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United States v. Portillo-Saravia

United States District Court, S.D. Texas, Houston Division

May 10, 2019

UNITED STATES OF AMERICA,
v.
JOSE BLADEMIR PORTILLO-SARAVIA, and JOSE EFRAIN MATEO.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court are Defendants Jose Blademir Portillo-Saravia's (“Portillo”) and Jose Efrain Mateo's (“Mateo”) Motions to Suppress and Request for Evidentiary Hearing (“Motions to Suppress” or “Motions”) [Docs. # 24, # 25]. The Government filed a response, [1] the Court held a two-day evidentiary hearing, [2]and the parties submitted supplemental briefing.[3] The Motions are now ripe for decision. Based on the evidence and testimony introduced at the hearing, the parties' briefing, counsels' arguments, and pertinent legal authority, the Court grants in part and denies in part both Motions to Suppress.

         I. BACKGROUND

         A. Procedural Background

         On October 31, 2018, a federal grand jury charged Defendants Mateo and Portillo with unlawful possession of a firearm by an illegal alien.[4] See 18 U.S.C. § 922(g)(5)(A).

         In February 2019, Defendants Mateo and Portillo each filed a Motion to Suppress. Defendants contend that the Court should suppress: (1) bullets seized from their persons during a traffic stop, (2) handguns seized from the car they previously occupied, and (3) their statements made at the scene of their arrests. On February 28, 2019, the Government filed a single Response opposing both Motions.

         The Court held a two-day evidentiary hearing on Defendants' Motions.[5]Over the course of the two days, three Houston Police Department (“HPD”) officers testified, and the officers' body camera footage was introduced.[6]Defendants did not testify or call witnesses. Instead, they cross-examined the officers, played segments of the officers' camera footage, presented still images from the footage, introduced transcripts of that footage, [7] and introduced a police report by Officer Cruz and its supplement.[8] Following the hearing, the Government and Defendants submitted supplemental briefing.

         B. Factual Background

         Officer Joseph Cruz is a 10-year veteran of the HPD.[9] On October 3, 2018, Officer Cruz was assigned to District 17 in southwest Houston, a high crime area with a heavy gang presence.[10] At about 4:24 p.m., while driving solo in his patrol car eastbound on Gustine Lane toward South Gessner Road, Officer Cruz saw a maroon Nissan Sentra driving westbound.[11] The Nissan had four occupants, none of whom wore seatbelts.[12]

         Officer Cruz made a U-turn and sped up to catch the Nissan.[13] Traveling behind the Nissan, Officer Cruz testified he observed two occupants appear to move their hands under the car seats, which led Officer Cruz to believe they were hiding objects.[14] After following the Nissan a short distance, Officer Cruz activated his emergency lights and body camera. The Nissan pulled into a nearby apartment complex and parked facing a low concrete curb.[15] Officer Cruz pulled up and parked his patrol car directly behind the Nissan.[16]

         After parking, Officer Cruz stayed in his vehicle and radioed for backup. He also requested a “fingerprinting machine”-a device used to determine whether suspects appear in an HPD mugshot database.[17] The apartment complex where the Nissan and Officer Cruz were parked was a high-crime area with a substantial gang presence-including Mara Salvatrucha, also known as MS-13.[18] Officer Cruz radioed backup that the occupants were “cool, calm, and collected, ” and he told backup “Don't Rush. Don't kill yourself getting over here.”[19]

         Roughly a minute and a half after Officer Cruz parked, the driver and front passenger opened their car doors.[20] Officer Cruz got out of his vehicle and ordered them to close the doors.[21] Both quickly complied.[22] Officer Cruz walked to the side of the Nissan and observed that the occupants were wearing clothing consistent with that worn by the MS-13 gang.[23] Officer Cruz reentered his patrol car and again radioed that the Nissan's occupants appeared “cool.”[24] After his approach, Officer Cruz ran the Nissan's temporary license plate.[25] Officer Cruz testified that the license plate was not a match for a maroon Nissan Sentra.[26]

         A little over seven minutes after Officer Cruz parked, HPD Officers Moises Saldana and Eddie Castillo arrived in their patrol car.[27] The three officers removed, handcuffed, and patted down the Nissan's four occupants. The front passenger and rear driver's side passenger-neither of whom are defendants in this case-were separately detained in the two HPD patrol vehicles.

         Of particular relevance is Officer Saldana's pat down of the Nissan's driver, Defendant Mateo. After Mateo stepped out of the Nissan, Officer Saldana handcuffed and frisked Mateo while questioning him in Spanish, asking for Mateo's name, age, where he lived, and if he had weapons on him or in the car.[28]As part of the frisk, Officer Saldana grabbed Mateo's front right pants pocket.[29] Officer Saldana's grab lasted less than two seconds. Officer Saldana testified that as soon as he grabbed the pocket, he immediately felt that the pocket contained bullets.[30] Officer Cruz told Officer Saldana to “document these guys real good, ” meaning to document them as gang member.[31] Officer Saldana then looked under Mateo's tee shirt's short sleeves and lifted the bottom of the shirt nearly to its neckline in search of gang tattoos.[32]

         Officer Saldana escorted Mateo to Officer Cruz's patrol car and frisked him again.[33] Officer Saldana testified that he frisked Mateo a second time because he was not confident after the first frisk whether Mateo had a weapon on his person.[34] After the second frisk, Officer Saldana removed from Mateo's front right pocket a small bag filled with .22 caliber bullets.[35] Officer Saldana testified that after the second pat down and the removal of bullets from Mateo's pocket, he still was not satisfied that Mateo had no weapons on his person.[36] Officer Saldana told Officer Cruz, who was escorting the front passenger to a police car, that he had discovered bullets.[37]

         At the same time Officer Saldana patted down and questioned Mateo, Officer Castillo patted down and questioned Defendant Portillo, who had previously been sitting in the Nissan's rear passenger-side seat. Officer Castillo testified that when he patted down Portillo's front right pants pocket, he felt that the pocket contained bullets.[38] Officer Castillo asked Portillo in Spanish where the gun was and told Portillo that it would be worse for him if he did not talk.[39]Portillo did not respond. Officer Castillo jostled the outside of Portillo's front right pocket so that the bullets inside made an audible clinking noise, and again asked Portillo where the gun was.[40] Portillo then admitted that there was gun under the car seat.[41] Officer Castillo relayed the information to Officer Cruz, who then searched the car.[42] Officer Cruz recovered a Glock 9 mm handgun from under the front passenger seat and a .22 caliber revolver from under the driver's seat.[43] The officers detained Portillo and Mateo in police vehicles.

         Roughly 30 minutes after Officer Cruz recovered the first gun from the Nissan, Officer Cruz removed Mateo from the police vehicle and questioned him, using Officer Saldana as a translator.[44] During the questioning, Officer Cruz offered to allow Mateo to call his mother, but asked whether there was anything Mateo wanted to let the officers know about the guns. Mateo said there was not. Officer Cruz held out Mateo's cell phone to have Mateo unlock it.[45] When Mateo did, Officer Cruz took the cell phone, and began asking Mateo questions about the phone's contents, stating that various songs and contacts on the phone indicated Mateo was part of the MS-13 gang. Mateo denied being part of the gang. The Officer Cruz told Mateo not to lie and that if he lied they would not let him make a phone call. Officer Cruz asked Mateo if he joined MS-13 for protection. Mateo admitted to being a MS-13 gang member, explaining he joined MS-13 for protection against the Cholo gang. Officer Cruz said that Mateo might have to go to jail for not having a driver's license and for the seatbelt violation. Mateo admitted that the Nissan's other occupants were also MS-13. Officer Cruz's questioning of Mateo lasted over eleven minutes.

         Some fifteen minutes after completing the questioning of Mateo, Officer Cruz removed Portillo, who was still handcuffed behind his back, from the patrol car and questioned him, again using Officer Saldana as a translator.[46] Officer Cruz started with general questions (where he was sitting in the Nissan, what his name was, where he lived, etc.). Officer Cruz then asked Portillo why he had a gun. Portillo responded that he had the gun for protection against the Cholos. Officer Cruz accused Portillo of being a MS-13 gang member and explained that Mateo had said everyone in the Nissan was in the gang. After Portillo denied being a gang member, Officer Cruz continued to press him, asking why Mateo would say Portillo was in MS-13 and why Portillo wore clothes consistent with MS-13. Officer Cruz said that if Portillo continued to lie there would be “issues.” Officer Cruz offered to call Portillo's parents and let them know Portillo was going to jail for a seatbelt violation. Portillo's questioning lasted roughly eleven minutes.

         Officer Cruz testified that when he questioned the Defendants, he had already decided to charge them with unlawful carrying of a weapon.[47] No. Miranda warnings were given to either Mateo or Portillo.[48]

         II. DISCUSSION

         Defendants move to suppress the Glock 9 mm handgun and 9 mm bullets; the .22 caliber revolver and .22 bullets; and Defendants' statements made at the arrest scene. The Government contends that all evidence and statements were lawfully obtained. In the alternative, the Government contends any illegally obtained evidence because its discovery was inevitable. The Court concludes that all the physical evidence is admissible against both Defendants but that Defendants' statements to Officer Cruz made after they were removed from the police vehicles should be suppressed because the statements were obtained in violation of Miranda.

         A. The Duration of the Stop

         Defendants do not challenge that Officer Cruz's initial traffic stop was a lawful seizure based on reasonable suspicion that the Nissan's occupants were not wearing seatbelts, an arrestable misdemeanor in Texas. See Texas Transp. Code Ann. §§ 533.001; 545.413(a), (d). Instead, Defendants contend Officer Cruz unlawfully prolonged the stop by waiting for backup to arrive. Defendants also argue that, after backup arrived, the officers unlawfully prolonged the traffic stop by detouring from the stop's mission to pursue a gang investigation.[49]

         The Court is unpersuaded. Officer Cruz's seven-minute delay to await backup was a minimally burdensome and objectively reasonable safety precaution related to the traffic stop's purpose. Once Officers Saldana and Castillo arrived, the Officers took reasonable steps to attend to safety concerns related to the traffic stop's mission. To the extent the officers impermissibly detoured from the traffic stop's mission, suppression of the physical evidence and statements is unwarranted. No. factual nexus exists between the detours from the purpose of the stop, the resulting brief extension, and the officers' acquisition of the evidence and statements.

         1. Legal Standard

         The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “As the text makes clear, ‘the ultimate touchstone of the Fourth Amendment is “reasonableness.”'” Riley v. California, 573 U.S. 373, 381 (2014) (quoting Brigham City. v. Stuart, 547 U.S. 398, 403 (2006)).

         In general, “on a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the material in question was seized in violation of his constitutional rights.” United States v. Roch, 5 F.3d 894, 897 (5th Cir. 1993). This burden, however, shifts to the Government if the search or seizure in question was performed without a warrant. See United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). The Government must satisfy that burden by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (“[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.”).

         “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure' of ‘persons' within the meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809-10 (1996). “An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable' under the circumstances.” Id. at 810. This “reasonableness” inquiry is objective; it does not depend “on the actual motivations of the individual officers involved.” Id. at 813.

         In the Fifth Circuit, challenges to traffic stops are processed under a two-step inquiry. See United States v. Bams, 858 F.3d 937, 942 (5th Cir. 2017); United States v. Andres, 703 F.3d 828, 832 (5th Cir. 2013). The district court first must determine “whether the stop was justified at its inception, ” that is, whether the officer had an “objectively reasonable suspicion” that a traffic offense occurred or was occurring. See Bams, 858 F.3d at 942.[50] If the stop was justified, the next step is to determine “whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place.” Id. (quoting Andres, 703 F.3d at 832). A traffic stop must “last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges.” Id. (quoting Andres, 703 F.3d at 832).

         The Supreme Court's decision in Rodriguez v. United States guides this Court's approach to the second step. See 135 S.Ct. 1609, 1614-16 (2015). There, police pulled over a vehicle for swerving onto the shoulder. Id. at 1612. After issuing a written warning and returning the driver's license, registration, and proof of insurance, the officer continued to detain the vehicle and its driver to wait for backup so that he could safely conduct a dog sniff. Id. at 1613-14. The dog discovered methamphetamine, and the driver sought to suppress the evidence. Id. at 1613. The district court and Eighth Circuit rejected the driver's challenge, holding that the police's seven or eight minute delay was a permissible de minimis seizure. Id. at 1613-14. The Supreme Court reversed, rejecting the de minimis rule and holding the police's extension of the otherwise completed traffic stop was unlawful absent independent reasonable suspicion supporting the dog sniff. Id. at 1615-17. The Supreme Court remanded for a determination of whether reasonable suspicion of criminal activity justified extension of the stop beyond completion of the traffic infraction investigation. Id. at 1616-17.

         Rodriguez clarified that authority for a traffic stop “ends when tasks tied to the traffic infraction are-or reasonably should have been-completed.” Id. at 1614. This is because the constitutionally tolerable duration of any seizure “is determined by the seizure's ‘mission.'” Id. (quoting Illinois v. Caballes, 543 U.S. 403, 407 (2005)). For a traffic stop, the seizure's mission is “to address the traffic violation that warranted the stop and attend to related safety concerns.” Id. That “mission” also includes inquiries “incident” to the stop, including “checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Id. at 1615. The Court recognized that “[t]raffic stops are ‘especially fraught with danger to police officers,' so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely.” Id. at 1616 (quoting Arizona v. Johnson, 555 U.S. 323, 330 (2009)). Nevertheless, “[o]n-scene investigation into other crimes” and safety precautions taken “to facilitate such detours” impermissibly prolong the stop. Id. at 1616 (emphasis added).

         2. Officer Cruz's Seven-Minute Delay Awaiting Officer Backup Was Justified By Objectively Reasonable Safety Concerns

         The Court concludes that officer safety permitted the roughly seven-minute seizure of Defendants as Officer Cruz awaited backup. Officer Cruz's safety concerns were objectively strong. The traffic stop occurred in a high-crime area with a substantial gang presence. Cf. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“[W]e have previously noted the fact that the stop occurred in a ‘high crime area' among the relevant contextual considerations in a Terry analysis.”). The Nissan had four occupants, and Officer Cruz was alone. See Maryland v. Wilson, 519 U.S. 408, 413 (1997) (“[T]he fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.”). Officer Cruz observed two occupants make body movements consistent with putting something beneath their seats. See United States v. Grant, 349 F.3d 192, 198 (5th Cir. 2003) (noting that “furtive movements in the car” and “fumbling around in the passenger seat” added to officer's reasonable suspicion of criminal activity). When Defendants pulled over, they parked in an apartment complex Officer Cruz knew to be frequently the location for violent crime and had a gang presence. Once Defendants pulled over, Officer Cruz promptly called for backup, which arrived roughly seven minutes later. This delay was constitutionally tolerable because it was a “negligibly burdensome precaution” related to the mission of the traffic stop. See Rodriguez, 135 S.Ct. at 1616.

         3. The Officers Reasonably Extended the Stop to Attend to Related Safety Concerns

         Defendants contend that the officers did not diligently pursue a seatbelt investigation and their extensive safety precautions-removing the occupants from the Nissan, patting them down, questioning them about weapons, and escorting two of them to patrol vehicles-were taken to facilitate a gang investigation, not to issue a seatbelt citation. Accordingly, Defendants argue that the officers' precautions unconstitutionally prolonged the stop.

         The Court is unpersuaded. First, it is fundamental that the officers' subjective state of mind is irrelevant. The Court's inquiry must be objective and does not depend “on the actual motivations of the individual officers involved.” See Whren, 517 U.S. at 813. Thus, the Court does not consider why the officers took the safety precautions. Instead, the Court considers only whether those safety precautions objectively facilitated the safe completion of the traffic stop's mission-investigating and potentially issuing a citation to four individuals for the observed seatbelt violations. The Court concludes they did.

         As a matter of course, an officer who has lawfully stopped a car may order the car's driver and passengers to exit the car. See Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (per curiam) (driver); Maryland v. Wilson, 519 U.S. 408, 410 (1997) (passengers). Once outside the vehicle, a lawfully seized driver or passenger may be patted down for weapons “upon reasonable suspicion that they may be armed and dangerous.” See Johnson, 555 U.S. at 332 (quoting Knowles v. Iowa, 525 U.S. 113, 117-18 (1998)). “Such a limited intrusion does not violate the fourth amendment if the searching officer can point to specific and articulable facts suggesting actual physical risk to himself or others.” United States v. Sink, 586 F.2d 1041, 1048 (5th Cir. 1978).

         Defendants do not contest that the circumstances gave rise to reasonable suspicion they may be armed and dangerous. As previously noted, several factors added to the officers' reasonable suspicion: the stop occurred in a high crime apartment complex; the Nissan contained four occupants; and before the Nissan pulled over, Officer Cruz observed two of the Nissan's occupants appear to hide objects beneath the seats. See Wardlow, 528 U.S. at 124; Wilson, 519 U.S. at 413; Grant, 349 F.3d at 198. Moreover, the Nissan's occupants all wore clothes consistent with the MS-13 street gang. Cf. United States v. Roelandt, 827 F.3d 746, 749 (8th Cir. 2016) (“Knowledge of gang association and recent relevant criminal conduct, while of doubtful evidentiary value in view of the strictures against proving guilt by association or by a predisposition based on past criminal acts, is a permissible component of the articulable suspicion required for a Terry stop.” (alteration in original) (quoting United States v. Feliciano, 45 F.3d 1070, 1074 (7th Cir. 1995))); United States v. Santio, 351 Fed.Appx. 324, 329 (10th Cir. 2009) (unpublished) (“Although gang affiliation or prior criminal conduct cannot, standing alone, create a reasonable suspicion to support a search or seizure, under certain circumstances it may be an appropriate factor in determining if reasonable suspicion exists for a detention or search.”). Based on the totality of the circumstances, the Court concludes that the officers possessed reasonable suspicion to believe the occupants were armed and dangerous, and thus were entitled to pat down the occupants.

         Defendants contend that the safety precautions the officers took were excessive for a traffic stop and thus not reasonably related to the traffic stop's mission. However, the justification for the stop does not limit the reasonable safety precautions officers may take. The Supreme Court has “emphasized” that “the risk of a violent encounter in a traffic-stop setting ‘stems not from the ordinary reaction of a motorist stopped for a [traffic] violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.'” Johnson, 555 U.S. at 331 (quoting Wilson, 519 U.S. at 414).

         Defendants further argue that the officers had to simultaneously take precautions while pursuing a seatbelt investigation. While the officers must “diligently pursue their investigation, ” the Court “should not indulge in unrealistic second-guessing.” See United States v. Sharpe, 470 U.S. 675, 685-86 (1985). Cf. United States v. Hill, 852 F.3d 377, 384 (4th Cir. 2017) (“[T]he Supreme Court's decision in Rodriguez does not require courts to second-guess the logistical choices and actions of a police officer that, individually and collectively, were completed diligently within the confines of a lawful traffic stop.”) It may have been possible, in retrospect, for the officers to secure the scene and simultaneously take more investigative steps. But that possibility does not make it unreasonable for the officers to fully secure the scene before taking steps to investigate and issue a citation for the seatbelt violations.[51]

         4. The Officers' Alleged Detours Do Not Warrant Suppression of ...


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