United States v. Figueroa-Rivera

UNITED STATES OF AMERICA, Plaintiff, v. FERNANDO FIGUEROA-RIVERA, Defendant.

CRIM. NO. 17-569 (RAM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

February 18, 2020

OPINION AND ORDER

RAÚL M. ARIAS-MARXUACH, United States District Judge.

Pending before the Court is Defendant Fernando Figueroa-Rivera's November 11, 2018 Amended Motion to Suppress (Docket No. 49) and the Government's opposition thereto (Docket No. 53). Having reviewed the parties' arguments and the documents submitted during the briefing of the original Motion to Suppress (Docket No. 16), the Court hereby DENIES the Amended Motion to Suppress. The February 21, 2020 suppression hearing is converted into a status conference.

I. BACKGROUND

On November 8, 2017, a Grand Jury returned a two-count Indictment against Defendant Fernando Figueroa-Rivera ("Defendant" or "Figueroa-Rivera"). (Docket No. 8). Count One of the Indictment charges violations of 18 U.S.C. 922(g)(1) and 924(a)(2) (Prohibited Person in Possession of Firearm: Convicted Felon). Id. Count Two of the Indictment charges a violation of 18 U.S.C. 922(o) (Illegal Possession of a Machine Gun). Id.

The firearm and other contraband were allegedly seized from Defendant's car pursuant to a search warrant issued on November 3, 2017 by a Municipal Judge of the Commonwealth of Puerto Rico, following a showing of probable cause to search Defendant's car. (Docket No. 18-1). The Search Warrant is based on a sworn statement by Police Officer Jonathan Alindato ("Officer Alindato") (Badge #209) of the Bayamón Municipal Police ("BMP") who reportedly chased Defendant to his house after Figueroa-Rivera ran a stop sign. Officer Alindato's sworn statement is not on the record. However, according to the Search Warrant, Officer Alindato's sworn statement supported the following facts:¹

• That on November 2, 2017, Police Off[icer] Alindato went on duty at 6:00 p.m. at the Municipal Police Station of Bayamon. Once he started his shift, he was assigned preventive patrol in the area of the Falin Torrech Housing Project, Road 167, Road #2, and Street 24 in Sierra Bayamon, along with fellow officer Gilbeli Lebron, badge #155.

• Subsequently, around 1:28 a.m. approximately, on November 3, 2017 by then, Police Officer Alindato was patrolling on Street 24 in Sierra Bayamón on a duly-marked motorcycle with his patrol lights on, along with Police Off[icer]. Lebron. As they reached the intersection with Street 57, he saw a blue SUV driveout of this street (57) at very high speed, ignoring the STOP sign, and pull into Street 24 heading toward us. The vehicle started driving in the middle of both lanes, going against traffic, almost hitting the police officers. They immediately made a U-turn to stop the driver of this vehicle. When they turned on their sirens, the vehicle accelerated, initiating a chase.

• The officers never lost sight of the vehicle, which was at a distance of approximately 20 feet from them. The vehicle turned right onto Street 21 of Sierra Bayamon and parked on that street in front of residence #10, Block 19 of the Subdivision. Police Officer Alindato immediately headed toward the driver of the vehicle, who had already gotten out of the vehicle. He informed him of the reason why he was stopping him and asked him for the usual documents (driver's [license] and vehicle registration). He told him that he didn't have any type of identification and gave him the vehicle registration, which turned out to be a light blue, four (4) door, Toyota, Highlander SUV, license plate number ETW-618, serial number JTEGD21A220039063. When Officer Alindato checked the registration, he noticed that according to the registration, the corresponding registration sticker, number 007924950, had expired in the month of June 2017.

• The officer immediately illuminated the area of the registration sticker and corroborated that the registration sticker of the blue Toyota Highlander had expired. Then he turned on his flashlight to corroborate the SUV's serial number. That is when he noticed that a black magazine stuck out from underneath the driver's seat. He immediately went up to the driver and asked him if he had a permit to carry firearms, and he said no. Therefore, the officer told him his Miranda rights and placed him under arrest.

• Officer Alindato contacted Sgt. Cabranes, badge #8-081, who instructed him to request the presence of the Canine Unit (K-9). Officer Paul Gandía, badge #29916, and his canine Bank, badge #33099, who is trained to identify controlled substances, [hw: He was the only canine they had] [illegible initials] arrived at the scene. Officer Gandía explained to the driver of the blue Toyota Highlander the procedure to follow and then started conducting the inspection. Bank, the canine, alerted to the presence of controlled substances in the driver's door. Therefore, the officers proceeded to seize the vehicle and transport it to the Bayamón Municipal Police Headquarters with the State Police tow truck, which was driven by Officer Lugo, badge #36004.

• The vehicle remains in the custody of police officers from the various shifts at all times. The detainee was transported in a patrol car to the Bayamón Municipal Police Station. His personal information was taken down and his name turned out to be FERNANDO FIGUEROA RIVERA. The detainee was provided his Miranda rights in writing. He read them; affirmed that he understood them; and signed. Sgt. Cabranes instructed Officer Alindato to go to the District Attorney's Office in Bayamon to request a Search and Seizure Warrant against the vehicle of reference and described above, as we believe there may be firearms inside the vehicle, in addition to the magazine that I observed, and controlled substances.

On April 20, 2018, Figueroa-Rivera filed a Motion to Suppress (Docket No. 16). On May 4, 2018, the Government in turn, filed its response in opposition coupled with certified translations of the Search Warrant and traffic tickets issued to Defendant on November 3, 2017. (Docket No. 18). On July 2, 2018, Figueroa-Rivera submitted a declaration under penalty of perjury in support of his Motion to Suppress. (Docket No. 31).

A Magistrate Judge held a hearing on July 27, 2018. She concluded that Defendant had not met the threshold requirements for a Franks hearing and granted Defendant time to determine whether to withdraw or amend his Motion to Suppress. (Docket No. 39).² Defendant filed the Amended Motion to Suppress on November 18, 2018 which the Government opposed on December 7, 2018. (Dockets Nos. 49 and 53). On December 13, 2018, Defendant withdrew his original Motion to Suppress. (Docket No. 55).

The Amended Motion to Suppress remained pending when the case was transferred to the undersigned on December 12, 2019. (Docket No. 86). At the January 13, 2020 Status Conference, Defendant's counsel requested that a hearing on the motion to suppress be held. (Docket No. 88). The hearing was scheduled as requested but with the caveat that the Court would determine if the hearing was in fact required after reviewing the pending motion. Id.

Succinctly stated, Figueroa-Rivera contends that his Fourth Amendment rights were violated because the BMP: (a) conducted the search and seizure without probable cause; and (b) the requirementsof the plain view doctrine were not met as the car was within the curtilage of the house, among other reasons. (Docket No. 49 at 3).

II. APPLICABLE STANDARD

There is "no presumptive right to an evidentiary hearing on a motion to suppress." United States v. Cintron, 724 F.3d 32, 36 (1st Cir. 2013) (citation omitted). A hearing must be held only under certain circumstances, such as "if the movant makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record." Id. (quotation omitted). Most notably, "the defendant must show that there are factual disputes which, if resolved in his favor, would entitle him to the requested relief." Id.

A defendant challenging a warrantless search is entitled to a hearing upon "a sufficient threshold showing that no exception to the warrant requirement applied to the search." Cintron, 724 F.3d at 36. Thus, defendants must "allege facts, 'sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.'" United States v. Agosto-Pacheco, 2019 WL 4566956, at *6 (D.P.R. 2019) (quoting United States v. Calderon, 77 F.3d 6, 9 (1st Cir. 1996)). Further, a defendant challenging probable cause for a search warrant based on a claim that there were false statements in the affidavit supporting the warrant is entitled to a Franks hearing, upon "a substantial preliminary showing that a false statement (or omission) was (1) 'knowingly and intentionally, or with reckless disregard for the truth ... included by the affiant in the warrant affidavit,' and (2) 'necessary to the finding of probable cause.'" United States v. Apicelli, 839 F.3d. 75, 81 (1st Cir. 2016) (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). The First Circuit has held that "[a]ffidavits supporting search warrants are presumptively valid." United States v. Fleury, 842 F.3d 774, 778 (1st Cir. 2016) (quotation marks omitted).

To make these showings, Defendant's allegations "must be accompanied by an offer of proof." Franks, 438 U.S. at 155-171. This means that "[t]hey should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons." Id. These statements may include "[a]ffidavits of sworn or otherwise reliable statements of witnesses [...], or their absence satisfactorily explained." Id.; see also, United States v. Moon, 802 F.3d 135, 149 (1st Cir. 2015) (citation omitted) (explaining that conclusory allegations fall "well short of the 'substantial preliminary showing' necessary to justify a Franks hearing." ); ...