United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge.
On
April 17, 2019, this Court issued its Report and
Recommendation to the District Court recommending that
Defendant Thomas Brice Velasco's (Defendant) motion to
suppress be denied. (Doc. 55.) Defendant filed an objection
and the Government filed a response. (Docs. 58, 63.) On May
15, 2019, the District Court issued an order referring the
matter again to this Court pursuant to 28 U.S.C. §
636(b)(1) and L.R.Civ.P. 72.1 and 72.2 for further
consideration of the issue of whether Defendant has standing
to challenge the search of his truck parked on the property
as asserted by the Government in its response to
Defendant's objection to the April 17, 2019 Report and
Recommendation. (Doc. 65.)
On June
5, 2019, this Court conducted a further evidentiary hearing
on the issue of Defendant's standing. (Doc. 72.) This
Court determines the Defendant lacks standing. Accordingly,
the Magistrate Judge recommends that the District Court,
after its independent review, deny Defendant's motion to
suppress challenging the search of his truck. …
I.
FACTUAL BACKGROUND
The
facts are fully set forth in this Court's Report and
Recommendation issued on April 17, 2019 and are not in
dispute. (Doc. 55.) On April 23, 2016, shortly after 1:00
a.m., Tohono O' Odham Police detective Scout and Officer
Lopez were on foot patrol on Main Street in Sells, Arizona,
when they heard arguing or loud voices and a single gunshot.
Officer Lopez and Det. scout immediately proceed to New House
#67 where the defendant's truck was found parked in the
backyard. Defendant was detained. Det. Scout approached the
truck and shinned his flashlight inside the truck and saw
ammunition in plain view. The ammunition was seized from the
truck and the defendant was arrested for Tribal violations.
II.
DISCUSSION
Defendant
claims he was a regular overnight guest at New House #67 in
Sells, Arizona, and that the property (New House #67)
belonged to his cousin, Luciano Ortega (Ortega). Defendant
contends that “whether or not an individual can show
indices of residency (such as keys to the premises or the
ability to come and go and admit or exclude others), an
overnight guest in another's home has a reasonable
expectation of privacy for purpose of Fourth Amendment
standing.” Minnesota v. Olson, 495 U.S. 91,
96, 98 (1990).
Defendant
attempts to prove his close relationship with his cousin,
Ortega, the owner of New House #67, by presenting the
declaration of Ortega. In the declaration, Ortega claims that
Defendant was very close with his mother before she passed
away and they would spend a lot of time together at New House
#67. (Exh. 68.) Ortega also claims that Defendant had a key
to the house and, before Defendant's arrest, he and his
girlfriend would stay at Ortega's house for days, weeks,
and sometimes months at a time. In the declaration, Ortega
also claims that Defendant and his girlfriend stored clothes,
toiletries, and food at the house.
Critically,
however, Defendant failed to specify the time and date that
he lived in any space or room in New House #67.
Defendant's failure to tie his residency at New House #67
to any date(s) and/or time period(s) is fatal to his claim
that he had a reasonable expectation of privacy in any part
of New House #67 on April 23, 2016. Moreover, the Government
points out that Defendant reported to pretrial services that
he has resided at Tonoho O'odham Reservation, West
Artesia Road #3, Little Tucson Village since June 6, 2012.
(Doc. 8 at p. 1.) (This Court took judicial notice of the
docket at the June 5, 2019, further evidentiary hearing.)
Even if
Defendant could prove he was a resident of New House #67
(which this Court determines he cannot), he fails to prove
that he had any expectation privacy in the location where his
truck was parked in the early morning of April 23, 2016. In
its April 17, 2019 Report and Recommendation this Court
detailed the area where truck was parked. (Doc. 55 at 4.) New
House #67is situated on a large lot. The truck was parked
next to a chain link fence, away from the residence and
facing the front yard of neighboring property. The aerial
photographs received in evidence at the first evidentiary
hearing establish that the neighbor had an unobstructed view
into the truck's passenger compartment. The area where
the truck was parked appeared to be used to park vehicles and
the occupant did not take any steps to protect the area where
the truck was parked from observation by people passing by.
The truck's location was not in an area intimately
associated with the residence.
This
Court determines that Defendant lacks standing to contest the
search of New House #67. Defendant was not living at New
House #67 nor was he a guest a New House #67 on April 23,
2016. For this reason and for the reasons set forth in this
Court's Report and Recommendation dated April 17, 2019
(Doc. 55), this Court recommends that the District Court,
after its independent review, deny Defendant's motion to
suppress (Docs. 26.)
III.
RECOMMENDATION
This
Court recommends that the District Court, after its
independent review, deny Defendant's motion to suppress.
(Doc. 26.)
Pursuant
to Federal Rule of Criminal Procedure 59(b)(2), any party may
serve and file written objections within fourteen days of
being served with a copy of this Report and Recommendation. A
party may respond to the other party's objections within
fourteen days. No. reply brief shall be filed on objections
unless leave ...