People v. Acosta, B.

• Court: Superior Court of Guam
• Decided: October 3, 2019
• Docket: CF0640-18
• Status: Unknown

Opinion

I

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6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0640-18 9 vs. 10 DECISION AND ORDER 11 BRANDON MICHAEL ACOSTA, 12 Defendant. 13

14 INTRODUCTION 15 This matter came before the Honorable Vernon P. Perez on August 21, 2019, for hearing 16 on Defendant Brandon Michael Acosta's ("Defendant") Motion to Suppress Any Information 17 Stemming From and Including Two Brown Shorts, Slippers. Defendant was present with 18 counsel, William B. Pole, and Assistant Attorney General Leonardo M. Rapadas was present on 19 behalf of the People of Guam ("the Government"). Having reviewed the pleadings, the 20 arguments presented, and the record, the Conn now issues the following Decision and Order 21 DENYING Defendant's Motion to Suppress. 22 BACKGROUND ZN Defend a nt is cha rged w ith four counts of Aggra v a ted Murd er (As a First Degree 24 Felony), two counts of Murder (As a First Degree Felony), two counts of First Degree Criminal 25 Sexual Conduct (As a First Degree Felony), two, counts of Second Degree Criminal Sexual 26 Conduct (As a First Degree Felony), one count of'Home Invasion (As a First Degree Felony), 27 one count of Burglary (As a Second Degree Felony), one count of Aggravated Assault (As a 28

People v. Acosta Case NoCF0640-18 Decision and Order

Page 1 0?7 1 Second Degree Felony), and two counts of Third Degree Criminal Sexual Conduct (As a

2 Second Degree Felony); along with Special Allegation: Possession or Use of a Deadly Weapon

3 in the Commission of a Felony and Notice: Commission of a Felony While on Felony Release

4 attached to each felony charge. (Superseding Indictment, Jul. 12, 2019). These charges stem

5 from allegations that Defendant sexually assaulted and caused the death of Timicca Nauta in her

6 home on or about June 16, 2018 during the commission of a burglary. (Decl, of Jeremy S.

7 Kemper, Magistrate's Con pl., Oct. 20, 2018).

8 On July 17, 2019, at Arraignment for the Superseding Indictment, Defendant asserted

9 his right to a speedy trial.

10 On July 19, 2019, Defendant filed a Motion to Suppress Any Information Stemming

11 From and Including Two Brown Shorts, Slippers ("Second Motion to Suppress"). On August 7,

12 2019, the Government filed its Opposition. On August 9, 2019, Defendant filed an Errata,

13 clarifying that the shorts sought to be suppressed were color gray and not brown. On August

14 12, 2019, Defendant filed his Reply to the Government's Opposition. On August 15, 2019, at

15 the calendared Motion Heating, the Government requested a continuance to be able to respond

16 to Defendant's Second Motion to Suppress in light of the August 9, 2019 Errata. On August 20,

17 2019, the Government filed a Supplemental Opposition.

18 On August 21, 2019, the Court heard sworn testimony from Guam Police Department

19 ("GPD") Detectives Carl J. Lizama and Erik A. Barcinas (hereinafter "Detective Lizama" and

20 "Detective Barcinas," respectively). The Court then gave the parties leave to file any proposed

21 findings pursuant to the testimony received.

22 On August 30, 2019, Defendant filed his proposed Findings of Fact and Conclusions of

23 Law. On September 9, 2019, the Government filed its Proposed Findings of Fact and

24 Conclusions of Law. The Court subsequently placed the matter under advisement.

Z5 DISCUSSION 26 Defendant moves the Court to suppress tab gray pairs of shorts as well a pair of Scott

27 brand black slippers seized by GPD officers on June 20, 2018. See generally, Second Mot. 28 Suppress, Jul. 19, 2019. Defendant argues that these items were taken without his consent and

People v. Acosta Case No.CF0640-l8 Decision and Order

Page 2 of 7 l were beyond the scope of a Search Warrant effectuated that same day. Id. The Government

2 opposes, arguing that the officers had probable cause to seize the items without consent. (Supp.

3 Opp'n, Aug. 20, 2019).

4 The Fourth Amendment ro the U.S. Constitution "protects against unreasonable searches

5 and seizures and is made applicable to Guam via section 1421(b)(c) of the Organic Act of S, 6 Guam. People v. Chargualaf, 2001 Guam 1 'H 14 (internal citations omitted). "A search or

7 seizure made without a warrant is presumed to be unreasonable. In the absence of a warrant, the

8 police may lawfully conduct a search or seizure only if an exception to the warrant requirement

9 applies." Id. "Exceptions include voluntary consent to the search, as well as police officers'

10 good faith reliance on a defective search warrant and the plain view doctrine." People v.

11 C u r d # 2006 Guam 12 ll 42.

12 In this case, a Search Warrant was executed on June 20, 2019 at Defendant's residence,

13 pursuant to a burglary investigation' The Search Warrant identified the following items: Stahl

14 brand blowers, Still chainsaws, a DeWalt pressure washer, and bolt cutters. The Search

15 Warrant effectuated did not include the gray shorts and black slippers. No testimony came

16 forward at the Suppression Hearing indicating that Defendant consented to the seizure of the

17 shorts and slippers. The issue before the Court is whether the plain view doctrine allowed for

18 GPD's warrantless seizure of the gray shorts and slippers.

19 "When an item is in plain view, 'neither its observation nor its seizure would involve

20 any invasion of privacy,' and therefore the plain view exception to the warrant requirement

21 implicates the protection from unreasonable seizures, rather than unreasonable searches."

22 United States v. Cormack, 426 F. App'x 378, 381 (6th Cir. 2011) (quoting Horton v. California,

23 496 U.S. 128, 133-34 (1990)). "If 'plain view' justifies an exception from an otherwise

24 applicable warrant requirement, therefore, it must be an exception that is addressed ro the

25 concerns that are implicated by seizures rather than by searches." Horton, 496 U.S. at 134. "An

27 L The Search W arrant also sought phone records from Guam Telephone Authority, which is not at issue in this 28 Motion.

People v. Acoxla Case No.CF0640- I8 Decision and Order

J Page 3 off a l example of the applicability of the plain view doctrine is the situation in which the police have a

2 warrant to search a given area for specified objects, and in the course of the search come across

3 some other article of incriminating character." Id. at 135 (citation omitted). "It is, of course, an

4 essential predicate to any valid warrantless seizure of incriminating evidence that the officer did

5 not violate the Fourth Amendment in arriving at the place from which the evidence could be

6 plainly viewed." Id. at .136. To further justify a warrantless seizure, "not only must the item be

7 in plain view, its incriminating character must also be 'immediately apparent."' Id. (citations

8 omitted). "Second, not only must the officer be lawfully located in a place from which the

9 object can be plainly seen, but he or she must also have a lawful right of access to the object

10 itself." Id. at 137.

11 In this case, officers had a Search Warrant to search Defendant's residence for Stihl

12 brand blowers, Stihl chainsaws, a DeWalt pressure washer, and bolt cutters. At the Suppression

13 Hearing, Detective Lizama testified that Defendant was not home when they arrived to execute

14 the Search Warrant, but that Defendant's mother was present at the residence. Defendant

15 appeared at the residence later on, and was transported to the CID Office in Tiyan to be

16 interviewed about the burglaries. Detective Lizama testified that during the interview,

17 Defendant identified clothing he was wearing at the time of the suspected burglaries, which he

18 relayed to Detective Eric Barcinas who was executing the Search Warrant. Detective Lizama

19 testified that Defendant consented to certain items to be confiscated from his person while at

20 CID. Those items included a buccal swab, a black cellphone, white checker shorts, and a swabs

21 shirt.

22 Detective Barcinas testified that he effectuated the search warrant at Defendant's

23 residence, and searched the house for the items listed in the Search Warrant. Detective Barcinas

24 testified that during his search of the residence, he looked through a laundry basket full of 25 clothes and through a pile of clothes on the washing machine outside the residence because he

26 was looking for the bolt cutters listed in the Search Warrant. Detective Barcinas testified that he 27 received information from other officers who were interviewing Defendant at CID as to what

J Page 4 of 7 a l Defendant may have been wearing during the time of the alleged burglaries, which included

2 gray shone and/or gray plaid shorts, and black slippers.

3 The scope of a search "is defined by the object of the search and the places in which

4 there is probable cause lo believe that it may be found. Just as probable cause to believe that a

5 stolen lawnmower may be found in a garage will not support a warrant to search an upstairs

6 bedroom, probable cause to believe that undocumented aliens are being transported in a van will

7 not justify a warrantless search of a suitcase." Horton, 496 U.S. at 140 (citation omitted). See

8 also, People v. Camacho, 2004 Guam 6 'II 22. Detective Barcinas was lawfully in the position

g or place from which he viewed the object. The lawful search of Defendant's residence for the

10 bolt cutters could extend to the laundry basket full of clothes, and the pile of clothing on top of

11 the washing machine outside the residence.

12 Next, the Court must determine whether the incriminating character of the items was

13 "immediately apparent." See Horton, 496 U.S. at 136. The "incriminating nature of an item is

14 immediately apparent where the officer has probable cause to associate the property with

15 criminal activity." Camacho, 2004 Guam 6 *1125. "The determination of whether the officers

16 had probable cause to believe that the items seized were illegal, unlawful, or associated with

17 criminal activity is objective, but we apply it to the actual and/or perceived belief of the law

18 enforcement officer as he engages in search and seizure." U/zited States v. Stafford, 416 F.3d

19 1068, 1076 (9th Cir. 2005) (internal citations, quotation marks, and alteration omitted). "[P]lain

20 view provides grounds for seizure of an item when an officer's access to an object has some

21 prior justification under the Fourth Amendment. Plain view is perhaps better understood,

22 therefore, not as an independent exception to the warrant clause, but simply as an extension of

23 whatever the prior justification for an officer's access to an object may be." Texas v. Brown,

24 470 U.S. 730, 738-39 (1983) (quotation marks omitted). The Supreme Court of the United

25 States recognized that "the use of the phrase 'irnrnediately apparent' was very likely an unhappy

26 choice of words, since it can be taken to imply that an unduly high degree of certainty as to the

27 incriminatory character of evidence is necessary for an application of the 'plain view' doctrine."

28 Brown, 460 U.S. at 741. The Court concluded that "immediately apparent" was intended to

People v. Acoxfa Case No.CF0640-18 Decision and Order

v Page 5 of 7 0 l merely be a "statement of the rule ... requiring probable cause for seizure in the ordinary case."

2 Id. at 742. "[P]robab1e cause is a flexible, common-sense standard. It merely requires that the

3 facts available to the officer would 'warrant a man of reasonable caution in the belief" that

4 certain items may be contraband or stolen property or useful as evidence of a crime." Brown,

5 470 U.S. at 742 (citing Carroll v. United States, 267 U.S. 132, 162 (1925)).

6 "Immediately apparent" has been interpreted not "to connote apparent at first glance, but

7 rather, apparent without other information than that which the officers properly possessed

g before their search was over." United States v. McDonald, 723 F.2d 1288, 1295 (7th Cir. 1983)

9 (citations omitted). Thus, the viewing officers must have probable cause to believe an item in

10 plain view may be associated with criminal activity before seizing it, and such probable cause

must ari se whi l e t he offi cers are st i l l l awful l y on t he premi ses. The C ourt fi nd s t hat

12 "immediately apparent" does not necessarily mean "quickly apparent." "Rather, 'immediately

13 apparent' in this context means without the necessity of any further search." State v. Dobbs,

14 323 S.W.3d 184, 187-89 (Tex. Crim. App. 2010). In Dobbs, for example, the Texas Court

15 noted:

16 Suppose that at the instant the officers executing the search warrant had originally c ome a c l oss t he gol f c l ubs a nd shi rt s, t he y ha d t hought not hi ng of i t a nd 17 conducted no further investigation of those items. Then suppose an officer in the 18 burglary division had called one of the searching officers to inform him to be on the lookout for stolen golf clubs and shirts on the premises, describing them with 19 particularity, because of probable cause the burglary division had just developed, 20 independently of the officers executing the warrant, to believe these items were 21 stolen. What was not "immediately" apparent to the searching officers would now be readily apparent, while the officers are still on the plemises and legitimately 22 conducting their' search. They would now have probable cause to seize the stolen 23 items. Under these circumstances, it makes no more sense to require an additional warrant to justify seizing the items than it would to require a warrant to seize 24 apparent contraband that is found in a public place. Moreover, it should make no 25 difference that the searching officers generated their own probable cause while still on the premises, so long as their investigation did not entail any greater 26 incision on the premises (from which the defendant's privacy interest, after all, 27 derives) than the intrusion already legitimately underway. 28 Dobbs, 323 S.W.3d at 187-88.

People v. Acnsln Case No_CF0540_1g Decision and Order

Page 6 o f f J l In this case, although Detective Barcinas testified that when he began the search of the 2 residence pursuant to the warrant the items in question had nothing to do with the burglary, such 3 items were not seized until after he received information from officers conducting the interview 4 with Defendant at CID that there were gray shorts and black slippers involved. Detective 5 Barcinas then had probable cause to seize items he observed in plain view which he believed 6 could be evidence of a crime. Detective Barcinas testified that he retrieved one pair of gray 7 shorts from the laundry basket in the living room of the residence, one pair of gray shorts from a 8 pile of laundry on top of a washing machine outside of the residence, and a pair of black 9 slippers outside the front door. No testimony set forth that officers further searched the 10 residence for the items after they were identified, that officers delayed the search to obtain such

information, or that the effectuation of the search warrant was complete and officers left the 12 premises and had to return to obtain the items the seizure of the items did not entail any 13 greater intrusion on the premises. See, e.g., Horton, 496 U.S. at 141-42 ("If the interest in 14 privacy has been invaded, the violation must have occurred before the object came into plain la view and there is no need for an inadvertence limitation on seizures to condemn it."). 16 Accordingly, the Court Herds that the items were discovered during a lawful search 17 authorized by a valid warrant and appropriately seized pursuant to the plain view doctrine. 18 Therefore, the Court will not suppress the items for triad. 19 CONCLUSION 20 For the foregoing reasons, the Court hereby DENIES Defendant's Second Motion to 21 Suppress. Further proceedings and asserted trial dates will be set upon the disposition of 22 Defendant's remaining motion filed under seal.

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24 IT IS so ORDERED this QW day of qpf=f°m*'°", 2019. SERVICE 25 l'°*"°M MI copy cl _ original homo wasplacedIn Rh 1 26

27 M r www re HONORABLE VERNON p. PEREZ \

28 20 , Judge, Superior Court of Guam

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