United States District Court, D. Connecticut
RULING ON MOTION TO SUPPRESS
A. BOLDEN, UNITED STATES DISTRICT JUDGE
February 6, 2018, Albert Lopez (“Defendant”)
moved to suppress evidence of a firearm seized by officers
with a joint task force of the U.S. Marshals Service and the
Bridgeport Police Department on October 12, 2017, during a
search of the bedroom he slept in while staying at his
mother's house. Motion to Suppress, dated Feb. 6, 2018
(“Suppression Mot.”), ECF No. 15; Memorandum in
Support of Suppression Mot., dated Feb. 6, 2018
(“Def.'s Mem.”), annexed to Suppression Mot.,
ECF No. 15-1. Mr. Lopez challenges both the lawfulness of
searching his bedroom without his consent, as well as the
officers' claims that his mother's consent was
sufficient to authorize the search.
February 20, 2018, the United States of America (the
“Government”) opposed Mr. Lopez's suppression
motion. Government's Opposition to Suppression Mot.,
dated Feb. 20, 2018 (“Gov't Opp.”), ECF No.
April 9, 2018, the Court conducted an evidentiary hearing on
the motion, which was continued to June 26, 2018. Minute
Entries, dated Apr. 9, 2018 & Jun. 26, 2018, ECF Nos. 25
& 35; Transcript of Suppression Hearing, filed Jun. 4,
2018 (Vol. I) & Jul. 23, 2018 (Vol. II) (collectively,
“Tr.”), ECF Nos. 30 & 43.
the evidentiary hearing concluded, the parties submitted
post-hearing briefs. Defendant's Post-Hearing Memorandum
of Law, dated Aug. 3, 2018 (“Def.'s Post-Hrg.
Mem.”), ECF No. 44; Government's Memorandum in
Opposition to Def.'s Post-Hrg. Mem., dated Aug. 24, 2018
(“Gov't Post-Hrg. Mem.”), ECF No. 45.
following reasons, Defendant's motion to suppress is
FACTUAL AND PROCEDURAL BACKGROUND
Findings of Fact
August 3, 2011, a grand jury returned a one-count indictment
charging Mr. Lopez with possession of a firearm by a
convicted felon. Indictment, dated Aug. 3, 2011, No.
3:11-cr-139 (SRU), ECF No.
August 11, 2011, Mr. Lopez was arraigned before United States
Magistrate Judge Holly B. Fitzsimmons and entered a plea of
not guilty. Minute Entry, dated Aug. 11, 2011, No.
3:11-cr-139 (SRU), ECF No. 4.
September 4, 2012, Mr. Lopez, under the terms of a plea
agreement signed that same day, pleaded guilty to count one
of the indictment before United States District Judge Warren
W. Eginton. Minute Entry, dated Sept. 4, 2012, No.
3:11-cr-139 (SRU), ECF No. 33; Plea Agreement, dated Sept. 4,
2012, No. 3:11-cr-139 (SRU), ECF No. 34.
January 4, 2013, United States District Judge Stefan R.
Underhill sentenced Mr. Lopez to a term of imprisonment of
sixty months, to run consecutively to a sentence imposed for
a supervised release violation in Criminal Case No.
3:07-cr-60, to be followed by thirty-six months of supervised
release. Gov't Ex. 1 at 1. Judge Underhill also imposed
the following Special Conditions of supervised release:
1. The defendant shall participate in a program approved by
the Probation office for inpatient or outpatient substance
abuse treatment and testing. The defendant shall pay all or a
portion of the costs associated with treatment based on the
defendant's ability to pay as determined by the probation
2. The defendant shall submit his person, residence, office
or vehicle to a search conducted by a United States Probation
Officer at a reasonable time and in a reasonable manner,
based upon reasonable suspicion of contraband or evidence of
a violation of a condition of release; failure to submit to a
search may be grounds for revocation; the defendant shall
warn any other residents that the premises may be subject to
searches pursuant to this condition.
3. The defendant shall not possess a firearm, destructive
device or other dangerous weapon.
Id. Judge Underhill also imposed the following
Standard Condition of supervised release:
6. The defendant shall notify the probation officer at least
ten days prior to any change in residence or employment, or
if such prior notification is not possible, then within five
days after such change[.]
Id. at 3.
February 24, 2017, the Bureau of Prisons released Mr. Lopez
from its custody and Mr. Lopez began serving his term of
supervised release. Petition for Warrant or Summons for
Offender Under Supervision, dated Sept. 22, 2017 (“Pet.
for Fed. Warrant”), annexed to U.S. District Court for
the District of Connecticut Arrest Warrant, dated Sept. 22,
2017 (“Fed. Warrant”), admitted as Gov't Ex.
2, at “Date Supervision Commenced.”
February 27, 2017, Mr. Lopez met with United States Probation
Officer Keith Barry. Tr. 11:3-14. Mr. Barry testified that he
reviewed the conditions of supervised release with Mr. Lopez,
and that Mr. Lopez signed a document acknowledging that he
had read and understood the conditions. Id.
time after that meeting, Mr. Lopez reported to Mr. Barry that
he would be residing at 702 Maplewood Avenue, Bridgeport,
Connecticut. Tr. 11:15-22. Mr. Barry testified that he
visited Mr. Lopez several times at that residence. Tr.
11:23-25. Mr. Barry also testified that Mr. Lopez did not
ever discuss changing that residence with him, and that he
did not ever visit him at any other residence in the
following months of Mr. Lopez's supervised release. Tr.
September 22, 2017, Mr. Barry sought and obtained an arrest
warrant for Mr. Lopez because Mr. Lopez had violated three
conditions of his supervised release. Pet. for Warrant. Mr.
Barry testified to having received information from a
detective with the Bridgeport Police Department. Tr.
15:13-16:10. Mr. Barry alleged that Mr. Lopez violated the
special condition that he “shall not possess a firearm,
destructive device or other dangerous weapon”:
A Bridgeport, Connecticut Police incident report states that
on September 9, 2017, the Bridgeport, Connecticut Police
Department responded to a gun shot victim at St.
Vincent's Hospital. The victim informed law enforcement
officials that Albert Lopez a former employee had called the
victim demanding $4, 000 as a loan. On the day of the
incident Mr. Lopez showed up at the victim's home
demanding $4, 000 dollars. When the victim wanted to give the
defendant $1, 000 of the $4, 000 Mr. Lopez reportedly refused
the money, pulled out a silver colored firearm from his
waistband, fired a shot at him hitting him in the leg telling
him to keep the $1, 000, he would need it for the hospital
bill. Mr. Lopez then fled the scene.
Pet. for Fed. Warrant at 1, “Charge #1.” Mr.
Barry also alleged that Mr. Lopez: (1) unlawfully possessed
controlled substances, in violation of mandatory condition
two, by testing positive for both marijuana and cocaine; and
(2) failed to participate in a substance abuse treatment
program, in violation of special condition one, insofar as he
was discharged by Connecticut Renaissance in Bridgeport,
Connecticut for lack of participation on September 21, 2017.
Id. at 1-2, “Charge #2” &
September 22, 2017, the Court ordered that an arrest warrant
be issued for Mr. Lopez. See Pet. for Warrant at 2.
That same day, the Clerk of the Court issued an arrest
warrant directing “[a]ny authorized law enforcement
officer” to arrest and bring Mr. Lopez before United
States magistrate judge “without necessary delay,
” based on the offense described in the petition. Fed.
Warrant at 1.
thereafter, Deputy United States Marshal Adam Mackey, who was
leading a joint task force of state, local, and federal law
enforcement officers charged with apprehending fugitives with
active warrants, received a copy of the federal warrant. Tr.
28:10-29:11; 30:9-20. Deputy Marshal Mackey also received a
copy of a warrant sought by the Bridgeport Police Department
and Senior Assistant State's Attorney Howard S. Stein on
September 20, 2017, and signed by Connecticut Superior Court
Judge Robert Devlin on September 22, 2017. Tr. 30:24- 32:12;
Superior Court Arrest Warrant, dated Sept. 22, 2017
(“State Warrant”), admitted as Gov't Ex. 3,
at BPD000007, BPD000009.
state warrant sought Mr. Lopez's arrest on charges of:
(1) assault in the first degree, in violation of Conn. Gen.
Stat. § 53a-59; (2) carrying a pistol without a permit,
in violation of Conn. Gen. Stat. § 29-35(b); and (3)
unlawful discharge of a firearm, in violation of Conn. Gen.
Stat. § 53-203. State Warrant at BPD000007. In the
application for the warrant, Detective Barbara A. Gonzalez of
the Bridgeport Police Department attested to the facts of her
investigation between September 9, 2017 (the date the alleged
victim, Juan Moreno, was allegedly shot by Mr. Lopez) and
September 15, 2017 (the date Ms. Gonzalez allegedly spoke
with Mr. Barry to discuss the incident). See
Application for Arrest Warrant, annexed to State Warrant, at
reviewing both warrants, reviewing Mr. Lopez's rap sheet,
and conducting further investigation, Deputy Marshal Mackey
determined that it was important to be “extra
cautious” in attempting to arrest Mr. Lopez in light of
his criminal history of unlawful firearm possession. Tr.
Marshal Mackey testified that he then attempted to determine
where Mr. Lopez was staying. Through examining the state
court warrant and several posts made by Mr. Lopez on social
media, Deputy Marshal Mackey determined that Mr. Lopez was
staying at the home of his mother, Lucila Olmo, located at
174 East Avenue, Bridgeport, Connecticut. Tr. 36:6-22, 38:7-
40:13; Photographs, admitted as Gov't Exs. 5 & 6.
Deputy Marshal Mackey also determined, based on a video
display depicted in the lower left-hand corner of one of the
photographs, that the residence had a video surveillance
system installed. Tr. 40:14-41:9; see Gov't Ex.
October 12, 2017, at approximately 5:30 a.m., Deputy Marshal
Mackey and about nine other law enforcement officers met at
the Bridgeport Police Department to review the warrants they
planned to execute that day, beginning with the warrant for
Mr. Lopez. Tr. 41:10- 25; 52:6-8.
after 5:40 a.m., the officers arrived at 174 East
Avenue. Tr. 43:16-18; Surveillance Video Footage,
dated Oct. 12, 2017, admitted as Def.'s Ex. E (hereafter,
“Vid.”).After they had formed a perimeter around
the property, Deputy Marshal Mackey stepped onto the porch.
Tr. 48:23-49:3; Vid. 5:42:17-19. He quickly turned two
surveillance cameras to the side, Vid. 5:42:19-34, testifying
that he did so to prevent Mr. Lopez from having a visual of
the front porch. See Tr. 228:4-20; 49:4-22. He did
not see a third camera, however, which recorded the events on
the porch from the right-hand side of the porch.
Marshal Mackey was joined on the porch by two other officers,
Task Force Officers King and Cortina, who were both employed
by the Bridgeport Police Department. Tr. 235:16-237:19; Vid.
5:42:27-40. Deputy Marshal Mackey, who is over six feet tall,
looked through a window at the top of the door before he
began knocking, and continued to look through that window
while knocking. Tr. 50:6-15; Vid. 5:42:40-43. Deputy Marshal
Mackey began knocking on the door, announcing himself and his
team as police there to execute an arrest warrant for Mr.
Lopez. Tr. 49:24-50:5; Vid. 5:42:47. At this
point a fourth officer, Task Force Officer
(“TFO”) Edgar Nunez, stepped onto the porch as
well. Vid. 5:42:43-47.
knocking over the next minute or so, Deputy Marshal Mackey
used his flashlight several times to illuminate the hallway
behind the door. Vid. 5:42:57-5:43:21; Tr. 50:8-15. Deputy
Marshal Mackey testified that he soon saw Mr. Lopez walk into
the hallway and then walk out of his sight. Tr. 50:16-20. It
was this, Deputy Marshal Mackey said, that prompted him to
start banging and kicking on the door, as he feared Mr. Lopez
might attempt to “get something” or “hide
something.” Tr. 50:16-23, 51:4-12; Vid.
5:44:00-5:44:10. After several swift kicks, Deputy Marshal
Mackey moved to look through the top window of the door,
illuminating it with his flashlight. Vid. 5:44:11-14; Tr.
241:6-14. A light then appears to go on behind the door,
illuminating the window brightly. Vid. 5:44:15-5:44:20; Tr.
point, a man-whom Deputy Marshal Mackey later identified as
Ms. Olmo's friend, Mr. Soto-approached the door. Deputy
Marshal Mackey alternates between attempting to turn the
doorknob, pushing the door with his hands, and looking
through the top window. Tr. 242:13-18; Vid. 5:44:20-40.
Deputy Marshal Mackey testified that he could visually see
the man attempt to open the door, but struggle “due to
the kicking of the door.” Tr. 50:23-51:2.
later, the front door was opened. Vid. 5:44:42. Deputy
Marshal Mackey entered, followed by TFOs Cortina, King, and
Nunez. At the same time, TFO Martin stepped onto the porch.
Vid. 5:44:47-50. Shortly thereafter, another uniformed
officer joins him. Vid. 5:44:53-59.
Marshal Mackey testified that when he entered, Mr. Lopez was
standing toward the back of the hallway. Deputy Marshal
Mackey and the other officers “bypassed” Mr. Soto
(who had opened the door) and handcuffed Mr. Lopez where he
was standing, in the hallway. Tr. 51:21-52:5, Several of the
other task force officers performed a protective sweep, which
revealed that Mr. Lopez, Ms. Olmo, and Mr. Soto were the only
people in the home. Tr. 53:10-23; 97:10-14. Because Mr. Lopez
was not fully clothed, the officers asked Mr. Lopez where he
was staying and where his clothes were. Tr. 53:1-8. One of
the task force members then went and retrieved clothing for
him. Tr. 53:24-54:2, 66:18-23. Mr. Lopez got fully dressed in
the hallway, while still handcuffed, with the assistance of
the officers. Tr. 83:15-84:11.
that was happening, TFO Nunez, who speaks Spanish, entered
the living room with Mr. Lopez's mother, Ms. Olmo. Tr.
160:20-23. Ms. Olmo-who later testified that she suffers from
chronic obstructive pulmonary disease-was using an
oxygen tank connected to a very long tube that enabled her to
move about the house. Id.
Nunez testified that he told Ms. Olmo to “remain
calm” and began speaking with her. Tr. 160:24-161:1.
They soon moved into the kitchen and sitting down at the
kitchen table, primarily because it appeared to TFO Nunez
that it was easier for her to use her oxygen there. Tr.
161:1-2, 162:12-20. TFO Nunez testified that Ms. Olmo was not
upset, but “just wanted to know what was going
on.” Tr. 161:6-7. TFO Nunez testified that his goal, at
that point, was to ensure that Ms. Olmo did not become upset
enough to exacerbate her medical condition. Tr. 161:9-10.
Shortly thereafter, Ms. Olmo asked for a glass of water, Mr.
Soto got one for her, and Ms. Olmo took some medication. Tr.
after Mr. Lopez was dressed, TFO Nunez began explaining to
her, in Spanish, that the officers had executed an arrest
warrant for her son. Ms. Olmo stated it was
“unfortunate he's in trouble again” but
otherwise remained calm. Ms. Olmo then told TFO Nunez that
she was concerned that her landlord would find out about this
situation and was afraid she would lose her housing. Tr.
163:21-164:2. According to TFO Nunez, she reiterated these
concerns several times. Id.
Nunez testified that Deputy Marshal Mackey then asked Ms.
Olmo-through Mr. Nunez, who was translating-whether there was
anything that wasn't safe in the home. Tr. 164:10-17.
According to TFO Nunez, Ms. Olmo “clearly stated that
you can search, you can check, that she did not want anything
in her house that was illegal, that she wanted no problems,
no issues, because clearly she didn't want to lose her
housing.” Tr. 164:17-21. Deputy Marshal Mackey
testified that TFO Nunez then reported to him that Ms. Olmo
had given verbal permission to search the premises. Tr.
point, Deputy Marshal Mackey and other members of the task
force escorted Mr. Lopez out of the house. Tr. 56:3-7. Mr.
Lopez emerged from the house, accompanied by Deputy Marshal
Mackey and other officers, approximately five minutes after
the officers had entered. Vid. 5:49:20-28.
Mr. Lopez was being escorted down the porch steps, Deputy
Marshal Mackey walked past him. Vid. 5:49:28-30. Deputy
Marshal Mackey testified that at this point he went to his
car to retrieve a consent to search form for Ms. Olmo to
sign. Tr. 56:4-7. Deputy Marshal Mackey returned to the porch
about one minute later, holding a folded piece of paper-which
he testified was the consent to search form-and re-entered
the home. Vid. 5:50:26-29; Tr. 56:3-7.
back inside, Deputy Marshal Mackey had TFO Nunez translate
the form for Ms. Olmo. TFO Nunez testified that he and Deputy
Marshal Mackey “went over the form” and
“took our time with her and made sure that we -- that I
translated the form for her.” Tr. 165:7-9. He then
described the translation process in greater detail:
Q. Okay. And at the time that you were reviewing this, you
said that you had translated it for Ms. Olmo. Can you
describe how you translated it for her?
A. She remained in the kitchen. She remained seated. I made
sure that I was standing right by her with the form. I went
over it with her line by line and I made sure that she
understood, that I spelled her name correctly -- that her
name was being spelled correctly. I made sure of the address
that we were at, 174 East Ave, first floor.
So I read everything to her and translated it.
Q. Did she ask any questions about the form?
A. She did not. Again, she didn't ask any questions
regarding the form, no.
Q. Did she ask any questions about any of the terms in the
Q. Or did she ask what the form meant in terms of her that
Q. Did she indicate at any time that she didn't want to
sign the form?
Q. Did she ask any other questions of you regarding the form
or the search of the apartment?
A. No questions regarding the form, just wanted to reiterate
that she wanted no issues, no problems, and she did not want
to lose her housing. And she was concerned for her son.
That's basically what she was referring to, but never
referred to the form.
Q. And she communicated this to you in Spanish?
Q. At the time that you were discussing the search, and
including the time that she signed the form, did you or any
other officers threaten her in any way to coerce her into
signing the form?
A. No, absolutely not.
Q. Did she seem confused at any point in time about signing
Q. Was she ever handcuffed?
Q. How about the other gentleman that was in the kitchen, was
he ever handcuffed?
Q. Were you armed that morning?
A. Was I armed? Yes.
Q. Was your gun holstered at the ...