United States v. Velasco

          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 ...