United States District Court, D. Nevada
REPORT & RECOMMENDATION
Hoffman, Jr. United States Magistrate Judge
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.
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.
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 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.
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.
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).).
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
The Officers' Entry into the Apartment
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.
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
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 ...