United States v. Velazco-Durazo

372 F. Supp. 2d 520, 2005 U.S. Dist. LEXIS 10912, 2005 WL 1322955
CourtDistrict Court, D. Arizona
DecidedMarch 4, 2005
DocketCR 04-0602-PHX-NVW
StatusPublished
Cited by3 cases

This text of 372 F. Supp. 2d 520 (United States v. Velazco-Durazo) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Velazco-Durazo, 372 F. Supp. 2d 520, 2005 U.S. Dist. LEXIS 10912, 2005 WL 1322955 (D. Ariz. 2005).

Opinion

ORDER

WAKE, District Judge.

Defendant Carlos Enrique Velazco-Du-razo is charged with marijuana and firearm offenses in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(l)(B)(vii), and 18 U.S.C. § 924(c). Before the Court is Defendant’s Motion to Suppress evidence obtained from his home on June 3, 2004. He contends that he answered the door in response to an illegal seizure and did not voluntarily consent to police officers entering the home, which led them to discover the challenged evidence. The Court held an evidentiary hearing on this motion on January 18 and 25, 2005. The challenged evidence must be suppressed based on the facts proven at the hearing.

I. Findings of Fact

The Court heard conflicting testimony on several points and resolves the conflicts based on the witnesses’ demeanor, their likely ability to perceive and remember, the plausibility of their testimony, and their credibility. For the most part the Court is persuaded by the government’s witnesses. Where the testimony of those witnesses conflicts, Detective Toulouse’s probable cause affidavit of June 4, 2004, is more persuasive in light of its closeness to the events. Defendant’s testimony was not credible in important specifics, but the Court does believe some of his testimony.

On June 3, 2004, Detective Daniel Toulouse of the Mesa Police Department received information from an anonymous source that a residence located at 4912 W. Pinchot Avenue, Phoenix, Arizona, was possibly being used as a marijuana “stash house,” a place for storing large quantities *523 of drugs for later distribution. Later that day Detective Toulouse and another officer drove to and observed the house. They noted that the front door of the residence was secured by a metal security door and all of the windows facing the street were covered by blinds or curtains. They also noted a large double-door gate on the side of the property giving access to the backyard. No vehicles were parked in the driveway.

The officers then spoke with two of the neighbors. Both said they had witnessed some unusual or odd activity at the residence. One of the neighbors had observed several vehicles arrive at the residence and invariably pull into the garage, with the garage door closing immediately. Both neighbors said that they rarely observed anyone coming or going from the residence. One stated that whenever anyone did arrive at the house they would enter through the side gate into the backyard rather than the front door. One neighbor reported seeing a blue vehicle pull into the garage at 12:00 P.M. that day but was uncertain whether the vehicle was still in the garage. Both neighbors expressed fear of retaliation from the residents of the 4912 W. Pinehot address and refused to identify themselves to the police.

Based on the anonymous tip, his observations, and his conversations with the neighbors, Detective Toulouse determined that further investigation was necessary. He assembled a team of six detectives from the Mesa Police Department and one Phoenix police officer and advised them that they would conduct a “knock and talk” at the 4912 W. Pinehot residence. The purpose of the knock and talk was to obtain further information about activities at the house and ultimately to gain consent to enter.

Detectives Torres and DeLamater approached the front of the residence at approximately 9:00 P.M. on June 3, 2004. The house is on the north side of the street, with the centrally placed front door facing south. A porch light and living room window are to the east of the front door, and east of the window a wall of the garage projects south a few feet. Detective DeLamater took a position east of the living room window in the corner where the south-projecting garage wall meets the front wall of the house. Detective Torres, a Spanish speaker, directly approached the front door. Both officers were dressed in plain clothes, but Detective Torres wore a visible police badge on a lanyard around his neck, and Detective DeLamater wore a “raid vest.” Both officers were visibly armed, but their weapons were not drawn. The other officers took positions out of the sight of the front door area, either along the door of the garage which juts out a few feet in front of the main structure or beside the side gate east of the garage door. The officers positioned along the garage door detected the odors of incense and cleaning products emanating from inside the garage. They recognized these odors as masking agents commonly used to conceal the odor of marijuana. However, they did not communicate what they smelled to Detectives Torres and DeLamater, who were unaware of the masking agents at that time.

Detective Torres knocked on the metal security door but not on the main front door, which was closed behind the security door. At first there was no response. Detective Torres continued knocking on the security door and also knocked on a couple of the windows beside the front door. The semi-continuous knocking on the security door lasted for approximately two and a half minutes, rising to a level of heavy pounding. While Detective Torres stood at the front door alternately waiting for a response and continuing to knock, Defen *524 dant was in a bathroom at the rear of the house. He left the bathroom after hearing the knocking and turned off a light in the backyard, intending to flee out a rear door. Defendant decided not to exit the rear door after seeing some other lights shining in the backyard. At some point while he was knocking, Detective Torres announced that he was a police officer and wanted to know if someone would come to the front door and speak with him. Detective Torres did not use literal words of command, but together with the semi-continuous and eventually heavy pounding, his request was not one which could be easily refused. Indeed, Detective Torres testified that he intended to make contact if anyone was inside.

Defendant answered the ' door shortly after Detective Torres announced that he was a police officer and wanted someone to come to the door and speak with him. At first Defendant opened only the front door and not the security door. Only Detective Torres was then visible to him. Detective Torres identified himself in Spanish as a police officer and asked Defendant if he was the owner of the residence. Defendant responded that he was not but that he had been living there for one week. Detective Torres asked Defendant if he would speak with him. Defendant agreed. He opened the security door, closed the front door, and stepped outside. Detective DeLamater then became visible to him as well. Detective Torres informed Defendant that he was there to investigate a report of narcotics at the residence and asked if he could come inside to talk. The entire exchange from the time Defendant answered the door to the time Detective Torres requested to go inside took approximately fifteen seconds.

In response to Detective Torres’ request to come inside, Defendant stated that he had no furniture in the house.

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Bluebook (online)
372 F. Supp. 2d 520, 2005 U.S. Dist. LEXIS 10912, 2005 WL 1322955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-velazco-durazo-azd-2005.