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United States v. Romero

United States District Court, D. Utah, Central Division

March 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DALTON ROMERO, Defendant.

          MEMORANDUM DECISION AND ORDER

          Dee Benson United States District Judge

         Before 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.

         An 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 Order.

         FINDINGS OF FACT

         In 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.

         Jordan 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. Id.

         On 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.

         Jordan's 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.

         When 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.

         AP&P 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.

         Officer 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. 32-33.

         During 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 substance.

         DISCUSSION

         Defendant 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 ...


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