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United States v. Torres-Rodriguez

United States District Court, M.D. Pennsylvania

December 29, 2017



          Christopher C. Conner, Chief Judge.

         Defendant Ceasar Torres-Rodriguez ("Torres-Rodriguez") moves the court to suppress evidence and statements resulting from a probation check at his residence on April 30, 2016. (Docs. 29, 30). The court will deny Torres-Rodriguez's motion.

         I. Findings of Fact [1]

         Torres-Rodriguez resides at 1431 Vernon Street in Harrisburg, Pennsylvania. (Tr. 13:5-6, 22:12-21; 38:8-16; see also Doc. 29-3). On or about March 17, 2016, Brandi Williams ("Williams") reported 1431 Vernon Street as her new address to her Dauphin County probation officer.[2] (Tr. 4:16-20, 5:23-25, 17:8-12). When a probationer reports a new address, a probation officer must visit and draw a sketch of the new residence for the probationer's file. (Id. at 6:4-7). Probation officer Daniel Kinsinger ("Officer Kinsinger") visited the 1431 Vernon Street residence with a second probation officer the following day, March 18, 2016. (Id. at 4:9, 5:16-17, 6:1-7, 17:17-18:9). Officer Kinsinger interacted with Williams and her children at the residence. (Id. at 6:8-12, 18:10-11).

         Officer Kinsinger next visited the 1431 Vernon Street residence on April 8, 2016. (Id. at 6:15-24). Williams and Torres-Rodriguez both spoke with Officer Kinsinger at the doorstep of the home. (Id. at 7:1-5). Officer Kinsinger smelled burnt marijuana but did not "push the issue" because no other officers had accompanied him to the residence that day. (Id. at 7:6-14). Williams visited the probation office for her regular check-in on April 21, 2016 and again reported 1431 Vernon Street as her residence. (Id. at 7:16-19).

         Officer Kinsinger and police officer Anthony Fiore ("Officer Fiore") conducted a probation check on Williams at the 1431 Vernon Street residence on the evening of April 30, 2016.[3] (Id. at 7:16-22, 8:24-9:1, 29:10-17). The visit was prompted by the burnt marijuana smell detected during the April 8, 2016 visit. (Id. at 7:19-20). Officer Kinsinger knocked and announced himself as probation. (Id. at 9:7-9, 30:6-8). An unidentified Hispanic male answered the door and Officer Kinsinger asked for Williams. (Id. at 9:9, 21:6-8). The Hispanic male indicated Williams was in the living room and stepped aside to allow Officer Kinsinger and Officer Fiore to enter the residence. (Id. at 9:9-11, 21:4-11, 30:9-13, 43:9). Williams said she was in the living room to the left of the front door and Officer Kinsinger proceeded there to make contact with her. (Id. at 9:11-13, 21:13-19, 43:12-13). An unidentified black male was in the living room with Williams. (Id. at 9:20-21). When the black male began walking towards the kitchen, Officers Kinsinger and Fiore asked all three individuals to gather in the living room. (Id. at 9:21-10:1, 30:25-31:5).

         Officer Kinsinger informed Williams that he wanted to search the residence because he and Officer Fiore had again detected the smell of burnt marijuana. (Id. at 10:1-6, 10:12-14, 30:23-25). When asked, Williams stated that the only other individuals present were her four children upstairs. (Id. at 10:15-16, 31:6-12). Officer Kinsinger retrieved the children and brought them to the living room. (Id. at 10:18-11:1, 31:13-20). Officer Kinsinger then walked back to the kitchen to check for additional persons. (Id. at 11:4-6, 31:25-32:1). As Officer Kinsinger approached the kitchen, he observed Torres-Rodriguez exiting a bathroom and attempting to leave the residence through a side door. (Id. at 11:6-10). Torres-Rodriguez complied with Officer Kinsinger's directive to stop and return to the living room. (Id. at 11:11-16, 32:1-7). Officer Fiore radioed for backup due to the number of individuals present. (Id. at 12:22-23, 33:3-6).

         The three adult males consented to a pat down for weapons. (Id. at 12:6-9, 33:8-12). Officer Kinsinger then informed the group that he wanted to search to determine the cause of the burnt marijuana smell and ensure there were no drugs or weapons in the home. (Id. at 11:25-12:5, 32:12-17). He further stated that 1431 Vernon Street was an approved probation address and the presence of marijuana was a direct violation of Williams' probation. (Id. at 11:24-12:2, 24:21-24, 32:14-17). Officer Kinsinger asked Williams and Torres-Rodriguez for consent to search the home because he knew both were residents. (Id. at 13:2-6, 22:8-21, 32:17-19). Williams and Torres-Rodriguez each verbally consented to the search. (Id. at 13:7-9, 22-24, 32:18-19). Torres-Rodriguez then stated that he had been smoking marijuana when the officers arrived. (Id. at 13:10-12).

         Officers Kinsinger and Fiore searched the home with the additional police officers who arrived to assist. (Id. at 33:6-7). Officer Fiore discovered a wallet in the living room containing over $2, 300 bundled in $100 increments and identification for Williams and Torres-Rodriguez. (Id. at 14:3-6, 38:13-16, 39:9-18). A street crimes officer searching the first floor bathroom previously occupied by Torres-Rodriguez found an electronic scale in the tank of the toilet. (Id. at 14:9-15, 33:18-21, 34:3-8). The officer also discovered a 32-caliber handgun and a bundle of heroin in the bathroom trash can. (Id. at 14:15-16, 33:22-34:2). All three males were placed in handcuffs. (Id. at 14:18-19, 34:20-21, 34:25-35:4). Williams was not detained because she was maintaining control of the children and was not deemed to be a threat to the officers' safety. (Id. at 34:22-24).

         Discovery of illicit items transformed the incident from a probation matter into a police investigation. (Id. at 14:19-20, 15:22-16:3, 34:14-17, 35:8-13). Prior to that discovery, Officer Fiore and the street crimes officers were merely assisting Officer Kinsinger as he conducted his probation function. (Id. at 15:1-21). Officer Fiore advised everyone in the residence that the situation was now characterized as a police investigation. (Id. at 35:15-17). He administered Miranda warnings to all adults in the living room and asked each person individually if they understood the warnings he had just given. (Id. at 35:17-36:4). Williams, Torres-Rodriguez, and the other two adult males each indicated that they understood the warnings. (Id. at 36:5-15). After determining Williams and Torres-Rodriguez physically lived in the home, Officer Fiore explained in detail why he, as a "police entity, " wanted to continue searching the property. (Id. at 36:21-25, 38:8-16). He further stated what the officers had discovered in the bathroom and clarified that Williams and Torres-Rodriguez could withhold consent and require the police to seek a warrant. (Id. at 37:2-16). Williams and Torres-Rodriguez consented to the search. (Id. at 37:1, 37:17-19). Officers subsequently discovered several small partially burnt marijuana cigarettes and a single firearm cartridge casing in the home. (Id. at 39:7-8, 40:7-9).

         At the conclusion of the search, Officer Fiore reminded the adults of the Miranda warnings and asked if anyone wished to speak to any of the items found during the probation and police searches. (Id. at 40:16-20). Williams denied having any knowledge of the drugs or firearm. (Id. at 40:20-23). Torres-Rodriguez claimed ownership of the firearm but not the heroin or the scale found in the bathroom. (Id. at 40:24-25, 41:6-11).

         II. Procedural History

         A federal grand jury returned a three-count indictment against Torres-Rodriguez on September 21, 2016. (Doc. 1). The indictment charges Torres-Rodriguez with one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (Count 1); one count of possession of a firearm in violation of 18 U.S.C. § 922(g) (Count 2); and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). (Doc. 1). Torres-Rodriguez pled not guilty to all counts. (Doc. 17).

         On December 20, 2016, Torres-Rodriguez moved to suppress all evidence found and statements made during the probation check at his residence on April 30, 2016. (Doc. 29). The court convened a suppression hearing on September 29, 2017. (See ...

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