United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
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.
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.
testimony and evidentiary materials offered at the
evidentiary hearing on Solano-Mendoza's motion
established the following facts.
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. 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. 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.
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
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.
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.
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. 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,  so Skillern asked them in English to go
back inside the home, which they did. Tr. I at 48.
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.
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.
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. 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.
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.” 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.
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.
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. Tr. I at 230-31
& 252. Purdy did not discover any other weapons while
inside the home. Tr. I at 265-66.
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.
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.
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.
Interview of Munoz
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 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
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.
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. 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.
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. 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.
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.
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.
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
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 ...