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United States v. Lopez

United States District Court, D. Connecticut

August 13, 2019

ALBERT LOPEZ, Defendant.



         On 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.

         On 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. 18.

         On 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.

         After 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.

         For the following reasons, Defendant's motion to suppress is DENIED.


         A. Findings of Fact[1]

         On August 3, 2011, a grand jury returned a one-count indictment charging Mr. Lopez with possession of a firearm by a convicted felon.[2] Indictment, dated Aug. 3, 2011, No. 3:11-cr-139 (SRU), ECF No.

         On August 11, 2011, Mr. Lopez was arraigned before United States Magistrate Judge Holly B. Fitzsimmons and entered a plea of not guilty.[3] Minute Entry, dated Aug. 11, 2011, No. 3:11-cr-139 (SRU), ECF No. 4.

         On 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.[4] 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.

         On 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 officer.
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.

         On 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.”

         On 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.

         At some 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. 12:8-14.

         On 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” & “Charge #3.”

         On 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.

         Shortly 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.

         The 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 BPD000010-13.

         After 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. 33:10-36:5.

         Deputy 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. 6.

         On 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.

         Shortly after 5:40 a.m., the officers arrived at 174 East Avenue.[5] Tr. 43:16-18; Surveillance Video Footage, dated Oct. 12, 2017, admitted as Def.'s Ex. E (hereafter, “Vid.”).[6]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.

         Deputy 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, [7] 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.[8] 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.

         While 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.”[9] 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. 241:15-242:12.

         At this 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.

         Moments later, the front door was opened.[10] 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.

         Deputy 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.

         While 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[11]-was using an oxygen tank connected to a very long tube that enabled her to move about the house. Id.

         TFO 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. 161:11-16.

         Shortly 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.

         TFO 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. 56:2-3.

         At that 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.

         While 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.

         Once 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 form?
A. No.
Q. Or did she ask what the form meant in terms of her that morning?
A. No.
Q. Did she indicate at any time that she didn't want to sign the form?
A. No.
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?
A. Yes.
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 the form?
A. No.
Q. Was she ever handcuffed?
A. No.
Q. How about the other gentleman that was in the kitchen, was he ever handcuffed?
A. No.
Q. Were you armed that morning?
A. Was I armed? Yes.
Q. Was your gun holstered at the ...

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