MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendant’s Motion to Suppress Defendant’s April 16, 2009 Statement and Memorandum in Support, filed November 9, 2009 (Doc. 30)(“Statements Motion”); (ii) the Defendant’s Motion to Suppress Evidence Due to Lack of Probable Cause in Search Warrant Affidavit, filed November 9, 2009 (Doc. 31)(“Affidavit Motion”); and (iii) the Defendant’s Motion to Suppress Evidence Due to Unconstitutional Consensual Entries to Personal Bedroom, filed November 9, 2009 (Doc. 33)(“Bed-room Motion”). The Court held an evidentiary hearing on February 26, 2010. The primary issues are: (i) whether there was a substantial basis for the Magistrate Judge, who issued a search warrant to search Defendant Carl Romero’s vehicle, to find that the warrant affidavit reflected probable cause; (ii) whether Romero’s step-father voluntarily consented to a cursory search of his house, wherein Romero also resided; (iii) whether the consent Romero’s step-father gave authorized the agents to enter and view Romero’s personal bedroom; (iv) whether Romero’s confessions were made in violation of his Fourth or Fifth Amendment rights; and (v) whether the agents had proper authorization to enter into Romero’s bedroom a second time to seize certain items of evidence. The Court holds: (i) that probable cause supported the warrant that agents used to seize and search Romero’s vehicle; (ii) Romero’s step-father voluntarily consented to the agents’ search; (iii) Romero’s step-father had apparent authority to consent to the agents’ search of Romero’s personal bedroom; (iv) Romero’s confessions were made during a proper investigatory detention — not during a custodial interrogation — and the confessions therefore did not violate his Fourth or Fifth Amendment rights; and (v) the consent to search that Romero’s step-father gave to the agents authorized the agents to reenter Romero’s bedroom and seize the evidence that the agents had seen during their initial entry. The Court will therefore deny all three of Romero’s motions to suppress, and will admit Romero’s confessions and all evidence acquired during the consensual search of his house and warrant-authorized search of his vehicle.
FACTUAL BACKGROUND
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. The findings of fact in this Memorandum Opinion and Order shall serve as the Court’s essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual’s confession or consent to search.
See United States v. Merritt,
1. Between 8:30 p.m. and 9:00 p.m. on April 10, 2009, Fabian Madrid and Naayaitch Friday rode as passengers in a
2. Madrid was one of Friday’s best friends. See Tr. at 24:20-24 (Scholl).
3. While Madrid and Friday drank alcohol with other friends at the Sonic, Defendant Carl Romero, accompanied by Mario Sanchez and Lucas Willow, parked Romero’s vehicle in the spot next to Madrid and Friday, and joined in the socializing. See Tr. at 24:20-27:9 (Ortega, Scholl); Affidavit of Arlen E. Scholl ¶ 4, at 2 (executed April 16, 2009), filed December 7, 2009 (Doc. 40-2) (“Scholl’s Aff.”); Government Exhibit 2.
4. Romero was driving a green 1999 Chevrolet Cavalier that formerly belonged to Angela A. Tapia-Talache. See Scholl’s Aff. ¶¶ 13,15, at 5-6; Tr. at 69:5-18.
5. Madrid and Friday had never before met Romero, Willow or Sanchez. See Scholl’s Aff. ¶ 4, at 2.
6. While everyone drank and socialized, Madrid interacted with an individual named Rick with whom Madrid had experienced a prior confrontation. Rick displayed a black handgun, at which point Madrid hid behind a vehicle. See Scholl’s Aff. ¶ 5, at 2-3; Tr. at 26:15-25 (Scholl).
7. One of the three individuals in Romero’s vehicle offered Madrid “their gun,” which was “a long ‘rifle type’ gun in their ear.” Scholl’s Aff. ¶ 5, at 2-3; Tr. at 26:15-27:7 (Scholl).
8. No shots were fired during Madrid’s encounter with Rick. See Scholl’s Aff. ¶ 5, at 2-3.
9. At approximately 10:45 p.m., Romero, Sanchez, Willow, Friday, and Madrid decided to leave the Sonic restaurant and go to Big Rock Casino located on the Santa Clara Pueblo near Española. See Scholl’s Aff. ¶ 7, at 3.
10. Friday rode with Romero, Willow, and Sanchez in Romero’s vehicle to Big Rock, while Madrid traveled there in the vehicle of some female friends. See Scholl Aff. ¶ 7, at 3.
11. Romero, Friday, Madrid, Willow, and Sanchez met at Big Rock at approximately 11:00 p.m., and proceeded to the Sports Bar area, where they drank until approximately 11:30 p.m. See Scholl’s Aff. ¶¶ 7-8, at 3.
12. Security footage from Big Rock shows that Romero was wearing a red baseball cap while the five men were at the Sports Bar. See Tr. at 22:1-10 (Scholl).
13. Shortly after 11:30 p.m., Romero, Friday, Madrid, Willow, and Sanchez got into the Cavalier and left the Big Rock parking lot. See Scholl’s Aff. ¶ 8, at 3.
14. At approximately 12:35 a.m. on April 11, 2009, the Cavalier returned to the Big Rock parking lot. The vehicle was “driving erratically so it caught the attention of the casino security.” Scholl’s Aff. ¶ 9, at 3; Tr. at 27:12-28:4 (Scholl).
15. A Big Rock video surveillance camera captured two of the individuals who had been in the Cavalier urinating in the parking lot. See Scholl’s Aff. ¶ 9, at 3-4.
16. The five men — including Romero and Friday — appear in video footage heading toward the Sports Bar area of Big Rock and subsequently getting into the Cavalier and leaving the Big Rock parking lot; they also are visible inside the car in video surveillance footage of the Cavalier’s return to the Casino parking lot. See Scholl’s Aff. ¶ 7-9, at 3-4.
18. The five men drove around in the Cavalier “for awhile” until Madrid asked to be dropped off at a friend’s house. Romero, driving the vehicle, acquiesced to the request and dropped Madrid off at the friend’s house. See Scholl’s Aff. ¶¶ 10-11, 15 at 4-6.
19. The four men remaining in the vehicle told Madrid they were “going to go to Buffalo Thunder Casino [which is] located on the Pojoaque Pueblo, New Mexico.” Scholl’s Aff. ¶ 11, at 4.
20. Madrid did not see Friday alive again after the vehicle left him at his friend’s house. See Scholl’s Aff. ¶ 11, at 4.
21. On April 11, 2009, at approximately 4:30 p.m., a person discovered Friday’s deceased body with shotgun wounds to his chest and chin in an arroyo approximately two miles from where Romero had dropped off Madrid earlier that day. See Scholl’s Aff. ¶ 12, at 5.
22. Federal Bureau of Investigation Special Agent Arlen B. Scholl was notified on April 11, 2009 that a body, which would ultimately be identified as Friday’s, was found in an arroyo at the San Ildelfonso Pueblo in northern New Mexico. See Tr. at 14:24-15:4 (Scholl).
23. There was “virtually no blood” at the location where Friday’s body was discovered. The clothing appeared to have been “tidied” up, and a bottle of vodka had been placed between Friday’s legs. Tire tracks were found coming “from the main dirt road into the wash to where the body was and then around the body and then back to the main road.” These facts led agent Scholl to believe that Friday’s body had been placed at the location where it was found. See Scholl Aff. ¶ 12, at 5; Tr. at 16:18-17:21 (Ortega, Scholl).
24. A doctor at the New Mexico Office of the Medical Investigator in Albuquerque performed an autopsy on Friday’s body on Sunday, April 12, 2009. The autopsy revealed that Friday was killed by two shots from a relatively small shotgun. See Tr. at 20:3-21:3 (Ortega, Scholl).
25. On April 13, 2009, the Big Rock security supervisor informed the FBI that security department personnel remembered, after being dispatched to investigate an erratic driving incident, seeing the five individuals on the surveillance video on the morning of April 11, 2009 in a vehicle bearing New Mexico license plate number 029NJK. See Scholl’s Aff. ¶ 9, at 3-4; Tr. at 27:19-28:17 (Scholl).
26. After receiving the information from the Casino security supervisor, law-enforcement agents were able to match New Mexico license plate number 029NJK to a green 1999 Chevrolet Cavalier bearing Vehicle Identification Number 1G1JC1249X7192868, and determined that it was registered to Tapia-Talache, who resides at 345 Popay Avenue, Ohkay Owingeh Pueblo, New Mexico. See Scholl’s Aff. ¶ 13, at 5; Tr. at 28:12-17 (Scholl).
27. Romero is a relative of Tapia-Talache, and he lists the same Popay Avenue address on his New Mexico Driver’s License. See Scholl’s Aff. ¶ 13, at 5; Tr. at 67:8-25 (O. Martinez). 2
28. Scholl learned that, according to the Ohkay Owingeh Tribal Police Department’s Incident Report, Romero had been
29. At the time of Romero’s arrest for careless driving and driving under the influence, the .410 shotgun found in the vehicle was seized. The shotgun was later released to Romero’s mother. See Scholl’s Aff. ¶ 16, at 6.
30. On April 14, 2009, law-enforcement officers saw a green Chevrolet Cavalier at 345 Popay Avenue, Ohkay Owingeh Pueblo. See Scholl’s Aff. ¶ 17, at 6.
31. On April 16, 2009, the United States applied for a federal search warrant to search a “green 1999 Chevrolet Cavalier bearing New Mexico License Plate 029NJK and Vehicle Identification Number 1G1JC1249X7192868.” Tr. at 30:8-31:9 (Ortega, Scholl); id. at 38:7-11 (Scholl); Government Exhibit 1 (“Warrant Application”).
32. As part of the Application for a Search Warrant, Scholl executed an Affidavit on April 16, 2009. See Tr. at 31:10-17 (Ortega, Scholl); Government Exhibit 2 (“Warrant Affidavit”).
33. Scholl’s affidavit stated, in relevant part:
3. On Saturday, April 11, 2009, at approximately 4:30pm, the deceased body of NAAYAITCH FRIDAY, age 26, was discovered in an arroyo on the San Ildelfonso Pueblo located in Santa Fe County, New Mexico. The body was discovered by an individual driving through the arroyo.... An autopsy performed by the New Mexico Office of the Medical Investigator revealed that FRIDAY had been shot at close range in the chin and chest with a shotgun.
4. A group of individuals, including FRIDAY and an associate ... met at Sonic restaurant in Española, New Mexico around 9:30pm on Friday, April 10, 2009, and began to drink alcohol and socialize. After hanging out for a while, a vehicle with three male occupants pulled into the parking space next to them and joined in the drinking and socializing.
5. ... ASSOCIATE observed the three males had a long “rifle type” gun in their car located along the outside of the driver’s seat between the car door and the driver’s seat.... [T]he car containing the long rifle was the green Chevrolet Cavalier.
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9. At approximately 12:35am on Saturday, April 11, 2009, the green Chevrolet Cavalier returned to the Big Rock Casino parking lot.... The five males [in the car], who had previously come to the casino, including FRIDAY and ASSOCIATE, are seen in the vehicle on the video surveillance. The security officers recorded a New Mexico license plate of 029NJK and documented the contact.
10. According to ASSOCIATE, the group of five males cruised around for a while and then proceeded to the San Ildelfonso Pueblo. ASSOCIATE requested to be dropped off at a friend’s house located in El Rancho, New Mexico, which is located within the boundaries of the San Ildelfonso Pueblo. ASSOCIATE was extremely intoxicated at this point and does not know what time he was dropped off.
11. The other four males, including FRIDAY, dropped ASSOCIATE off and proceeded to leave his friend’s house.... ASSOCIATE did not see FRIDAY alive again.
12. The deceased body of Friday was discovered approximately two miles from the friend’s house where ASSOCIATE had been dropped off----The area from the friend’s house to the locationwhere FRIDAY’S body was discovered is located within the boundaries of the San Ildelfonso Pueblo.
13. The green 1999 Chevrolet Cavalier bearing New Mexico license plate 029NJK ... is registered to Angela A. Tapia-Talache.... Also residing at the above listed address is CARL ROMERO .... ROMERO lists this address on his New Mexico Driver’s License.
15. On April 14, 2009, a photographic lineup containing photographs of males, all about the same approximate age and physical appearance was shown to ASSOCIATE. ASSOCIATE immediately selected the person in the photographic lineup, known as CARL ROMERO, ... as being the driver of the vehicle the night of Friday, April 10, 2009. ASSOCIATE was 100% sure that ROMERO was the driver.
16. According to an Incident Report from the Ohkay Owingeh Tribal Police Department, ROMERO was arrested on February 20, 2009.... The reporting officer found a loaded .410 shotgun in the back seat of the vehicle. When the officer asked ROMERO why he had a loaded gun in the car he stated that “some guys were picking on his friends, so he went for the gun for protection and was going to shoot them if they came back.” The shotgun was seized and later released to his mother.
20. Based on the above, the affiant believes probable cause exists that there may be evidence of a crime ... in a vehicle known as a 1999 Green Chevrolet Cavalier, New Mexico License Plate 029NJK....
Scholl Aff. ¶¶ 3-20, at 1-7.
34. It became clear during the hearing that the ASSOCIATE referenced in Scholl’s affidavit was Madrid. See Tr. at 57:16-24 (Ortega).
35. The affidavit sought to search the vehicle in which Romero, Friday, Madrid, Willow, and Sanchez traveled on April 10-11, 2009. See Scholl’s Aff. ¶¶ 2, 7-10, at 1-4; Tr. at 54:5-19 (Scholl).
36. On April 16, 2009, the Honorable Richard L. Puglisi, Chief United States Magistrate Judge for the District of New Mexico, issued the Search and Seizure Warrant that Scholl requested. See Government Exhibit 3 (“Search Warrant”).
37. FBI and Bureau of Indian Affairs (“BIA”) agents went to 345 Popay Avenue — the address where Romero was ultimately located — to execute the search warrant on the Chevrolet Cavalier. See Tr. at 39:6-9 (Ortega, Scholl); id. at 149:14-150:5 (Ortega, Scholl); id. at 170:25-171:9 (Bustamante, Scholl); id. at 95:25-96:24 (Buie); id. at 107:13-15 (Buie); id. at 176:7-179:24 (Fischer).
38. The group of agents participating in the execution of the search warrant included: Scholl, FBI Special Agents Mark Buie, Richard Grout, and Nancy Duncan, and BIA Special Agent Carleen Fischer. See Tr. at 68:13-69:5 (Ortega, O. Martinez); id. at 93:5-12 (Bustamante, Buie); id. at 143:11-21 (Ortega, Scholl); id. at 176:7-21 (Fischer).
39. When the FBI agents communicated with Fischer about what was going to occur in the execution of the warrant, they indicated to her that they were going to retrieve the vehicle. There was no indication that they intended to speak to or gain entry to the property to access Romero. See Tr. at 185:22-186:10 (Fischer).
40. The residence in which Romero was located is one of two residences on the property at 345 Popay Avenue, Ohkay Owingeh Pueblo. See Tr. at 94:6-16,120:13-17 (Buie); id. at 176:22-177:6 (Fischer).
41. The Cavalier was parked between the two residences located on the property
42. At the time agents arrived at 345 Popay Avenue to execute the search warrant for the Cavalier, Orlando Martinez, Romero’s step-father, resided at that address. He had done so for approximately three years. See Tr. at 67:8-21 (Ortega, O. Martinez).
43. Romero resides at the house with O. Martinez and has his own bedroom inside. See Tr. at 72:16-23 (Ortega, O. Martinez).
44. O. Martinez owns the house and had access to the entire house at the time of the search. See Tr. at 72:11-23 (Ortega, O. Martinez).
45. Although O. Martinez owns the house and has access to the entire house, he generally does not enter Romero’s private room. See Tr. at 72:16-23 (Ortega, O. Martinez).
46. The back part of the house, where Romero resided, was “kind of a private room for [Romero],” which he sometimes locks; Martinez did not generally enter that back bedroom. Tr. at 72:11-23 (Ortega, O. Martinez); id. at 84:11-16 (Bustamante, O. Martinez).
47. When Romero would leave home, he would sometimes lock the door on his room; when he locked the door, other family members no longer had access to the room. See Tr. at 84:5-16 (Bustamante, O. Martinez).
48. When the agents executing the search warrant knocked on the door of the residence at the rear of the property at 345 Popay Avenue, O. Martinez answered. See Tr. at 67:22-68:25 (Ortega, O. Martinez); id. at 95:25-96:13 (Ortega, Buie); id. at 115:14-15 (Bustamante, Buie); id. at 118:10-22 (Bustamante, Buie); id. at 164:14-18 (Bustamante, Scholl).
49. It is regular practice for law-enforcement officers to be armed and wear body armor during their shifts. See Tr. at 95:4-5; 116:8-12 (Buie).
50. The agents were wearing full body armor when O. Martinez answered the door. See Tr. at 95:2-19 (Ortega, Buie).
51. Three Chevy Tahoes were parked in close proximity to the residence. See Tr. at 76:21-77:5 (Bustamante, O. Martinez).
52. O. Martinez recognized the agents as FBI and BIA by their badges. See Tr. at 77:6-8 (Bustamante, O. Martinez).
53. O. Martinez noticed that all of the agents were armed when he answered the door. All of the agents had their weapons holstered except Grout, who carried an M4. The M4 could not be holstered because it was too large, but it was slung over his shoulder and hung at his side. See Tr. at 77:21-79:3 (Bustamante, O. Martinez); id. at 95:4-21 (Ortega, Buie); id. at 114:22-115:10 (Bustamante, Buie); id. at 119:21-120:6 (Bustamante, Buie); id. at 125:20-23 (Bustamante, Buie); id. at 187:2-17 (Bustamante, Fischer). 3
55. When the agents asked O. Martinez whether Romero was at the residence, O. Martinez responded that Romero was not at home. See Tr. at 96:25-97:3 (Ortega, Buie); id. at 121:22-122:7 (Bustamante, Buie). 4
56. O. Martinez identified himself as Romero’s step-father to the agents. See Tr. at 72:11-15 (0. Martinez, Ortega); id. at 69:19-20 (0. Martinez, Ortega); id. at 70:1-11 (0. Martinez, Ortega)(“A: They asked for Carl Romero. I said, no, I wasn’t — that I was his stepdad.”).
57. Buie requested permission from O. Martinez to enter the residence. Although he did not express it to O. Martinez, his purpose was to conduct a “security sweep” to determine if anyone else was inside and thereby to ensure the agents’ safety. See Tr. at 71:17-22 (Ortega, O. Martinez); id. at 80:15-18, 84:21-85:1 (Bustamante, O. Martinez); id. at 97:4-18 (Ortega, Buie); id. at 118:20-119:13 (Bustamante, Buie).
58. O. Martinez was not told that it is necessary for agents to enter a residence when executing a warrant for the vehicle, nor was he told that it was standard procedure for agents to conduct security sweeps of premises before executing a search warrant, or that the sweep was to ensure the agents’ personal safety. See Tr. at 80:15-18 (Bustamante, O. Martinez); id. at 85:25-86:9 (Ortega, O. Martinez); id. at 97:4-14, 98:3-18 (Ortega, Buie). 5
59. O. Martinez felt nervous, surprised, and intimidated by the agents’ presence. See Tr. at 70:24-25 (0. Martinez); id. at 79:13-19 (Bustamante, O. Martinez).
60. O. Martinez’ compliance was the result, at least in part, of his ability to see the agents’ weapons. See Tr. at 70:24-25 (0. Martinez); id. at 79:13-19 (Bustamante, O. Martinez).
61. O. Martinez described his interactions with the agents as “tense,” but noted that the agents were neither rude nor insolent towards him. See Tr. at 75:8-14 (Ortega, O. Martinez).
62. The agents’ actions were not coercive.
63. O. Martinez agreed to allow the agents inside the residence, and the agents
64. O. Martinez did not give any indication which a reasonable police officer would have thought indicated a lack of voluntary consent. See Tr. at 70:24-73:3 (Ortega, O. Martinez); id. at 78:7-82:3 (Bustamante, O. Martinez); id. at 84:25-85:1 (0. Martinez)(“A: They asked if they could enter the house, and I said they could.”); id. at 97:4-98:18 (Ortega, Buie)(“A. [0. Martinez] was very cordial and cooperative and he didn’t raise any objection at all. He just ... allowed [the agents to enter] and said ‘sure.’ ”). 6
65. The “security sweep” consisted of agents walking through the premises to establish that there were no persons hiding therein who could ambush or otherwise endanger the agents while executing the warrant on the vehicle. See Tr. at 72:3-4 (Ortega, O. Martinez); id. at 78:7-12, 84:21-85:1 (Bustamante, O. Martinez); id. at 97:4-98:6 (Ortega, Buie); id. at 125:7-16 (Bustamante, Buie).
66. Security sweeps like the one conducted at the Martinez residence are standard safety procedures that FBI agents employ when executing search warrants. See Tr. at 98:7-14 (Ortega, Buie).
67. The security sweep was not conducted pursuant to a warrant, but was instead based upon O. Martinez’s acquiescing to the agents’ request to enter the residence. See Tr. at 119:3-12 (Bustamante, Buie); id. at 71:17-20 (Ortega, O. Martinez).
68. As part of the security sweep, the agents called out who they were and why they were there, opened doors, and looked in and entered rooms throughout the residence. See Tr. at 106:24-107:12 (Buie); id. at 119:14-22 (Bustamante, Buie); id. at 135:25-136:11 (Buie).
69. During the execution of a security sweep, it is a regular practice for agents to open doors to rooms within a building. See Tr. at 137:4-6 (Ortega, Buie).
70. The agents did not have a specific conversation with O. Martinez about searching specific bedrooms, nor did O. Martinez limit the scope of the agents’ search in any particular way, nor did O. Martinez tell the agents that any kind of arrangement existed which gave Romero exclusive access to any rooms. See Tr. at 121:22-122:4 (Bustamante, Buie); id. at 124:12-14 (Buie).
71. Two agents stayed with O. Martinez while the sweep of the house and interview of Romero were taking place. See Tr. at 73:4-22 (Ortega, O. Martinez).
72. The agents did not force O. Martinez to remain at his residence, but O. Martinez nevertheless went to work late on April 16th, 2009. See Tr. at 73:11-22 (Ortega, O. Martinez).
73. The agents believed that O. Martinez gave consent allowing them to walk through the house without limitations, and believed the consent extended to opening doors and entering the back bedrooms. See Tr. at 124:11-24 (Bustamante, Buie); id. at 137:7-13 (Ortega, Buie).
74. Romero’s room is at the rear of the property. See Tr. at 72:3-10 (Ortega, O. Martinez).
76. The agents did not knock on or otherwise request separate permission from O. Martinez to open Romero’s bedroom door. See Tr. at 124:7-14 (Bustamante, Buie).
77. Romero’s bedroom door was not locked, but rather, opened freely when the agents manipulated the door handle. Buie did not see the lock on the door. See Tr. at 122:8-123:5 (Bustamante, Buie).
78. The lock on Romero’s door is not clearly visible to the casual observer. See Tr. at 122:13-123:9 (Bustamante, Buie); id. at 136:15-137:6 (Ortega, Buie). 7
79. Romero did not give consent to the agents before they opened his bedroom door. The agents did not knock or otherwise request permission from him to open the door. See Tr. at 124:15-24 (Bustamante, Buie).
80. Romero did not consent to the officers entering his bedroom. See Tr. at 124:7-24 (Bustamante, Buie).
81. Romero did not consent to the protective sweep of his room, nor did the agents seek permission from Romero to “sweep” his room. See Tr. at 124:7-24 (Bustamante, Buie); id. at 172:13-20 (Bustamante, Scholl).
82. After opening the bedroom door, agents discovered Romero, evidently asleep, in that room. See Tr. at 98:19-100:4 (Ortega, Buie); id. at 123:15-124:6 (Bustamante, Buie); id. at 137:14-19 (Ortega, Buie).
83. Buie and Grout stood in the threshold to Romero’s room. Buie had his hand on his weapon, making it visible, and Grout’s M4 was also visible to Romero. See Tr. at 124:18-22 (Buie); id. at 125:17-126:1 (Bustamante, Buie).
84. In Romero’s room, the agents saw a shotgun and a red baseball cap. See Tr. at 101:7-15 (Ortega, Buie); id. at 132:22-133:1 (Bustamante, Buie); id. at 139:16-21 (Ortega, Buie).
85. The shotgun and red baseball cap were pertinent to the agent’s investigation, because they knew from the autopsy and the photographs of Friday that the killer used a small caliber shotgun to kill Friday and Romero had been seen wearing the red baseball cap at the Sports Bar at Big Rock with Friday. See Tr. at 101:12-102:6 (Ortega, Buie).
86. At some point, the agents entered Romero’s bedroom to turn on the lights. The officers allowed Romero to get dressed, but briefly patted down the clothes for weapons first. See Tr. at 128:11-24 (Buie, Bustamante); id. at 138:4-11 (Ortega, Buie).
87. Agents requested that Romero leave the bedroom and exit the residence so that they could speak to him. See Tr. at 103:11-104:1 (Ortega, Buie).
88. Romero complied with the agents’ request to go outside without objection or significant delay. See Tr. at 85:5-7 (Bustamante, O. Martinez); id. at 103:22-104:3 (Ortega, Buie); id. at 129:13-21 (Bustamante, Buie).
89. The sweep of Romero’s house took about five minutes to complete.
See
Tr. at 73:23-74:5 (Ortega, O. Martinez);
id.
at
90. Romero was free to leave the “scene at any time,” because he was not in custody, but Romero would not have been permitted to wander the property unescorted. Tr. at 126:23-24 (Bustamante, Buie); id. at 129:24-130:5 (Bustamante, Buie).
91. After Romero exited the front door of the residence, Scholl approached Romero and asked to speak with him. Scholl told Romero that he was not under arrest. See Tr. at 72:24-73:3 (Ortega, O. Martinez); id. at 148:12-149:1 (Ortega, Scholl).
92. Romero could have refused to talk to Scholl. See Tr. at 129:24-130:1 (Buie).
93. Romero walked unrestrained to Scholl’s vehicle and, in compliance with Scholl’s request, sat inside. See Tr. at 130:8-10 (Bustamante, Buie); id. at 148:22-149:5 (Scholl).
94. Before getting inside Scholl’s vehicle, Grout put away the M4 rifle. See Tr. at 167:20-168:11 (Bustamante, Scholl).
95. Romero sat in the front passenger’s seat of Scholl’s vehicle, while Scholl sat in the driver’s seat and Grout sat in the back seat. See Tr. at 105:21-106:3 (Ortega, Buie); id. at 149:6-13 (Bustamante, Scholl).
96. While Romero, Scholl, and Grout sat in the vehicle, the front two windows were down. The back door was open for part of the time they were in the vehicle. See Tr. at 105:18-106:3 (Ortega, Buie); id. at 149:6-13 (Ortega, Scholl).
97. Romero was very cordial and spoke very matter-of-factly when talking to Scholl and Grout; none of them ever raised their voices. See Tr. at 159:2-8 (Ortega, Scholl).
98. While speaking to Romero in the vehicle, Scholl asked Romero some questions about his activities and whereabouts on the evening of April 10, 2009 and the morning of April 11, 2009. See Tr. at 149:14-152:19 (Ortega, Scholl).
99. During this line of questioning, Romero told Scholl that he shot Friday. Scholl asked Romero to repeat this statement while the agents recorded it. See Tr. at 152:13-155:11, 155:12-22 (Ortega, Scholl).
100. Romero told Scholl that the shotgun which he used to kill Friday was in his room. See Tr. at 156:5-9 (Scholl).
101. One of the agents asked Romero if they could reenter his bedroom to seize the shotgun and clothing, to which Romero agreed. He stated: “[Y]eah, it’s evidence.” Tr. at 156:10-13 (Ortega, Scholl).
102. The tow truck did not arrive until approximately thirty minutes after the security sweep. Scholl’s conversation with Romero occurred during that interim period. See Tr. at 106:9-17 (Ortega, Buie); id. at 130:16-132:16 (Bustamante, Buie).
103. Although the precise time at which Scholl began interviewing Romero is unclear, the interview took no more than thirty minutes. See Tr. at 170:16:24 (Scholl)(“[W]e got there ... about 12:55 in the afternoon. The ... taped portion of the interview shows end interview time of 1:32 p.m.”); id. at 180:18-24 (Fischer)(estimating the interview length as 20 to 30 minutes).
104. After Romero made these statements and gave the agents verbal consent to search his bedroom, Scholl arrested Romero and placed him in Fischer’s vehicle. See Tr. at 155:12-156:3 (Ortega, Scholl); id. at 180:5-17 (Ortega, Fischer).
105. After placing Romero in Fischer’s vehicle, Scholl presented and read to Romero FBI D26 — a standard consent-to-
106. The consent-to-search form contains: (i) an affirmation that the person granting consent has been advised of his or her right to refuse consent; (ii) an affirmation that permission has been granted voluntarily; (iii) an authorization for agents to take any items which they determine may be related to their investigation, and; (iv) a place for the consenting person to sign and date the consent form. See Tr. at 158:11-22 (Ortega, Scholl); Government Exhibit 4.
107. Romero signed and dated the consent form in Scholl’s presence, authorizing agents to search his “personal room at 345 Popay Ave.” Tr. at 107:19-108:3 (Ortega, Buie); id. at 156:10-157:1, 158:23-159:1 (Ortega, Scholl); Government Exhibit 4.
108. When Romero signed the form, he had a calm and cooperative demeanor, was sober, and understood Scholl’s explanation of the consent form. See Tr. at 159:2-16 (Ortega, Scholl).
109. Romero consented to the search of his personal room of his own free will, and was not forced or otherwise coerced. See Tr. at 159:17-19, id. at 158:1-160:5 (Ortega, Scholl).
110. At no time during Romero’s interactions with Scholl and Grout did anyone raise his voice; the interview was cordial and calm. See Tr. at 159:2-8 (Ortega, Scholl).
111. Romero verbally gave the agents consent to search his room after his confession but before the agents placed him under arrest. Romero did not sign the consent-to-search form, however, until after he had been handcuffed and placed in Fischer’s vehicle. See Tr. at 155:4-156:19 (Ortega, Scholl).
112. So far as the evidence discloses, no agent read Romero his Miranda 8 rights at aiiy time during the events recited in this opinion.
113. As a result of the consent-to-search form that Romero signed after he was taken out of the residence, agents searched Romero’s bedroom. See Tr. at 107: 16-108:3 (Ortega, Buie); id. at 110:11-17 (Ortega, Buie).
114. Two male FBI agents re-entered the house approximately forty minutes to one hour after agents escorted Romero out of the residence. See Tr. at 74:6-75:1 (O. Martinez).
115. The agents seized a .410 gauge shotgun, ammunition, and various articles of clothing — including a red hat — from Romero’s bedroom. The seized items: (i) were documented; (ii) were transported to the Albuquerque, New Mexico FBI evidence room; (iii) were taken into evidence, and; (iv) currently remain in the FBI evidence room’s custody. See Tr. at 110:18-111:11 (Ortega, Buie); id. at 159:20-160:10 (Ortega, Scholl).
116. After his arrest and detention in Fischer’s vehicle, Leslie Martinez, Romero’s mother, arrived on the scene and approached Fischer’s vehicle. See Tr. at 180:5-181:12 (Ortega, Fischer).
117. L. Martinez asked Fischer whether she could speak to Romero. See Tr. at 181:5-14 (Ortega, Fischer).
118. In response to her request, Fischer and Duncan obtained permission from the other agents for L. Martinez to speak with Romero. See Tr. at 181:13-20 (Ortega, Fischer).
119. L. Martinez spoke to Romero. See Tr. at 181:21-22 (Ortega, Fischer).
121. During one of these conversations, Fischer overheard L. Martinez ask Romero whether he had taken someone’s life, to which Romero did not initially respond. See Tr. at 181:25-182:12 (Ortega, Fischer).
122. Fischer overheard L. Martinez again ask Romero whether he had taken someone’s life. Romero responded in the affirmative. L. Martinez then walked away. See Tr. at 182:13-24 (Ortega, Fischer).
123. L. Martinez returned, and Fischer overheard her asking Romero whether he was going to say that he was sorry, to which Romero responded: “What’s sorry going to do? Sorry’s not going to change anything.” Tr. at 182:20-183:5 (Ortega, Fischer).
124. Following the exchange between L. Martinez and Romero, L. Martinez again stepped away from the vehicle and approached her mother — Romero’s grandmother — who had just then arrived at the scene in a white pickup. Fischer overheard L. Martinez tell her mother that Romero had “killed somebody.” Tr. at 182:20-183:12 (Ortega, Fischer).
125. Romero’s vehicle was seized and taken off of the property. See Tr. at 183:21-24 (Ortega, Fischer).
126. Romero’s vehicle was searched in Albuquerque the following day, yielding three expended .410 shotgun shell casings, but no materials testing positive for blood. See Tr. at 160:13-18 (Scholl).
PROCEDURAL BACKGROUND
A federal Grand Jury indicted Romero with: (i) one count of Assault with a Dangerous Weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3); (ii) one count of Assault Resulting in Serious Bodily Injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6); (iii) one count of Use of a Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(l)(A)(i); (iv) one count of First Degree Murder, in violation of 18 U.S.C. §§ 1153 and 1111; and (v) one count of Use of a Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(e)(l)(A)(C)(i). See Indictment at 1-3, filed May 12, 2009 (Doc. 13). Romero filed three separate motions to suppress. The first, filed November 9, 2009, challenges the admissibility of Romero’s April 16, 2009 statements to government agents and asks the Court for an order suppressing them. Romero contends that those statements were involuntary and that officers obtained them during a custodial interrogation without first notifying him of his rights under Miranda v. Arizona. See Statements Motion at 3-5. The United States responded on December 2, 2009. See United States’ Response to Motion to Suppress Defendant’s Statements at 5-10, filed December 2, 2009 (Doc. 39) (“Statements Response”). The United States argues that the Court should not suppress Romero’s statements because they were made during a voluntary police-citizen encounter — or, in the alternative, during a limited-purpose seizure' — and that the statements were voluntarily made. See Statements Response at 5-10.
Romero also filed his second motion on November 9, 2009. The second motion seeks an order suppressing any and all evidence seized from the Cavalier.
See
Affidavit Motion ¶ 1, at 1. It also asks the Court to suppress all other evidence obtained by the police during the investigation of Romero’s vehicle on April 16, 2009.
See id.
¶¶2-5, at 1-2. Romero asserts that the affidavit supporting the search warrant that the agents executed on the Cavalier lacked probable cause, rendering the search of the vehicle unconstitutional
Romero’s third motion, also filed on November 9, 2009, requests suppression of evidence acquired as a result of allegedly unconstitutional entries into his personal bedroom.
See
Bedroom Motion ¶¶ 1-5, at 1-2. Romero contends that government agents lacked proper consent to search his personal bedroom, and that their initial entry violated the Fourth and Fifth Amendments.
See
Bedroom Motion at 4. Romero further asks the Court to suppress any fruit of the poisoned search, including evidence uncovered in all subsequent searches and any statements made by Romero in response to agents’ questioning.
See
Bedroom Motion at 4. In response, the United States relies on the protective-sweep concept enunciated in
Maryland v. Buie,
During the hearing, four witness testified for the United States: (i) Scholl, who sought the search warrant and interviewed Romero following his discovery at the residence; (ii) O. Martinez, Romero’s stepfather and the individual who permitted the agents to enter the residence; (in) Buie, who performed the security sweep of O. Martinez’ residence; and (iv) Fischer, who participated in the execution of the search warrant, but not in the security sweep of O. Martinez’ residence. Mr. Bustamante reiterated his argument that Scholl’s Affidavit was “at best vague” and does not specifically allege why any evidence of a crime could be found in the Cavalier. Tr. at 63:4-11, 11:18-24, 12:8-12 (Bustamante). Mr. Bustamante contended that O. Martinez’ testimony was unclear whether he gave the agents consent to search his residence at 345 Popay Avenue and further that O. Martinez’ testimony shows that he did not have authority to consent to a search of Romero’s bedroom. See id. at 209:8-12 (Bustamante); id. at 212:4-12 (Bustamante). Mr. Bustamante further argued that, upon opening the door to Romero’s bedroom and finding him sleeping therein, the agents should have requested permission to enter the bedroom, because finding someone asleep in a bedroom should lead an officer to believe that individual has control over the room. See id. at 209:22-210:89 (Bustamante). The other arguments made by the attorneys did not substantially differ from the arguments set forth in their briefs.
RELEVANT LAW REGARDING FOURTH-AMENDMENT SEARCHES
The Fourth Amendment to the United States Constitution “protects ‘[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.’ ”
United States v. Thompson,
“[T]he Fourth Amendment protects people, not places,” and the Supreme Court of the United States has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a “constitutionally protected area.”
Katz v. United States,
There is no doubt, however, that a citizen has a reasonable expectation of privacy, and a particularly strong one, in his own home. The “chief evil” from which the Fourth Amendment protects citizens is unwanted police entry into the home, and the “principal protection” is “the Fourth Amendment’s warrant requirement.”
United States v. Thompson,
1. Search Warrants Require Probable Cause.
The Supreme Court requires that a magistrate judge be provided information sufficient to determine the existence of probable cause before he or she issues a warrant.
See Illinois v. Gates,
To assure that warrants are not based on bare conclusions, the Supreme Court has mandated the courts to “conscientiously review the sufficiency of affidavits on which warrants are issued.”
Illinois v. Gates,
2. Warrantless Searches: Limited Fourth Amendment Exceptions.
Not all searches require a warrant. The Supreme Court has instructed that, when assessing the reasonableness of a warrant-less search, a court must begin “with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are
per se
unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.’ ”
Arizona v. Gant,
— U.S. ---,
a. Consensual Searches.
Searches conducted pursuant to consent constitute one exception to the Fourth Amendment’s search-warrant and probable-cause requirements.
See Schneckloth v. Bustamonte,
Determining whether a party’s consent was free and voluntary is a question of fact to be determined from the totality of the circumstances.
See United States v. Peña,
(i) the threatening presence of several officers; (ii) the use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory, or, conversely, the officer’s pleasant manner and tone of voice; (iii) the prolonged retention of a person’s personal effects such as identification, or, conversely, the prompt return of the defendant’s identification and papers; (iv) the absence of other members of the public, or, conversely, whether the stop occurs in a public location such as the shoulder of an interstate highway, in public view; (v) the officer’s failure to advise the defendant that [he or] she is free to leave; ... (vi) the display of a weapon[;] and (vii) physical touching by the officer.
United States v. Sedillo,
No. CR 08-1419 JB,
Because courts are required to look at the totality of the circumstances in determining whether an individual’s consent was voluntary,
see United States v. Peña,
b. Third-Party Consent.
A third-party’s consent can sometimes justify police entry and search of a suspect’s property. The Tenth Circuit has ruled that, when a third party who possesses either actual or apparent authority to consent to a search grants law-enforcement officers such consent, the search is lawful despite the lack of a search warrant.
See United States v. Cos,
(i) Actual third-party authority.
The Tenth Circuit has held that “a third party has [actual] authority to consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it.”
United States v. Rith,
The relationship between a third-party and the defendant objecting to a search may “bear on the nexus between the consenter and the property.”
United States v. McAlpine,
Even where a relationship gives rise to a presumption of control over the property, the presumption can be “rebutted by facts showing an agreement or understanding between the defendant and the third party that the latter must have permission to enter the defendant’s room.”
United States v. Rith,
(ii) Apparent third-party authority.
If a third party lacks actual authority to grant consent to the search of property or premises occupied by a defendant, authority may nevertheless exist under the doctrine of apparent authority. A third-party’s “[a]pparent authority arises from the reasonable, albeit erroneous, belief that the third party has the authority to provide valid consent.”
United States v. Sanchez,
Officers, however, are not at liberty to rely on apparent authority when “ambiguous facts related to authority” are present.
United States v. Kimoana,
Evidence or items of contraband discovered in plain view by an officer who is lawfully on the premises are admissible as evidence regardless whether the officer was executing a valid search warrant.
See Georgia v. Randolph,
RELEVANT LAW REGARDING FOURTH-AMENDMENT SEIZURES
For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided interactions between police and citizens into three categories: (i) consensual encounters; (ii) investigative stops; and (iii) arrests.
See Oliver v. Woods,
1. Investigative Detentions and Reasonable Suspicion.
An encounter that is not consensual may nevertheless be justified as an investigative detention. An investigative detention occurs when an officer stops and briefly detains a person “in order to determine his identity or to maintain the status quo momentarily while obtaining more information.”
Oliver v. Woods,
A review of the totality of the circumstances shows Gallegos was not acting on an unparticularized hunch; during his testimony he articulated specific facts that caused him to suspect Ceballos intended to assault or abduct the ■teenage pedestrian. Specifically, at the time Gallegos initiated the traffic stop, he had observed Ceballos slow his vehicle as he passed a teenage girl walking alone late at night. He then observed Ceballos alter his route by making a U-turn and following the girl down a narrow, nearly deserted residential street. Ceballos pulled alongside the girl, who he did not know, and asked her if she wanted a ride. She refused, telling him she lived up the street. Ceballos then drove further down the road, pulled into a driveway as if to turn around and return to the main road, but instead backed out and drove a few feet further east, in the same direction the girl was walking. He parked in a dark location and turned off his lights.
We agree with the Government that Officer Gallegos had reasonable suspicion to stop and detain Ceballos. Ceballos showed an interest in a teenage girl he did not know, to the point that he changed his route to follow her down a dark street, offered her a ride, and then parked where the girl would be required to walk past him as she continued to her home. The facts found by the district court, viewed in totality, amply support the constitutionality of the investigative detention.
Id.
at 228-30. The Tenth Circuit did not require the officer to identify the particular crime of which he or she had reasonable suspicion, or even to acknowledge that he or she had reasonable suspicion. The Court of Appeals was content to find that a reasonable officer would have reasonable suspicion that “Ceballos intended to assault or abduct the teenage pedestrian.”
Id.
at 229. The Tenth Circuit demanded
Vondrak v. City of Las Cruces,
As the Tenth Circuit explained, although the brief stop at a properly established sobriety checkpoint does not require individualized suspicion, an officer must have reasonable suspicion to ask an individual to exit his or her vehicle for further testing.
See Vondrak v. City of Las Cruces,
Vondrak’s statement that he “had one beer three hours ago” provided McCants with reasonable suspicion to conduct the field sobriety tests, or at the very least provided her with “arguable reasonable suspicion” entitling her to qualified immunity. See United States v. Slater,411 F.3d 1003 , 1004, 1006 (8th Cir.2005)(“Jones’s admission that he had been drinking [‘a couple drinks’] earlier that evening gave Officer Perry reasonable suspicion to extend the stop while Jones completed the sobriety tests.”); see also Miller v. Harget,458 F.3d 1251 , 1259 (11th Cir.2006) (“[W]hen Officer Harget smelled alcohol coming from the vehicle Mr. Miller had been driving, he had reasonable suspicion to detain Mr. Miller in order to investigate.”); United States v. Neumann,183 F.3d 753 , 756 (8th Cir.1999)(“The detection of alcohol on Neumann’s breath provided Kayras with a reasonable suspicion to further detain Neumann and expand the scope of the investigation.”); United States v. Caine,517 F.Supp.2d 586 , 589 (D.Mass.2007)(finding reasonable suspicion where the defendant’s eyes were glassy and bloodshot, and she had admitted drinking earlier that night); Griffin v. City of Clanton,932 F.Supp. 1359 , 1366 (M.D.Ala.1996)(finding reasonable suspicion where “Officer Bear-den smelled alcohol on Griffin’s breath” and “Griffin admitted that he had consumed a few drinks”). Admittedly, this is a close case. McCants’ only factual basis for conducting the field sobriety tests was Vondrak’s admission to drinking one beer several hours earlier, and the specificity of Vondrak’s statement makes it less suspicious than in many ofthe cases cited above. Nevertheless, given that Vondrak admitted consuming alcohol, McCants had the reasonable suspicion necessary to perform the field sobriety tests — or, at the very least, the arguable reasonable suspicion entitling her to qualified immunity.
Vondrak v. City of Las Cruces,
2. Arrests.
A seizure that exceeds the investigative detention’s limited scope or duration may nevertheless be justified as an arrest. An arrest is a seizure that is “characterized by highly intrusive or lengthy search or detention.”
Oliver v.
Woods,
RELEVANT FIFTH AMENDMENT LAW
The self-incrimination clause of the Fifth Amendment states: “No person shall be ... compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. Statements made by a defendant during a custodial interrogation by a law-enforcement officer are generally not admissible as evidence against that defendant if the declarant has not received the warnings that
Miranda v. Arizona
requires.
See Dickerson v. United States,
In other words,
“Miranda
rights need only be given to a suspect at the moment that suspect is ‘in custody’ and the questioning meets the legal definition of ‘interrogation.’ ”
United States v. Chee,
The Tenth Circuit, in recognizing that an examination of the totality of the circumstances is fact intensive, has instructed district courts to consider a number of non-exhaustive factors in determining whether a custodial interrogation took place.
See United States v. Jones,
RELEVANT LAW OF THE EXCLUSIONARY RULE
When evidence is obtained in violation of a person’s Fourth or Fifth Amendment rights, the police will generally be prohibited from using that evidence in a criminal prosecution of that person.
See Sanchez-Llamas v. Oregon,
1. Judicial Rationale of the Exclusionary Rule.
The exclusionary rule introduces into the criminal justice system a tension between the court’s need to find the truth by
[The exclusionary] rule is based upon very strict requirements designed to narrow the occasions upon which officers can make searches and seizures without judicial warrant. Unquestionably its application will now and then permit a guilty person to escape conviction because of hasty or ill-advised action on the part of enforcement officers. But the same may be said of the requirements of the Fourth Amendment.... The framers of the Fourth Amendment must have concluded that reasonably strict search and seizure requirements were not too costly a price to pay for protection against the dangers incident to invasion of private premises and papers by officers, some of whom might be overzealous and oppressive.
United States v. Rabinowitz,
2. Distinction between Finding of a Constitutional Violation and Applying of the Exclusionary Rule.
“Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”
United States v. Leon,
3. Exclusionary Rule Prohibits Indirect Uses of Tainted Evidence.
If officers acquire evidence in the process of violating one’s constitutional rights, they are forbidden from using that evidence in a criminal prosecution against the individual, unless an exception to the exclusionary rule applies.
See United States v. Calandra,
The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.
Wong Sun v. United States,
4. Relevant Exceptions to the Exclusionary Rule.
The exclusionary rule has exceptions. If illegally obtained evidence is somehow purged of the taint of the unconstitutional conduct, it can be admitted. “The Government can establish that a particular item of evidence has been purged of the primary taint by demonstrating that the evidence would have been inevitably discovered, was discovered through independent means, or was so attenuated from the illegality as to dissipate the taint of the unlawful conduct.”
United States v. Olivares-Rangel,
a. Attenuation of the Taint.
When determining whether evidence constitutes fruit of the poisonous tree subject to the exclusionary rule, a court must determine, based upon the unique facts of each case, “whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
United States v. King,
The Tenth Circuit has stated that “[t]he implication of the Supreme Court’s decision in
Brown v. Illinois
is that in order for incriminating statements to be purged of the taint of an underlying Fourth Amendment violation, [the] defendant’s consent must meet the voluntariness standard of the Fourth Amendment.”
United States v. Carson,
b. The Inevitable-Discovery Doctrine.
Another exception to the exclusionary rule is the inevitable-discovery doctrine. The doctrine permits courts to admit unconstitutionally obtained evidence “if an independent, lawful police investigation inevitably would have discovered it.”
United States v. Owens,
Several factors suggest that motel employees performing routine cleaning may not have inevitably discovered the cocaine. First, if the [motelj’s staff had cleared [the defendant’s] room, they would not necessarily have opened and searched all his luggage and closed containers. In fact, such an intrusion would have been a significant invasion of his privacy. Second, even if the room had been cleared and the white powder inside the closed bag had been discovered by the motel staff, the lack of any police involvement in routine room cleanings suggests that police discovery of the evidence would not have been inevitable. The evidence certainly does not demonstrate that the [motel]’s staff would necessarily have recognized the powder as cocaine or have called the police if they had so recognized it. Finally, absent the unlawful search, [the defendant] might have posted bail on the charge of receiving stolen property and could have returned to his motel room before either the cleaning staff or the police discovered the contraband. Alternatively, a friend could have returned to claim the closed bag.
United States v. Owens,
c. The Good-Faith Exception.
Another exception to the exclusionary rule is the investigating officer’s “good-faith.” In
United States v. Leon,
the Supreme Court faced the question whether to create an exception to the exclusionary rule when a police officer obtained evidence through the use of a warrant that he mistakenly thought probable cause supported.
See
The Tenth Circuit therefore now applies the rule that, in cases where the police obtained a warrant but the affidavit supporting the warrant does not establish probable cause, suppression of the evidence found is generally not warranted, so long as the officers relied in good faith on the warrant.
See United States v. Tuter,
[T]he suppression of evidence obtained pursuant to a warrant should be ordered only in those unusual cases in which exclusion will further the purposes of the exclusionary rule[.] Where an officer acting with objective good faith obtains a search warrant from a detached and neutral magistrate and the executing officers act within its scope, there is nothing to deter.
United States v. Tuter,
The Tenth Circuit has outlined four situations in which an officer’s reliance upon a warrant would be improper.
First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his “reckless disregard for the truth.” Second, the exception does not apply when the “issuing magistrate wholly abandon[s his] judicial role.” Third, the good-faith exception does not apply when the affidavit in support of the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.
United States v. Danhauer,
(i) Warrants based on illegally obtained information.
When a search is conducted pursuant to a warrant that is based on illegally obtained information, a court is not to blindly apply the good-faith exception. Instead, the court is to consider the warrant with the illegally obtained information excluded and determine, based on the remaining information, whether probable cause nevertheless existed. If the remaining content of the warrant affidavit establishes probable cause, the search pursuant to that warrant was appropriate, and the evidence need not be excluded:
When a warrant is tainted by some unconstitutionally obtained information, we nonetheless uphold the warrant if there was probable cause absent that information. An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was critical to establishing probable cause. If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid.
United States v. Sims,
(ii) Herring v. United States.
Recently, the Supreme Court decided a case that may have changed the standard for the good-faith exception to the warrant requirement. In
Herring v. United States,
officers arrested Herring pursuant to an arrest warrant listed in the Dale County warrant database.
See
The Supreme Court also affirmed the district court’s denial of Herring’s motion to suppress, based primarily on the good-faith exception to the exclusionary rule. The Supreme Court agreed with the Eleventh Circuit that, although the failure of the police to update the warrant database to reflect the fact that Herring’s warrant was withdrawn was negligent, it was not reckless or deliberate.
See Herring v. United States,
The Supreme Court in
Herring v. United States
then held that, as long as the “police have [not] been shown to be reckless in maintaining [the] warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests,” exclusion of evidence is not warranted when the arrest was made on objectively reasonable reliance on a warrant that had been subsequently recalled.
Herring v. United States,
In
United States v. McCane,
ANALYSIS
Romero’s three motions present a series of issues regarding the Fourth and Fifth Amendment. Rather than taking those issues in the order of Romero’s motions, however, the Court will address them chronologically. The Court will first analyze whether the warrant that the agents used to search Romero’s vehicle was valid. It will then determine whether the agents’ initial entry into O. Martinez’ house violated Romero’s Fourth Amendment rights and then whether the agents’ entry into Romero’s bedroom violated his Fourth Amendment rights. After the Court makes that determination, the Court will determine whether the agents’ extraction of Romero from his bedroom, and their subsequent conversation with him in the police vehicle, violated Romero’s constitutional rights under the Fourth or Fifth Amendment. Finally, the Court will determine whether the agents’ re-entry into Romero’s home violated Romero’s Fourth-Amendment rights.
I. PROBABLE CAUSE SUPPORTED THE AFFIDAVIT FOR THE SEARCH WARRANT OF ROMERO’S VEHICLE.
Romero asserts that the affidavit upon which the magistrate judge based his probable-cause determination was insufficient to establish probable cause. Specifically, he asserts that it lacked sufficient facts to support a finding that there was a fair probability that either the murder occurred in or the victim’s body was transported to its discovery location in, Romero’s vehicle. See Affidavit Motion ¶¶ 15-21, at 5-6. The United States responds that the proposition that either Friday’s murder occurred in, or his body was transported to its discovery location in, Romero’s vehicle was but one of Scholl’s opinions of what may have occurred and where evidence may be found, and was not the sole focus of the Application for a Search Warrant or Scholl’s supporting affidavit. See Affidavit Response at 7, 9. The United States points out that the Application for Search Warrant states that the vehicle was believed to conceal evidence of a crime, contraband, fruits of crime, or other illegally possessed items or property designed, intended for use, or used in committing a crime, and that the Affidavit for Search Warrant provided a sufficient factual basis to seize and search Romero’s vehicle to locate such evidence. See Affidavit Response at 7. The Court believes the affidavit supplies probable cause to believe evidence of the alleged crime would be found within the car, and that, even if it did not, the good-faith exception to the exclusionary rule would apply.
The Court finds that Scholl’s affidavit established probable cause. “Probable cause exists when ‘the facts presented in the affidavit would warrant a man of reasonable caution to believe that evidence of a crime will be found at the place to be
Romero takes a creative tact to attacking the search warrant in this case, but one that the Court ultimately rejects. He argues very specifically that the affidavit “lacked sufficient factual basis for a fair probability that ‘it is probable that the murder either occurred in the green Chevrolet Cavalier or the victim’s body was transported to its discovery location in the vehicle.’ ” Affidavit Motion ¶ 16, at 5. He argues that, because the evidence does not support the theory that Scholl proposes in his affidavit, the affidavit as a whole fails to establish probable cause. Romero has failed, however, to provide any authority for the proposition that a magistrate judge must limit his or her probable-cause analysis to whether there exists probable cause to support the agent’s theory why evidence might be found in a particular place. Such a proposition would appear at odds with the magistrate judge’s role of reviewing the facts, and making a neutral, detached, and independent determination whether there exists “a fair probability that contraband or evidence of a crime” could be found in the place to be searched.
Illinois v. Gates,
Moreover, even if the affidavit was not sufficient to create probable cause, the Court would apply the good-faith exception. In cases where law-enforcement officers obtained a warrant but the affidavit supporting the warrant does not estab
II. O. MARTINEZ CONSENTED TO THE AGENTS’ ENTRY AND HAD AUTHORITY TO GRANT CONSENT TO SEARCH ROMERO’S PRIVATE ROOM.
The next time in which Romero asserts that his constitutional rights were violated is when officers entered his private bedroom during a security sweep before they executed the Search and Seizure Warrant on his Cavalier.
See
Bedroom Motion ¶¶ 10-13, at 4. Romero does not directly challenge whether O. Martinez’ consent to the agents’ search was voluntary.
See
Defendant’s Memorandum in Support of Motion to Suppress Evidence Due to Unconstitutional Consensual Entries to Personal Bedroom at 2-3 (“Orlando Martinez ...
A. MARTINEZ’ CONSENT TO SEARCH THE RESIDENCE AT 345 POPAY AVENUE WAS VOLUNTARY.
The agents did not have a search warrant for the residence at 345 Popay Avenue. The United States must therefore show that O. Martinez’ consent to the agents’ request to search the residence was voluntary. For O. Martinez’ consent to have been voluntary, the United States must show that: (i) his consent was unequivocal, specific, and intelligently given; and (ii) the officers did not use any implied or express duress or coercion in obtaining his consent.
See United States v. Sanchez,
(i) the threatening presence of several officers; (ii) the use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory, or, conversely, the officer’s pleasant manner and tone of voice; (iii) the prolonged retention of a person’s personal effects such as identification, or, conversely, the prompt return of the defendant’s identification and papers; (iv) the absence of other members of the public, or, conversely, whether the stop occurs in a public location such as the shoulder of an interstate highway, in public view; (v) the officer’s failure to advise the defendant that [he or] she is free to leave; ... (vi) the display of a weapon[;] and (vii) physical touching by the officer.
United States v. Sedillo,
The Court finds that O. Martinez’ consent was freely and voluntarily given. O. Martinez opened the door on April 16, 2009 to four government agents wearing bullet-proof vests, weighing in favor of finding O. Martinez’ consent involuntary.
See
Tr. at 68:22-69:25 (0. Martinez);
id.
at 95:25-96:13 (Buie). On the other hand, although O. Martinez felt the situation was “tense,” the record indicates that the agents were professional, and did not use aggressive language or tone of voice to suggest that compliance with their request to enter was compulsory.
See id.
at 76:8-79:3 (0. Martinez);
id.
at 97:4-18 (Buie);
id.
at 115:22-116:10 (Buie);
id.
at 118:20-119:13 (Buie). Both O. Martinez and Buie testified that O. Martinez freely cooperated with the agents’ request to search the residence, even though O. Martinez was not told that the search was necessary to ensure the agents’ safety while executing their search warrant.
See id.
at 85:25-86:9 (0. Martinez);
id.
at 97:4-14 (Buie);
id.
at 98:3-18 (Buie). The agents did not demand or retain O. Martinez’ personal effects, which weighs in favor of finding the consent voluntary. Although the record does not allege that the agents advised O. Martinez that he was be free to leave, neither did the agents attempt to detain O. Martinez or to otherwise keep him from
Moreover, the Court finds that the agents involved in the search did not use any implied or express duress or coercion in obtaining his consent.
See United States v. Sanchez,
The record does not show, nor does O. Martinez assert, that the agents conducted themselves in an unprofessional manner.
See
Tr. at 77:21-79:3 (0. Martinez);
United States v. Peña,
B.O. MARTINEZ HAD APPARENT AUTHORITY TO CONSENT TO THE AGENT’S INITIAL SEARCH OF ROMERO’S ROOM.
The crux of Romero’s arguments is that, regardless whether O. Martinez consented to the search of the house in which the agents found Romero, the agents’ entry into Romero’s private bedroom was unauthorized and a violation of the Fourth Amendment. He argues that O. Martinez had neither “mutual use of the [bedroom] by virtue of joint access” or “control for most purposes over it.” Bedroom Motion at 4. Romero’s analysis is incorrect. The Court concludes that O. Martinez had authority to grant the agents consent to search Romero’s room. 15
A third-party, such as O. Martinez, can grant law-enforcement officers consent to search a person’s property when that third-party possesses either actual or apparent authority to consent.
See United States v. Sanchez,
1. O. Martinez Lacked Actual Authority to Consent to the Agents’ Search.
“[A] third party has [actual] authority to consent to a search of property if that third party has either (1) mutual use of the
In the Tenth Circuit, certain relationships between the third-party and a defendant give rise to a presumption that the third-party has control for most purposes.
See United States v. Rith,
In this case, O. Martinez, who consented to the search, is Romero’s stepfather. Although the Tenth Circuit has not decided whether the step-father/stepson relationship creates the same presumption as the father/son relationship, other courts have found that it does.
See, e.g., United States v. Austin,
O. Martinez lacked actual authority to allow the officers to search Romero’s room. Although the presumption exists, and although O. Martinez voluntarily consented to the agents’ search of the house, facts exist that would rebut the
Rith
presumption of actual authority. First, O. Martinez testified during the hearing that he never went into Romero’s room.
See
Tr. at 72:11-23 (Ortega, O. Martinez). He
The only other evidence the United States presented that would meet their burden to show that O. Martinez had actual authority to grant them consent to search Romero’s room is O. Martinez’ statements that he generally has access to the whole house. See Tr. at 72:11-23 (Ortega, O. Martinez). 17 The Court finds that this testimony does not show, by a preponderance of the evidence, that O. Martinez had actual authority. In addition to testifying that he had access to the whole house, he also testified that Romero’s door has a lock and, when Romero lock the door, nobody can access Romero’s room. See Tr. at 84:5-16 (Bustamante, O. Martinez). O. Martinez also testified that he generally does not enter Romero’s room. See Tr. at 72:11-23 (Ortega, O. Martinez). The Court concludes that the United States’ evidence did not establish that O. Martinez had actual authority to consent to the search.
2. O. Martinez Had Apparent Authority to Consent to the Agents’ Search.
O. Martinez had apparent authority, however, over Romero’s room.
18
“Apparent authority arises from the reason
3. There Were No Ambiguous Facts that Might Have Necessitated Further Inquiry by the Agents.
Moreover, the record discloses no “ambiguous facts related to authority” that might have rendered the agents’ reliance on apparent authority unreasonable.
United States v. Kimoana,
This case is not like
United States v. Cos,
in which the Tenth Circuit found that the officers needed to inquire further before their belief that the occupant had authority to consent to search would be reasonable. In
United States v. Cos,
the officers knocked on Cos’ door, looking for Cos, and a young woman answered.
See
The Tenth Circuit contrasted the presence-plus-children fact-pattern in United States v. Cos with situations in which it had found apparent authority:
[W]e recently held that a defendant’s father had apparent authority to consent to the search of a computer located in the defendant’s bedroom. Andrus,483 F.3d at 721 . We reasoned that the officers knew that the defendant’s father owned the home and lived there with family members; that the father paid the internet and cable bill; that even though the computer was located in the defendant’s bedroom, the defendant’s father had access to the room at will; and finally, that “the officers saw the computer in plain view on the desk in [the defendant’s] room and it appeared available for use by other household members.” Id. Similarly, in Kimoana, we based our holding that a third party had apparent authority to consent to the search of a motel room on the fact that a police officer knew that the third party had a key to the room and that he had told the officer that he had stayed there with his cousins. And in Gutierrez-Hermosillo,142 F.3d at 1231 , we concluded that the defendant’s fourteen-year-old daughter, who answered the door of a motel room, had apparent authority to consent to the search of a motel room because border patrol agents had questioned the defendant on the previous day and knew that he and his daughter were traveling together.
United States v. Cos,
This case is more like
United States v. Kimoana,
where the Tenth Circuit found apparent authority to search a hotel room from the officers’ knowledge of two facts: (i) the third party was the cousin of the registered occupant; and (ii) the third party had stayed overnight in the room and had a key.
See
III. ROMERO MADE HIS APRIL 16, 2009 STATEMENTS VOLUNTARILY, AND THE AGENTS DID NOT VIOLATE HIS FOURTH OR FIFTH AMENDMENT RIGHTS.
Romero asks the Court to exclude “any and all evidence and [Romero’s] statements ... as inadmissible,” Statements Motion at 5, because Romero’s statements to the agents were made in violation of the Fifth Amendment, see Statements Motion ¶¶ 6-10, at 2-3. Romero also argues that removing him from his bedroom and temporarily detaining him on the premises of his house violated the Fourth Amendment. See Defendant’s Reply to Government’s Response to Defendant’s Motion to Suppress Evidence Due to Unconstitutional Consensual Entries to Personal Bedroom at 7-9 (Doc. 47). The Court ultimately concludes that both arguments lack a sound basis in law or in the facts of the case and will deny Romero’s motions.
A. ROMERO CONFESSED DURING A TERRY-STOP 21 BASED ON REASONABLE SUSPICION, SO THERE IS NO FOURTH AMENDMENT VIOLATION.
Although Romero challenges the admissibility of his confession under the Fifth Amendment, he also appears to challenge the constitutionality of the agents’ requests that he leave his bedroom and, eventually, that he speak to them outside. See Bedroom Motion at 6-7. Moreover, the United States responds only to Romero’s Fourth Amendment challenges in its various response briefs. The Court will thus analyze Romero’s encounter with the agents under the Fourth Amendment. No Fourth-Amendment violation, however, occurred.
There are three categories of police-citizen interactions: (i) consensual encounters; (ii) investigative stops; and (iii) arrests.
See Oliver v. Woods,
(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of a person’s personal effects; (6) a request to accompany the officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.
United States v. Fox,
The agents’ encounter with Romero was not consensual. A police-citizen encounter is only consensual where it occurs under circumstances where a reasonable person would feel free to end the encounter.
See Oliver v. Woods,
The seizure of Romero did not rise to the level of an arrest. Although Scholl questioned Romero, the encounter was not “characterized by highly intrusive or lengthy search or detention.”
Oliver v. Woods,
The agents were also justified in removing Romero from his bedroom for the purpose of the investigative detention. The Supreme Court has recognized that “there are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention.”
Florida v. Royer,
B. THERE WAS NO CUSTODIAL INTERROGATION, SO THE OFFICERS DID NOT NEED TO GIVE ROMERO HIS MIRANDA WARNINGS.
Romero argues that his confession was taken in violation of the Fifth Amendment, because he was not properly advised of his
Miranda
rights.
See
Statements Motion ¶¶ 2-10, at 2-3. The United States argues that Scholl’s interview of Romero was not a custodial interrogation.
See
Statements Response at 5-10.
“Miranda
rights need only be given to a suspect at the moment that suspect is ‘in custody’ and the questioning meets the legal definition of ‘interrogation.’ ”
United States v. Chee,
The questions that Scholl was asking Romero constituted interrogation. The Supreme Court has determined that interrogation includes any questioning by law-enforcement officers “reasonably likely to elicit an incriminating response.”
Rhode Island v. Innis,
Romero was not, however, in custody at the time that he was questioned.
23
See
The totality of circumstances, including those factors that the Tenth Circuit has set down, weigh against finding that Romero was in custody.
See United States v. Jones,
The first factor weighs somewhat in favor of finding custody. Romero was not explicitly told that he could end the interview at any time or refuse to answer the questions. On the other hand, the agents asked Romero to talk to them, they did not order him to do so. Scholl expressly told Romero that he was not under arrest, see Tr. at 72:24-73:3 (Ortega, O. Martinez); id. at 148:12-149:1 (Ortega, Scholl), which would imply to many people that they were not absolutely required to answer the agents’ questions. Romero was not, however, instructed that he did not need to answer the questions posed, so the Court finds that this factor weighs in favor of finding custodial interrogation.
The second factor, on the other hand, weighs against finding custody. There was nothing excessively coercive — other than the presence of the agents in the general vicinity — -about the circumstances of the questioning. Romero sat in Scholl’s vehicle with two of the agents. Romero had been informed that he was not under arrest before he sat down in the vehicle. He sat down in the front seat, not in the back seat as one would expect if he or she was under arrest. For part of the questioning, the back door of the vehicle was open, suggesting that the encounter was somewhat informal. Both front windows were rolled down during Romero’s interview, which further supports the impression that the interview was informal. There was no prolonged, accusatory questioning involved. As Scholl recalled events, he did nothing more than ask Romero to recount the events of the evening in which Friday was murdered, and Romero began giving a narrative.
See id.
at 149:14-152:19 (Ortega, Scholl). At one point, Romero made a statement that did not square with the other information Scholl had collected, so Scholl presented that inconsistency to Romero.
See id.
at 152:16-24 (Ortega, Scholl). At that point, Romero made his confession.
See id.
at 152:16-153:9 (Ortega, Scholl). Under this set of facts, the Court does not believe that “the nature of the interview” was “likely to create a coercive environment.”
United States v. Jones,
The third factor — -whether the agents dominate the encounter — requires more analysis, but ultimately weighs against finding that Romero was in custody when he made his confession. The factors a court weighs in determining whether agents dominated the encounter are these: (i) separating the suspect from others who could lend moral support; (ii) isolating the suspect in nonpublic questioning rooms; (iii) the threatening presence of multiple agents; (iv) displaying of weapons by an agent; (v) physical contact with the suspect; and (vi) use of language or vocal tones which suggest that compliance with an agent’s request is compulsory.
See United States v. Jones,
The Tenth Circuit is deliberate in emphasizing that courts must consider the circumstances surrounding the police-citizen encounter as a whole rather than exclusively relying on some enumerated factors while ignoring others.
See United States v. Jones,
IV. ROMERO’S CONSENT TO SEARCH HIS BEDROOM WAS VOLUNTARILY GIVEN, AND, EVEN IF IT WERE NOT, THE INEVITABLE-DISCOVERY RULE WOULD APPLY.
Finally, Romero challenges the agents’ second entry into his bedroom — which occurred after he confessed to Friday’s murder — during which the agents seized the shotgun, clothing, and other items of physical evidence.
25
He asserts that such entry
First, the United States cannot rely on the limited consent that O. Martinez granted to the agents. “The scope of a search is generally defined by its expressed object.”
Florida v. Jimeno,
A. ROMERO’S CONSENT WAS VOLUNTARY.
Romero’s consent, however, was valid. First, the Court notes that Romero signed a consent-to-search form. The form is very simple and states the following:
1. I have been asked by Special Agents of the Federal Bureau of Investigation to permit a complete search of: — personal room at 345 Popay Ave., San Juan Pueblo, NM— Items to be seized include shotgun & ammunition 27
2. I have been advised of my right to refuse consent.
3. I give this permission voluntarily.
4. I authorize these agents to take any items which they determine may be related to their investigation.
Consent to Search Form (dated April 16, 2009)(Government Exhibit 4). The form also contains Romero’s signature and Scholl’s signature. The consent-to-search form does not completely resolve the question whether the search was voluntary, but it is a factor weighing strongly in favor of finding that the search was voluntary.
See United States v. Romero,
The remaining factors also weigh in favor of finding Romero’s consent was voluntary. The only factors weighing against finding the consent voluntary are that there were several agents present in the vicinity — two of whom were in the vehicle where Romero sat — and that Romero had just confessed to a very serious crime and been placed under arrest.
28
The Court does not ignore the importance of those factors on the mental state of Romero, but the balance of factors still appears to weigh in favor of finding Romero’s consent was voluntary. In addition to being expressly informed that he could refuse consent, the evidence showed that the conversation that Romero had with Scholl and Grout was congenial. Neither Scholl nor Grout used aggressive language or tone of voice suggesting that Romero was required to consent. Neither Scholl nor Grout was in possession of Romero’s personal effects, such as his identification or other papers.
29
Next, Romero was not in a private,- isolated place when Scholl asked him to sign the consent to search; rather, he was in full view of the public through the windows of the agent’s vehicle. Finally, none of the agents displayed their weapons or physically touched Romero, other than as necessary to place him under arrest for the crime to which he confessed.
See United States v. Fox,
In determining whether a consent to search was free from coercion, a court should consider, inter alia, physical mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant within the totality of the circumstances. An officer’s request for consent to search does not taint an otherwise consensual encounter “as long as the police do not convey a message that compliance with their request is required.”
United States v. Peña,
B. IF THE AGENTS’ SECOND ENTRY VIOLATED THE FOURTH AMENDMENT, THE INEVITABLE-DISCOVERY DOCTRINE APPLIES, AND THE COURT NEED NOT SUPPRESS THE EVIDENCE SEIZED.
Even if the second entry into Romero’s bedroom constituted a violation of Romero’s Fourth Amendment rights, the Court would not exclude the evidence because law-enforcement officers would have inevitably discovered that evidence. The inevitable-discovery doctrine is an exception to the exclusionary rule. The doctrine allows a court to admit unconstitutionally obtained evidence “if an independent, lawful police investigation inevitably would have discovered it.”
United States v. Owens,
The Court can say that a preponderance of the evidence demonstrates that an independent and lawful police investigation would have uncovered the evidence in Romero’s bedroom. The alleged constitutional violation was the agents’ second entry into Romero’s house and bedroom, after they had already seen the evidence they desired to seize and obtained Romero’s confession to Friday’s murder. The Court thus envisions the facts as they would exist if that potential constitutional violation had not occurred.
If the agents had not sought Romero’s consent to search, the next logical step would have been to return to Judge Puglisi and seek another search warrant. The affidavit for that search warrant would have contained the same information currently contained in Scholl’s affidavit and two very important new facts. First, it would have stated that investigating agents personally saw a weapon fitting the description of the murder weapon in Romero’s bedroom. Second, and more importantly, it would have stated that Romero confessed to the killing and admitted that the shotgun in his bedroom was the murder weapon. These facts would have established probable cause to issue a search warrant for Romero’s bedroom. With Romero in custody, he would be unable to tamper with the condition of his room, thus decreasing the likelihood that the shotgun, ammunition, and other evidence would be gone by the time the agents obtained and executed the search warrant. The only reason those items might be missing by the time the agents returned is if Romero’s mother or O. Martinez concealed them to protect their son/ step-son. The Court is hesitant to assume that a person will commit the crime of obstruction of justice, even if it is to protect his or her child. Thus, although the Tenth Circuit has warned of the “danger of admitting unlawfully obtained evidence on the strength of [a] judge’s speculation that it would have been discovered legally anyway,”
United States v. Owens,
IT IS ORDERED that the Defendant’s Motion to Suppress Defendant’s April 16, 2009 Statement and Memorandum in Support (Doc. 30); the Defendant’s Motion to Suppress Evidence Due to Lack of Probable Cause in Search Warrant Affidavit (Doc. 31); and the Defendant’s Motion to Suppress Evidence Due to Unconstitutional Consensual Entries to Personal Bedroom (Doc. 33) are denied.
Notes
. The Court’s citations to the transcript of the hearing refers to the court reporter's original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
. Scholl’s affidavit indicates that Tapia-Talache is Romero’s grandmother. Martinez’ testimony is in conflict by suggesting that Tapia-Talache is Romero's aunt. Because the precise relationship between Romero and Tapia-Talache is immaterial, the Court credits neither witness’ testimony and instead deems it sufficient to find that they are relatives.
. The agents’ and O. Martinez’ testimony conflict whether the agents held their weapons at the time O. Martinez opened the door. See Tr. at 78:19-79:3 (Bustamante, O. Martinez) (O. Martinez describing the weapons as "drawn out to the side [and] ... out," but not pointed at anyone); id. at 88:13-20 (Bustamante, O. Martinez) (O. Martinez describing the weapons as "off to the side and pointing downwards,” and "drawn down and ready in case they needed to defend themselves”); id. at 114:22-115:10 (Buie, Ortega)(Buie describing the weapons as “holstered” except for Grout’s M4 which was too long to be holstered). The Court first notes that Fischer's independent testimony corroborates Buie’s testimony. Moreover, the Court finds the agents more credible on this factual issue than O. Martinez based on their respective demeanors and some inconsistencies in O. Martinez’ story. The Court thus credits the agents’ testimony on this factual issue, and finds that their sidearms were holstered and Grout's M4 was slung over his shoulder.
. During the hearing on this motion, O. Martinez testified that, in response to the officer's questions, he told the officers he did not know if Romero was home. See Tr. at 69:23-70:19 (O. Martinez). Buie, however, testified that O. Martinez responded that Romero was not at home. See Tr. at 96:25-97:3 (Ortega, Buie); id. at 121:22-122:7 (Bustamante, Buie). This inconsistency is not particularly relevant to the issues that the Court must decide. Nevertheless, the Court finds Buie's testimony more credible on this factual issue. Their respective demeanors while testifying indicated to the Court that Buie was more confident in his recollections than O. Martinez.
. The testimony of O. Martinez and Buie conflict concerning whether O. Martinez was advised that the security sweep was for the purpose of the agents’ personal safety. O. Martinez asserts that he was not so advised, and Buie's testimony is to the contrary. There is no testimony suggesting that O. Martinez asked why the entry was necessary before granting consent. Both witnesses suggested that O. Martinez was cooperative and freely acquiesced to the agent's request to enter the residence. In light of the agents' admitted failure to also advise O. Martinez that the purpose for the search was to safely execute the warrant or that it was standard to conduct security sweeps prior to warrant execution, the Court credits O. Martinez’ testimony on this factual issue.
. O. Martinez indicated at the hearing that he felt "nervous, surprised, and intimidated” by the agents’ presence, and that his compliance was a result, at least in part, of his ability to see the agents’ weapons.
See
Tr. at 70:24-25 (O. Martinez);
id.
at 79:13-16 (Bustamante, O. Martinez). As the Court notes, O. Martinez did not give any indications which a reasonable police officer would have thought indicated lack of consent. O. Martinez’ internal thoughts and feelings are irrelevant as long as he objectively manifested consent and the agents' actions were, from an objective standpoint, non-coercive.
See United States v. Sedillo,
No. CR 08-1419 JB,
. Neither party sought to introduce a picture of the door or otherwise show the Court the lock that Romero contends is on his bedroom door. The Court has no reason to doubt that . some locking devise exists, but the Court credits Buie’s testimony that he did not see it when doing his sweep through the house. The Court thus concludes that the lock is not clearly visible.
.
Miranda v. Arizona,
. The United States also cites to
Wong Sun v. United States,
. In his reply brief, Romero points out that the United States failed to address several of his arguments, such as O. Martinez' lack of apparent or actual authority to consent to the search and the inapplicability of the good-faith exception to the exclusionary rule. See Defendant's Reply to Government’s Response to Defendant’s Motion to Suppress Evidence Due to Unconstitutional Consensual Entries to Personal Bedroom at 2-7, filed January 11, 2010 (Doc. 47).
. Some earlier decisions use the term "common'' authority to refer to what is now called "actual” authority.
Compare Illinois v. Rodriguez,
. Although the Court has found no relevant authority in the Tenth Circuit, other jurisdictions have recognized a step-father’s authority to grant consent to a government agent’s entry and search of premises that a stepchild occupies.
See Johnson v. Weaver,
. The Court has considered Madrid's "veracity and basis of knowledge,” United States v. Danhauer, 229 F.3d at 1006, and notes that he is an apparent eye-witness to most of the facts set forth in Scholl’s affidavit. The Court thus gives Madrid's information significant weight.
. The Court notes that, in Romero’s reply brief, he cites several cases in which the relevant court finds no probable cause to support an arrest.
See
Defendant's Reply to Government’s Response to Defendant’s Motion to Suppress Evidence Due to Lack of Probable Cause in Search Warrant Affidavit at 5-6 (Doc. 46)(citing
Sibron v. New York,
. The Court is unpersuaded by the United States' argument based on the "protective sweep” principle articulated in
Maryland
v.
Buie. See
Bedroom Response at 5-7. The Tenth Circuit has firmly stated that a protective sweep must be executed incident to a valid arrest.
See United States v. Torres-Castro,
. O. Martinez gave the following responses to Mr. Bustamante’s questions:
Q: And that was your perception of the living arrangements and other people's perceptions, correct? That was Carl’s room? A: That was Carl's room.
Q. And in fact, when Carl would leave the home, sometimes he would lock it. Is that true?
A. That’s true.
Q. Okay. And when he locked that room, nobody had access to it, correct?
A. That’s correct.
Tr. at 84:5-16 (Bustamante, O. Martinez). Buie, however, did not recall any lock. He stated: "I’m not saying there wasn't. It wasn’t locked. I think we just tried the handle and it opened.... I don’t remember seeing any other lock there.” Id. at 122:18-22 (Buie). See id. at 122:16-123:11 (Bustamante, Buie). No party sought to introduce a picture of Romero’s door to demonstrate the existence or non-existence of a visible locking device. The Court thus credits both parties’ testimony and finds that there was a lock, but it was not obvious and the agents did not see it.
. O. Martinez’ testimony was:
Q. Okay. Now, you said, sir, that you owned — or you own that residence with your wife Leslie?
A. Yes.
Q. Okay. Did you have access to the entire house?
A. Yes, we do.
Tr. at 72:11-23 (Ortega, O. Martinez).
. Romero contests O. Martinez' apparent authority, but does not provide any substantive legal argument in that regard.
See
Defendant’s Memorandum in Support of Motion to Suppress Evidence Due to Unconstitutional Consensual Entries to Personal Bedroom at 5 (Doc. 34)("Also, Mr. Martinez lacked apparent authority to consent to a search of Mr. Romero’s personal bedroom.”)(citing
United States v. Cos,
. The Tenth Circuit sometimes discusses a parent's authority to consent to the search of an adult child's room in the language of presumptions.
See United States
v.
Rith,
. This analysis does not entirely dispose of Romero's motion related to entry into his bedroom, because the Court must also determine whether the second entry, allegedly pursuant to Romero's consent, was constitutional. The Court, however, is analyzing the issues in chronological order, so the Court will return to that issue after it has determined whether Romero’s confessions violate his constitutional rights or are otherwise inadmissible.
.
Terry
v.
Ohio,
. Although the Court finds that the agents' encounter with Romero implicated the Fourth Amendment, the Court also notes that, so far as the record reflects, Romero never asked the agents why they were in his room or suggested that O. Martinez could not grant them consent to be there.
. This holding is not inconsistent with the Court’s prior holding that the agents’ conduct constituted a Terry-stop. The Tenth Circuit has acknowledged that, "[gjenerally,
‘Miranda
warnings are ... not implicated in the context of a valid
Terry
stop.’ ”
United States v.
. While a holstered weapon might still be intimidating in some respects, the Court believes it should not weigh that factor heavily in analyzing the coerciveness of a police-citizen encounter. Firearms are standard issue equipment for law-enforcement agents and more-or-less always present. The Court believes the holstered sidearm is bound up in the nature of a law-enforcement agent and does not make the encounter any more intimidating than the mere presence of the agent.
. The Tenth Circuit has recognized that it is unclear whether an officer who was lawfully inside a home and spotted items of contraband in plain view may leave the home and then return to seize those items in a second, unauthorized entry. See
Hams v. Ford,
. During this thirty-minute time period, two or three female agents stayed with O. Martinez and thus were apparently present in his livingroom during Scholl’s and Grout’s interview with Romero. See Tr. at 73:23-75:5 (Ortega, O. Martinez). Nobody challenges those limited entries into O. Martinez’ house as violating Romero’s rights, and no evidence was found during them. The Court thus does not analyze whether O. Martinez’ consent extended to these agents' decision to stay with O. Martinez.
. These two bullet points are hand-written on the form. It is not clear whether it is the handwriting of Scholl or Romero. Both Scholl and Romero signed the form.
. Scholl’s testimony indicates that Romero verbally gave the agents consent to search his room after his confession but before the agents placed him under arrest. Romero did not sign the consent-to-search form, however, until after he had been handcuffed and placed in Fischer’s vehicle. See Tr. at 155:4-156:19 (Ortega, Scholl).
. The Court realizes that this factor arose in cases dealing with consent to search automobiles and thus is a poor fit for determining whether consent to search a bedroom is voluntary. The Court thus does not weigh this factor heavily under these circumstances, but notes that it weighs in favor of finding Romero’s consent was voluntarily given.
. As the Court understands the facts, Romero was placed in custody before the agents obtained his written consent to the search, but his consent to search preceded any
Miranda
warnings. The Tenth Circuit has held 'several times, however, that a consent to search is not an interrogation that necessitates
Miranda
warnings.
See United States v. Curls,