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United States v. Zuniga-Leija

United States District Court, D. Kansas

July 28, 2017




         This matter comes before the Court on Defendant Jose A. Zuniga-Leija's Motion to Suppress (Doc. 14) a firearm and ammunition seized from the basement of the house where he resided, as well as Defendant's statements made to law enforcement regarding the firearm. Defendant argues law enforcement came into the residence without a warrant or consent. The Government posits that the contact with law enforcement and the ensuing search of the residence was voluntary and consensual. On May 22, 2017, the Court held an evidentiary hearing on the motion to suppress. The parties filed supplemental briefing following the evidentiary hearing.[1]Having reviewed the evidence and the arguments presented by the parties, the Court is now prepared to rule. As described more fully below, the Court grants Defendant's motion to suppress.

         I. Facts

         Based on the testimony of the witnesses at the suppression hearing, the Court finds the following facts by a preponderance of the evidence. At around eleven in the morning on November 22, 2016, four Kansas City, Kansas police officers-Sergeant Angela Joyce, Officer Dylan Passinese, Officer Mark Wilcox, and Officer Lee- and two Homeland Security Investigation Special Agents-Special Agent Tim Ditter and Special Agent Jason Poniatowski- went to the residence that was the home of Defendant Jose Zuniga-Leija, his mother, Blanca Leija-Hernandez, his five minor-age siblings, as well as the home of Defendant's girlfriend and their two children. The officers went to the residence to conduct a “knock and talk”[2] in hopes of finding Ramon Magallanes-Carta, a member of the Traviesos (“TVS”) Hispanic street gang, or Defendant, also a member of the TVS, or someone with information of their whereabouts.

         According to testimony, the residence is a small, two-story house, with a simple layout.[3]A porch spans the entire length of the house. Once an occupant enters the front door, the occupant is standing in the living room. The living room has a wide archway opening that leads to the dining room. The living room to the dining room could be described as an open floor plan. To the left of the dining room is a door leading to a bedroom. The dining room also has a stair case leading to the second floor. There is an open doorway in the dining room that leads to the kitchen, which is in the back of the house. Off the kitchen is a doorway leading to the basement.

         A. Entry to The Residence

         In order to conduct the “knock and talk, ” Ditter, Joyce, and Poniatowski went to the front door of the residence while Lee, Wilcox, and Passinese stood on the perimeter. All of the law enforcement agents wore tactical vests with the word “Police” on them. Ditter, Joyce, and Poniatowski stood on the porch to either side of the door for officer safety. Ditter knocked once using his fist with a normal amount of force. When no one answered, Ditter knocked a second time and the door came ajar and cracked slightly. After the door became ajar, Ditter announced “Police. Is anyone in there?” Joyce, Ditter, and Poniatowski discussed whether to enter the premises for fear it may have been broken into. Before Joyce, Ditter, and Poniatowski could enter, Defendant's 17-year-old sister Ashley came to answer the door. Ashley swung the door open the remainder of the way.

         1. Special Agent Ditter's Testimony

         The testimony about the officers' interaction with Ashley once the door was opened varies significantly. Special Agent Ditter testified that when Ashley swung open the slightly-ajar door, he identified himself as a special agent with Homeland Security and introduced Poniatowski and Joyce. Ditter showed Ashley his badge and asked her if she understood who he was. Ashley answered affirmatively. Ditter indicated that they were conducting an investigation of some illegal activity and asked Ashley for permission to come inside and ask questions. Ashley consented to the three officers coming inside, and the three officers crossed the threshold of the door and entered the home. Ditter further testified that because he was unsure that Ashley was over the age of eighteen, he asked for Ashley's date of birth. Once she said she was seventeen, Ditter asked her if any adults were home. Ashley replied that her mother, Blanca, was home, in the bedroom. Ditter testified that he asked Ashley if she could get Blanca from her bedroom. Ditter heard Sgt. Joyce ask if she could join Ashley to retrieve Blanca. Ditter testified that throughout this interaction, the officers' tone was polite because they were “basically there as their guest, their consent allowed [him] to be there. Everything was calm, very cordial, very friendly.”[4] Ditter further testified that he and Poniatowski remained standing in the living room while Joyce and Ashley went to get Blanca.

         2. Sgt. Joyce's Testimony

         Sgt. Joyce corroborated that Special Agent Ditter identified who he was and showed Ashley his badge. Whereas Ditter testified that he told Ashley they were conducting an investigation, Joyce testified that she asked Ashley if the three officers could enter the residence to step out of the cold and Ashley agreed. Joyce corroborated that Ditter inquired about Ashley's age, determined that she was underage and asked to speak with her mother. Joyce also corroborated Ditter's testimony that he asked Ashley to go get her mother from her bedroom and that Joyce asked if she could accompany Ashley to the bedroom. Joyce further testified that she wanted to accompany Ashley for purposes of officer safety, in case Magallanes-Carta was present, and also to ease the waking mother's mind that officers were in her home. Joyce also testified that Ashley consented to Joyce going with her, and that Ashley told Joyce that her mother had just given birth. Joyce further testified she radioed the officers on the perimeter to let them know they were inside.

         3. Special Agent Poniatowski's Testimony

         Special Agent Poniatowski corroborated that Special Agent Ditter presented his badge and credentials and introduced all three officers, and that one of the officers asked if they could come in and talk, to which Ashley agreed. Poniatowski also corroborated that Ditter asked how old Ashley was, and determining that she was seventeen, Ditter asked if anyone else was present. Ashley stated that her mother was in the first floor bedroom. Poniatowski further testified that one of the officers asked if they could speak with her mother, and Ashley stated she would get her. Poniatowski corroborated Joyce and Ditter's testimony that Joyce asked to accompany Ashley to get Blanca, while he and Ditter remained standing in the living room.

         4. Ashley's Testimony

         Ashley testified that after she opened the slightly ajar door the rest of the way, she saw five men and one woman at the door on the porch. She testified that one of the officers asked her name, but that the officers did not show their badges and never asked her age. Yet, Ashley also testified that the officers asked if there was an adult home, she responded that her mother was home, and that she agreed to go get her mother, at the officers' request. Two male officers and one female officer-presumably Sgt. Joyce as the only female present- stepped inside the house to follow her when she turned to walk toward her mother's room. She testified that no one asked her for permission to come inside. She also testified that Sgt. Joyce did not ask her if she could come with her to get Blanca from her bedroom.

         B. Entry to Blanca's Bedroom

         Once Sgt. Joyce followed Ashley to Blanca's bedroom, Ashley went into the room to wake her mother who was lying in bed with an infant and a toddler. Blanca was asleep, recovering from a recent Caesarean section, on pain medication, and had a drainage tube in her abdomen. Because the small room was filled with a large bed, Joyce stood just outside the door of the bedroom while Ashley entered the room to awaken Blanca. Blanca woke to Ashley and Joyce, a stranger to Blanca at the time. Joyce explained why the officers were there and asked Blanca if she would agree to talking to the officers in the living room. Blanca, who was in a nightgown, stated that she needed help up from the bed. Joyce and Ashley assisted Blanca out of bed, and Blanca used Joyce's arm and assistance in walking to the living room.

         Blanca and Sgt. Joyce both testified that two additional officers- Passinese and Lee- were inside the dining room near the window when Ashley, Joyce, and Blanca walked through the dining room towards the living room.[5] Joyce testified the officers had moved to “where if [she] were to yell out and needed help, they were pretty close and would be there in a couple of seconds.”[6] Joyce further testified that no one had asked Ashley for her consent to Passinese and Lee entering the house. As Blanca, Joyce, and Ashley moved through the dining room to the living room, M.Z., Defendant's 15-year-old sister, came down the stairs.

         C. Consent to Cursory Search

         Once in the living room, Blanca, Joyce, Ashley, and M.Z. joined Special Agents Poniatowski and Ditter. Officers Passinese and Lee remained nearby in the adjacent dining room. Ditter identified himself and showed his credentials to Blanca. Ditter asked if there was anyone else in the house, and Blanca stated there was not. Ditter asked if the officers could conduct a cursory sweep of the residence to search for other people, and Blanca consented.

         Passinese and Poniatowski conducted the search, beginning on the first floor, then moving to the second floor and finally to the basement. In the basement, Poniatowski and Passinese found four individuals-Defendant, Defendant's girlfriend, and their two minor children-lying in bed. Poniatowski announced that they were law enforcement conducting an investigation and speaking with the other family members upstairs. Poniatowski asked if they could join the others upstairs, and Defendant agreed and got dressed. Defendant then walked upstairs with Passinese and Poniatowski. Defendant was not handcuffed or restrained.

         D. Consent to Search For Guns And Contraband

         Once Defendant left the basement and arrived in the living room, he joined Ditter, Joyce, M.Z., Ashley, and Blanca in the living room. Special Agent Ditter shook Defendant's hand and introduced himself. Ditter stated that the officers were there because of suspected criminal activities. At this point, Ditter asked Blanca for consent to search the home for guns, drugs, or other contraband, and she verbally consented. At this point, Ditter also asked Defendant for consent to search the basement for guns, drugs, or other contraband, and he verbally consented.

         Once consent was obtained, Special Agent Ditter and Sgt. Joyce remained in the living room with the family while Special Agent Poniatowski, Officer Passinese, Officer Lee, and Officer Wilcox conducted the search. In the basement, Passinese found a Glock gun case on a shelf and Poniatowski found a loaded Glock 23 firearm wrapped in a fleece blanket in a baby carrier. After those items were located, Poniatowski walked upstairs and informed Ditter about the pistol, ammunition in magazines, and gun case found in the basement.

         At Special Agent Ditter's request, Defendant consented to talking to Ditter in the kitchen. Once in the kitchen, Ditter read Defendant his rights from a Drug Enforcement Agency rights card. Defendant indicated he understood his rights, he waived his rights, and agreed to answer questions. In response to Ditter's questions, Defendant stated that he got the gun for protection from drive-by shootings, he was unlawfully in the United States, he was a member of the TVS gang, and he knew Mallagnes-Carta. At the conclusion of the interview, Defendant was immediately arrested.

         II. Discussion

         The Court finds it need only address the issue of whether the law enforcement officers received knowing and voluntary consent to initially enter the house from Ashley. A “knock and talk” is a consensual encounter and does not contravene the Fourth Amendment, even absent reasonable suspicion.[7] As is necessary for a knock and talk, valid consent requires two elements. First, in the case of third-party consent, the third-party “must have [had] actual or apparent authority to do so.”[8] Second, the consent must be “freely and voluntarily given. Whether a [party] freely and voluntarily gave his consent to a search is a question of fact and is determined from the totality of the circumstances.”[9]

         “[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.”[10] A party has apparent authority if “the officer relies on facts that turn out to be wrong or incomplete so long as the officer's belief at the time of the search was reasonable.”[11]Ashley had mutual use of the property by virtue of joint access because she testified she lived at the home full time. Thus, Ashley had actual authority to consent to the officers' entry into the residence.

         But, the Court finds that Ashley did not consent to the officers' entry into the residence; and even if Ashley consented, officers exceeded the scope of her consent and more importantly, her consent was not voluntarily given. The government must (1) “proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given, ” and (2) the officers must have used no “implied or express duress or coercion.”[12] “To satisfy the first prong of the voluntariness requirement, a defendant's consent must be clear, but it need not be verbal. Consent may instead be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer.”[13] The government bears the burden of proving that consent to enter is given freely and voluntarily.[14] “[T]he question whether a ...

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