United States v. Torres-Viruet, Criminal No. 17-307-1 (ADC)

330 F.Supp.3d 708

UNITED STATES of America,

v.Daniel A. TORRES-VIRUET, Defendant.

Criminal No. 17-307-1 (ADC)

United States District Court, D. Puerto Rico.

Signed September 7, 2018

Marie Christine Amy, United States Attorney's Office, San Juan, PR, for United States of America.

Eric A. Vos, Jesus A. Hernandez-Garcia, Federal Public Defender's Office, Hato Rey, PR, for Defendant.

OPINION AND ORDER

AIDA M. DELGADO-COLÓN, United States District Judge

Defendant Daniel A. Torres-Viruet ("Torres") has been charged with one count of being a convicted felon in possession of a firearm, 18 U.S.C. § 922(g)(1) and 924(d)(1). ECF No. 8 . On August 18, 2017, Torres moved the Court to suppress all physical evidence that agents of the Puerto Rico Police Department ("PRPD") seized, asserting that such evidence is the product of a warrantless entry and search of a private home, and an illegal arrest. ECF No. 23 . The Government opposed the motion to suppress. ECF No. 26 . On April 4, 2018, the Court held an evidentiary hearing on Torres's motion. The Court now DENIES Torres's motion to suppress, ECF No. 23 .

I. Findings of Fact¹

Sargent Rafael Andujar-Torres ("Sgt. Andujar"), Badge # 8-16959, has been a PRPD officer in the Fajardo Criminal Investigations Corps ("CIC") since 2015, where he currently oversees the Arrests and Searches Division. He has supervised over 500 arrests during his career. Sgt. Andujar was tasked with locating and arresting Chris García ("García"), who had an outstanding arrest warrant issued by the Commonwealth Court of Fajardo, Puerto Rico, for violation of controlled substances law.² Sgt. Andujar did not know García, nor his whereabouts, and the arrest warrant does not specify García's address or residence.

On May 9, 2017, homicide agents from the Fajardo CIC Division contacted Sgt. Andujar to inform him that they were debriefing an arrestee who claimed to have information regarding García's whereabouts. Sgt. Andujar then checked the NCIC system and verified that the arrest warrant for García was valid and outstanding. Early in the afternoon of May 9, Sgt. Andujar went to the Río Grande Police Station and debriefed the individual, who informed him—in a confidential manner—that García was living in Finca Galateo Public Housing Project ("Finca Galateo"). The confidential source said that García was staying in three different residences in Finca Galateo and would not stay in the same place every night because his life would be in danger if people found out where he slept. One of the residences was on Street # 8, another on Street # 5, and another on Street # 2 within Finca Gataleo. The confidential informant also told him that García had a weapon. Sgt. Andujar did not take notes of the debriefing to instill confidence in and protect the identity of the informant.

On that same day, Sgt. Andujar went, with a fellow officer, to Finca Galateo to corroborate the information, locate the three residences, and set up surveillance. He first went to the residence on Street # 8, but did not see anything. He then followed Street # 8 and turned left onto Street # 5. On Street # 5, close to the front of the administration building of Finca Galateo, he observed García peer his head out of the doorway of residence J-2 to observe Sgt. Andujar's car.³ Reportedly, when García saw Sgt. Andujar's car, ducked inside the residence, and closed the door.

Sgt. Andujar observed García from a distance of approximately 25 feet, during the daytime, for approximately 5 or 6 seconds. Sgt. Andujar was familiar with García's description because he had been searching for him for a while, and he recognized García from two pictures provided by the police officer that had filed the state drug trafficking charges that led to the issuance of the arrest warrant against him. Exhibits 2 and 3 . Sgt. Andujar had also visited the residence of García's mother, who had corroborated that the two photos were of García. During his testimony, Sgt. Andujar observed that in one of the pictures, Exhibit 2 , García had a darker skin tone. On May 9, 2017, García had a darker skin tone, similar to the one shown in Exhibit 2 .

Sgt. Andujar decided he could not arrest García at that moment because there were people walking around the neighborhood and the drug point was active. The drug point is across the street from the administration building, about 50-60 feet from the J-2 residence. Sgt. Andujar had visited Finca Galateo on many occasions because it is a well-known high-crime area. During one of his visits, individuals had opened fire on Sgt. Andujar and other officers, and they had exchanged fire. On that occasion, the officers arrested one individual and seized two assault rifles and ammunitions.

After deciding not to arrest García, Sgt. Andujar located the third residence mentioned by the confidential informant, located on Street # 2. He then left the housing project.

After consulting the matter with fellow officers, Sgt. Andujar created a work plan to arrest García at Finca Galateo. Sgt. Andujar did not obtain a search warrant because the plan was not to search the three houses. Instead, the PRPD officers were to knock on the doors of the residences, identify themselves, explain the purpose of their visit, and ask for permission to enter the house and check if García was present. The working plan included García's name, the information contained in the arrest warrant, and the addresses of the three residences. Sgt. Andujar explained that this is the PRPD's policy, so that the PRPD officers are organized and everyone knows their role. The plan also included the address and information of nearby hospitals, in case there was an emergency.

On May 10, 2017, the officers that were to execute Sgt. Andujar's work plan began their shift at 4:00 a.m. Sgt. Andujar divided the officers into three groups, and each group was to visit one of the houses. Sgt. Andujar's group was to visit the house on Street # 8.

The second witness, Wilder Llanos-Torres, ("Agent Llanos") Badge # 23777, has worked for the PRPD for 21 years. He is assigned to the Fajardo CIC, where he has worked for 5 years. His responsibilities include arresting individuals for whom an arrest warrant has been issued, and he has participated in over 100 arrests. On May 10, 2017, Agent Llanos began his shift at 4:00 a.m. and Sgt. Andujar—his immediate supervisor—assigned him to provide support to a group of officers that were to execute the working plan to arrest García. Agent Llanos was tasked with providing support and security to his fellow officers and any civilians in and around the houses that they were to visit. Sgt. Andujar advised the officers that he believed that García was carrying a firearm.

Agent Llanos testified that, pursuant to the instructions and working plan prepared by Sgt. Andujar, the PRPD Agents were to visit three houses in Finca Galateo. Their instructions were to survey the residences assigned to them, talk to the people who lived there and ask them if they could search the house for García, and arrest García if he was found. They were instructed to arrest any person that attempted to flee. Agent Llanos was to visit the house on Street # 5, along with Officers Ángel Puig, Ángel Acevedo, and Jorge Cruz. Agent Llanos wore khaki pants, a blue polo, a bullet-proof vest, and his police identification badge. He familiarized himself with the likeness of Mr. García through two photos provided by Sgt. Andujar. Exhibits 2 and 3 .

On May 10, 2017, at around 6:00 a.m., Sgt. Andujar arrived at the residence on Street # 8, knocked on the door and spoke with the people present. He corroborated that García was not there. Sgt. Andujar then went to the J-2 residence on Street # 5, where Agent Llanos and another officer were stationed. Sgt. Andujar's group left their vehicles in front of the residence on Street # 5 and walked over to the residence on Street # 2, knocked at the door, and explained that they were looking for García. The residents granted him access to the residence, but García was not there. He then received a call from Agent Llanos, who told him that he did not find García at the J-2 residence, but that they had arrested someone with a weapon. Sgt. Andujar then left the residence # 2, went to street # 5 to supervise, and spoke with Agent Llanos, who told him that he had observed through the window a man that matched García's description, and arrested him.

The PRPD Agents arrived at Finca Galateo at around 6:00 a.m., when the sun had begun to rise but it was not yet daylight. Agent Llanos described the house on street # 5 as a one-level concrete residence, with a carport on its right side with a car inside, a front door to the left of the carport, and white, aluminum windows along the left front of the house. Upon arriving at the front of the house, the officers walked to the front door, crossing the street and the front lawn, which was unfenced and accessible from the sidewalk. Within a minute of arriving at Street # 5, the rest of the agents positioned themselves in front of the door, which was closed.

Agent Llanos positioned himself close to the windows to the left of the front door, approximately 12 inches away from them, close enough to look inside the residence because the windows were open. Exhibit 4 (marked by Agent Llanos) . From the window, and before any agents knocked on the door or announced their presence, Agent Llanos observed inside the residence a man walking along the hallway towards the door and living room, about ten feet away from him. The man was wearing a red hooded sweater with the hood over his head. Agent Llanos could not see the man's face, nor determine his skin tone. At the time, he could not determine if the man was García, but Agent Llanos observed that he had a similar, slender build to García's. He further observed that the man—based on his experience as a police officer—was carrying a dark weapon in his right hand. Llanos testified that he was able to see the...