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United States v. O'brien

United States District Court, W.D. Texas, Austin Division

June 15, 2017

UNITED STATES OF AMERICA
v.
ANDRE MORENO O'BRIEN

          ORDER

          SAM SPARKS UNITED STATES DISTRICT JUDGE.

         BE IT REMEMBERED on the 15th day of June 2017, the Court held a hearing in the above-styled cause, and the parties appeared in person and through counsel. Before the Court are Defendant Andre Moreno O'Brien (O'Brien)'s Motion to Suppress Evidence [#21], the United States (the Government's Response [#25], the Government's Supplemental Brief [#33], and O'Brien's Supplemental Brief [#34]. Having reviewed the documents, the evidence presented at the hearing, the arguments of counsel, and the governing law, the Court now enters the following opinion and order DENYING the motion to suppress.

         Background

         At approximately 12:21 a.m. on September 9, 2016, Austin Police Department (APD) Detectives Brian Molleur and Richard Faithful were in the process of responding to a call to check a triggered alarm system when they were advised through their central dispatch system of the need to respond to a disturbance near 9009 North Plaza, Austin, Texas. Detective Molleur has fourteen years of experience with APD and previously spent five years in the role of patrol officer. Detective Faithful has twenty-six years of experience with APD and previously served over three years as a patrol officer. Although Detectives Molleur and Faithful typically worked as homicide detectives, on September 9, 2016, the Detectives were serving as patrol officers due to a personnel shortage.

         Detectives Molleur and Faithful were not originally assigned to respond to the 9009 North Plaza disturbance call but self-assigned to call after realizing they were no more than two miles away. Detective Molleur testified he was familiar with the area and knew it was prone to criminal activity such as family disturbances and burglaries.

         Both Detectives testified the only information they received about the 9009 North Plaza disturbance call came from the APD computer-aided dispatch system (CAD system).[1] Through a computer in the patrol car, the CAD system updates call information in real-time. The CAD system also logs this data, which can be accessed for later review (CAD logs).

         Concerning the 9009 North Plaza disturbance call, starting at 12:24:07 a.m. the CAD system reported the following:

xfer from 311 [...] unk gc [.. .] cnc [.. .] m vs f... verb [...] mtf occ10 min ago
susp last seen at back to abv loc ... poss still outside
susp is poss bm ... poss wrng dark clothing
no wpns seen [.. .] yes drug use
susp also holding a dark backpack
susp poss still outside gate at rear of complex

Resp. [#25-2] Ex. 2 (CAD logs) at 3.

         From this information, the Detectives testified they learned a telephone call from a female had been transferred from 311, the informational hotline, to APD. The Detectives also learned there had been a verbal altercation between a man and a woman approximately ten minutes ago. The Detectives further testified the CAD system informed them the suspect was possibly a black male, holding a dark backpack, and possibly wearing dark clothing. Furthermore, the CAD system informed the Detectives the suspect was possibly still outside the gate of apartment complex. The relayed information indicated the caller had not seen any weapons but had seen evidence of drug use. In his testimony, Detective Molleur classified the information the Detectives received from the first call via the CAD system as a "general description."

         Shortly after the information from the first call was shared over the CAD system, information from a second call, from a different caller, was appended. CAD logs at 3. After a reference to the second caller's name and telephone number, the following information from the second call was transmitted:

"adv bm wrng gry shirt/gry gym shorts carrying a blk back pack following her car near bldg 130 [. . .] comp now sees susp walking nb on north pis towards the gas station on the corner[.]"

Id. Detective Faithful testified the information from the second call indicated a female caller had complained about a person following her car. The second caller described the suspect as a black male wearing a gray shirt, gray gym shorts, and a black ...


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