UNITED STATES OF AMERICA v. OSVALDO PASTRANA-ROMÁN
Criminal No. 19-104 (ADC)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
March 9, 2023
I. Introduction
On February 13, 2019, Osvaldo Pastrana-Román was charged with violations of
The motion was referred to the undersigned for an evidentiary hearing and a Report and Recommendation. Docket No. 88. An evidentiary hearing was held on December 8, December 9, and December 12, 2022. The Government called agent Christopher Atiles-Cruz and agent Isaac Salas-Ramírez, both from the Puerto Rico Police Department (“PRPD“). The defense called FPD Investigator Anthony Toro-Sambrana and PRPD Sergeant Pedro Colón-Burgos. Evidence was admitted. The parties submitted post-hearing briefs. Docket Nos. 115-116. After carefully considering the evidence presented during the hearing, the Court recommends that Defendant‘s motion to suppress be DENIED.
The following account is drawn from the evidence, testimonial and documentary, received at the suppression hearing.
On January 18, 2019, Atiles-Cruz worked as an Investigating Officer of the Stolen Vehicles Division of the PRPD in Aguadilla. Transcript of Evidentiary Hearing (“TR“) 9 ¶¶ 9-10. That day, however, he was assigned to provide support to the Stolen Vehicles Division in Bayamón. TR 10 ¶ 5. There, he received instructions to investigate a confidential complaint that informed that stolen vehicles (Kia and Hyundai) were being hidden in a property located at El Juicio Sector in Bayamón. TR 10 ¶¶ 10-12, 21-22. On that same day, Atiles-Cruz went to the area where the property was located and conducted surveillance from a “strategic point” where he could see the entrance of the property and the residence. TR 11 ¶¶ 4-8, TR 12 ¶¶ 16-18, TR 13 ¶¶ 9-13, TR 67 ¶¶ 2-13. No criminal activity was observed on January 18, 2019. TR 48 ¶¶ 1-13. Atiles-Cruz returned to the property on January 21, 2019, to continue the surveillance of the property. At about 4:30 p.m., Atiles-Cruz saw a modern Hyundai Accent enter the property; the car had no license plate and a forced door in the driver‘s side. TR 14 ¶¶ 5-9, TR 45 ¶¶ 21-25, TR 48 ¶¶ 1-13.
On January 21, 2019, at 9:55 p.m., Atiles-Cruz submitted a sworn statement to a state court judge; Sworn Statement No. 1170. Government Exhibit 1-A. Atiles-Cruz described the residence in detail and the vehicle to be searched. Id. Atiles-Cruz requested a search warrant for stolen vehicles and stolen vehicle parts located in the property and requested authority to conduct the search during the day or night. Id. The sworn statement was signed, as approved by the state judge, on January 21, 2019. Id. And a search warrant was issued on that same day at 9:55 p.m., containing the description of the residence, the vehicle to be searched, and a reference to Atiles-Cruz‘s sworn statement. Government Exhibit 2-A. The search warrant does not contain an express provision to allow for execution at night but did grant authority to search for the stolen vehicle and stolen vehicle parts in the property. Id.
On January 21, 2019, Salas-Ramírez, also temporarily assigned to the PRPD Stolen Vehicles Division in Bayamón, was assigned the execution of the search warrant. TR 107 ¶¶ 24-25. The execution took place at about midnight on January 22, 2019. TR 79 ¶¶ 6-8. As testified, agents of the PRPD opened the gate of the property and, while walking towards the residence, saw the Defendant come out with no shirt, black pants and a firearm. TR 80 ¶¶ 14-17. When he saw
Defendant was then asked whether he had a weapons permit. When he said he did not, the agents asked for consent to search the home and provided Defendant with a consent form. TR 132 ¶¶ 5-15. As testified, the Defendant wrote his name on the form, which was then filled out by the agent before the Defendant signed the form. TR 88 ¶¶ 3-16, TR 89 ¶¶ 4-17, TR 91 ¶¶ 9-20. See Government Exhibit 5-A, 6-7. The consent form describes the residence to be searched. Government Exhibit 5-A. Defendant had questions about the consent form but was told that, if he did not consent, a warrant for the home would be forthcoming. TR 98 ¶¶ 10-12, 21-22, TR 100 ¶¶ 19-25. Per the testimony of Salas-Ramírez, the Defendant read all the documents presented to him, although nervous, he did not appear to be confused and appeared to understand the documents, was not in handcuffs, and did not have any restraints when presented with the documents. TR 99 ¶¶ 14-25, TR 107 ¶¶ 3-17, TR 119 ¶¶ 21-23, TR 120 ¶¶ 9-11, TR 124 ¶¶ 4-10. Although Salas-Ramírez admitted that the Defendant was not at liberty to leave when he was presented with the consent form, he testified that there were no weapons pointed at the Defendant at that time and that no one raised their voice to the Defendant in the process of obtaining consent. TR 99 ¶¶ 18-25, TR 107 ¶¶ 3-17, TR 130 ¶ 17-22, TR 133 ¶¶ 15-24, TR 134 ¶¶ 2-8.
1. Defendant was not entitled to a hearing under Franks.
In the motion to suppress originally filed by Defendant, he asserted that Atiles-Cruz lacked probable cause to request the warrant to search for the stolen vehicle and stolen vehicle parts in his property. Docket No. 44. Defendant filed a Sworn Statement under Penalty of Perjury in support of his request. Docket No. 52-1. But there is absolutely nothing in the sworn statement to infer that the search warrant in this case was procured through false statements or material omissions. Id. For this reason, the Court, through then U.S. Magistrate Judge Vélez-Rivé, expressed that it would recommend the denial of a hearing under Franks. Docket No. 62. The Defendant tried to resurrect this request during the hearing and in his post-hearing brief. To no avail.
A defendant is entitled to an evidentiary hearing under Franks when he makes a “substantial preliminary showing” that both: (1) a false statement, knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit, and (2) the allegedly false statement is necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A showing that a material omission was made could also constitute the basis for a Franks hearing. United States v. Rivera Rosario, 300 F.3d 1, 20 (1st Cir. 2002). When the request is based on false statements, the Court must consider whether the false statements were necessary for the finding of probable cause. United States v. Barbosa, 896 F.3d 60, 68 (1st Cir. 2018); United States v. Castillo, 287 F.3d 21 (1st Cir. 2002). When the request is based on material omissions, the Court must consider whether inclusion of the omissions would have led to a finding of no probable cause. Id.
The Defendant presented photographs of the entrance of his property, of two white tents inside the property, and of cars parked under the tents and in the property, to challenge Atiles-Cruz‘s ability to observe the residence at the time of surveillance, and to point to information that Atiles-Cruz omitted in the affidavit submitted in support of the search warrant. Defendant Exhibits A, B, H and I. The defense also presented the testimony of FPD Investigator Toro-Sambrana to put into question Atiles-Cruz‘s ability to observe the residence during surveillance. See also arguments at Docket No. 115 at pp. 4-7. In post-hearing arguments, the Defendant also argues that
The photographs of the property taken years after the surveillance are not probative of the state of the property when surveillance was performed. There is nothing in the record to contradict Atiles-Cruz‘s testimony that he had visibility of the property on the two days that he performed the surveillance. But most importantly, there is absolutely nothing that could lead the Court to disregard Atiles-Cruz‘s observation of what appeared to be a stolen vehicle entering the property on the second day of surveillance. See United States v. Andujar-Ortiz, 575 F. Supp. 2d 373, 377 (D.P.R. 2008) (citations omitted). And the argued omissions (exclusion of the white tents and other cars in the property) in Atiles-Cruz‘s affidavit, if included in the affidavit, would not have led to a finding of no probable cause. See U.S. v. McLellan, 792 F.3d 200, 210 (1st Cir. 2015). On the contrary, the inclusion of details pertaining to additional cars in the property could have likely bolstered the finding of probable cause in this case.
Further, even assuming for purposes of discussion that Atiles-Cruz‘s surveillance of the property and its corroboration was deficient, Defendant did not offer any evidence that could lead the Court to conclude that Atiles-Cruz had serious doubts as to the truth of his statements. See United States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002) (failure to investigate fully is not enough to establish reckless disregard for the truth required under Franks; there must be a showing that the affiant had serious doubts as to the truth of the allegations). In the papers submitted before the hearing and even after submitting evidence during the hearing, Defendant did not make a substantial showing that a false statement or an omission of a material fact was made knowingly and intentionally, or with reckless disregard for the truth by Atiles-Cruz when applying for the search warrant in this case. Franks v. Delaware, 438 U.S. at 155-56 (emphasis added). The Defendant was not entitled to a hearing under Franks.
2. The Court will not strike the testimony of Atiles-Cruz.
After the conclusion of Atiles-Cruz‘s direct examination, the defense requested production of any notes taken by Atiles-Cruz during surveillance. Atiles-Cruz testified that he did prepare notes. TR 26 ¶ 15-17. But after an opportunity to search for the notes, he testified that he was unable to find the notes. TR 178 ¶¶ 18-19. Atiles-Cruz did explain, however, that all that was contained in the notes was ultimately included in the affidavit submitted in support of the search
Rule 26.2(a) of the Federal Rules of Criminal Procedure provides that, after a witness has testified on direct examination, the witness must “produce, for the examination and use of the moving party, any statement of the witness that is in [the government‘s] possession and that relates to the subject matter of the witness‘s testimony.”
There is no question that the notes at issue are related to the subject matter to which Atiles-Cruz testified in direct examination. However, the defense would have a hard time establishing that the notes are “statements” and that these were in the possession of the United States. Notes prepared by law enforcement during surveillance are not statements if these were not “adopted” and “approved” by the agent. See United States v. Melo, 411 F.Supp.2d 17, 22-24 (D.Mass. 2006) (quoting United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979) (agent‘s notes during surveillance not Jencks) (citations omitted); United States v. Maldonado-Pena, 4 F.4th 1, 28 (1st Cir. 2021) (rough notes not “approved” not statements under Jencks). And, per the testimony of Atiles-Cruz, his notes were used to prepare the affidavit in support of the search warrant but “didn‘t go to the federal side” when the case was transferred to federal agents. TR 178 ¶¶ 12-25, TR 179 ¶ 1-25, TR 180 ¶ 1-12.
Further, even assuming for purposes of discussion that the defense could establish that Atiles-Cruz‘s notes were “statements” “in the possession of the United States“, the Defendant‘s request to strike the testimony of Atiles-Cruz is nonetheless unavailing. Despite the language of the rule and the statute, the First Circuit has established that “to succeed on a claimed violation of
3. The Court will take judicial notice of PRPD General Order 612.
The Defendant requested that the Court take judicial notice of the Puerto Rico Police Bureau General Order 612 (“General Order 612“), alleging that it sets forth the agency‘s guidelines concerning searches and seizures. Docket Nos. 99, 99-1, 114. The Government objects on relevancy grounds. Docket No. 103.
Rule 201(b) of the Federal Rules of Evidence establishes that the Court can take judicial notice of an adjudicative fact that “1) is generally known within the court‘s territorial jurisdiction; or 2) can be accurately and readily determined by sources whose accuracy cannot be reasonably questioned.” Fed.R.Evid. 201(b). However, Rule 201(b) only governs judicial notice of adjudicative facts, not the law. Fed.R.Evid. 201(a); United States v. Davila-Nieves, 670 F.3d 1, 9 (1st Cir. 2012) (“The short answer is that Rule 201 applies when a court takes judicial notice of adjudicative facts, not when it takes judicial notice of law, as it did here.“). General Order 612 does not contain adjudicative facts. However, the Court may take judicial notice of General Order 612 as a matter of law. Getty Petroleum Mktg., Inc. v. Cap. Terminal Co., 391 F.3d 312, 320 (1st Cir. 2004) (quotation omitted). Indeed, this District Court has taken judicial notice of General Orders of the PRPD. See Whitfield v. Melendez-Rivera, 431 F.3d 1, 17 n.5 (1st Cir. 2005); Gonzalez-Perez v. Davila, 680 F.Supp.2d 347, 352 (D.P.R. 2009). The Government argues that General Order 612 is irrelevant because it was not in effect in January of 2019. However, General Order 612 establishes an effective date of September 18, 2017 (Docket No. 114 at 1) and Sergeant
4. The search conducted at night did not violate the Fourth Amendment.
The Defendant moved to suppress all evidence seized in the execution of the search warrant procured by Atiles-Cruz, including the evidence seized from Defendant‘s house after he signed the consent form. The argument is that the warrant did not authorize the search at night but was executed at midnight on January 22, 2019. While the Defendant is correct that the warrant did not expressly authorize its execution at night, the case law discussed below counsels against applying the exclusionary rule.
The
The Fourth Amendment prohibits “unreasonable searches and seizures“. A search may be “unreasonable” depending on the manner and time in which it is conducted. United States v. McCarty, 475 F.3d 39, 43 (1st Cir. 2007). The warrant in this case was authorized by a Puerto Rico judge and was executed by state law enforcement officers. Rule 34 of the Puerto Rico Rules of Criminal Procedure establishes that a search warrant must indicate that its execution will be during the day, unless the judge, after considering factors of need and urgency, authorizes execution at night.
There is no dispute that in the affidavit submitted by Atiles-Cruz to the state judge he sought permission to conduct the search at night. Government Exhibit 1-A. There is also no dispute that the warrant was issued on the same date and time as the affidavit submitted by Atiles-Cruz. Government Exhibit 2-A. And although the search warrant does not contain an express provision to allow for execution at night, it was issued at 9:55 p.m. and references Atiles-Cruz‘s Sworn Statement No. 1170. Id. The state judge also placed her initials twice in the affidavit submitted by Atiles-Cruz. Government Exhibit 1-A. The question then is whether the warrant sufficiently incorporated by reference the request for night service that was made by Atiles-Cruz in the affidavit.
Pursuant to Rivera Rodriguez v. Beninato, 469 F.3d 1, 5 (1st Cir. 2006), when a warrant sufficiently incorporates by reference the affidavit submitted by law enforcement, the affidavit may be deemed to have cured deficiencies found in the warrant. Id. (warrant that stated “see attached affidavit” sufficient to cure deficiency in warrant). See also United States v. Burgos-Montes, 786 F.3d 92, 108 (1st Cir. 2015) (“‘See also the attached affidavit, which is hereby incorporated and made part hereof’ sufficiently incorporates the affidavit to satisfy the particularity requirement). The judge in this case wrote the words “Aff #1170” just above her signature in the warrant. She also placed her initials twice in the affidavit submitted by Atiles-Cruz. Arguably, this was sufficient to incorporate by reference Atiles-Cruz‘s request for a night
It may be contended that there are constitutional limitations on the time when a search warrant may be executed. W.R. LaFave, 2 Search and Seizure, A Treatise on the Fourth Amendment at § 4.7 (6th ed. 2020). But the matter is not settled. W.E. Ringel, 1 Searches & Seizures, Arrests and Confessions at § 6:5 (2d ed. 2020) (the constitutional context of night intrusions in homes remains undefined). “Consequently, the operation of the exclusionary sanction in cases in which the officers have failed to comply with such provisions is uncertain.” Id. And it is unlikely that a violation of Rule 41‘s night provision would result in exclusion. 27 Moore‘s Federal Practice at § 641.21[3][g] (3d ed.).
Although the language of the Fourth Amendment explicitly sets out the requirements for a valid warrant, there is no specific provision on the time of day during which the warrant must be executed. United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979). And the U.S. Supreme Court has not resolved whether statutory restrictions pertaining to the time in which a warrant is executed have a basis in the reasonableness clause or the warrant clause of the Fourth Amendment. W.E. Ringel at § 6:5 (discussing Gooding v. United States, 413 U.S. 430 (1974)). Case law from various circuits have drawn a distinction between procedural violations and constitutional violations in the execution of search warrants. For instance, in United States v. Burke, 517 F.2d
The Court has found no First Circuit precedent directly on point. But the cases discussed below suggest that the solution in the First Circuit would be that which was adopted in Burke and Searp. For example, in the case of United States v. Pryor, 652 F.Supp. 1353, 1364 (D.Me. 1987),
Importantly, there are two opinions of the First Circuit that provide support for the conclusion that the First Circuit would follow the lead in Burke and Searp, as it pertains to violations of the rule on nighttime execution of a warrant. In United States v. Bonner, 808 F.2d 864, 868-69 (1st Cir. 1986), the First Circuit considered whether the fact that the search warrant was not in the agents’ physical possession at the time of the search warranted suppression. The First Circuit rejected suppression citing Burke and expressing that “[v]iolations of
The First Circuit‘s analysis in United States v. McCarty, 475 F.3d 39, 44 (1st Cir. 2007) provides additional support for the conclusion that violations to Rule 41‘s requirement for the
Upon consideration of the cases discussed above and the circumstances surrounding the search here, if there was a violation to the Rule 41(e) good cause requirement for a night search, such a violation did not make the search unreasonable. Atiles-Cruz sought permission to conduct the search at night. Government Exhibit 1-A. The affidavit includes sufficient facts to establish probable cause that a stolen vehicle or vehicle parts would be found in the property. Id. Colón Burgos testified that it was necessary to conduct the search at night because the evidence consisted of stolen motor vehicles or vehicles parts which could be removed. TR 212 ¶¶ 20-25, TR 213 ¶¶ 1-3. The judge did not expressly limit the search to daytime; did not forbid night search and she authorized the warrant at 9:55 p.m. Government Exhibit 2-A. There is no indication whatsoever that the judge would not have approved night execution. There is also no indication that law enforcement intentionally or deliberately disregarded the requirements for a night search; they sought permission to search at night, permission was not expressly denied, the judge placed her initials twice in the affidavit, the judge also referenced the affidavit in the warrant, and the warrant was authorized at night. There was also testimony from Atiles-Cruz and Colón-Burgos that they believed the night search to have been authorized. TR 64 at ¶¶ 1-10, TR 212 ¶ 10-25.
Other than the fact that the Defendant could have been asleep when law enforcement entered the property, there is no evidence of prejudice or that the search would have been less abrasive if done during the day. Even though it was established that roughly thirteen (13) agents entered the property to execute the search warrant, there is no evidence that there would have been less agents present if the search would have been conducted during the day. TR 79 ¶¶ 18-20. And, according to the testimony of Salas-Ramírez, only three (3) agents came to the carport to speak to
5. Defendant‘s consent to search the house was voluntary.
A search without prior approval by a judge is per se unreasonable. United States v. Bernardy-Laboy, 2021 WL 1233470 *3 (D.P.R.). A warrantless search may be valid if the defendant gives voluntary consent. Id. But such an exception is to be narrowly construed. Id. The Government bears the burden of proving by a preponderance of the evidence that a defendant‘s consent to search was freely and voluntarily granted. United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008) (citation omitted). A consent is voluntary if it is free and unconstrained. United States v. Garcia-Sanjurjo, 2021 WL 4839905 at *6 (D.P.R.) (citation omitted). It is not voluntary if “granted only in submission to a claim of lawful authority.” Id. (citation omitted); Florida v. Royer, 460 U.S. 491, 497 (1983) (citations omitted). Voluntariness is a question of fact. United States v. Vanvliet, 542 F.3d at 264 (citation omitted). The Court must assess the totality of the circumstances. Id. (citation omitted); Bernardy-Laboy, 2021 WL 1233470 *3. Various factors may be considered in assessing voluntariness for consent to search. These include the consenting
Defendant submitted a Sworn Statement under Penalty of Perjury asserting that the officers were intimidating, aggressive, had guns and screamed on the day of his arrest. Docket No. 52-1. Defendant also asserted that he was under custody when his consent to search the house was requested, that he refused consent, and that he was told that the house would be searched regardless of his consent. Id. Defendant further asserted that, when he signed the consent, he thought that it was for the search of a vehicle. Id. And that he did not know that the search warrant was limited to the vehicle. Id. The evidence submitted during the hearing contradicts Defendant‘s assertions. Under the totality of the circumstances, the consent to search was voluntary.
The Government presented the testimony of law enforcement that, although roughly thirteen (13) agents entered the property to execute the search warrant, only three (3) agents came to the carport to speak to Defendant when he came out of the residence for a second time. TR 83 ¶ 3-25, TR 96 ¶¶ 17-19; see also Defendant Exhibit K. Defendant was informed of the search warrant, which he read and acknowledged by placing his initials, and he was then advised of his Miranda rights. The Defendant was then asked for consent to search the house and was provided with the consent form. The Defendant had questions about the consent form but was told that, if he did not consent, a warrant for the home would be forthcoming. The consent form described the residence that would be searched. Defendant signed the consent form after he had read the search warrant, after he had signed the Miranda form waiving his rights, and after the officer had written the description of the property in the form. TR 88 ¶¶ 3-16, TR 89 ¶¶ 4-17, TR 91 ¶¶ 9-20. See Government Exhibit 6 (Defendant reading the consent form and underneath the warrant with Defendant‘s initials); Government Exhibit 7 (Defendant placing his name in the consent form and underneath the signed Miranda form); Government Exhibit 9 (Defendant signing the Miranda form
There is simply no evidence from which the Court can infer coercion. Although the consent was sought at night, the mere fact that three (3) agents approached to speak to the Defendant and to seek consent does not amount to coercion. See United States v. Bey, 825 F.3d at 81. Furthermore, the fact that Defendant was advised of his Miranda rights and was under custody does not negate the voluntariness of his consent. United State v. Jones, 523 F.3d 31, 37-38 (1st Cir. 2008); United States v. Watson, 423 U.S. 411, 424-425 (1976). The Government presented testimony that Defendant read and appeared to understand the consent form. And Defendant is not a newcomer to the law, which means that he had experience with law enforcement to counter any assertion of nervousness or confusion. United States v. Barnett, 989 F.2d 546, 556 (1st Cir. 1993). There is also no evidence of overt threats or pressures; guns were not drawn at the time consent was sought and granted. Having been told that failure to consent would result in the issuance of a warrant in and of itself is insufficient to establish coercion. United States v. Twomey, 884 F.2d at 51-52.
The search of Defendant‘s property at night was not unreasonable and did not violate the Fourth Amendment. Under the totality of circumstances, Defendant‘s consent to the search of his house was voluntary. The Court recommends that Defendant‘s motion to suppress be DENIED.
IT IS SO RECOMMENDED.
This Report and Recommendation is issued pursuant to
In San Juan, Puerto Rico, this 9th day of March 2023.
s/Giselle López-Soler
GISELLE LÓPEZ-SOLER
United States Magistrate Judge