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United States v. Mulato-Herrara

United States District Court, N.D. Alabama, Southern Division

November 13, 2019

UNITED STATES OF AMERICA, Plaintiff
v.
VICTOR MULATO-HERRARA, Defendant.

          MEMORANDUM OPINION AND ORDER

          ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE

         This 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).

         A. Findings of Fact

         Based 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).

         During 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).

         Shelby 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.

         Deputies 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).

         The 911 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).

         Deputies 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).

         The deputies' accounts[1] 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).

         The 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).

         Once 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.[2] (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).

         At 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 54, 114).

         After 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).

         B. Analysis

         Mr. Mulato moved to suppress the gun and his statements regarding its location, claiming the deputies violated his Fourth Amendment and Miranda[3] 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 ...


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