United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
Benson United States District Judge
the Court is Defendant's Motion to Suppress. [Dkt.19].
Defendant, Dalton Romero moves the Court to suppress evidence
obtained during a search of Shayla Lucas (Lucas)'s
apartment in Tooele, Utah on January 27, 2017. During the
search, evidence was discovered which was used in charging
Romero with the crimes of: felon in possession of a firearm
in violation of 18 U.S.C. §922(g)(1); possession of an
unregistered short-barreled shotgun in violation of 26 U.S.C.
§5861(d); and possession of a controlled substance in
violation of 21 U.S.C. §844(a). Defendant contends that
the warrantless search was illegal under the Fourth Amendment
of the United States Constitution.
evidentiary hearing was held before the Court on December 11,
2017 at which witnesses were questioned by both sides. [Dkt.
25]. The parties then briefed the motion. On March 1, 2018,
they presented oral argument at a hearing before the Court.
[Dkt. 28, 29]. Romero is represented by Ronald Yengich and
the United States is represented in this matter by Ruth
Hackford-Peer and Jacob Strain. Based on the parties'
oral and written arguments and the relevant facts and the
law, the Court enters the following Memorandum Decision and
January, 2017, the Tooele police department received
information that a man named Johnny Doerr (Doerr) had gone
missing. Tooele Police Detective Jason Spencer was informed
by Doerr's friends and family that Doerr was dependant on
narcotics and owed a drug debt to Defendant Dalton Romero
(Romero) and Brandon Jordan (Jordan). Tr. 61. Detective
Spencer was told that Doerr had been robbed and
pistol-whipped by the men. Tr. 61-62.
resides in Tooele, Utah. He is and was at the time of the
search subject to supervision by Utah Adult Probation and
Parole (“AP&P”). Tr. 13, 15. The probation
agreement Jordan entered into with AP&P requires him to
“obey all state, federal and municipal laws.”
Gov't Exh. 1. The agreement also requires him to
“permit officers of Adult Probation and Parole to
search [his] person, residence, vehicle or any other property
under [his] control without a warrant at any time, day or
night upon reasonable suspicion to ensure compliance with the
conditions of the Probation Agreement.” Id.
Pursuant to the Agreement, he is prohibited from associating
with others who are “involved in criminal
activity” or are convicted felons. Id. Also,
he may not possess firearms or other dangerous weapons.
January 27, 2017, Detective Spencer telephoned Tooele
AP&P Supervisor, Officer Blake Beesley, and informed him
that he was attempting to locate Jordan to question him about
the missing man, Doerr. Tr. 60, 61. Given the allegations
that Jordan had robbed and pistol-whipped Doerr, Officer
Beesley was obviously interested in speaking with Jordan as
well. If proven to be true, these allegations would
constitute clear probation violations as well as criminal
activity. Jordan's probation officer, Ben Queva, was out
of town conducting field visits, so Officer Beesley and
Detective Spencer went to Jordan's home. Tr. 10, 56, 60,
61. Accompanying them was AP&P Officer Bracken and Tooele
Police Officer Danielson.
wife answered the door and told them that Jordan was staying
with his new girlfriend, Star Allen (“Allen”), at
the apartment of Shayla Lucas (“Lucas”). Tr. 12,
35. Lucas was also on probation and was supposed to have
reported to a drug treatment center that same morning but had
failed to do so. Tr. 18-19. Lucas's probation agreement
contained the same prohibitions against associating with
anyone who is involved in criminal activity or who has been
convicted of a crime. Govt. Exh. 2. Officer Beesley testified
that if Jordan was staying at Lucas's apartment, it would
be a violation of both of their probation agreements. T. 56.
He therefore went to Lucas's apartment, in part, to
verify that Lucas was complying with probation. Id.
AP&P officers Beesley and Bracken and Detectives Spencer
and Danielson arrived at Lucas's apartment, they saw
Jordan's car in the parking lot. Tr. 20, 63. They also
noticed an external surveillance camera coming out of the
window of Lucas's apartment. Tr. 21, 63.
Officer Bracken knocked on the door. Receiving no response,
he continued to knock and announced, “Shayla, AP&P,
come to the door.” T. 22. Lucas answered the door and
opened it wide enough to stick her head out. T. 22. She
maintained that she was the only one in the apartment.
Officer Bracken asked her to step out of the apartment. She
opened the door to exit and left the door open, according to
Officer Beesley. T. 24-26. Detective Spencer testified that
when Lucas exited the apartment, she “just squeezed
through the doorway” and shut the door behind her. T.
64. Either way, when Lucas had the door open, Officer Bracken
noticed a pair of men's large red basketball shoes that
he believed to be Jordan's, since Jordan is known to wear
red. T. 24-26. At that point, Officer Beesley drew his taser,
stepped into the apartment, calling for others to make
themselves known. Tr. 28, 30. Lucas's brother, Landon
Lucas and Defendant Romero came out of the bedroom located on
the left and Allen and Jordan exited the bedroom on the
right. Tr. 28-29, 34, 51. Once all occupants were in the
hallway, they were placed outside the apartment in the
breezeway with Detective Spencer. T. 28, 58.
Beesley conducted a cursory search to clear the apartment.
Tr. 30. In the back right bedroom, in plain view, he
testified he saw a ziploc baggy half-full of a white crystal
powdery substance next to Jordan's car keys. Tr. 31.
Officer Beesley then called his supervisor at AP&P to
inform him what was found and Officer Beesley was instructed
to conduct a more comprehensive search of the apartment. Tr.
the more comprehensive search, illegal mushrooms and two
weapons were found among Defendant Romero's possessions
in the room he shared with Lucas. Tr. 34. Officers also found
a box in the closet of Romero's room that contained a
handgun, a sawed-off shotgun and ammunition. T. 34. Two
handguns were also found in a safe located in the room where
Jordan had been. Romero was ultimately charged with felon in
possession of a firearm, possession of an unregistered
short-barreled shotgun, and possession of a controlled
moves to suppress the evidence discovered in the search of
Lucas's apartment on the basis that the Tooele City
police used AP&P as a subterfuge to gain access to
probationer Lucas's apartment without a warrant and that
the subsequent cursory search was not justified as a
protective sweep. The government contends that the search of
Lucas's apartment did not violate the Fourth Amendment
because it was proper under both the special needs ...