Specifically, he advised her that she “can ask for [an] attorney. She can refuse to answer any questions at any time. Any questions and any answers have to be-she's giving freely . . . .” Tr. II at 36. Kocian did not advise Munoz of her right to refuse consent to a search of the home. Tr. II at 62. Munoz told Kocian that she understood her rights. Tr. II at 16. She was not presented with a written advisement-of-rights form. Tr. II at 66.

         Next, Kocian asked several questions about Munoz' identity, including an inquiry into her immigration status. Tr. II at 33. He then asked her for consent to search the master bedroom and bathroom area, and she agreed. Tr. II at 17 & 19. Finally, he asked her if there were any other people or weapons in the home, and Munoz responded that there was a handgun in the nightstand next to the bed. Tr. II at 17. By this time, the assault rifle and an additional hunting rifle had already been found. Tr. I at 120-21; Tr. II at 20. Kocian remembers seeing the hunting rifle under the bed in the master bedroom at some point in the morning, but he is not the one who discovered it and is not sure when he saw it. Tr. II at 51. Kocian believes that one of the officers was holding the assault rifle in his hands at some point while he spoke to Munoz. Tr. II at 45-46.

         Munoz is 42 years old and she speaks Spanish as her first language. Tr. I at 85. After the officers entered her home, she was directed to sit in the living room but could hear that the officers were searching through drawers in the master bedroom, and she saw them searching the cabinets in the kitchen and a room on the other side of the house that her son-in-law used. Tr. I at 107, 112-13 & 119-20. Throughout this time, there were two officers stationed in the living room just inside the front door.[9] Tr. I at-17. An officer asked her if she could come with him to the master bathroom, and she complied. Tr. I at 116. Her daughters remained in the living room. Tr. I at 120-21.

         There were three officers in the bathroom, including one who translated from English to Spanish for her, and they told her to sit on the edge of the bathtub.[10] Tr. I at 121 & 129-30. They then presented documents to her that belonged to her husband and related to his criminal record, along with a photograph of him. Tr. I at 121-22 & 143-44. At this point, the officers advised her of her Miranda rights. Tr. I at 143. At the time, Munoz thought that they were advising her of her rights because they were planning to arrest her also. Tr. I at 132 & 146-48. Even though the officers were polite and were not “pushy, ” she was very afraid, was shaking with “tremors, ” and felt dizzy due to her diabetes. Tr. I at 139-40 & 122-23. After learning that she was in the country illegally, the officers took Munoz' passport and told her to report to the ICE office in Birmingham in one hour. Tr. I at 127; Tr. II at 20. Munoz did not believe the officers gave her “any choices as to what they were going to do inside” her home. Tr. I at 146.

         At the same time, the officers searched a closet in the master bedroom and attempted to open a safe before asking Munoz what it contained and if she knew the combination. Tr. I at 123-24. She then asked an officer if she could go to the living room and take her medication, so he brought her to the living room and directed one of her daughters to retrieve the medication. Tr. I at 125-26. One of the officers then asked Munoz if there were any more weapons in the home, but Munoz remembers that this was after they had found the two rifles and handgun in the master bedroom. Tr. I at 126. According to Munoz, no one ever asked her for consent to search the house. Tr. I at 126-27. She estimated that they were at the house from 5:30 a.m. to 8:00 a.m. Tr. I at 134.


         Solano-Mendoza presents two justifications for invoking the exclusionary rule to suppress the Government's evidence against him: (1) the surveillance on January 3, 2018 was illegal because it encroached on the curtilage of his home; and (2) the officers had no legal authority to enter his home and search it on January 8, 2018. Doc. 30 at 5. Solano-Mendoza's motion oversimplifies the issues presented, as the second justification involves intertwined inquiries including exigency, apparent authority, and voluntariness. For the reasons explained below, the court finds that the surveillance on January 3 was accomplished legally, that the officers were legally inside the home on January 8 solely for the purpose of accomplishing a protective sweep of the residence, and that the officers recovered an assault rifle during the protective sweep. As to the other items identified in the motion to suppress, the Government has failed to carry its burden of proving that any exception to the warrant requirement applies, and therefore the court concludes that these items were unlawfully seized pursuant to a warrantless search of Solano-Mendoza's home.

         A. Curtilage

         Solano-Mendoza first argues that Skillern's surveillance of his home on January 3 violated the Fourth Amendment. It did not. The court finds that the January 3 surveillance did not infringe upon Solano-Mendoza's constitutional rights and therefore does not reach the question of whether an exception to the exclusionary rule might apply even if the surveillance had been improper.

         Solano-Mendoza bears the burden of proving that he had a legitimate expectation of privacy in the area Skillern searched. United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008). “A person has a legitimate expectation of privacy if (1) he has a subjective expectation of privacy, and (2) society is prepared to recognize that expectation as objectively reasonable.” Id. (citing United States v. Segura-Baltazar, 448 F.3d 1281, 1286 (11th Cir. 2006)). In this instance, Solano-Mendoza's argument depends on whether the ...

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