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United States v. Hernandez

United States District Court, D. Colorado

November 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
EMILIO JOHN HERNANDEZ, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

          CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Emilio Hernandez's Motion to Suppress (Doc. # 16), wherein he argues that Denver Police Department (DPD) Officer Christopher Valko violated his Fourth Amendment right to be free from unreasonable search and seizure when he searched Mr. Hernandez's car without a warrant on April 1, 2017, and discovered a firearm under the driver's seat. Based on the Parties' written arguments, the evidence presented at the hearing, and applicable legal authority, the Court finds that Officer Valko's search of the vehicle was unconstitutional and, therefore, grants Mr. Hernandez's Motion to Suppress.

         I. BACKGROUND

         On April 1, 2017, Mr. Hernandez was arrested for possession of a weapon by a previous offender. The events giving rise to his arrest, as recorded on Officer Valko's body camera, are as follows:

         Officer Valko was driving eastbound on a busy section of I-70 when he clocked Mr. Hernandez driving in excess of the speed limit. Officer Valko initiated a lawful traffic stop. Mr. Hernandez produced a valid Colorado ID card but was unable to produce a driver's license. The passenger was also unable to produce a valid driver's license. Officer Valko then discovered that Mr. Hernandez's license was suspended. Officer Valko prepared citations for speeding and driving under a suspended license. While doing so, he told his fellow cover officer that he was “going to do a proof and get them out of here.” He added, “I'll just park and lock the car I guess. I don't know. They can't drive.”

         Officer Valko then returned to Mr. Hernandez's vehicle and asked him to step out of the car and away from traffic to sign some “paperwork.” After completing that paperwork, Officer Valko asked Mr. Hernandez if there was anyone who could pick up the car, since neither Mr. Hernandez nor the passenger was able to drive it. Mr. Hernandez responded “yeah.” He then gestured toward Pecos Street and made a number of inaudible comments. Before Mr. Hernandez finished responding, however, Officer Valko cut him off and asked, “Is there anything in the car that shouldn't be?” Mr. Hernandez responded, “No.” Officer Valko then asked if he could search the car. Officer Valko twice told Mr. Hernandez that he had a right to refuse the search. Mr. Hernandez's responses are inaudible but the parties agree that he did not consent to Officer Valko's search.

         Officer Valko then made the statement, “You know, most guys would tow that car since you can't be driving it, ” and again asked, “Is there anything in there that I'm going to find?” Mr. Hernandez responded, “No.” Officer Valko then proceeded to search the car. He looked on the front passenger seat, next opened and looked in the glove compartment, and then opened and looked in the center console. He flashed his light in the back seat. Finally, he reached under the driver's seat where he found a loaded firearm, which Mr. Hernandez later admitted was his.

         In his motion to suppress, Mr. Hernandez disputes the legality of Officer's Valko's search, primarily arguing that Officer Valko's search was for no other reason than to conduct a criminal investigation, i.e. look for contraband - which requires either consent or a warrant. The Government responds that Officer Valko's search was a lawful inventory search pursuant to established DPD policies and procedures, adding that, even if the search was unconstitutional, the firearm inevitably would have been discovered pursuant to these policies. The Government also contends that Mr. Hernandez has no standing to object to the search.

         Naturally, the Court first discusses the issue of standing.

         II. STANDING TO CONTEST THE SEARCH

         “Fourth Amendment rights are personal and cannot be claimed vicariously.” United States v. Valdez Hocker, 333 F.3d 1206, 1208 (10th Cir. 2003). “The proponent of a motion to suppress has the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search.” United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000). This “standing” question centers on the “classic Fourth Amendment test: whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as objectively reasonable.” United States v. Eckhart, 569 F.3d 1263, 1274 (10th Cir. 2009) (internal quotation marks omitted). When, like here, the defendant is not the registered owner of the car that was subjected to the search, although he “need not submit legal documentation showing a chain of lawful custody from the registered owner to himself, ” he nonetheless “bears the burden of establishing that he gained possession from the owner or someone with authority to grant possession.” Valdez Hocker, 333 F.3d at 1209. He must advance evidence establishing a link between himself and the registered owner. Id; see also United States v. Arango, 912 F.2d 441, 445-46 (10th Cir. 1990) (denying standing to defendant who borrowed the vehicle from a person who was not the registered owner and who provided no evidence linking the lender to someone with a lawful possession of the vehicle); United States v. Betancur, 24 F.3d 73, 77 (10th Cir. 1994) (same); United States v. Martinez, 983 F.2d 968, 973 (10th Cir. 1992) (same).

         Testimony elicited at the hearing establishes that Mr. Hernandez has standing to maintain the instant motion. Specifically, Mr. Hernandez testified that the car's registered owner, Rena Grant, gave him permission to use it. Defendant testified that he traveled to South Dakota days before his arrest to visit his then-girlfriend Rainbow Grant, who is the niece of Rena Grant. He added that, while there, Ms. Grant gave him permission to borrow her car “to run [his] family errands” in Colorado before returning to South Dakota. Mr. Hernandez testified extensively regarding his use of the car for these “family errands, ” adding that he felt responsible for the car as if it was his own and thoroughly explaining his legitimate possessory and privacy interests in its contents. The Court finds Mr. Hernandez to be credible on this issue.

         Mr. Hernandez's testimony is further supported by Officer Valko's testimony that Rena Grant was indeed the registered owner of the vehicle. Mr. Hernandez also presented a recorded jail conversation between him and Ms. Grant, wherein they discuss her car and his use of it. At no point in that conversation did Ms. Grant insinuate that Mr. Hernandez had taken her car without permission or was otherwise unauthorized to use it. The Government's argument that Defendant stole the vehicle is dubious and unpersuasive; it is not supported by any evidence in the record or testimony at the hearing. To the contrary, the Court concludes that Mr. Hernandez sufficiently established not only that he had permission to use the vehicle from someone with authority, but also, that he had a legitimate privacy interest in the vehicle's contents at the time of Officer Valko's search.

         III. ...


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