United States v. Zavala-Reyes, 1:20-cr-00095-NONE-SKO

UNITED STATES OF AMERICA, Plaintiff, v. JOSE ZAVALA-REYES, Defendant.

No. 1:20-cr-00095-NONE-SKO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 5, 2020

ORDER DENYING MOTION TO SUPPRESS

(Doc. No. 28)

On July 31, 2020, defendant Jose Zavala-Reyes filed a motion to suppress all evidence seized as a result of his encounter with Firebaugh police officers on January 5, 2020. (Doc. No. 28.) The government opposed the motion on August 14, 2020. (Doc. No. 29.) A reply in support of the motion was filed on August 21, 2020. (Doc. No. 67.) The court heard oral argument on the motion on September 4, 2020. Assistant U.S. Attorney Laura D. Withers appeared at the hearing on behalf of the government and Assistant Federal Defender Matthew Lemke appeared on behalf of defendant Zavala-Reyes. For the reasons set forth below, defendant's motion to suppress, as well as his request for an evidentiary hearing in connection with that motion, will be denied.

Background

On June 18, 2020, defendant Zavala-Reyes was indicted on the charge of being an illegal alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). (Doc. No. 22.) There is also a criminal forfeiture allegation in the indictment brought pursuant to 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c). (Id.)

The essential facts surrounding the encounter between two Firebaugh police officers and defendant Zavala-Reyes appear relatively straightforward and undisputed. At approximately 9:47 p.m. on January 5, 2020, Firebaugh Police Department (FPD) received a 911 call from a female caller who reported that a suspicious yellow truck had been parked behind an apartment building for three hours with two males inside. Officers Miller and Monay were dispatched to investigate and located a yellow truck parked at the reported location without its engine running. The officers did not activate their vehicle's emergency lights, nor block the truck's path as they arrived but did turn on their flashlights, given that it was dark, as they approached the parked truck and saw two males inside.¹ Defendant Zavala-Reyes was seated in the driver's seat of the truck. The officers told the two occupants why the officers were there and asked them for identification. The male in the front passenger seat offered an El Salvadoran ID card. Defendant Zavala-Reyes responded that he did not have any identification or driver's license but did state his name and a date of birth, the latter of which was later determined by the officers to be false. When asked by Officer Monay where he lived, defendant Zavala-Reyes responded that he did not know. Officer Monay believed the defendant to be under the influence due to the strong odor of alcohol and marijuana and his bloodshot eyes. He also observed that defendant was avoiding eye contact, fidgeted, trembled, spoke softly and stuttered occasionally and that the passenger was slurring his words, also had bloodshot eyes. When asked by Officer Monay what they were doing, defendant Zavala-Reyes responded he was just hanging out and drinking beer while also acknowledging that he was aware it was unlawful to drink alcohol in public.

While Officer Monay was speaking with defendant Zavala-Reyes, Officer Miller conducted a license check of the truck and learned that there was no record for the temporary license plate or VIN. When asked for the vehicle registration, defendant Zavala-Reyes presented Officer Monay a large manila envelope full of paperwork which he claimed was the registration and told the officer to check his computer if he did not believe the defendant was providing an accurate name and date of birth. The officers then asked for consent to search the truck, defendant Zavala-Reyes consented to the search and was asked to exit the vehicle by the officers. When the defendant opened the driver side door and began to exit the truck, he reached between his legs and grabbed a handgun that was later determined to be loaded. When the officers drew their firearms in response, defendant Zavala-Reyes let go of the gun and was ordered out of the vehicle at gunpoint and placed in a squad car. (Doc. Nos. 29-1, 29-2, 29-3.)

Following his arrest, defendant Zavala-Reyes was booked on charges of assault with a deadly weapon, false identification, possession of a firearm with a controlled substance, and possession of a controlled substance. The passenger of the truck was arrested for drinking in public. On March 4, 2020, defendant was charged by way of complaint in this court with being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5) (Doc. No. 1) and on June 18, 2020, was indicted on that same charge. (Doc. No. 22.)

In moving to suppress all evidence discovered by the officers on January 5, 2020, defendant asserts that because the officers lacked reasonable and articulable suspicion of criminal activity as required under the holding in Terry v. Ohio, 392 U.S. 1 (1968), their interaction with him violated his Fourth Amendment rights. (Doc. No. 28 at 4.) In so arguing, the defendant characterizes the officers' approach of the parked truck as an investigatory stop that could only be justified based upon a reasonable suspicion of criminal activity, which the officers did not have here. (Id.) Defendant refutes any contention that this was a consensual encounter based upon the circumstances surrounding the officers' approach upon the parked truck. (Doc. No. 30 at 2.) Although defendant has submitted no declaration or other evidence, not proffered any testimony or other evidence that would be presented, he nonetheless argues that because his counsel

/////"disputes" the officers' reports and declarations, the "Court should set an evidentiary hearing in order to resolve factual issues underlying the Fourth Amendment issue in this case." (Id. at 3.)

The government opposes the motion to suppress arguing that the officers' approach upon the parked truck, with the defendant and his passenger seated inside, constituted a purely consensual encounter under the undisputed circumstances of this case and that nothing occurred thereafter to transform the encounter into a seizure until the defendant grabbed for a gun as he was getting out of the truck. (Doc. No. 29 at 4-6.) At that point, of course, the government contends that the officers obviously had an objective basis for suspecting criminal activity on the part of the defendant. (Id. at 6.) Alternatively, the government argues that even if a reasonable suspicion of criminal activity was required at the outset, there was a reasonable suspicion as soon as the officers approached the truck to believe the defendant was engaged in criminal activity by drinking in public. (Id. at 7.)

For the reasons explained below, the court concludes that the officers' approach of the parked truck and its occupants was not an investigatory stop but rather a consensual encounter. In addition, given the lack of even a proffer as to what testimony or evidence would be presented at an evidentiary hearing, the court concludes that defendant is not entitled to such a hearing in connection with his motion to suppress evidence. Defendant's motion to suppress evidence and request for an evidentiary hearing will, therefore, both be denied.

Analysis

The Fourth Amendment states, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Particularly relevant to resolution of the pending motion, the Ninth Circuit has stated under circumstances similar to those presented by this case as follows:

A person is seized if "taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Florida v. Bostick, 501 U.S. 429, 437 (1991) (internal quotation marks omitted); see also United States v. Mendenhall, 446 U.S. 544, 554 (1980) (holding that an encounter is a seizure if "a reasonable person would have believed that he was not free to leave"); United States v. Washington, 387 F.3d 1060, 1068 (9th Cir. 2004).

It is well established, however, that the Fourth Amendment is not implicated when law enforcement officers merely approach an individual in public and ask him if he is willing to answer questions. See Muehler v. Mena, 544 U.S. 93, 101 (2005); see also Florida v. Royer, 460 U.S. 491, 497 (1983); United States v. Mendoza-Cepeda, 250 F.3d 626, 628 (8th Cir. 2001). No Fourth Amendment seizure occurs when a law enforcement officer merely identifies himself and poses questions to a person if the person is willing to listen. See Royer, 460 U.S. at 497; see also Orhorhaghe v. INS, 38 F.3d 488, 494 (9th Cir. 1994). This is true whether an officer approaches a person who is on foot or a person who is in a car parked in a public place. See United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994). Moreover, it is clear that the permissible questions may include a request for consent to search, see Muehler, 544 U.S. at 101, "as long as the police do not convey a message that compliance with their requests is required." Bostick, 501 U.S. at 435.

We conclude that although Shaw conceded he suspected Washington of no criminal activity, Shaw's initial encounter with Washington was not a seizure and did not implicate the Fourth Amendment. In approaching the scene, Shaw parked his squad car a full car length behind Washington's car so he did not block it. Shaw did not activate his sirens or lights. Shaw approached Washington's car on foot, and did not brandish his flashlight as a weapon, but rather used it to illuminate the interior of Washington's car. Although Shaw was uniformed, with his baton and firearm visible, Shaw did not touch either weapon during his encounter with Washington. Shaw's initial questioning of Washington was brief and

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