United States v. Flores

          ORDER RE DEFENDANT FLORES’ MOTION TO SUPPRESS FRUITS OF UNLAWFUL DETENTION AND DEFENDANT JIMENEZ’S MOTION TO SUPPRESS STATEMENTS AND REQUEST TO JOIN IN DEFENDANT FLORES’ MOTION (DOC. NOS. 34, 35, 36, 37, 38, AND 39)

         Defendants Luis Flores, Armando Martinez-Tinoco, Juan Martinez-Tinoco, and Ivan Jimenez are each charged in the indictment returned in this case with: (1) conspiracy to manufacture, to distribute and/or to possess with the intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846; (2) manufacture of marijuana and aiding and abetting the same in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2; (3) possession with the intent to distribute marijuana and aiding and abetting the same in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2; and (4) depredation of public lands and resources and aiding and abetting the same in violation of 18 U.S.C §§ 1361 and 2. (Doc. No. 23.)

         On February 1, 2016, counsel on behalf of defendant Flores filed a motion to suppress the alleged unlawful detention and arrest of his client on October 16, 2015 as well as the fruits thereof. (Doc. No. 35.)^[1] Defendants Juan Martinez-Tinoco and Armando Martinez-Tinoco joined in that motion. (Doc. No. 37 and 38.) On February 8, 2016, counsel on behalf of defendant Jimenez filed a motion to suppress statements attributed to Jimenez by law enforcement agents on the grounds that the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Counsel on behalf of defendant Jimenez requested an evidentiary hearing in connection with the motion to suppress his statement. (Doc. No. 39.) Defendant Jimenez also joined in defendant Flores’ motion to suppress. (Id.)

         On April 8, 2016, the court held a hearing on the motions and to determine whether an evidentiary hearing was necessary to their resolution. (Doc. No. 50.) Assistant U.S. Attorney Karen Escobar appeared at the hearing on behalf of the government. Attorney Gary Huss appeared on behalf of defendant Flores, attorney Peter Jones appeared on behalf of defendant Armando Martinez-Tinoco, attorney Daniel Harralson appeared on behalf of defendant Juan Martinez-Tinoco and Assistant Federal Defender Janet Bateman appeared on behalf of defendant Jimenez. (Id.) At the hearing, counsel for each of the parties agreed that no evidentiary hearing was necessary in order to resolve the pending motions.^[2] The court then heard oral argument and took the motion under submission for decision.

         I. The Evidence

         Counsel for defendant Flores filed a declaration signed under penalty of perjury in support of the motion to suppress the fruits of the alleged unlawful detention and arrest of Flores and his two co-defendants. (Doc. No. 36.) That declaration included as exhibits the sworn affidavit of U.S. Forest Service Agent Brian Adams in support of the criminal complaint and arrest warrants for defendants Flores, Armando Martinez-Tinoco and Juan Martinez-Tinoco dated October 16, 2015 as well as reports prepared by the investigating officers. (Id.) Defendant Jimenez filed his own declaration. (Doc. No. 39-1.) In support of their opposition to the pending motions the government filed two declarations by Agent Adams. (Doc. Nos. 41-1 and 42-2.) In reply, defendants filed supplemental declarations by counsel for defendant Juan Martinez-Tinoco as well as his defense investigator. (Doc. Nos. 54 and 55.) Collectively, these declarations and the documents attached thereto as exhibits reflect the following.

         On October 15, 2015, United States Forest Service (“USFS”) Special Agents Brian Adams and B. Smith along with K. Shaw, a warden with the California Department of Fish and Wildlife, discovered a marijuana grow site in the Sequoia National Forest in Tulare County. (Doc. No. 36, at 6 and 17.) As the three walked through the grow site, Warden Smith yelled “Runners!” and Agent Adams saw subjects running up a steep hillside in the opposite direction. (Id.) Agent Adams ran after the suspects but stopped after seeing a large campsite with numerous tents and tarped areas in order to ensure there were no armed suspects in the camp. (Id.) After doing so, Agent Adams then continued after the nearest subject. (Id.) Warden Shaw was closer to that subject than Agent Adams and Adams could see Shaw running through the trees. (Id.) The three officers soon lost sight of the fleeing subjects and were also becoming separated from one another. (Id.) Accordingly, Agent Adams called off the search for the subjects. (Id.) The three officers returned to the campsite and collected evidence and destroyed the excess marijuana and camping equipment. (Id. at 7-8 and 17-18.) Neither Agent Adam’s later affidavit in support of the complaint and arrest warrants nor the officers’ investigative reports contained a description of the subjects who had fled the grow site.

         On October 16, 2015, USFS Officer J. Norris reported that a citizen had contacted him to report suspicious activity. (Id. at 8 and 18.) Specifically, the citizen reported that:

[T]hree Hispanic male subjects [were] sitting near his gate on the Lloyd Meadow Road at 7:00 a.m. This area is approximately a six hour walk from the grow site. The subjects were described as being wet and dirty. The subjects did not have any camping gear or backpacks with them. The subjects asked the citizen for assistance. The three subjects were given a ride to Sierra Gateway Market in Kernville and dropped off. The citizen reported that the subjects purchased new clothing and other items. The citizen said two of the subjects were older and spoke only Spanish and one of the subjects was younger and spoke English. One of the subjects was reported to be named “Luis.”

(Id. at 8.)

         Agent Adams responded to the Sierra Gateway Market and “was advised by the clerk that three subjects matching the citizen’s description were dropped off at the store by a man who said he found them in the mountains. The store clerk said the subjects walked south from the store after purchasing the items and he lost sight of them. The clerk said they bought tourist-type clothing that said ‘Kern River’ on the shirts.” (Id. at 8 and 18.) Agent Adams began checking roads, restaurants, and motels in the area looking for the three subjects. (Id.) The desk clerk of the Pine Cone Inn advised him that three subjects matching the description set forth above had just checked into room two. (Id.) After calling for assistance, Agent Adams did not wait for that assistance but instead proceeded to knocked on the door of room two. (Id.)

         Agent Adams reported that when he did so:

A younger Hispanic male, later identified verbally by the male as Luis Enrique Flores, opened the door. Flores was wearing a blue shirt that said “Kern River” on the front. I asked Flores if he had been in the mountains and he said yes. I could smell the odor of campfire smoke emanating from Flores. I asked the man what he was doing and he said camping near a very large rock. I could see no camping gear in the room and was previously advised by the reporting citizen that the three men had no gear with them when he encountered them. It was very cold and rainy in the mountains on the previous day and night and it would have been difficult and dangerous to be camping in that environment with no equipment. I told the man I knew he was in a marijuana grow and that he had run from me and other officers on the previous day. Flores denied the accusation. I could see another, older man, later identified by a Mexican identification card as Juan Carlos Martinez-Tinoco sitting on a bed in the room. The man was very similar in appearance to the man Warden Shaw and I had chased on the previous day. I told Juan Martinez I recognized him from the marijuana grow when he ran from me and he nervously denied he was there. I asked where the third subject was and both Flores and Juan Martinez said he was in the shower. Both Flores and Juan Martinez were looking nervously at each other and Flores was laughing nervously when I mentioned the marijuana grow site. I asked the Flores if he would step outside of the hotel room and talked to me and he complied. Flores continued to deny being in a marijuana grow. I told Flores I was handcuffing him for my safety and placed him in handcuffs. I then asked Flores and Juan Martinez if I could enter the room and I was told I could enter. I had Flores lay on the bed and asked Juan Martinez to stay seated. I told both men they were not under arrest, but Flores was handcuffed for my safety. I told Flores I would take off the handcuffs when additional units arrived on scene. The third man came out of the shower approximately five minutes later and I asked him to sit in a chair. The man complied. The third man identified himself as Armando Arnoldo Martinez. I told Armando Martinez he was not under arrest. All three subjects kept trying to make statements to me but I told them not to talk at that time. Additional units arrived several minutes later and I took the handcuffs off of Flores. Warden Shaw arrived on scene and saw Juan Martinez and said he was positive Juan Martinez was the man he was chasing in the grow site on the previous day, confirming my observation. Juan Martinez looked at Warden Shaw and smiled and said he remembered him.

(Id. at 8-9.)^[3]

         Agent Adams then separately read Flores, Juan Martinez-Tinoco, and Armando Martinez-Tinoco their Miranda rights. (Id. at 10-11 and 19.) Each of the three stated that they understood their rights, agreed to waive their rights, and individually made statements confirming their connection to the grow site. (Id.)

         On October 17, 2015, Officer Norris received a call at approximately 1:00 p.m. from Tulare County Sherriff’s Deputy B. Minor regarding a Hispanic male subject in his twenties or early thirties who had been given a ride from the Lower Durwood Lodge in Tulare County to the McNally Ranch in Lake Isabella. (Id. at 20.) Deputy Minor had received a call from the owner of the lodge reporting that a subject had been dropped off at the R Ranch in Johnsondale and then taken to the Lower Durwood Lodge. (Id.) The subject had reportedly been separated from his friends and lost in the woods with no water or food after raccoons had eaten his food. (Id.) The subject was also reportedly carrying a blue bag and what appeared to be a bedroll. (Id.) R Ranch is three miles from the location where defendants Flores, Juan Martinez-Tinoco, and Armando Martinez-Tinoco had been first contacted the day before. (Id.) Also on the day before, Officer Norris saw a subject matching this same description walking south along the Lloyd Meadow Road in the area of Lower Peppermint Campground, but did not stop because he was en route to eradicate the grow site. (Id.) Lower Peppermint Campground is approximately three miles from the grow site. (Id.)

         On October 17, 2015, at approximately 1:12 p.m., Officer Norris called the McNally Ranch and spoke to a person identified as Brian. Brian said that a person had been dropped off at his ranch by Dee from the Lower Durwood Lodge. Brian said that this person told him he became separated from three of his friends while hiking. This person also said he was trying to get back to West Covina where he lived. Brian assisted the person by sending him to work with one of his plumbers so that he could make some money to get home. (Id.)

         At approximately 1:34 p.m., Officer Norris advised Agent Adams that he had seen a subject matching the description given by Brian and Deputy Minor walking north on Navajo Drive. (Id. at 20-21.) Norris said that this was the same subject he had seen walking near Lower Peppermint Campground on the previous day. (Id. at 21.) The subject had a camouflage colored jacket. (Id.) Norris contacted the subject and detained him. (Id.) Agent Adams arrived at the intersection of Navajo Drive and Highway 178 approximately one minute after the subject had been detained by Officer Norris. (Id.) Agent Adams describes what took place thereafter as follows:

I contacted the subject and identified him verbally as Ivan De Jesus Jimenez. I identified myself to him and told him he was not under arrest but was being detained. Jimenez spoke English. Using a ruse, I told Jimenez I recognized him as one of the men I had chased in the marijuana grow site on October 15, 2015. I explained the reason for our contact and he spontaneously said he and the other subjects ran from the grow site because they were afraid and he had been lost and was trying to find his way home. I stopped him and asked him not to say anything further. I did not ask Jimenez any questions or otherwise prompt any response from him. We then placed Jimenez in handcuffs and transported him to the Kern Valley Sherriff’s Substation in Lake Isabella for further investigation. Officer Norris went to 5115 Shawnee and recovered the blue bag and bedroll that Jimenez had left there.

(Id. at 21.)

         Once at the substation, Agent Adams read defendant Jimenez his Miranda rights. Jimenez stated he understood his rights, waived then, and gave an inculpatory recorded statement connecting himself to the grow site. (Id.)

         II. Discussion

         1. The Detention of Defendants Flores, Juan Martinez-Tinoco, and Armando Martinez-Tinoco

         Defendant Flores argues in summary fashion that the scope and duration of his detention by Agent Adams at the Pine Cone Inn was “unreasonable under the circumstances, and that the fruits of that unlawful detention” should therefore be suppressed. (Doc. No. 35 at 4.) Flores briefly contends that his detention was unjustified prolonged and turned into a de facto arrest when he was handcuffed outside his hotel room and then told to lay down on the bed inside his room while Agent Adams waited for other officers to arrive in response to his call for assistance. (Id. at 6-7.) Finally, defendant Flores asserts that there was no probable cause or even articulable facts to justify the initiation of his detention, its prolongation or his arrest and that as a result the fruits thereof should all be suppressed. (Id. at 7.) Defendants Juan Martinez-Tinoco and Armando Martinez-Tinoco have joined in the motion and the arguments made in support thereof. (Doc. Nos. 37 and 38.)^[4]

         a. Seizure

         A police officer may initiate a brief investigatory detention based on a reasonable suspicion that the individual detained has committed or is in the process of committing a crime. Terry v. Ohio, 392 U.S. 1 (1968). However, “[t]he Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons . . . that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002). A seizure within the scope of the Fourth Amendment is not automatically found each time a police officer approaches an individual and asks questions. Florida v. Bostick, 501 U.S. 429, 434 (1991). No seizure under the Fourth Amendment takes place so long as a reasonable person would feel free “to disregard the police and go about his business.” California v. Hodari, 499 U.S. 621, 628 (1991). See also United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”); United States v. McClendon, 713 F.3d 1211, 1215 (9th Cir. 2013). However, once an encounter loses its consensual nature, the Fourth Amendment is triggered. Hodari, 499 U.S. at 628. To measure the consensual nature of an encounter, courts have found that “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Bostick, 501 U.S. at 434 (quoting Terry, 392 U.S. at 19 n. 16). See also Brendlin v. California, 551 U.S. 249, 254 (2007); McClendon, 713 F.3d at 1215.

         In this case, defendant Flores was obviously not free to leave the room at the inn when Agent Adams handcuffed him and instructed him to lie on the bed. Likewise, defendants Juan Martinez-Tinoco and Armando Martinez-Tinoco were not free to leave the room when Agent Adams instructed them to be seated after he had placed Flores in handcuffs. A reasonable person would not have felt free to leave the hotel room under these circumstances. Moreover, Agent Adams demonstrated his authority by falsely asserting that he recognized Flores and Juan Martinez-Tinoco as having fled from the marijuana grow site the day before, directing Juan Martinez-Tinoco and Armando Martinez-Tinoco to be seated, and by placing handcuffs on Flores and directing him to lie on the bed.

         b. Full Custodial Arrest

         i. Legal Standard

         There is no “bright line rule for determining when an investigatory stop crosses the line and becomes an arrest.” Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002) (quoting United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988)). See also Green v. City and County of San Francisco, 751 F.3d 1039, 1047 (9th Cir. 2014). Rather, the determination is a fact intensive inquiry. Gallegos, 308 F.3d at 991 (citing Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996)). Making the determination of whether a seizure was an arrest “may in some instances create difficult line-drawing problems.” United States v. Ricardo D., 912 F.2d 337, 339-40 (9th Cir. 1990). This sometimes difficult determination is “guided by the general Fourth Amendment requirement of reasonableness.” Gallegos, 308 F.3d at 991. The Fourth Amendment requires the court to look at the totality of the circumstances and consider 1) the intrusiveness of the stop, which includes the aggressiveness of the police methods, and 2) the justification for the use of such tactics. Washington , 98 F.3d at 1185. The determination is essentially an evaluation of “not only how intrusive the stop was, but also whether the methods used were reasonable given the specific circumstances.” Id.

         An investigative detention must be “temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). The methods used during the stop should be the “least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id.

         ii. Evaluating the Intrusiveness of the Seizure

         Although there is no bright line test for evaluating whether a stop has become an arrest, factors have been identified that courts may consider in making that determination. Washington , 98 F.3d at 1188-90 (listing several factors courts may consider and discussing how each factor affects the analysis); see also Green, 751 F.3d at 1047. For instance, whether a suspect is transported may be considered in determining whether a stop became an arrest. “[T]he police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detention ‘given the specific circumstances of the case.’” United States v. Charley, 396 F.3d 1074 (9th Cir. 2005) (quoting Gallegos, 308 F.3d at 991. Reasons of safety or security may justify the transportation of a suspect during a stop, but absent these justifications the stop may ripen into an arrest where transportation of the suspect is involved. Royer, 460 U.S. at 504 (finding an arrest when the officers transported the suspect forty feet to a private room without any cause to believe the suspect posed a danger or flight risk); United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990) (fact that a suspect was removed from his car and made to lie down in the street was a factor in determining whether an arrest had occurred). The court may also look to the suspect’s actions in evaluating the impact of the officer’s actions in transporting him. Thus, where a suspect is ...