United States v. Viarrial

157 F. Supp. 3d 1081, 2015 U.S. Dist. LEXIS 175718, 2015 WL 9943532
CourtDistrict Court, D. New Mexico
DecidedOctober 27, 2015
DocketNo. 15-CR-0214-MV-001
StatusPublished

This text of 157 F. Supp. 3d 1081 (United States v. Viarrial) is published on Counsel Stack Legal Research, covering District Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Viarrial, 157 F. Supp. 3d 1081, 2015 U.S. Dist. LEXIS 175718, 2015 WL 9943532 (D.N.M. 2015).

Opinion

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant Gerald Viarrial’s Motion to Suppress Evidence and Memorandum in Support [Doc. 22] and Motion to Suppress Statements and Evidence and Memorandum in Support (Second Motion) [Doc. 23]. The government timely responded to each motion [Docs. 26-27] and Defendant replied to each response [Doc. 30-31]. A consolidated hearing on the Motions was held on September 16, 2015 in Santa Fe. The Court, having considered the Motions, briefs, hearing testimony, exhibits, relevant law, and being otherwise fully informed, finds that the Motions are not well-taken and will be DENIED.

BACKGROUND

On March 23, 2014, one of Gerald Viarrial’s children approached Elizabeth Duran, “the director of the Social Services Department for the Pueblo of Pojoaque” to report that his father had been physically abusive to him and his siblings. Hearing Transcript 1 (“Tr.”) at 10-11. Duran then contacted Chief Frank Rael of the Pueblo of Pojoaque Tribal' Police Department (“PTPD”) to inform him of the allegations that the child had made to her, including that Viarrial had been physically abusive toward his children. See Tr. at 11. See also Doc. 26 at 1 (“one of Defendant Gerald Viarrial’s children, known for the purposes of these proceedings as ‘John Doe 2’ informed law enforcement officials that ‘Defendant is physically and emotionally abusive toward John Doe 2 and his other [sic] siblings.’ ”).

According to this child, Viarrial was “always threatening to have people kill them [yiarrial’s children] for no reason” and was frequently physically abusive, including an incident in which he “grabbed John Doe 1 [another of Viarrial’s children] by the throat, pushed him up against the wall and started choking him.” Doc. 26 at 1. See also Tr. at 10-12, 53 (“Threats to kill; [1084]*1084threats to have a shootout with the police by Mr. Viarrial; threats of abuse in one case; and allegations of strangulation.”). In an apparent effort to deter his children from reporting this violent conduct to the relevant authorities, Viarrial warned Doe 2 “that if [Doe 2] ever brings the Cops [sic] in, he.[Viarrial] will have another shootout with the police and this time he. will get all of them instead of just one ... and that it would be [John Doe 2’s] fault.” Doc. 26 at 1 (internal quotation marks omitted). Doe 2 also informed the police .that his father possessed a black handgun, rendering these threats at once more horrific and credible. Id. See also Tr. at 11-12 (noting that there were “threats made with the presence of firearms.”).

An interview with Doe 1 confirmed Doe 2’s story. Doe 1, “the Defendant’s oldest son” was visibly shaken during the conversation and explained that his father had “told him that if he tells anyone what he does, he would kill them' [his sons]” emphasizing that “his dad began choking him with his hand and told him, this is what they will do to you in jail and they will start raping you.” Id. 1-2. Evidently, this pattern of behavior was not uncommon; Doe 1 stated that his father “is always threatening them and says that he will kill them.” Id. at 2. Further, Doe 1 also reported that he “had seen rifles and a handgun at his Dad’s Old Pueblito Road house' and had also- seen guns at his other house in plain view.” Id. Doe 1 apparently left the interview abruptly out of fear that his father would learn that he was speaking to police. See id.

On March 28th, Defendant was arrested at “The Sopapilla Factory Restaurant” in the Pueblo of Pojoaque; at that time, he was informed of the child abuse allegations against him, but he did not visibly react. Tr. at 12. See also Doc. 22 ¶ 2. Defendant was immediately “taken to tribal police headquarters” which is “about one block” away from the Sopapilla Factory, Tr. at 12-13. During his arrest and transport to the station, no officers questioned Viarrial or otherwise engaged him in conversation. Id. at 24-25. Once at tribal police headquarters, Defendant was properly informed of his Miranda rights, at which point he indicated that he understood those rights and then elected not to make a statement to the officers. Id. at 13, 15. See also id at 26. Notwithstanding this invocation of his rights, Defendant then said, unprompted, “if you want to treat me like a criminal, Twill be one, you will see.” Id. at 14. He also eventually volunteered that he had caught his sons “ditching” and that “Wanda coached” his children in an apparent attempt to explain his children’s statements. Id. at 19-20.

Sometime later, officers requested Defendant’s permission to “search ¡Viarrial’s] property for weapons.” Id. at 14. Upon receiving Defendant’s agreement, the PTPD produced two “Consent to Search” forms and then-Corporal Jon López meticulously explained the documents “step by step” to ensure that Viarrial appreciated the meaning and significance of their contents. Mat 26-28. After-this discussion, Defendant consented to a search of his properties and signed the two separate “Consent to Search” forms prepared by the PTPD; one form described a domicile located on Old Pueblito Road and the other listed three separate vehicles located at' “Rt 1 Box 55” in Santa Fe. Tr. at 14-15. See also Gov. Ex. 3-4;- Tr. at 36. Importantly, however, neither form mentioned Defendant’s second residence, located on Lightning Loop. Tr. at 40.

Corporal López “then transported [Viar-rial] to the Old Pueblito address first to begin the search,” which revealed no incriminating evidence. Id. at 29. Corporal López then “put [Viarrial] back in [his] patrol car and then [he] transported [Viar-[1085]*1085rial] to the Lightning Loop address.” Id. at 30. During the drive to the second residence, Viarrial initiated a conversation, telling Corporal López that there was a .45 caliber pistol “in a heater box in the living room.” Id. In response, Corporal López inquired “if there was any other contraband” of which the police should be aware; Viarrial replied that there was “a pot pipe in the coffee table in the living room.” Id. at 30-31. See also Doc. 22 ¶ 3 (noting that Viarrial mentioned that a “‘45’ [caliber pistol] was within a heater box in the living room of his second residence”). Upon arrival at the second residence, Viarrial “was escorted up to” the door, which he .opened for the officers. Tr. at 32. See also id. at 47 (“Viarrial actually opened the door for us.”). However, when police ultimately located the “heater box” that Viarrial had described to Corporal López; Viarrial “stepped in and said that we cannot touch that, that that was religious items.” Id. at 33. See also Doe. 26 at 2; Doc. 22 ¶4. Sergeant Bryant of the PTPD, also present at the scene, then informed Viarrial that the officers would “take custody” of the heater box and the Sentry-brand safe within it. Tr. at 33. Sergeant Bryant continued that in order to “respect [Viarrial’s] wishes, [the police] would have the war chief’ from the Pueblo “present and actually open the box for us so that' we would not disrespect any religious items.” Id. Consistent with Viarrial’s earlier statement, the search also revealed “a metal marijuana pipe with burnt residue on it within the coffee table.” Id.

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Bluebook (online)
157 F. Supp. 3d 1081, 2015 U.S. Dist. LEXIS 175718, 2015 WL 9943532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-viarrial-nmd-2015.