United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Victor Manuel
Mulato-Herrara's (“Mr. Mulato”) motion to
suppress evidence. (Doc. 12). In May 2019, the United States
indicted Mr. Mulato on one count of possession of a firearm
by an illegal alien, in violation of 18 U.S.C. §
922(g)(5)(a). (Doc. 7). Mr. Mulato moves to suppress evidence
of a Springfield Armory XD 9mm gun found in his home during a
warrantless search and any statements made to law enforcement
on the night of his arrest. (Doc. 12 at 1).
Findings of Fact
on the evidence presented at the suppression hearing, the
court finds that at midnight on April 22, 2019, Shelby County
Sheriff's Office received a call from Mr. Mulato's
wife, J.T. (GX 7). J.T. reported that she left the family
home because she and Mr. Mulato were fighting. Id.
When she returned, she entered the home and picked up one of
her three children. (Doc. 25 at 10-11). Mr. Mulato
“grabbed” her son from her, placed him in a
bedroom and shut the door. (Id. at 10.) About a
minute later, Mr. Mulato left the child in the bedroom and
went into the living room, where he approached J.T. with a
gun, cocked the trigger, and told her to leave the home.
(Id.; see also GX 7). J.T. retreated to her
mother's house and called 911. (Doc. 25 at 9).
the call, J.T. told the dispatcher that three children
remained in the home. (Id. at 11). J.T. denied any
reason to think Mr. Mulato would hurt the children and told
the dispatcher that Mr. Mulato had never threatened them,
been physical with them, or hurt them before. (Id.
at 11-12). She was unsure whether Mr. Mulato was intoxicated
and did not know if Mr. Mulato had any other weapons inside
the home. (Id.at 12-13). Based on this information,
the Shelby County Sherriff's Office dispatched deputies
to investigate a person with a weapon. (Doc. 25 at 25;
see also GX 7).
County Deputies Maddox, Smith, and O'Brien and the
deputies' supervisor, Sargent Brand, responded to the
call. (See Doc. 25 at 47). All four law enforcement
officers arrived in separate vehicles (see GX 7) and
all four arrived in full uniform (doc. 25 at 47). Cameras and
microphones in the vehicles driven by Deputies Maddox, Smith,
and O'Brien recorded the events described below. Although
the camera footage does not reveal a visual picture of what
happened at Mr. Mulato's door or inside their home, the
recordings do include audio of the incident.
Smith and Maddox arrived first on the scene and repeatedly
knocked on the front door, announcing they were with the
Sheriff's Office. (Doc. 14 at 4; Doc. 25 at 68). Deputy
Smith testified that the home was a single-wide mobile home
and that they knocked loudly enough that Mr. Mulato
“definitely would have heard” them. (Doc. 25 at
68). For the next eight minutes, the deputies knocked, and
Mr. Mulato ignored them. (Id. at 44). Clearly
unmoved by Mr. Mulato's obvious lack of desire to
cooperate with the officer's investigation, Officer
Maddox contacted 911 Dispatch and requested that the
dispatcher call J.T. back, get Mr. Mulato's cell phone
number, call Mr. Mulato, and instruct him to come to the
door. (Id. at 17, 21, 44).
dispatcher contacted Mr. Mulato, who informed the dispatcher
that he did not have any guns on the premises. (Doc. 25 at
44). The dispatcher then instructed Mr. Mulato to go to the
door and speak to the officers, and Mr. Mulato complied.
(Id. at 21). Deputy O'Brien and Sargent Brand
arrived at the scene as Deputies Maddox and Smith made
contact with Mr. Mulato at his front door. (Id. at
27, 47, 120).
Maddox and Smith testified that they observed Mr. Mulato as
polite and calm and without obvious signs of intoxication.
(Doc. 25 at 35, 88). At some point, the officers found their
way into Mr. Mulato's home, although how they
found themselves inside the home is disputed. Mr. Mulato
denies giving the deputies permission to enter the house.
Deputy Maddox testified that he asked Mr. Mulato if the
deputies could come inside the house and Mr. Mulato stepped
back from the doorway. (Doc. 25 at 31, 49). Deputy Smith
initially testified that Deputy Maddox asked Mr. Mulato if
they could enter the house. (Id. at 89). Later, when
confronted with the fact that the audio recording did not
contain Deputy Maddox asking for consent to enter the home,
Deputy Smith testified that he didn't know if Deputy
Maddox verbally asked for permission or “we just maybe
did a hand gesture indicating like can we come in and he just
moved out of the way.” (Id. at 101).
deputies' accounts of when they entered the home
differ. Deputy Maddox testified that he entered almost
immediately after Mr. Mulato opened the door. (Doc. 25 at
27). Deputy Smith testified that the deputies remained on the
porch for most of the questioning and entered the home only
when he asked Mr. Mulato about the children. (Id. at
98). Deputy O'Brien was around the back of the house when
Mr. Mulato opened the door, and therefore did not know how
long the deputies were on the porch before they entered.
(Id. at 51).
deputies' accounts of why they went in the home
and what they did once inside the home also differ.
According to Deputy Smith, the purpose of contacting Mr.
Mulato was to investigate the allegation that he pointed a
gun at J.T. (Doc. 25 at 68-69). He characterized this
investigation as his “first priority.”
(Id. at 77). Deputy O'Brien concurs with Deputy
Smith, testifying that finding the weapon- not the safety of
the children-was the “main focus” of the
investigation. (Id. at 131). Only Deputy Maddox
testified that his “first objective” was the
safety of the children. (Id. at 50).
inside the home, the deputies agree that Deputy O'Brien
immediately patted Mr. Mulato down and instructed him to sit
on the couch. (Doc. 25 at 30, 53, 57, 97, 99). But what
happened next is in dispute. Deputy Smith testified that both
he and Maddox were in the living room together with Mr.
Mulato while they asked preliminary investigative questions.
(Id. at 75). Deputy Maddox testified that he entered
the home and immediately went to look for the children and
perform a protective sweep. (Id. at 56). In the
living room, Deputy Smith asked Mr. Mulato about the
children. (Id. at 71). According to Deputy Smith,
Mr. Mulato indicated that a child was in the room to his
left, and Deputy Smith walked over to that bedroom door and
looked in on that child. (Id. at 71-72).
least three, but sometimes four, law enforcement officers
were present while Mr. Mulato was questioned. Once the
children were located and the deputies determined that the
children were “good to go” (doc. 25 at 50),
Deputy Maddox asked, “any guns in the house?”
(id. at 58). Mr. Mulato “volunteered”
that the gun was located under the mattress in one of the
bedrooms. (Id. at 33-34, 53). At the time Mr. Mulato
“volunteered” this information he was detained
and being questioned by Deputy O'Brien. (Id. at
Mr. Mulato told the deputies where to find the gun, Deputies
Smith and Maddox went to look for it. (Doc. 25 at 133). The
deputies located the gun in a bedroom at the end of the
house. (Id. at 128). Immediately after locating the
gun, Deputy O'Brien placed Mr. Mulato under arrest for
menacing. (Id. at 33).
Mulato moved to suppress the gun and his statements regarding
its location, claiming the deputies violated his Fourth
Amendment and Miranda rights. Mr. Mulato contends that
the deputies' entry into, and subsequent search of, his
home was unlawful because the deputies did not have a warrant
or a reasonable belief that an exception to the warrant
requirement existed. For that reason, Mr. Mulato asks this
court to suppress evidence of the gun. In addition, Mr.
Mulato argues that the statements he made regarding the
gun's location were made during a custodial
interrogation, which ...