OPINION AND ORDER
In November of 2016, Sandy Hernandez-Mieses (“Hernandez” or “Defendant”), Yonattan Jimenez-Diaz (“Jimenez”), and Oniel Lajara-De La Cruz (“Lajara”) were charged with various firearm and drug-related counts. Co-defendant Hernandez now moves motion to suppress the evidence against him (Docket No. 63, 81), and the United States’ opposes his request (Docket No. 66, 85).
I. BACKGROUND
According to the criminal complaint (Docket No, 1-1), in the early morning hours of November 1st, 2016, Homeland Security agents,- task force and law enforcement officers set out to execute an arrest warrant against Hernandez issued by this court in another criminal case.
At the residence, the agents arrested Hernandez in the dining room area, where they saw in plain, view four cellular phones and cash on the dining room table and a pistol on the kitchen counter. The agents proceeded, to perform a security sweep of the. home with the assistance of Customs and Border Protection canine Honzo, trained to detect concealed humans, narcotics and currency. In the rooms of the second floor of the residence, Honzo alerted the officers to a sports bag containing cocaine, as well as cash in drawers and inside a box in a closet. Upstairs, the agents also found additional cellular phones and a pistol inside a safe box in the closet of the master bedroom.
The agents also found material evidence in two cars. A white 2005 Ford was parked in the garage of the residence. The agents opened the van after noticing the hood felt hot, fresh mud along the bottom, and water dripping from the rear. Therein, the agents found approximately thirty to forty wet bales containing what appeared to be cocaine. With keys found on' the dining room table, the agents also opened a 2011 Toyota Sienna parked in the driveway of the residence. Inside, they found a pistol, cash and additional cellular phones. Additionally, they found the photographic identifications of the other two co-defendants that had fled the scene.
• After the government filed the complaint against defendants, the latter were indicted on November 30, 2016. See Docket No. 46. Specifically, the government charged Hernandez with the following: (1) conspiracy to import a narcotic controlled substance (cocaine) in violation of 21 U.S.C. §§ 963, 952(a), and 960(a)(1) & (b)(1)(B); (2) aiding and abetting and importation of a narcotic controlled substance (cocaine) in violation of 21 U.S.C. §§ 952 and 960(a)(1) & (b)(1)(B); (3) conspiracy to possess with intent to distribute five or more .kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(l)(A)(ii), 846; (4) aiding and abetting and possession with
The matter is before the undersigned on Hernandez’s request to suppress the evidence found in his home and cars during the execution of the arrest warrant. See Dockets No. 63, 81. Hernandez argues that the search of his residence during and after the execution of his arrest was in violation of the Fourth Amendment because it exceeded the limits of the protective sweep and search incident to arrest exceptions. In particular, Defendant contends that the warrantless search was unreasonable because it involved a canine unit and the officers searched in spaces outside the scope of a protective sweep, such as the second floor of the residence, the garage, bags, drawers, and cars. Concerning the vehicles where the agents found incriminating evidence, Hernandez contends that the law enforcement officers lacked the requisite probable cause to search them. Hernandez also questions whether some of the evidence found was actually in plain view as the officers purport. According to Hernandez, he was handcuffed and in a wheelchair and the agents were in control of the perimeter, and thus, a search warrant was required to allow for the full search of the Defendant’s home that the officers performed. In his brief, the Defendant requested the suppression of the following:
a) Glock Handgun found on kitchen top on the first floor;
b) Pistol magazine at entry of the house;
c) 4 kilograms of cocaine found on male child’s room at the second floor;
d) Cellphones allegedly found on the bed of a male child’s room at the second floor;
e) Money found on male child’s room at the second floor;
f) Money and receipts found on master room including some $45,940.00 in cash;
g) Beretta handgun found on walking closet at the master room;
h) Around l,700kgs of cocaine narcotics found at a closed van in the garage of the house;
i) A brown Glock found in the middle console of Toyota Sienna in the driveway;
j) Some monies found in the Toyota Sienna; and,
k) Cellphones found on dining room table.
See Docket No. 81 at page 6.
The United States opposed Hernandez’s motion to suppress, see Docket No. 66, 85. The government argued that the circumstances of the arrest justified the search, such as the unexpected presence of additional cohorts in the house who took flight upon the officers’ entry to the residence and the firearm and other tools of the drug trade seen in plain view. Accordingly, the government argues that the evidence found is not the fruit of the poisonous tree, but instead falls under the mantle of various exceptions to the Fourth Amendment’s warrant requirement, such as the protective sweep doctrine, the plain view doctrine, the automobile exception and the inevitable discovery doctrine.
The court held a suppression hearing on March 9, 2017. See Docket No. 79. The government called Group Supervisor Ricardo Nazario of Homeland Security to testify.
Nazario
Nazario has been a special agent of Homeland Security Investigations (“HSI”) for sixteen years, the last seven of which he has been Group Supervisor for the Caribbean Corridor Strike Force. In essence, Nazario investigates maritime drug smug-glings.
The Investigation: Beach Break
At the time relevant herein, Nazario was working on an operation known as “Beach Break,” investigating a drug-smuggling organization. As a result, this court issued an arrest warrant against Hernandez, among others, in Criminal Case No. 16-646(GAG). Nazario set out to execute this arrest warrant on November 1, 2016 at Hernandez’s residence. Prior to this day, Nazario had conducted surveillance of Hernandez at his residence.
The Arrest
At approximately 5:45a.m., Nazario arrived at Hernandez’s residence in a group consisting of about twenty special agents and task force officers in ten cars. In addition, one of the officers was handling a K-9 unit from Customs and Border Protection called Honzo, which was trained to look for concealed humans and narcotics. Prior to the operation, Nazario briefed the law enforcement agents that there was a high probability of finding weapons, narcotics, and currency in the house. See Docket No. 76 at pages 66-67.
Photos from Hernandez residence show a Toyota Sienna could be seen parked at the house’s driveway. The garage door was closed and the Toyota Sienna was blocking it. There was also a Mercedes Benz parked on the street in front of the house.
Upon approaching the front of the house, Nazario noticed the lights inside the house were on. To his surprise, he also perceived the movement of several individuals inside the house. At the door, Nazario announced and identified himself as police. Immediately thereafter, he saw the shadow of an individual locking the door. After trying to open the door and being unable to, the officers broke the frosted glass on the door and looked through the holes they made. Nazario saw Hernandez sitting on his wheelchair and two other individuals who immediately took off. They ran to the outside of the back of the house. The two fleeing subjects were indentified as Jimenez and Lajara, the co-defendants in this case. Nazario then reached for the keys in the door and opened it.
Protective Sweep of the House
After the co-defendants fled, Nazario went back to the house and saw a weapon on the kitchen counter in plain view. The weapon was a Glock with a magazine and was visibly covered with sand. It was Na-zario’s testimony that the weapon was evidence of criminal activity. See Docket No. 76 at page 67. On the dining table, he saw a bag, cash ($721), four cellular phones and jewelry. On the path towards the kitchen from the dining table, there were stairs that led to the second floor of the residence. Past the kitchen, he saw open doors that led to the swimming pool and the garage.
In light of the two subjects on the run and the weapon he saw in plain view, Nazario decided to perform a security sweep of the house for the sake of the safety of his officers and himself. See Docket No. 76 at pages 17-18, 98. Naza-rio’s concern was there could be additional subjects, weapons, narcotics and other tools of the trade in the house. With the assistance of a group of law enforcement agents and Honzo, Nazario began a security sweep of the first level of the residence, including a bathroom and the kitchen area. Afterwards, Nazario and the agents went upstairs to the second floor of the residence. Nazario testified he had not seen anyone inside the residence go upstairs nor recalled hearing noises coming therefrom.
The agents first went to a child’s bedroom, where Honzo alerted to a bag laying in front of the bed. According to Nazario, the bag was open and contained four kilograms of cocaine. On top of the bed, Naza-rio saw four cellular phones. Thereafter, the agents moved on to a second child’s bedroom and a bathroom, where they found nothing.
Nazario and the agents then searched the master bedroom. In the closet, Honzo alerted the agents to a box. The dog opened the box, and a lot of cash was found therein ($34,000). See Docket No. 76 at pages 19,23.
After finishing the search on the second floor, the agents returned to the first floor. They went past the open doors that lead to the backyard and swimming pool of the house and turned right towards the garage. They were still looking for people who could potentially be hiding in the house. Although Nazario had not seen any shadows in the garage area or seen anyone flee towards the garage, he suspected people could be hiding there because the door that led to the garage was open and people could be hiding in the back of the cargo van.
Warrantless Search of the Ford Cargo Van
The agents saw a white Ford cargo van parked in the garage of the residence.
Phone Call to AUSA Laborde .
After finding the drug inside the cargo van, Nazario ordered one of the agents to call Assistant United States Attorney Desiree Laborde. According to Nazario, the call was placed around seven o’clock in the morning.
Warrantless Search of the Toyota Sienna Minivan
. Before performing a full search of the house, between 6:00-6:15a.m.,
Warrantless -Search of the Mercedes Benz
The agents also found the keys- to a Mercedes Benz parked 'on the street in front of Hernandez’s residence and' opened it. This car was registered under Hernandez’s name. No items were seized from this car. ■
Warrantless Search of the House
After speaking with AUSA Laborde, the officers initiated a full search of the house. Nazario divied up the agents into different teams. At the left of the front door, the agents found tennis shoes with sand on them and a pistol magazine inside of the shoes. Nazario claims these items were in plain view. In the kitchen area, the agents found another GPS. The agents also opened a man purse laying on the dining ...room table, where they found more documents and money. At this point, the agents
It was Nazario’s testimony that it took him and the officers approximately two hours, or until on or about 10:80 or 11:00a.m., to finish the search. Nazario never sought a search warrant because, first, he was in the middle of a protective sweep and afterwards because the federal prosecutor told him he did not need one. Nazario did not obtain Hernandez’s consent for the search.
III. LEGAL ANALYSIS
The Fourth Amendment to the U.S. Constitution states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....” U.S. Const, amend. IV. “The text of the Amendment thus expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King,
“It is a basic principle of Fourth Amendment law ... that searches and seizures inside a home without a warrant are presumptively unreasonable.” King,
Notwithstanding, “[t]he Fourth -Amendment does not forbid any and all warrant-less incursions on the person and property of an individual.” U.S. v. Gamache,
“The government would bear the burden of invoking, any exception to the warrant requirement,” United States v. Green,
In the case at hand, the law enforcement agents possessed a valid arrest warrant against Hernandez and forcibly entered his house after they announced themselves as the police and were denied entry. In Payton v. New York, the Supreme Court held that “police armed with a valid arrest warrant may ‘enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.’ ” United States v. Werra,
Here, the Defendant is specifically challenging the law enforcement agents’ search of his home and vehicles.
A. Protective Sweep
“A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” United States v. Winston,
A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.
Buie,
A protective sweep, however, is not a full search of the premises. See id. at 335,
The United States mainly argues that the present exigent circumstances justified the completion of a protective sweep of the house and the vehicles. “The exigent circumstances triggered by the hot pursuit of fugitives, the Glock weapon found in plain view, and the possibility of additional armed subjects hiding or destroying evidence in the premises justified the security sweep of the entire premises.” Docket No. 85 at page 22. The government contends that a protective sweep was thus permissible and the evidence found during its completion was legally obtained. The court agrees.
In addition, shortly after entering the Defendant’s residence, Nazario and the officers observed a weapon and several mobile phones in plain view. The First Circuit has previously noted that firearms and cellular phones are well-known tools of the drug trade. United States v. De La Cruz,
The foregoing observations, namely, the fleeing subjects, the weapon on the kitchen counter and the multiple cellular phones on the dining table, were more than sufficient to raise a “reasonable suspicion” in the mind of an experienced law enforcement agent such as Nazario that a protective sweep was indeed called for. Under those circumstances, the agents could have reasonably believed that they were in danger when executing the warrant for Hernandez’s arrest. The court thus finds that a protective sweep was warranted.
Hernandez argues, however, that the protective sweep undertaken in this case transgressed the Fourth Amendment. Firstly, the Defendant complains about the law enforcement agents’ use of a canine unit during the course of a protective sweep. According to the Defendant, “the protective sweep doctrine does not permit the use of dogs to search inside a dwelling ....” Docket No. 81 at page 7. In support of this contention, Hernandez cites Florida v. Jardines,
In Jardines, police officers brought a drug-sniffing dog onto a homeowner’s porch without a warrant. After the dog provided a positive alert, the police obtained a warrant based on this information and searched the home. The Florida Supreme Court rendered the warrant invalid and suppressed the evidence found during the execution of said warrant. The Supreme Court affirmed the state court’s decision and held that “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Jardines,
Pursuant to the foregoing, this court finds Jardines to be inapposite here because the law enforcement agents’ physical intrusion into the Defendant’s home was not unlicensed when they brought the dog.
Hernandez has the threshold burden of showing a Fourth Amendment violation in support of a motion to suppress. See United States v. Young,
The Defendant also, argues that the search in the second floor of the house and the garage fell outside the scope of a protective sweep because the agents never saw anyone flee towards those areas. See id. at page 10, On the contrary, the government contends that the protective sweep in those areas was justified considering the kitchen counter where the officers saw a firearm in plain view was just steps away from the door that led to the swimming pool and the garage and to the stairs that led to the second floor.
After careful analysis of the facts of this case, the court finds that extending the protective sweep to the garage and the second floor was within the bounds set forth by the Supreme Court in Buie and the First Circuit in United States v. Winston,
Obviously, the agents had the right to protect themselves not only from [defendant] but from all other circumstances reasonably within the scope of the dangers they were facing, i.e., an arrest involving a member of a drug organization with multiple constituents, not all of whom had been accounted for, who were likely to be armed, as [defendant] was, in a setting which presented an opportunity for ambush or similar violent conduct against the arresting officers.
Winston,
During the evidentiary hearing in this case, Nazario emphasized that the purpose of the security sweep was the safety of the officers at the scene. He was concerned about the presence of other subjects and additional weapons in the house. See Docket No. 76 at page 19. The evidence shows that from the vantage point of the small peep hole the officers broke through the glass on the door,
As judges trained in the law, and not in apprehending suspects, we cannot determine in this situation how the agents could have gone about protecting themselves, but it does not seem logical or reasonable that given the circumstances ..., the agents would leave such an obvious hiding place, from which harm could be dispensed, unsecured.
Winston,
In the context of the protective sweep, the Defendant argues that said doctrine does not allow officers to search in bags, drawers, boxes, or other small areas too small to harbor an individual. Accordingly, Hernandez contends that the evidence found in such spaces should be suppressed. In response, the government argues that the evidence found during the protective sweep was in plain view.
“[T]he plain view doctrine permits the warrantless seizure of an item if the officer is lawfully present in a position from which the item is clearly visible, there is probable cause to seize the item, and the officer has a lawful right of access
Upon the officers’ entrance to the Defendant’s residence, they almost immediately saw a Glock with a magazine on the kitchen counter, and cash ($721), four cellular phones and jewelry laying atop the dining table. We have already noted that guns and cellular phones are widely-known tools of the drug trade. In addition, where officers are executing an arrest warrant against a defendant involved in the illegal drug trade, a weapon’s incriminating character is immediately apparent.
It is now recognized by us and other circuits that firearms are one of the tools of the trade of drug dealers. Guns, like glassine bags, scales and cutting equipment are an expected and usual accessory of the narcotics trade. ... Any reasonably competent police officer who discovered firearms while searching for drags would be immediately aware of their evidentiary significance. We hold that the plain view exception to the warrant specificity requirement applies to the seizure of the firearms.
United States v. Caggiano,
During the completion of the protective sweep in the second floor of the house, the agents found a bag with four kilograms of cocaine, four cellular phones on top of a bed, and $34,000 in cash in a box inside the master bedroom’s closet. Except for the phones, determining whether the plain view doctrine applies to the seizure of these items is somewhat trickier.
At the evidentiary hearing, Naza-rio testified that the canine gave a positive alert to a dark-colored bag containing the bricks of cocaine, which were in “plain open.” Docket No. 76 at pages 18-19; Government Exhibit 9. The picture depicting the bedroom where it was found was too dark to even see the bag on the floor at the foot of the bed.
Moreover, as previously mentioned, “the scope of a protective sweep must be limited to its purpose. The sweep ‘may extend only to a cursory inspection of those
The same holds true for the box containing cash in the master bedroom’s closet. In its brief, the government argues that the cash was in an “opened shoe box located on the walking closet’s floor ... Docket No. 85 at page 6 (emphasis ours). In contrast, Nazario testified that “[t]he dog, when alerted, opened the box, and there was a lot of cash in that box.” Docket No. 76 at page 19. The officers, canine or not, had no business opening a shoebox during the course of a protective sweep. Such search went beyond the purpose of finding persons that posed a threat to the agents on the scene. Accordingly, the court finds that the cash Honzo found in the box is also subject to suppression.
B. Motor Vehicle Search
Hernandez also seeks to suppress the cocaine the officers foupd inside the cargo van that was parked in the garage of his residence and the firearm and cash found inside the minivan parked in the driveway. The Defendant argues that searching inside the cargo van was outside the scope of a protective sweep. In addition, the Defendant contends that the officers lacked the required probable cause to search inside the vehicles. See Docket No. 81 at pages 16-17. On the other hand, the government claims that the officers had an objectively reasonable belief that other individuals could be hiding inside the unlocked cargo van in the garage. After opening the rear doors, the goyernment points out that the bales were in plain view. Finally, the government argues that the officers had probable cause to believe the vehicles contained evidence of contraband, thereby triggering the automobile exception to the Fourth Amendment’s warrant requirement.
“[T]he automobile exception provides that ‘police officers may peize and
“[P]robable cause only ‘exists when the totality of the circumstances suggests that there is a fair probability that contraband or evidence of a crime will be found in [the vehicle].’ ” United States v. Gonsalves, No. 15-1194,
The test for probable cause is not reducible to precise definition or quantification. ... Rather, the standard is satisfied when the totality of the circumstances, create a fair probability that .,. evidence of a crime will be found in a particular place. ... All that is required is the kind of fair probability on which reasonable and prudent people, not legal technicians, act.
United States v. White,
In the case at hand, the officers’ knowledge of the charges against Hernandez and the observations they made upon entry to the Defendant’s home would lead a cautious and prudent police officer to reasonably believe that it was fairly probable that contraband or evidence of a crime would be found in the vehicles. As previously stated, the law enforcement agents found the Defendant in the company of unknown cohorts that denied them entry by locking the door and then immediately fled after the police broke the door.
Specifically in regards to the cargo van inside the garage, Hernandez claims that searching it within the scope of the protective sweep was unjustified because the officers did not see anyone running towards the van and there was no movement or noises coming from the inside of the van. However, the court has already concluded supra that the officers were justified in extending the protective sweep into the garage area, and the cargo van was definitely big enough to harbor, several individuals. The fact that Nazario did not- perceive any movements or noises coming therefrom is unpersuasive in light of the totality of the circumstances here. Common sense dictates that someone who is trying to hide is typically in a state of being still and quiet.
Hernandez also points out that the van was confined to the garage because the garage door was closed and blocked by another vehicle. However, the fact that the cargo van could not be driven anywhere at the time, of the search is immaterial-for the automobile exception to apply. “Even if a vehicle’s mobility is temporarily restricted or potential drivers have been secured, warrantless vehicle searches supported by probable cause are generally valid.” United States v. Vicente-Lucas,
“In Coolidge v. New Hampshire,
To that effect, the First Circuit Court of Appeals has expressed doubt as to whether a separate finding of exigency is required “[g]iven that the Supreme Court has repeatedly emphasized that the automobile exception does not have a separate exigency requirement ....” Robinson v. Cook,
The First Circuit’s court uncertainty as to the application of the automobile exception in private property was also subsequently apparent in United States v. Ramirez-Rivera,
Despite the foregoing, prior to both Ramirez-Rivera and Robinson, the First Circuit held in United States v. Goncalves,
In Pennsylvania v. Labron,
“Based on the Supreme Court’s ruling in Labron, it cannot be said that the Supreme Court has determined that a vehicle parked on residential property is never subject to the automobile warrant exception.” Kerr v. Jones, No. 5:15CV6-WS/CAS,
Accordingly, the Defendant’s request to suppress around 1,700 kilograms of cocaine
The court also denies the Defendant’s request to suppress the evidence the officers found in the Toyota Sienna minivan parked in the driveway of the Defendant’s home. This includes a pistol, cash, additional cellular phones and ID’s. Despite the fact that it was parked in the Defendant’s driveway,
C. Full Search of the House
The Defendant complains that the officers conducted an unlawful warrantless full search of the house upon the authorization of the AUSA, who had no authority to do so. See Docket No. 81 at pages 17-19. According to the government, “the continued and extended scenario of exigent circumstances, strengthen [sic] probable cause, and substantial concern for the safety and protection of the agents and families in the neighborhood next to a main highway in a high crime area,” Docket No 85 at page 8, justified the warrantless search.
“The exigent circumstances exception allows a warrantless search when an emergency leaves . police insufficient time to seek a warrant.” Birchfield v. North Dakota, — U.S. —,
Relevant scenarios include (1) hot pursuit of a fleeing felon; (2) threatened destruction of evidence inside a residence before a warrant can be obtained; (3) a risk that the suspect may escape from the residence undetected; or (4) a threat, posed by a suspect, to the lives or safety of the public, the police officers, or to herself.
Matalon v. Hynnes,
It stems from the record that approximately twenty law enforcement agents, who arrived in about ten vehicles, were present at the scene at all times. After completing a protective sweep, the officers called AUSA Laborde and she instructed them to perform a full search of the house despite the absence of a search warrant. During such search, the officers additionally found a pistol magazine inside some tennis shoes at the entrance of the house
As previously held, exigent circumstances justified the officers’ entry into the home and the completion of a protective sweep. During this first reasonable search, the officers found incriminating evidence and gathered sufficient observations to support the belief that evidence of a crime or additional contraband existed. But at the time the AUSA told the police officers they could conduct a warrantless search of the Defendant’s home, the law enforcement agents had concluded the protective sweep and dispelled any suspicion that any individual who posed a threat to the officers’ safety was hiding in the house. The perimeter was secure, and thus, no one could foreseeably destroy whatever incriminating evidence or contraband was not found during the protective sweep and remained inside the Defendant’s residence. In fact, Nazario himself testified that he performed this subsequent search because the AUSA “authorized” him to, not because any exigent circumstances persisted.
“[R]elying on what they had seen ... to provide probable cause, the officers could have exited the home and obtained a warrant.” United States v. Wright,
The second time police officers entered, there was no justification for the war-rantless search. ... [Defendant’s] home was ‘secured,’ meaning ‘nobody could enter’ or ‘disturb anything.’ Neither exigent circumstances nor public safety any longer justified a warrantless entry, ..., and the officers — having assured themselves no one was inside — could not think there was any risk the marijuana might be destroyed ....
Wright,
Nazarios’s reliance on the federal prosecutor’s instructions was misplaced and the record is devoid of any evidence supporting a finding of exigent circumstances at the time of the second search. The risks the government claim existed were not so great as to allow a second warrantless entry and search. Under the facts of this case, no exigent circumstances justified a full warrantless search of the home follow
IV. CONCLUSION
For the reasons set forth herein, the court hereby GRANTS IN PART AND DENIES IN PART the Defendant’s motion to suppress (Docket No. 63, 81), and thus suppresses the following items found during the officers’ search of Defendant’s home:
a) Pistol magazine at entry of the house;
b) 4 kilograms of cocaine found in bag in male child’s bedroom on the second floor;
c) Money found on male child’s room on the second floor;
d) Money and receipts found on master room including some $45,940.00 in cash;
e) Beretta handgun found in walking closet at the master room; and,
f) Any and all other evidence seen or found for the first time during the full search of the house.
IT SO ORDERED.
Notes
. Co-defendant Jimenez also moved to suppress the evidence (Docket No. 64) and the government opposed his request (Docket No. 69) for lack of standing. The court agreed with the government and summarily denied Jimenez's motion during the suppression hearing held on March 9, 2017. See Docket No. 79.
. The arrest warrant in question was issued in Criminal Case No. 16-646(GAG-SCC) and states that co-defendant Hernandez conspired to import into the United States from a place outside thereof, to wit, Venezuela, five (5) or more kilograms of cocaine. See Docket No. 63 at Crim. No. 16-646(GAG-SCC).
. While the government mainly focuses its discussion on the elements of the protective sweep doctrine, the court notes that the government’s memoranda of law makes just a passing reference to the automobile exception and merely mentions, but fails to develop, the
. The court's findings are. based on the evidence on record and the Transcript of Suppression Hearing (Docket No. 76).
. For the purposes of this analysis, the court assumes that some seconds elapsed from the moment the door was locked from the inside to the moment the officers could peep through, as well as from the moment the officers stopped peeping and eventually opened the door to make their way inside.
. See Docket No. 76 at pages 57, 59, 90-91.
. The agents did not see this cargo van from the outside of the house when they arrived to execute the arrest warrant. Because the Toyota Sienna was parked behind the closed garage door, the cargo van could not have been driven out of the garage. See Docket No. 76 at pages 56-57.
. The record shows that the phone call to AUSA Laborde was placed at 6;07a.m. and lasted seven minutes. See Docket No. 81-2. Therefore, between 5:45a.m. and 6:07a.m. (22 minutes), the law enforcement agents arrived at the scene, arrested Hernandez, performed a protective sweep of both floors of the residence, and finally called AUSA Laborde,
. See Docket No. 76 at page 84.
. See, e.g., United States v. Esquilin,
. See Government Exhibit 6.
. See Government Exhibit 8.
. The photo of the bedroom shows the curtains were drawn and no lights were on. See Government Exhibit 9.
. The court notes that upon the canine unit’s positive alert of the bag containing cocaine, the law enforcement officers had probable cause to apply for a search warrant; After completing the protective sweep, the officers were in control of the perimeter and could have secured the scene during the application of and issuance of such a warrant.
. The government also makes a passing reference to the inevitable discovery doctrine to justify and/or salvage the search and seizure of the incriminating evidence the officers found in the vehicles. See Docket No. 85 at pages 24-25. “The inevitable discovery doctrine 'allows for the admission of [otherwise excludable] evidence that would have been discovered even without the unconstitutional source.' ” United States v. Young,
. See United States v. Hensel,
. The court should point out that the Toyota Sienna minivan was parked in a driveway that was just feet away from the public street and in full view of all passersby. See Government Exhibit 5. To that effect, our sister courts have noted that when a vehicle is "apparently parked in an area without any ‘indi-cia of privacy, such as an enclosure, barrier, or lack of visibility from the street,’ the First Circuit has held there is no ‘expectation of privacy in a driveway that is exposed to the public.' ” Widi v. McNeil, No. 2:12-CV-00188-JAW,
. Nazario’s assertion that this was in "plain view” is implausible where the officers had not seen the evidence in any of their visual inspections of the area during the course of the protective sweep.