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United States v. Pelayo

United States District Court, D. Nevada

June 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SERGIO PELAYO, Defendant.

          REPORT & RECOMMENDATION

          C.W. Hoffman, Jr. United States Magistrate Judge

         Before the Court is pro se Defendant Sergio Pelayo's Motion to Suppress Evidence (ECF No. 15), filed March 20, 2017. The government responded (ECF No. 20), on April 3, 2017. Pelayo replied (ECF No. 25) on April 10, 2017. The Court conducted an evidentiary hearing (ECF No. 27) on April 17, 2017.

         FACTUAL BACKGROUND

         On October 23, 2016 at 3:33 a.m., a 911 call was placed by 12 year old J.C, to report domestic violence he had witnessed. (911 Call, Gov't Ex 1.). J.C. provided the address of the incident, and stated that the people involved were his friend's parents, that “they're having a huge argument, ” and that his friend's father had slapped and kicked his friend's mother. Id. J.C. then provided identifying information for the suspect “Sergio Pelayo” and the victim “Rosie Archuleta.” Id. When asked if he thought the victim needed an ambulance, J.C. responded that he was not sure and repeated that Defendant had kicked and slapped her. Id. J.C. also informed the dispatcher there were three children present, ranging in age from six to twelve. Based on this information, the dispatcher told J.C. he would send officers and medical help to the apartment. Id. J.C. confirmed that both Pelayo and Archuleta were inside the apartment “right now.” Id.

         At 3:35 a.m., based upon the 911 call two minutes prior, Las Vegas Metropolitan Police Department (“LVMPD”) Officers Liske and Griffin received a dispatch order for the address provided by J.C. The officers approached Pelayo's apartment on foot at 4:14 a.m., having parked a short distance from the apartment to avoid detection. Officer Liske testified that the dispatch was assigned a Code 1, and that an on-going dispute, or one with injuries, is typically assigned a Code 0 to require the quickest response possible. Officer Griffin testified that, in his experience, in spite of the code assignment, sometimes a Code 1 is also an on-going dispute, and sometimes a Code 0 is not.

         To get to Pelayo's apartment, officers climbed to the top of a stairwell dedicated solely to access a landing where the front door to the apartment is located. The landing has half walls which could prevent unwanted observation from the ground level. The landing contained a small sofa and table.

         At the top of the stairs, officers found that the security door of the front door was closed, but that the front door itself was slightly opened, so the officers could see inside the apartment. Officer Liske knocked on the security door. Pelayo opened the security door to speak to the officers after the officer asked him to do so. Officer Liske asked if everyone inside the residence was okay, and Pelayo responded affirmatively. Officer Liske informed Pelayo that they were there to investigate a report of domestic violence, and Pelayo responded that his wife was not home and that there had not been any problems with his wife. Nevertheless, the officers asked to enter the apartment to see if his wife was there. Pelayo stated again that his wife was not home. Officer Liske informed Pelayo that was better because they could just walk in (to check on the safety of the reported victim), and then walk out. Pelayo provided his consent for the officers to enter the apartment.

         After entering the apartment, Officer Liske saw a 9mm magazine on the kitchen counter. The officer asked Pelayo whether there were any weapons in the house. Pelayo responded that there was a pistol in the bathroom and a rifle by his bed, and Officer Liske passed this information to Officer Griffin, who was walking through the apartment. Officer Griffin opened the shower curtain and found and cleared a bullet from the pistol in the bathtub. Officer Liske continued to speak to Pelayo, who stated that he wanted a lawyer because the officers were “going to take him in.” The officers stated that they were not going to “take him in.” One of the officers then told Pelayo that he had no problem with him owning a gun, and then asked, “you aren't a felon, are you?” Pelayo responded that he was and that he knew he was not supposed to have a firearm. In response to further questions, Pelayo said he knew he could get into trouble for the firearm and that he was probably in trouble at that point. Pelayo then made further incriminating statements. Officer Griffin continued to perform the protective sweep and found the rifle inside a case by the bed in the bedroom. The officers then arrested Pelayo for possession of a firearm by a prohibited person. The grand jury indicted Pelayo on January 24, 2017 with being Felon in Possession of a Firearm, a violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). (Indictment (ECF No. 1).).

         Pelayo moves to suppress all physical evidence and testimonial evidence seized on October 23, 2016, including the Beretta 9mm pistol, Savage Arms .22 caliber rifle, and Pelayo's statements. Pelayo argues that when the officers conducted a “knock and talk” to investigate the 911 call, they encroached on the curtilage of his apartment and violated his Fourth Amendment rights. Additionally, he argues that the protective sweep of the apartment was unreasonable under the circumstances, and therefore constituted an unreasonable search. Finally, he argues that while the officers were within the apartment, Pelayo asked for an attorney, and because questioning continued, the statements which he made were taken in violation of his Fifth Amendment rights. The government responds that the officers' presence on Pelayo's front porch landing was proper under the emergency exception to the warrant requirement of the Fourth Amendment, that the protective sweep was consensual, and that Pelayo was not in custody during his encounter with law enforcement.

         ANALYSIS

         A. The Officers' Entry into the Apartment

         “It is a ‘basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, (1980) (footnote omitted). The presumption of unconstitutionality that accompanies “the [warrantless] entry into a home to conduct a search or make an arrest” may be overcome only by showing “consent or exigent circumstances.” Steagald v. United States, 451 U.S. 204, 211 (1981). Indeed, “it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject to only a few specifically established and well-delineated exceptions.'” Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The government bears the burden of justifying a warrantless search. Id., at 390-91.

         One exception to the warrant requirement is the emergency doctrine. As the Supreme Court explained in Mincey v. Arizona, “[w]e do not question the right of the police to respond to emergency situations. . . . [T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” 437 U.S. at 392. Similarly, in Brigham City v. Stuart, the Supreme Court held that “one exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.” 547 U.S. 398, 403 (2006). “Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Id. See also, United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005) (same, also referred to as the “community caretaking” exception).

         The Ninth Circuit has adopted a two-part test for determining whether the emergency exception applies, which asks “whether: (1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search's scope and manner were reasonable to meet the need.” U.S. v. Snipe, 515 F.3d 947, 951 (9th Cir. 2008). Domestic violence cases do not “create a per se exigent need for warrantless entry.” United States v. Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004). In the context of 911 calls reporting incidents of domestic violence, the Ninth Circuit has upheld warrantless searches under the exigency and ...


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