People v. Cruz

Opinion

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SUPERIOR COURT

1 OF GUAM

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3 CLHRK of COURT

4

5 IN THE SUPERIOR COURT OF GUAM ¢'>~ 6

7 THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0580-20 8 vs.

9 DECISION AND ORDER 10 JEROME CAMACHO CRUZ aka Anthony Cruz,

Defendant.

13

14 INTRODUCTION

15 This matter came before the Honorable Vernon P. Perez on August 6 and 11, 2021, for

16 hearing on Defendant JEROME CAMACHO CRUZ aka Anthony Cruz's ("Defendant")

17 Motion to Suppress Evidence. Present were Defendant with counsel, Assistant Alternate Public

18 Defender Heather M. Zona and Assistant Attorney General Sean E. Brown on behalf of the

19 People of Guam ("the Government"). Having reviewed the pleadings, the arguments presented,

20 and the record, the Court now issues the following Decision and Order.

21 BACKGROUND

22 On November 19, 2020, Defendant was indicted with the following charges: (1)

23 Possession of a Schedule II Controlled Substance with Intent to Deliver (As a First Degree

24 Felony); (2) Possession of a Schedule II Controlled Substance (As a Third Degree Felony); (3)

25 Possession of a Firearm without a Firearm Identification (As a Third Degree Felony), (4)

26 Family Violence (As a Third Degree Felony); and (5) Reckless Driving (As a Misdemeanor).

27 (Indictment, Nov. 19, 2020). These charges stem from alleged events occurring on or about

28 November 9, 2020. Id.

People v. Cruz Case No. CF0580-20 Decision and Order 1 On June 11, 2021, Defendant filed the instant Motion to Suppress. On June 17, 2021, 2 the Government filed its Opposition. On August 6, 2021, the Court heard sworn testimony from 3 Guam Police Department ("GPD") Officers Alan Pangelinan and Leaf son Skilling ("Officer 4 Pangelinan" and "Officer Skilling," respectively), and Ms. Sheela Lemaire ("Ms. Lemaire"). 5 On August 11, 2021, the Court heard sworn testimony from GPD Officer Alan M. Perez 6 ("Officer Perez"). The Court then gave the parties leave to file proposed findings of fact and 7 conclusions of law. On August 18, 2021, the Government filed its Proposed Findings of Fact 8 and Conc1usions of Law and on September 3, 2021, Defendant filed his Proposed Findings of 9 Fact and Conclusions of Law. The Court subsequently placed the matter under advisement. 10 At the August 6 and ll hearings, the Court ascertained the following facts from witness 11 testimony: 12 1. On November 9, 2020, police responded to a reckless driving complaint, which was 13 reported by Ms. Lemaire. 14 2. Ms. Lemaire testified that she saw two vehicles, a sedan and a truck, driving 15 recldessly beginning in front of First Hawaiian Bank in Maite. Ms. Lemaire testified 16 that it appeared that one car was trying to evade the other. Ms. Lemaire called 91 l, 17 told them her location and that she was heading southbound in front of First 18 Hawaiian Bank when two vehicles in oncoming traffic u-turned right in front of her 19 so she had to step on her breaks to avoid a collision. The smaller car was speeding 20 away from the other car, which kept tailing it, and the cars were weaving in and out 21 of traffic crossing lanes. 22 3. Ms. Lemaire stayed behind the vehicles while on the phone with the police, letting 23 them know where the vehicles were at and what she was witnessing. Ms. Lemaire 24 testified that as they approached Veteran's Cemetery, the vehicle that was chasing 25 the sedan kept trying to push it off the shoulder. Eventually there was an impact and 26 a lot of smoke came out of the sedan. The other vehicle kept in pursuit and stayed 27 on the sedan's tail, while rubber from the tire was flying off the car. As the cars 28 approached Polaris Point, Ms. Lemaire observed something discarded from the

People v. Cruz Case No. CF0580-20 Decision and Order 1 passenger side window near the traffic light. Ms. Lemaire thought the item thrown 2 out was something white-like a plastic bag or a tall McDonald's or Wendy's plastic 3 cup. Ms. Lemaire was a distance away, so she could not be certain. Ms. Lemaire 4 testified that she thought the plastic bag may have landed three feet behind the 5 telephone pole. 6 4. Ms. Lemaire testified that both cars were in the same lane, that the first car couldn't 7 go much further because the rubber of the tires was flying out on the road, and that 8 the second vehicle kept pursuing until the vehicle had to stop. 9 5. Officer Pangelinan and Officer Joe Nucum were first on scene, responding to the 10 reckless driving complaint from Central Precinct. 11 6. Officer Pangelinan and Officer Nucum encountered two vehicles stopped on the 12 roadway. One vehicle was a sedan, the other vehicle was a Toyota Tacoma. Officer 13 Pangelinan testified that there was damage to the vehicles, and that a crash may have 14 occurred. Officer Pangelinan testified that the damage he observed corroborated with 15 information he received from the desk watch officers . 16 7. Officer Nucum approached the sedan and Officer Pangelinan approached the Toyota 17 Tacoma. Officer Pangelinan testified that one occupant in the Tacoma was identified 18 as Donson Acfalle and the operator as Jerome Cruz. Officer Pangelinan instructed 19 both occupants to exit the vehicle. Mr. Acfalle was told to get out of the vehicle 20 first, and was recognized by Officer Pangelinan from prior police encounters. After 21 Officer Pangelinan determined that Mr. Acfalle did not have any weapons on him, 22 Defendant was also told to exit the vehicle. Officer Pangelinan then conducted a pat 23 down on Defendant. 24 8. Defendant was told to stand towards the front of the truck and place his hands on the 25 hood. Mr. Acfalle was on thereat side of the truck. 26 9. Officer Pangelinan asked Defendant and Mr. Acfalle if they had anything illegal in 27 the vehicle, to which both answered no. 28

People v. Cruz Case No. CF0580-20 Decision and Order 1 10. Officer Pangelinan asked both Defendant and Mr. Acfalle for consent to search the 2 vehicle. Officer Pangelinan testified that both nodded their heads, and Defendant 3 said yes. Defendant also said that the vehicle belonged to a friend of his named Don. 4 11. Officer Pangelinan went through the passenger side of the compartment and found a 5 black shoulder bag on the center console. Officer Pangelinan testified that he was 6 searching for weapons for officer safety and that he did not find any weapons. 7 Officer Pangelinan testified that there was a large sum of U.S. currency in the black 8 shoulder bag. A second search was conducted later on by a different officer. 9 12. Additional GPD officers arrived on the scene. Officer Pangelinan testified that there 10 were at least three police vehicles at the scene, including his vehicle. 11 13. Officer Perez who arrived later on the scene observed at least four other officers 12 present and heavy damages sustained to the sedan and pickup truck. Officer Perez 13 testified that at least one occupant of the sedan were outside the vehicle when he 14 arrived speaking to an officer, and one male was towards the front of the truck and a 15 second male individual towards the back side of the truck. Officer Perez observed 16 an officer near each of the males. Officer Perez testified that none of the individuals 17 were handcuffed. 18 14. Defendant provided Officer Pangelinan a paper photocopy of his Guam driver's 19 license. 20 15. Officer Pangelinan asked the desk watch officers from both Central and Southern 21 Precinct as to information from the reporting person as to what transpired. 22 16. Officer Pangelinan testified that he was informed that the Tacoma had struck the 23 sedan, and that the reckless driving began in the village of Maite, and concluded 24 where they located the vehicles in Piti. Officer Pangelinan arrested Defendant for 25 reckless driving. 26 17. Officer Pangelinan testified that Defendant was not in handcuffs prior to being 27 arrested for reckless driving. Officer Pangelinan also testified that Defendant was 28

People v. Cruz Case No. CF0580-20 Decision and Order 1 not allowed to leave and that he was being detained. Officer Pangelinan testified 2 that both Defendant and Mr. Acfalle could have still accessed the vehicle. 3 18. Officer Pangelinan estimated the amount of time from when Defendant was told to 4 exit the vehicle to when Defendant was arrested was under fifteen (15) minutes. 5 19. After Officer Pangelinan arrested Defendant, any items on Defendant's person were 6 relinquished to Defendant's girlfriend. Officer Pangelinan testified that officers later 7 learned that she was the operator of the other vehicle. 8 20. Officer Pangelinan could not recall whether or not he advised Defendant of his 9 Miranda rights immediately after arresting him, but indicated that Defendant was not 10 questioned. 11 21. Officer Pangelinan testified he advised Defendant of his Miranda rights through a 12 GPD custodial interrogation form back at the police station. Defendant 13 acknowledged his rights and provided a verbal statement. Officer Pangelinan 14 testified that Defendant denied ownership on everything located except for the 15 currency. 16 22. Officer Skilling testified that he confiscated evidence from a bag inside the vehicle 17 and another bag later discovered in the jungle area near Polaris Point, Piti. 18 23. Officer Skilling testified that the reporting person observed a white object either bag 19 or plastic cup being thrown out of the front passenger window of the Tacoma into 20 the jungle area of Polaris Point. Officer Sldlling testified that police believed the 21 vehicle that the item was thrown out of was the same vehicle involved in the reckless 22 driving incident. Officer Skilling testified that three to four officers were searching 23 the jungle area near Polaris Point, Piti. Officer Skilling testified that Officer Santos 24 found a white plastic bag on the grass. Officer Sldlling testified that it was a small 25 white plastic bag with the Foodies logo tied up in a double knot. Officer Skilling 26 testified that they waited for CSI Officer Alcantara to come and photograph the bag 27 before touching it. 28

People v. Cruz Case No. CF0580-20 Decision and Order

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1 24. Officer Sldlling testified that the bag was found around 10-15 feet from the road, and 2 the grass was about 5 feet tall. Officer Sldlling testified that he believed the bag 3 could have been thrown from the roadway. 4 25. Officer Skilling testified that the bag appeared to contain a handgun because he saw 5 t he s ha p e of a mu zzle. Officer Skilling testified that he discover ed a loaded 6 handgun, a blue transparent cylinder container with various pills and a clear plastic 7 bag with presumptive Positive methamphetamine within the bag. 8 26. Officer Perez testified that he also searched the pickup truck. Officer Perez did not 9 hear Defendant or the passenger give Officer Pangelinan consent to search the 10 vehicle. 11 27. Officer Perez testified that his search of the truck took a few minutes. Officer Perez 12 testified that when Defendant was arrested, the truck was searched as a search 13 incident to arrest. 14 28. Officer Perez testified that he was not aware of any weapons or drugs being involved 15 in this matter prior to his search of the truck. 16 29. Officer Perez testified that he discovered a fabricated glass pipe in the truck during 17 his search. 18 DISCUSSION 19 Defendant moves the Court to suppress any evidence seized from the truck and any 20 statements made by Defendant. See generally, Mot. Suppress, Jun. 11, 2021. 21 A. Evidence Seized from Truck 22 Defendant first moves the Court to suppress any evidence seized from the truck because 23 it was discovered as a result of an unlawful search. T he Four th Amendment to the U. S. 24 Constitution "protects against unreasonable searches and seizures and is made applicable to 25 Guam via section 1421(b)(c) of the Organic Act of Guam." People v. Chargualaf, 2001 Guam 26 1 <II 14 (internal citations omitted). Brief investigative detentions are permitted under the Fourth 27 Amendment "when a police officer has reasonable suspicion that an individual was engaged in 28 or is about to be engaged in illegal conduct." People v. Johnson, 1997 Guam 9 iI 4 (citing Terry

People v. Cruz Case No. CF0580-20 Decision and Order 1 v. Ohio, 392 U.S. 1 (1968)) Title 8 G.C.A. § 30.10 also "utilizes the same standard for 2 reasonable suspicion that is articulated in Terry v. Ohio and its progeny for courts to apply when 3 analyzing the legality of investigative detentions." People v. Tamar, 2013 Guam 22 'll 21. 4 Section 30.10 provides:

5 Whenever a police officer encounters any person under circumstances which reasonably indicate that such person has committed, is committing or is about to 6 commit a criminal offense, the peace officer may detain such person. 7 8 G.C.A. § 30.10. "The reasonable suspicion necessary to justify an investigatory stop is 8 dependent upon both the content of information possessed by police and its degree of 9 reliability." Johnson, 1997 Guam 9 '][ 5 (citation and internal quotation marks omitted). 10 Reasonable suspicion exists:

Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the 12 persons with whom he is dealing may be armed and presently dangerous, where in 13 the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the 14 encounter serves to dispel his reasonable fear for his own or others' safety.

15 Tamar, 2013 Guam 'll 21 (quoting Terry, 392 U.S. at 30-31). 16 In this case, Defendant was detained after Officer Pangelinan responded to a reckless 17 driving complaint. Officer Pangelinan testified that there were two vehicles on the side of the 18 roadway, that there was visible damage to the vehicles, and that he believed a crash may have 19 occurred. Officer Pangelinan testified that the damage he observed corroborated with 20 information he received from the desk watch officers regarding the reckless driving. Defendant 21 was identified as the driver of the vehicle. Officer Pangelinan also testified that he recognized 22 the passenger of the vehicle, Mr. Acfalle, from prior police encounters. Both Defendant and 23 Mr. Acfalle were instructed to exit the vehicle, were patted down, and stood by different parts of 24 the vehicle with their hands visible on the vehicle itself. Officer Pangelinan testified that he was 25 the only officer at that time addressing the two occupants of the truck because Officer Nucum 26 who had arrived with him on the scene was addressing the occupants of the sedan. 27 The Court finds that based on the information relayed to Officer Pangelinan by the desk 28 watch officer regarding the reckless driving complaint, which began in Maite and ended in Piti

People v. Cruz Case No. CF0580-20 Decision and Order 1 and involved two vehicles, the officer had reasonable suspicion that either the safety of him or 2 that of others was in danger. See Terry, 392 U.S. at 27. Officer Pangelinan testified that he 3 patted down the occupants of the vehicle to ensure that they did not have any weapons, and that 4 he also did an initial search of the vehicle to ensure there were no weapons because the 5 occupants were not handcuffed and near the vehicle. 6 The Court also finds that the initial search of the vehicle was valid because Defendant 7 and the passenger of the vehicle consented to the search. "A search or seizure made without a 8 warrant is presumed to be unreasonable. In the absence of a warrant, the police may lawfully 9 conduct a search or seizure only if an exception to the warrant requirement applies. Voluntary 10 consent is a recognized exception to the warrant requirement." Id. (internal citations omitted). 11 "The People bear the burden of proving, by a preponderance of the evidence, that consent was 12 given voluntarily." Id. at '][25.

13 Voluntariness is determined from the totality of the circumstances.... Factors in determining voluntariness include: 1) whether the defendant was detained and the 14 length of time of the questioning, 2) whether the defendant was threatened or 15 intimidated by the police, 3) whether the defendant relied on misrepresentations or promises Made by the police, 4) whether the person was in custody or under 16 arrest when the consent was given, 5) whether the person was in a public or a 17 secluded place, and 6) whether the defendant objected to the search. 18 People v. Canal 2006 Guam 12 qi 49 (citing Cha rgaalaf, 2001 Guam 1 '][ 25). "While helpful, 19 the above factors are not exhaustive. One factor alone is not dispositive of a particular 20 situation." People v. Santos, 1999 Guam 1 'it 37 (citing United States v. Castillo, 866 F.2d 1071, 21 1082 (9th Cir. l988)). See also United States v. Patayan Soriano, 361 F.3d 494, 502 (9th Cir. 22 2004) ("No one factor is determinative in the equation.... [T]hese factors are only guideposts, 23 not a mechanized formula to resolve the voluntariness inquiry."). 24 Here, Officer Pangelinan testified that Defendant was detained after he stepped out of 25 the vehicle. Officer Pangelinan testified that Defendant was not free to leave. Officer 26 Pangelinan testified that he did not question Defendant about the reckless driving but did ask 27 both Defendant and the passenger of the truck, Mr. Acfalle, for consent to search the truck after 28

People v. Cruz Case No. CF0580-20 Decision and Order 1 they were patted down, to which both nodded their heads, and Defendant verbally stated "yes." 2 Officer Pangelinan testified that he and Officer Nucum were first to arrive on the scene, and that 3 Officer Nucum addressed the occupants of the sedan, while he addressed the occupants of the 4 truck. Officer Pangelinan testified that Defendant and Mr. Acfalle were not handcuffed, and 5 were standing near the vehicle with their hands on the vehicle. There is nothing in the record 6 showing that Officer Pangelinan or Officer Nucum asserted any coercive, threatening, or 7 intimidating behavior prior to asking Defendant's consent. Nor did Officer Pangelinan make 8 any representations regarding the search. Although Defendant stated that the vehicle was 9 owned by his friend, "Don," the passenger of the truck was also named "Donson," and he 10 nodded consent to search the truck. Additionally, Defendant had been driving the vehicle in a 11 manner that resulted in visible physical damage to both the truck and sedan. Therefore, the 12 Court finds that based on the totality of the circumstances, Defendant voluntarily consented to a 13 search of the truck. 14 As to the second search of the truck, the Court finds that any consent given for the initial 15 search was still valid, as the consent was never withdrawn. Accordingly, the Court will not 16 suppress any evidence seized from the truck. Lastly, the Court will not suppress any items 17 thrown out of the truck contained in the plastic bag, as those items were abandoned. 18 B. Statements Made by Defendant 19 Next, Defendant moves to suppress statements made to the police based on violations of 20 his Miranda rights. The Fifth Amendment of the United States Constitution provides that "[n]o 21 person ... shall be compelled in any criminal case to be a witness against himself," U.S. Const. 22 amend. V, and is applicable to Guam through the Organic Act. See 48 U.S.C.A. § l42.lb(d). 23 "The main purpose of Miranda is to ensure that an accused is advised of and understands the 24 right to remain silent and the right to counsel." Bergnuis v. Thompkins, 560 U.S. 370, 383 25 (2010). "An interrogation is said to occur when the defendant, in custody, is the target of 26 questions or statements, which the police can expect will elicit incriminating responses." 27 People v. Farata, 2007 Guam 8 ']i 36 (citation omitted). "[T]he term interrogation 28 underMiranda refers not only to express questioning, but also to any words or actions on the

People v. Cruz Case No. CF0580-20 Decision and Order 1 part of the police (other than those normally attendant to arrest and custody) that the police 2 should know are reasonably likely to elicit an incriminating response." Id. (citation omitted). 3 An incriminating response is any response - whether inculpatory or exculpatory - that 4 the prosecution may seek to introduce at trial. Id. (citation and quotation marks omitted) 5 (emphasis in original). 6 In this case, although Officer Pangelinan could not recall whether or not he read 7 Defendant his Miranda rights at the scene immediately after Defendant was arrested, he did 8 recall that he advised Defendant of his Miranda rights at the police station through the standard 9 GPD custodial interrogation form. There is nothing before the Court indicating that Defendant 10 did not understand his rights or that his waiver of his rights was not valid. Officer Pangelinan testified that he did not ask Defendant any questions immediately after he was arrested for the 12 offense of reckless driving. Officer Pangelinan testified that he started asldng Defendant 13 questions after he advised Defendant of his Miranda rights. "[T]he special procedural 14 safeguards outlined in Miranda are required not where a suspect is simply taken into custody, 15 but rather where a suspect in custody is subjected to interrogation." People v. Farata, 2007 16 Guam 8 <Ii 22 (citation omitted). Therefore, the Court does not find that Defendant was 17 subjected to interrogation until after he was arrested and transported to the precinct. 18 Accordingly, the Court does not find that Defendant's rights were violated, and DENIES the 19 Motion to Suppress.

20 CONCLUSION 21 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Suppress

22 Evidence. A Status Hearing is set for January 24, 2022 at 9:30 a.m. via Zoom.

W*

23 IT IS SO ORDERED this day of December, 2021 24

25 SERVICE VIA E-MAIL

I acknowledge that an electronic copy 0f the original was e-mailed to:

26 46 /y{a HONORABiE VERNON p. PEREZ"

27 Judge, Superior Court of Guam Date:la MI Time: Q39/BK

28 /.A

Deputy Clerk, Superior Court 0f Guam

People v. Cruz Case No. CF0580-20 Decision and Order