United States District Court, N.D. California
For Heri Garcia, Defendant: Jerome Emory Matthews, LEAD ATTORNEY, Office of the Federal Public Defender, Oakland, CA.
For USA, Plaintiff: Kimberly Eloise Hopkins, LEAD ATTORNEY, United States Attorneys Office, San Francisco, CA.
ORDER DENYING MOTION TO SUPPRESS
JON S. TIGAR, United States District Judge.
Re: ECF No. 29
Defendant Heri Garcia (" Defendant" or " Garcia" ) has " move[d] for an order suppressing all fruits of the warrantless search of an automobile and cell phone, and the seizure of his person, all of which occurred on 20 August 2011, suppressing all statements made by any person during the course of that search or during the course of any interrogation or interview by law enforcement personnel, and suppressing the results of any DNA testing that followed the search and seizure." Motion to Suppress (" Mot." ), ECF No. 29. The matter came for hearing on Wednesday, August 20.
A. Procedural History
In September 2013, the United States indicted Defendant for violation of 18 U.S.C. 922(g)(1), felon in possession of a firearm and ammunition, and 18 U.S.C. § 924(d)(1), gun forfeiture. Defendant filed the instant motion to suppress on June 30, 2014. The only evidence Defendant submitted in support of his motion were the two police reports prepared by the arresting officers, the accuracy of which Defendant does not concede. Mot., at 2, n. 1.
In response, the United States argued that two exceptions to the warrant requirement permitted the warrantless search of Defendant's automobile: Defendant's consent, and the " automobile exception" to the warrant requirement. Government's Response to Defendant's Motion to Suppress (" Resp." ), ECF No. 30. The United States submitted the same two police reports as exhibits to a declaration.
After the deadline to file a reply brief had passed, Defendant filed a reply brief in support of his motion to suppress. Heri Garcia's Reply in Support of Motion to Suppress Evidence and Request for an Evidentiary Hearing (" Reply" ), ECF No. 32. In support of his reply, Defendant produced a declaration by Andre Barocio, a percipient witness to the challenged searches. Declaration of Andre Barocio (" Barocio Decl." ), ECF No. 32-2. The Court denied the United States' motion to strike the reply, but granted the United States leave to file a sur-reply, which it did. ECF No. 35.
B. Factual Background
Early in the morning of August 20, 2011, Concord Police Department (" CPD" ) Officers Montero and VanDiver were on routine patrol, dressed in uniform but in an unmarked vehicle parked in the parking lot of a Wendy's restaurant in Concord, California directly across the street from La Cabana Bar & Grill. Exhibit A to
Declaration of Kimberly Hopkins, ECF No. 31-1 (" Montero Report" ), at 2; Exhibit B to Declaration of Kimberly Hopkins, ECF No. 31-2 (" VanDiver Report" ), at 1-2. At about 1:30 a.m., Andre Barocio and Mary Soto, observed by Officer Montero, left La Cabana, walked to Barocio's car, which was parked in the La Cabana parking lot, and got in. Montero Report, at 2; Declaration of Andre Barocio ¶ 4, ECF No. 32-2. Subsequently, Defendant Garcia, observed by Officers Montero and VanDiver, left La Cabana and approached his car, which was parked in the spot adjacent to Barocio's. Barocio Decl. ¶ 4; Montero Report, at 2; VanDiver Report, at 2. The officers then observed Defendant retrieve what appeared to them to be a beer from the driver side of his vehicle, and then drink from it. Montero Report, at 2; VanDiver Report, at 2. Defendant then walked around his car to speak with Barocio and Soto. Montero Report, at 2; VanDiver Report, at 2; Barocio Decl. ¶ 4.
Concord Municipal Code 66-101, Chapter 9.15.010, makes it " unlawful for any person to consume, drink, exhibit or possess an open container of any alcoholic or intoxicating beverage in any quantity in" certain places open to public view, including on " private property open to the public, including but not limited to parking lots and shopping centers, where the sale of alcoholic beverages has not been licensed." Exh. C to Reply. The officers report that they decided to make contact with Garcia because they believed him to be violating this ordinance. Montero Report, at 3; VanDiver Report, at 2.
2. The Officers' Approach
The officers report that they then " contacted," or " pulled up on" Garcia, Barocio and Soto. Montero Report, at 3; VanDiver Report, at 2. Barocio declares that the officers " quickly pulled into the parking lot and stopped behind Mr. Garcia's car," such " that it blocked both Mr. Garcia's car and my car, and prevented us from backing out of our parking spaces." Barocio Decl. ¶ 5. Barocio declares that the officers then " ordered all of us not to move," " ordered Mr. Garcia to place his hands on the trunk of the car," and patted down both Garcia and Barocio. Id. ¶ 6. Neither police report describes these actions.
3. The Searches
Barocio provides only the following description of the officers' communications with Garcia: " After the officers searched us, I heard one of the officers ask Mr. Garcia if they would find anything in Mr. Garcia's car. The officers then searched Mr. Garcia's car without first asking his permission to ...