United States v. Eligio Mendez
Opinion
*905
Eligio San Miguel Mendez was one of the targets of a gang and narcotics investigation. Officers secured a search warrant for his residence but were unable to arrange for a SWAT team to assist them. As a result, they decided to wait for him to leave the residence before moving in for the search. Once he left, the officer leading the search directed nearby officers to stop his vehicle and detain him while the search was underway. The Government does not contest on appeal that the stop was in violation of
Bailey v. United States
,
I.
In January 2015, Special Agent Richard Russell of the Texas Department of Public Safety ("DPS") started investigating the Tango Corpitos gang in Corpus Christi. The investigation quickly led Russell to Eligio San Miguel Mendez. Russell discovered that Mendez had, in his words, "quite an extensive criminal history." During the investigation, Russell, working undercover, and a confidential source allegedly bought narcotics from Mendez on several occasions. Russell testified at the suppression hearing that Mendez sold narcotics from a property that was partially a mechanic shop and partially a residence. Mendez lived there with his father, girlfriend, and child.
Russell secured a search warrant for Mendez's residence on February 18, 2015, which he planned to execute two days later. Russell had obtained a no-knock warrant based on information that Mendez was dangerous and "very unstable." Mendez was a suspect in a drive-by shooting, and Russell saw bullet holes in vehicles around his residence. Russell was also aware of Mendez's extensive criminal history and believed that Mendez had firearms at the residence. At the suppression hearing, Russell testified that he tried to find a SWAT team to assist in the search. His efforts were ultimately unsuccessful. The DPS SWAT team was unavailable. Although the Corpus Christi Police Department's SWAT team initially agreed to help, two of its members were shot the day before the search while executing a narcotics search warrant at another residence nearby.
Unable to secure a SWAT team, Russell instead decided to surveil Mendez's residence and execute the warrant only once he had left. And so Russell parked his *906 unmarked car across the street from Mendez's residence at 8:30 in the morning on February 20. An entry team and two marked Corpus Christi police cars were stationed a short distance away, out of sight of the residence. Russell waited an hour and a half for Mendez to leave. During that time, he saw Mendez engage in what he believed, based on his training and experience, to be hand-to-hand drug transactions.
Mendez finally left the residence with his girlfriend around 10:00 a.m. As soon as Mendez left the residence, Russell told the entry team to move in and start the search. Russell then contacted the marked units and told them to stop Mendez. Russell immediately began to follow Mendez, who, according to Russell, "was moving pretty quick." Once the marked units caught up, Russell pulled over to the side and let them pass him. The marked units ultimately stopped Mendez less than one minute after he left his residence, roughly a half-mile away. Russell returned to the residence after he saw the marked units stop Mendez.
Officer Adam Thurman-one of the officers who stopped Mendez-testified at the suppression hearing. He explained that he stopped Mendez solely because Russell asked him to. He had not seen Mendez commit any traffic violations and had no reason to believe that he was carrying contraband. Nor was there any indication that Mendez was returning to the residence. Thurman knew, however, that DPS believed that Mendez was armed and dangerous, and he attended Russell's pre-search briefing. After he stopped Mendez, Thurman frisked him and detained him in the back of Thurman's vehicle. The officers detained Mendez's girlfriend in a separate vehicle. Thurman then did a "security sweep" of Mendez's vehicle. He opened a purse that he found on the floorboard in front of the passenger seat. Inside, he found an object wrapped tightly in a blue bandana. The object felt like a pistol or revolver, but Thurman did not unwrap the bandana or inspect the object. That object turned out to be a revolver, fully loaded with five rounds. During this time, Thurman asked Mendez for identifying information but did not question him about anything else.
Thurman drove Mendez back to the residence once it had been secured. During the search, officers discovered loose ammunition and an empty Glock pistol case. 1 After officers completed the search, they transported Mendez to the DPS office, where they placed him under arrest and interrogated him.
Juan Hernandez, an agent of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), interrogated Mendez along with DPS agent David Poland and testified at the suppression hearing. The agents advised Mendez of his Miranda rights, which he agreed to waive. Hernandez testified that Mendez told officers that the revolver found in the vehicle belonged to him. Hernandez told Mendez that he had not been able to search the residence thoroughly and asked Mendez to tell him what the search team had found. According to Hernandez, Mendez told him that the search team should have found some ammunition and a Glock pistol. Based on Mendez's statements, Russell and Hernandez returned to the residence to search for the pistol. Mendez's father, who lived at the residence, consented in writing to the search. Russell and Hernandez quickly *907 found the pistol, as well as additional rounds of ammunition, in the place Mendez told them it would be.
A grand jury returned a one-count indictment charging Mendez with being a felon in possession of a firearm, in violation of
The court subsequently granted the motion in part and denied it in part. Specifically, the court held that the stop of Mendez nearly a half-mile from his home was unlawful under
Bailey v. United States
,
Mendez was convicted following a jury trial during which excerpts from his custodial interview were played. The district court sentenced him to 84 months of incarceration and three years of supervised release. Mendez now appeals the ruling on the motion to suppress. He argues that the district court erred by basing its finding of attenuation solely on his intervening arrest. Although we conclude that the district court likely erred by considering only Mendez's intervening arrest, we nonetheless conclude that the Government sufficiently demonstrated attenuation.
II.
The parties disagree about the standard of review. On review of a motion to suppress, we typically review the district court's factual findings for clear error and its legal conclusions de novo.
See, e.g.
,
United States v. Hernandez
,
The Government concedes that this standard should apply to Mendez's argument that the district court erred by concluding that the intervening lawful arrest, standing alone, established attenuation. However, the Government argues that plain error review should apply to Mendez's argument that the district court was required to examine other factors relevant to the attenuation analysis. According to the Government, Mendez should have objected below and given the district court the opportunity to correct these alleged errors.
The Government is only half right. An error not brought to the district court's attention is, as the Government notes, subject to plain error review.
See
Fed. R. Crim. P. 52(b). But taking an exception to an adverse ruling is unnecessary.
See
Fed. R. Crim. P. 51(a) ;
United States v. Delgado
,
But Mendez also argues on appeal that the unlawful search of his vehicle tainted his subsequent statements. This presents a related but different issue. As we explain later, the attenuation analysis differs slightly when the official misconduct is a search rather than a seizure. Mendez's failure to identify the search as a source of his statements, independent of his arrest, deprived the Government of the opportunity to meet its burden to show attenuation in the district court. Although the Government called Hernandez to testify, Mendez did not cross-examine him or present any other evidence that Hernandez used the revolver to pressure Mendez into confessing to ownership of the ammunition and pistol. As a result, we review this separate claim only for plain error. Mendez must demonstrate a plain error that affected his substantial rights.
See
United States v. Olano
,
*909
United States v. Escalante-Reyes
,
III.
The Fourth Amendment commands that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The exclusionary rule provides the typical remedy for Fourth Amendment violations: suppression of the evidence at trial.
See
Utah v. Strieff
, --- U.S. ----,
The attenuation doctrine "evaluates the causal link between the government's unlawful act and the discovery of evidence."
A.
The district court correctly recited the relevant attenuation factors in its order but provided no analysis of temporal proximity or flagrancy. Rather, it determined that Mendez's lawful arrest for being
*910
a felon in possession of ammunition "was sufficient to constitute a break in the chain of events." As we have already made clear, however, the intervening development of probable cause to justify a previously unlawful arrest is an "important attenuating factor" but is not by itself sufficient to establish attenuation.
See
United States v. Cherry
(
Cherry II
),
The parties disagree about the import of this error on appeal. Mendez asks that we vacate his conviction and remand to the district court to make the appropriate findings. The Government, by contrast, urges us to review the record independently and make the attenuation determination ourselves. The Government has the stronger argument in this particular case. Even where the district court has not made any factual findings, we have "independently review[ed] the record to determine whether the district court's decision is supported by 'any reasonable review of the evidence.' "
United States v. Santiago
,
B.
At the outset, we must determine whether Mendez's statements were voluntary before proceeding, if they were, to the attenuation analysis.
See
Brown
,
Under the circumstances, Mendez's statements were voluntary. Poland advised Mendez of his
Miranda
rights,
*911
which Mendez (twice) confirmed he understood and voluntarily waived.
Cf.
Cherry III
,
Mendez argues in his brief that a transcript of excerpts from his interrogation shows that Hernandez threatened to charge Mendez's girlfriend with possession of the revolver discovered during the illegal search. Mendez does not actually argue, however, that this alleged threat rendered his statement involuntary, merely that it demonstrates that the officers exploited the illegal search to obtain a confession. Moreover, by that point in the interview, Mendez had already told Hernandez that he had ammunition in the residence, that he owned the pistol, described where the pistol was, and admitted that he bought the pistol for "two bills" (i.e., $200). Those statements all concerned evidence found legally at the residence, not evidence obtained from the illegal stop and search. They demonstrate that Mendez was already talking freely and voluntarily by the time Hernandez brought up Mendez's girlfriend. Accordingly, it is clear that Mendez "spoke as a result of his free and rational choice, with an awareness of his abandonment of the right to remain silent and of the consequences of that decision."
United States v. Rico
,
C.
Having determined that Mendez spoke voluntarily, we move on to the attenuation analysis. Although, as noted previously, the stop and search are analytically distinct in some respects, they were roughly contemporaneous and led to a single challenged confession. Thus, our analyses of the first three Brown factors for the stop and search largely overlap. To the extent that these analyses overlap, we apply the more generous standard of review applicable to our analysis of the stop. Once the analyses begin to part ways, however, a plain error standard will apply to our attenuation analysis of the search.
As noted previously, the officers read the Miranda warnings to Mendez, confirmed that he understood them, and secured a knowing waiver of his rights. This weighs in favor of attenuation.
However, the temporal proximity factor favors Mendez. There are no precise time limits for temporal proximity.
See
United States v. Montgomery
,
The intervening circumstances, by contrast, favor the Government. In
Cherry III
, evidence independent from the illegal arrest established probable cause to arrest the defendant.
See
Finally, the purpose and flagrancy factor favors the Government with respect to both the stop and subsequent search. Suppression of inculpatory evidence is an extraordinary remedy.
See
Hudson
,
We begin with the stop and find that the officers' actions do not rise above the level of negligence. They had initially planned to enter the residence with a SWAT team while Mendez was still there. When that plan fell through, they instead decided that it would be safest to wait for him to leave. They knew that Mendez was armed, dangerous, and unstable. They knew that he was a suspect in a drive-by shooting. They knew that there were bullet-riddled vehicles sitting in his front yard. While waiting to call in the entry team, Russell witnessed Mendez engage in what appeared to be hand-to-hand drug transactions and testified that he believed there was probable cause to stop Mendez even before the search. Although Thurman stopped Mendez only because Russell told him to, he still knew that DPS believed that Mendez was armed and dangerous. Moreover, it is clear that officers attempted to stop Mendez as soon as they could, but the need to conceal their presence from Mendez limited how quickly they could apprehend him once he left the residence. There is no evidence that this was part of a pattern of "systemic or recurrent police misconduct,"
*913
Mendez argues that the misconduct here was purposeful and flagrant. He notes that the Supreme Court had decided
Bailey
two years before he was stopped. He contends that, in light of
Bailey
, this was at the very least reckless or grossly negligent. But this is just another way of saying that the officers violated
Bailey
. It "conflates the standard for an illegal stop with the standard for flagrancy."
Strieff
,
We reach the same conclusion with respect to the subsequent search, though our review of this claim is for plain error only. Thurman testified that he did "a quick security sweep of the vehicle." He also testified that he merely reached inside the purse and felt the bandana and revolver, but did not unwrap the bandana or remove the revolver from the purse. Mendez did not challenge that testimony or seek to undermine it on cross-examination. Thurman's conduct was not purposeful or flagrant under the circumstances. At the time of the search, Thurman (mistakenly) believed that he had lawfully detained Mendez. He had reason to believe that Mendez was armed, and, upon finding no weapon on Mendez, he could have reasonably believed that there was a weapon in the car. The search was not merely some fishing expedition intended to unearth evidence to use against Mendez later. Rather, it was carefully limited to address Thurman's safety concerns, as indicated by his testimony that he did not remove the revolver from the purse. Even though that conduct was unlawful, it was not "flagrant."
Nor does Mendez's speculation regarding the interrogation change the result. Of course, the use of illegally obtained evidence to pressure a suspect to confess will normally weigh heavily against a finding of attenuation.
See
Shetler
,
Q. I-we want to make sure we don't charge anybody else with that gun. If that gun's not your girl's and it's yours, it's yours. You're manning up to it.
A. It's mine, bro.
Q. And the Glock pistol that was in your bedroom, in the back bedroom, that's yours, too?
*914 A. Yes.
According to Mendez, this excerpt warrants remand for examination of the full 90-minute audio recording. Viewed in context, it is far from clear or obvious that Mendez admitted to ownership of the Glock solely because the Government confronted him with the revolver. By that point in the interview, Mendez had already told Hernandez that there was ammunition in the residence, that the ammunition was his, that there was a Glock pistol in the back room of the residence, and that he bought the Glock pistol for $200. Mendez's admission that he bought the pistol was sufficient to establish possession or receipt of the firearm under
Mendez speculates that elsewhere in the interview, Hernandez may have exploited the revolver to pressure Mendez into confessing. He faults the Government for not introducing the entire interview at the suppression hearing. But the Government put Hernandez on the stand to testify about the interview. Hernandez testified that he asked Mendez to tell him what the search team had found, rather than confronting him with the evidence they did find. According to Hernandez, Mendez "was taking ownership pretty much of everything." The Government was not required to put in every possible piece of evidence to rebut any assertion of exploitation that Mendez might conceivably make in the future. Mendez had the opportunity to cross-examine Hernandez but declined to do so. He can hardly say he was unaware of what happened during the interview-he was a party to it. And Mendez's speculation that there might perhaps be further evidence of exploitation somewhere in the remainder of the transcript is hardly sufficient to meet his burden of demonstrating a "clear" or "obvious" error.
See
Olano
,
In sum, only the temporal proximity factor favors Mendez. With respect to both the stop and the subsequent search, the remaining Brown factors weigh heavily in favor of attenuation. Mendez was informed of, understood, and waived his Miranda rights. Mendez's lawful arrest for being a felon in possession of ammunition was a critical intervening circumstance. And, perhaps most importantly, the misconduct at issue was not purposeful and flagrant, but instead motivated by legitimate safety concerns. Finally, Mendez's speculation as to how the officers may have exploited the unlawfully obtained revolver to secure his statements is simply *915 too little, too late. The district court properly admitted the statements.
IV.
For the foregoing reasons, we AFFIRM Mendez's conviction and sentence.
A confidential source had informed DPS that Mendez owned a Glock pistol. When Russell heard that Thurman found a gun in Mendez's vehicle, he initially assumed that it was the Glock. Only when he saw the revolver at the DPS office did he realize that the search team had not recovered Mendez's Glock pistol.
The Government is not appealing the suppression of the revolver, nor does it challenge the district court's conclusion that the stop was unlawful.
Mendez does argue on appeal that a remand is warranted to further explore whether the police used the revolver found during the illegal search to secure Mendez's confession. As we explain later, however, this single factual dispute does not warrant remand to the district court, nor does it change the result on appeal.
Accepting Mendez's definition of "purpose" would render almost all police conduct purposeful. Only truly spur-of-the-moment conduct would seem to escape Mendez's definition.
Cf.
United States v. Green
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. Eligio San Miguel MENDEZ, Defendant-Appellant
- Cited By
- 21 cases
- Status
- Published