People v. Leon Guerrero

Opinion

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6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0742-18-01 g

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DECISION AND ORDER

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12 STEVEN JAMES LEON GUERRERO, 13 Defendant.

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15 INTRODUCTION

This matter came before the Honorable Vernon P. Perez on June 18, 2020, for hearing 16

17 on Defendant Steven James Sablan Leon Guerrero's ("Defendant") Motion to Suppress.

18 Defendant was present with counsel, Attorney William B. Brennan, and Assistant Attorneys

19 General Woodrow D. Pengelly and Renaida Z. San Nicolas were present on behalf of the People

20 of Guam ("the Government"). Having reviewed the pleadings, the arguments presented, and

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

22 BACKGROUND

23 On December 21, 2018, Defendant, Dennis Delosario Dizon, Melvin Sablan Leon

24 Guerrero, and Jason Taimanglo were each indicted with the following charges: (1) Burglary

25 (As a Second Degree Felony) -. 4 Counts; (2) Theft By Receiving (As a Second Degree Felony)

26 4 Counts; (3) Theft (As a Second Degree Felony) ._ 4 Counts, (4) Attempted Theft (As a

27 Second Degree Felony), and (5) Criminal Trespass (As a Misdemeanor). (Indictment, Dec. 21,

28 2018). These charges are based on allegations that the defendants were involved in four

People v. Leon Guerrero Case No. CF0742- 18-01 Decision and Order 1 separate burglaries during the period from October 2018 to December 2018. A11 charges 2 relating to Defendant were severed from the other defendants on July 31, 2019. See Order, Jul. 3 31, 2019. 4 . On September 27, 2019, DefeNdant filed the instant Motion to Suppress. On November 5 4, 2019, the Government filed its Opposition, and on November 12, 2019, Defendant filed his 6 Reply. The Court denied Defendant's request for an evidentiary hearing pursuant to Franks v. 7 Delaware, 438 U.S. 154 (1978), finding that Defendant failed to make a substantial preliminary 8 showing that a Franks hearing was warranted. (Dec. & Order, Mar. 10, 2020). The Court 9 found that Guam Police Department ("GPD") Officer Peter T.F. Pauli ro ("Officer Pauli ro") 10 misrepresented certain factual allegations in his warrant application, but did not find such misrepresentation to be intentional or reckless and material to the Ex Parte Judge's finding of 12 probable cause. Id. at 5. 13 The Court subsequently set a Motion Hearing for March 27, 2020 to consider the 14 remaining arguments raised in Defendant's Motion to Suppress. The motion hearing did not go 15 forward, however, due to the closure of non-essential government operations by the Governor of 16 Guam due to the COVID-19 (coronavirus) pandemic. 17 On June 18, 2020, the Court held a Motion Hearing, and heard sworn testimony from 18 Officer Pauli ro. The parties were then given the opportunity to submit proposed findings of 19 fact and conclusions of law for the Court's consideration. On July 20, 2020, Defendant filed his 20 proposed findings of fact and conclusions of law. The Government did not file any proposed 21 findings. The Court subsequently placed the matter under advisement. 22 FACTS 23 By a preponderance of evidence, the Court makes the following findings of fact: 24 1. Sometime in late 2018, Officer Pauli ro came to be involved in an investigation 25 related to a Guam Customs and Quarantine Agency warehouse burglary. One of the 26 items stolen from the warehouse was night vision goggles. 27

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People v. Leo11 Guerrero Case No. CF0742-18-0 l Decision and Order

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1 2. In November 2018, GPD officers confirmed that night vision goggles were found on 2 an individual named Dennis Dizon ("Dizon"), during a response to a burglary in 3 progress complaint at a Guam Power Authority Substation. 4 3. Officer Pauli ro interviewed Dizon and was provided information related to the 5 burglaries of the custom's warehouse and a Black Construction Company worksite. 6 Dizon implicated several individuals, including Defendant, and alleged that the 7 stolen property was located at Defendant's home in the Ukudu Pipeline area. Dizon 8 provided a description of a white container with a white truck with a utility bed. 9 4. Officer Pauli ro conducted a residence verification and confirmed the residence and 10 white utility vehicle. 11 5. On December 11, 2018, Officer Pauli ro applied for a warrant to search property for 12 specific items relating to the alleged burglaries. The application was brought before 13 the Court as Ex Parte Judge and was granted. The application and search warrant 14 identified the target as:

15 Steven Leon Guerrero White Shipping Container / 16 (used as dwelling), Ukudu Pipeline 17 Dededo, Guam 96929 18 (Def. Ex. 1 at p. 93).1

19 6. The warrant application stated its purpose was "to legally obtain and seize evidence

20 and any items listed in 'Attachment A' pertaining to anything related to drug activity

21 from .. . a White Shipping Container, off the Ukudo Pipeline, Dededo, to include a

22 2000 Ford F250 White Ford utility vehicle.

as

Id. at p- 94.

23 7. Officer Pauli ro admitted at the Suppression Hearing that the reference to drug

24 activity was because he copied and pasted the language from a previous Mandana

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l 27 The Affidavit for Search Warrant and Search Warrant also identified the residences of co-actors Jason Taimanglo, Melvin Leon Guerrero, and Dennis Dizon. (Def. Ex. I at p. 94). No items were seized from their 28 residences. (Def. Ex. I at pp. 101-102).

People v. Leon Gll8l'l'€l'o Case No. CF0742-18-01 Decision and Order 1 Drug Task Force Warrant. No drug activity was alleged in the investigations 2 underlying this matter. 3 8. The warrant application described two alleged burglaries: an October l, 2018 Guam 4 Customs and Quarantine warehouse in Tiyan and a November 5, 2018 Black 5 Construction storage container burglary in Ritidian/Yigo. The Search Warrant 6 authorized police to search for and seize the items listed in Attachment A. 7 Attachment A delineated thirty-five items under two headers: "Guam Customs and 8 Quarantine (GPD case # 2018-28373)" and "Black Construction (GPD case # 2018- 9 31845)." (Def. Ex. I at pp. 98-100). The Search Warrant did not incorporate the 10 warrant application. 11 9. Officer Pauli ro was the lead officer related to the execution of the search warrant on 12 December 12, 2018 at 6:00 a.m. Officer Pauli ro briefed approximately 30 officers 13 at the staging area at Dededo Precinct prior to heading to the Ukudu pipeline area. 14 10. When officers arrived at Defendant's property, they found what was described as a 15 "junk yard," with lots of small equipment, tools, and machinery. 16 11. Officer Pauli ro called three individuals to come and assist with the search: Jesse 17 Garcia from Black Construction, Guam Customs and Quarantine Officer Sinforoso 18 C. Galindez Galindez, and Randy Sager of Reaction Company. Officer Pauli ro 19 testified that he called these three individuals to review items found at the location to 20 determine if the items were stolen from their respective agencies/organizations. 21 l2.Neither Reaction Company nor Mr. Sager were mentioned in the Warrant 22 Application or Search Warrant. Officer Pauli ro testified that he learned of an 23 alleged link between his investigation with the Reaction Company burglary 24 sometime after he appeared before the Court ex parte on December ll, 2018, to 25 apply for the search warrant, but before the warrant was actually executed on 26 December 12, 2018. Officer Pauli ro believed that either Sergeant T. To or Sergeant Z7 S. Munoz informed him of a connection to the Reaction Company burglary. 28

People v. Leon GllElTEl'o Case No. CF0742-18-0 l Decision and Order l 13. Officer Pauli ro testified that he did not go back before the ex parte judge to apply 2 for an additional warrant or to expand the scope of the existing warrant. Officer 3 Pauli ro also testified that he did not contact the on-call Assistant Attorney General 4 to request guidance on the potential connection to Reaction Company and its effect 5 on the Warrant Application. 6 14. GPD officers executed the warrant and seized several steins. Items listed in two 7 custody receipts were returned on December 20, 2018. See Def. Ex. I at pp. 101- 8 104. Several other custody receipts in discovery also show that other property was 9 seized on December 12, 2018 from Defendant's home. See Def. Ex. B, D, E, and F: 10 These items were not attached to any return of warrant filed before a judge and appear to be some items that may have been associated with the Reaction Company 12 burglary, which was not referenced or included in the Warrant Application. 13 15. Officer Pauli ro testified that items seized that were not listed in the search warrant 14 attachment were items found in "plain view" and were identified by either Officer 15 Galindez, Mr. Garcia, or Mr. Sager, and sized "subject to verification" that the items 16 were stolen. 17 DISCUSSION 18 The Fourth Amendment to the U.S. Constitution "protects against unreasonable searches 19 and seizures and is made applicable to Guam via section 1421(b)(c) of the Organic Act of 20 Guam." People v. Chargualaf, 2001 Guam 1 'Ii 14 (internal citations omitted). Under the 21 Fourth Amendment, "no Warrant shall issue, but upon probable cause, supported by Oath or 22 affirmation, and particularly describing the place to be searched, and the persons or things to be 23 seized." U.S. CONST. amend. IV. The particularity requirement for warrants "makes general 24 searches under them impossible." People v. Camacho, 2004 Guam 6 'II 16 (quoting Marrow v. 25 United States, 275 U.S. 192, 196 (1927)). "The particularity requirement ensures that as to 26 what is to be taken, nothing is left to the discretion of the officer executing the warrant. In 27 addition, the Fourth Amendment proscribes all unreasonable searches and seizures, and it is a 28 cardinal principle that searches conducted outside the judicial process, without prior approval by

People v. Leon Gz1erI.er'o Case No. CF0742-18-01 Decision and Order

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1 judge or magistrate, are per Se unreasonable under the Fourth Amendment." Id. (internal 2 citations, quotation marks, and alterations omitted). The warrant "need only be reasonably 3 specific, rather than elaborately detailed, and the specificity required varies depending on the 4 circumstances of the case and the type of items involved." United States v. Rude, 88 F.3d 1548, 5 1551 (9th Cir. 1996) (internal quotation marks and citations omitted). . 6 The first issue before the Court is whether officers exceeded the scope of the search 7 warrant. Defendant moves the Court to find that officers indeed exceeded the scope of the 8 search warrant and engaged in a general search, see Mot. Suppress at 7-9, Sep. 27, 2019, while 9 the Government moves the Court to find that the officers acted within the scope of the warrant 10 in seizing evidence of stolen property, noting that the Search Warrant provided for the seizure 11 of "evidence and items of evidentiary value, but not limited to, any items which may be fruits of 12 the crime." See Opp'n at 7-8, Nov. 4, 2019. 13 "[G]ene1'ic descriptions of the things to be seized are permissible only in limited 14 circumstances . .. where the investigating and issuing authorities are unable more particularly to 15 identify those goods." People v. Tockgo, 193 Cal. Rptr. 503, 508 (Cal. Ct. App. 1983). See 16 also United States v. Kaw, 58 F.3d 423, 427 (9th Cir. 1995) ("Generic classifications in a 17 warrant are acceptable only when a more precise description is not possible."). 18 In this case, the purpose of the warrant application was "to legally obtain and seize 19 evidence and any items listed in 'Attachment A' pertaining to anything related to drug activity 20 from ... a White Shipping Container, off the Ukudo Pipeline, Dededo, to include a 2000 Ford

21 F250 White Ford utility vehicle.. :Ra (Def. Ex. I at p. 94). No drug activity was alleged in the

22 investigations underlying this matter. Officer Pauli ro admitted at the Suppression Hearing that 23 the reference to drug activity was because he copied and pasted the language from a previous 24 Mandala Drug Task Force Warrant. Attachment A to the Search Warrant clearly delineated 25 thirty-five (35) items that were stolen from Guam Customs and Quarantine Agency and Black 26 Const1°u<:tion. It is not clear' from the facts presented at the hearing that a more precise 27 description of any additional items suspected to be stolen could not be provided, or that the 28 number of items stolen was so voluminous that precise descriptions could also not be provided.

People v. Leon Gll£l'I'zl'o Case No. CF0742-18-01 Decision and Order l Therefore, the Court finds that the purpose of the warrant is not clear enough to excuse the 2 general search for "evidence and items of evidentiary value, but not limited to, any items which 3 may be fruits of the crime." Additionally, the search warrant and affidavit did not include any 4 information regarding the Reaction Company burglary. The scope of the warrant clearly did not 5 authorize a general search for evidence related to the Reaction Company burglary. 6 The next issue before the Court is whether the plain view exception to the warrant 7 requirement applies. "The general .rule that warrantless searches are presumptively 8 unreasonable, however, is subject to certain well established exceptions, such as 'good faith' 9 and 'plain view,' which find their roots in Fourth Amendment jurisprudence." Camacho, 2004 10 Guam 6 qt 16 (citations omitted). Seizure of items, even if outside the confines of the warrant, could be made if the evidence was properly seized under the plain view doctrine. Id. at '][ 20.

12 See also Horton v. Call"ornia, 496 U.S. 128, 135 (1990) ("An example of the applicability of 13 the plain view doctrine is the situation in which the police have a warrant to search a given area 14 for specific objects, and in the course of the search come across some other article of 15 incriminating character."). "If an article is already in plain view, neither its observation nor its 16 seizure would involve any invasion of privacy." Horton, 496 U.S. at 133. Three elements must 17 be satisfied: (1) the officer must arrive at the place from which the evidence could be plainly 18 viewed without violating the Fourth Amendment, (2) the evidence must be in "plain view" and 19 its incriminating character must also be immediately apparent, and (3) the officer must also 20 have a lawful right of access to the object itself. Camacho, 2004 Guam 6 'H 20. 21 Here, the officers plainly viewed the evidence, even if outside the confines of the search 22 warrant, without violating the Fourth Amendment. The initial intrusion onto Defendant's 23 property was justified by the execution of the Search Warrant. It is not clear, however, that the 24 "incriminating character" of the items seized was immediately apparent. Officers "who seize an 25 article must be presently aware of some specific and articulable fact from which a rational link .26 between the item seized and criminal behavior can be inferred." People v. Superior Court 27 (Meyers), 598 P.2d 877, 880 (Cal. 1979). The "extension of the original justification is 28 legitimate only where it is immediately apparent to the police that they have evidence before

People v. Leon Guerrero Case No. CF0742-18-01 Decision and Order l them, the 'plain view' doctrine may not be used to extend a general exploratory search from one 2 object to another until something incriminating at last emerges." Horton, 496 U.S. at 136. 3 Here, in order for the officers to determine whether the items on the property were 4 stolen, the officers had to verify that the items were in fact stolen. This verification goes 5 beyond the requirement that the items' incriminating character was immediately apparent to the 6 officers. The officers had a list of items that were stolen that they suspected they would find. 7 However, the officers did not simply seize items fitting the general descriptions of the property 8 stolen in the unsolved burglaries, representatives from the agencies/organizations that were

9 burglarized were called down to come down and identify their items, the items had to be further 10 verified. This is not to say that victims of crimes can generally aid police in execution of a

11 search warrant specifically related to their victimization, under some circumstances. See, e.g., 12 Meyers, 598 P.2d at 882 ("no constitutional prohibition forbids the use of the burglary victims 13 in this case from assisting the police in the execution of their valid warrant to search.. . . T h e

14 circumstances of the burglary rendered an exhaustive inventory of stolen property impossible.").

15 "The theory of [the plain view] doctrine consists of extending to non-public places such 16 as the home, where searches and seizures without a warrant are presumptively unreasonable, the 17 police's longstanding authority to make warrantless seizures in public places of such objects as

18 weapons and contraband.... Dispensing with the need for a warrant is worlds apart from

19 permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the 20 standard of probable cause." Arizona v. Hicks, 480 U.S. 321, 327 (1987). The items were not

21 weapons or contraband, such that their incriminating character can be assumed by the Court. 22 Rather, the Government should have presented evidence at the suppression hearing that the

23 items were in plain view and their incriminating character were immediately apparent, the

24 witnesses who actually identified the items were not called.2 No evidence was presented either 25 indicating that an exhaustive inventory of stolen property from either the Guam Customs and

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27 2 The Government bears the burden of proving that the plain view exception applies to the seizure of certain 28 properly. See United States v. Cheslzer, 678 F.2d 1353, 1356 (9th Cir. 1982).

People v. Leon Guerrero Case No. CF0742-18-01 Decision and Order l Quarantine warehouse burglary or the Black Construction burglary was impossible. 2 Accordingly, the Court finds that the items returned on December 20, 2018 that were not listed 3 in Attachment A of the Search Warrant must be suppressed. 4 Lastly, as the scope of the warrant clearly did not authorize a search for evidence related 5 to the Reaction Company burglary, any items identified by Mr. Sager would also not be 6 applicable under the plain view doctrine, as the first element would not be met. Therefore, 7 items in Exhibits B, D, E, & F must be suppressed.3 8 CONCLUSION 9 For the foregoing reasons, the Court hereby GRANTS Defendant's Motion to Suppress. 10 All items seized that were not listed in Attachment A of the Search Warrant are suppressed from use at trial. As Defendant remains in an asserted status, a remote Status Hearing via

12 teleconference is set for AU{;1-1 1o20 at 'I : 00 Q )/p.m.

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IT IS SO ORDERED this day of August, 2020 14

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17 HONORABLE VERNON P; PEREZ Judge, Superior Court of Guam 18

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3 27 These items were also not returned as evidence seized pursuant to the warrant to search Defendant's residence.

This also demonstrates that even the officers implicitly conceded by the lack of return of these items that they were 28 not within the scope of the Search Warrant.

People v. Leo/1 Guerrero C a s e N o . c F0 7 4 2 - 1 8 - 0 1 D e c is io n a nd O r de r I