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Document 29 is entitled a Reply and Motion to Strike Government's Pleading.

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America, 

Plaintiff, 

vs.

Thomas Brice Velasco,

Defendant. 

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No. CR 18-394-TUC-CKJ (DTF)

ORDER

On April 18, 2019, Magistrate Judge D. Thomas Ferraro issued a Report and

Recommendation (“R&R”) (Doc. 55) in which he recommended the Motion to Suppress

(Docs. 26 and 29) filed by Thomas Brice Velasco ("Velasco") be denied.1

 This Court

referred the matter back to the magistrate judge for a supplemental report and

recommendation regarding whether Velasco had a legitimate expectation of privacy in the

place searched. On June 11, 2019, the Magistrate Judge Ferraro issued a supplemental

Report and Recommendation (“Supp. R&R”) (Doc. 76) in which he determined that Velasco

lacks standing to contest the search and recommended the Motion to Suppress be denied.

Velasco has filed Objections to the Reports and Recommendations (Docs. 58 and 79)

and the government has filed Responses (Docs. 63 and 80).

Standard of Review

The standard of review that is applied to a magistrate judge’s report and

recommendation is dependent upon whether a party files objections – the Court need not
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The Court recognizes that not every fact presented at an evidentiary hearing can be

included in a factual summary and does not assume that the failure to mention these facts

means the magistrate judge did not consider this evidence. 

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review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140,

150 (1985). However, the Court must “determine de novo any part of the magistrate judge’s

disposition that has been properly objected to. The district judge may accept, reject, or

modify the recommended disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)

(“A judge of the court shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.”).

Report and Recommendation – Factual Background

Velasco asserts he did not, as the magistrate judge stated in the R&R, approach the

officers from the Dodge truck’s location. Velasco also asserts the magistrate court failed to

consider that Officer May relayed to Officer Lopez that he had met with Trina Norris and

reconfirmed that Velasco was the individual causing the disturbance. It appears Velasco is

asserting the magistrate judge did not consider this information because it was not included

in the factual summary.2

 The Court will consider these additional facts in conducting its

review.

Standing 

“A defendant has standing to challenge the legality of a search on Fourth Amendment

grounds only if he has a 'legitimate expectation of privacy' in the place searched.” United

States v. Zermeno, 66 F.3d 1058, 1061 (9th Cir. 1995) (citations omitted); see also United

States v. Parks, 285 F.3d 1133 (9th Cir. 2002). “The defendant bears the burden of

establishing his legitimate expectation of privacy.” Zermeno, 66 F.3d at 1061. “To

demonstrate this, [a defendant] must manifest a subjective expectation of privacy in the area
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searched, and their expectation must be one that society would recognize as objectively

reasonable.” United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999). 

The Supreme Court has determined an “overnight guest in another’s home has a

reasonable expectation of privacy for purpose of Fourth Amendment standing.” Minnesota

v. Olson, 495 U.S. 91, 96, 98 (1990). The magistrate judge stated:

Critically, however, Defendant failed to specify the time and date that he lived in any

space or room in New House #67. Defendant’s failure to tie his residency at New

House #67 to any date(s) and/or time period(s) is fatal to his claim that he had a

reasonable expectation of privacy in any part of New House #67 on April 23, 2016.

Supp. R&R (Doc. 76, pp. 2-3). 

Velasco asserts the magistrate judge erred in concluding he was not an overnight guest

at the New House # 67 residence. Specifically, Velasco asserts the declaration of the owner

of New House # 67, which states that Velasco and Velasco’s girlfriend would stay at New

House # 67 “for days, weeks, and sometimes months at a time[,]” Declaration (Doc. 79-1),

supports a conclusion Velasco was an overnight guest. Further, Velasco had a key to New

House # 67, he and his girlfriend stored their belongings at the residence, and Velasco

supported the New House # 67 residence (e.g., purchased food for members of the house to

share, performed household chores). Velasco also points out the government’s disclosure

states that Velasco and his girlfriend had been staying at House #67 at the time of his arrest.

However, a review of the Tohono O’odham Police Report referenced by Velasco does

not specify when Velasco and his girlfriend “had been sleeping in the living room area.”

Objection, Ex. A (Doc. 79-1). Velasco describes an intermittent overnight guest status, with

no showing that he spent the night before (or even a night within the preceding week or

month) the officer looked into the vehicle. Velasco has not cited to any authority

establishing an intermittent overnight guest has standing to contest a search. See e.g.

Minnesota v. Carter, 525 U.S. 83, 96 (1998) (Scalia, J., joined by Thomas, J., concurring)

(although overnight guest status may be at “the absolute limit of what text and tradition

permit” under the Fourth Amendment, it is still within the limits of the Fourth Amendment).
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The Supreme Court has determined that a defendant who was arrested at his friend's

apartment during the execution of a search warrant could challenge the search of the

apartment because he was “legitimately on [the] premises.” Jones v. United States, 362 U.S.

257, 267 (1960) (overruled on other grounds by United States v. Salvucci, 448 U.S. 83

(1980)). However, in Rakas v. Illinois, 439 U.S. 128, 142-48 (1978), the Supreme Court

rejected a “legitimately on [the] premises” standard as overly broad. 439 U.S. at 142–48, 99

S.Ct. 421. “Thus, an overnight guest in a home may claim the protection of the Fourth

Amendment, but one who is merely present with the consent of the householder may not.”

Minnesota v. Carter, 525 U.S. 83, 90 (1998). Indeed, cases discussing whether an individual

has a privacy interest based on being an overnight guest often consider whether the

individual had spent the night preceding a search at the residence. See e.g. United States v.

Armenta, 69 F.3d 304, 308 (9th Cir. 1995) (even where evidence was presented that

defendant stayed in the house the night before the search, a legitimate expectation of privacy

was not established); United States v. Brooks, No. 15-CR-6157G, 2016 WL 1749394, *4

(W.D.N.Y. May 2, 2016), report and recommendation adopted, No. 15-CR-6157-FPG-MWP,

2016 WL 3742318 (W.D.N.Y. July 7, 2016) (defendants were overnight guests the night

before the warrant was executed); Williams v. United States, No. 3:15-CV-01301 (VLB),

2018 WL 4656231, at *2 (D. Conn. Sept. 27, 2018) (where defendant was at a casino the

night before his arrest and not at residence, he was not an overnight guest as claimed, but was

a casual guest); United States v. Rogers, No. 4:10-CR-00076, 2010 WL 11531402, at *1

(S.D. Iowa Sept. 23, 2010), aff'd, 661 F.3d 991 (8th Cir. 2011) (defendant was an overnight

guest the evening before the search).

Here, it is not known when Velasco last spent the night at New House # 67 prior to

the search. If the Court were to accept Velasco’s argument that, because he periodically

spends the night at the residence (along with permission of the resident, possession of a key,

and contribution to the residence), he is an overnight guest, the Court would be ignoring the

fact that it could have been weeks or months since Velasco last stayed at New House # 67.

Considering this with Velasco’s statement to Pretrial Services that he resided with his
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girlfriend at West Artesia Road #3 in Little Tucson Village for the last six years, the Court

finds Velasco has not sustained his burden to establish he was an overnight guest such that

he had an expectation of privacy. The Court agrees with the magistrate judge and will adopt

the magistrate judge’s recommendation as to standing.

Open Field/Curtilage and Exigent Circumstances/Emergency Doctrine 

Even if the Court were to conclude Velasco had standing to contest the search, the

Court’s analysis would not end there. As summarized by the magistrate judge, “curtilage

questions should be resolved with particular reference to four factors: the proximity of the

area claimed to be curtilage to the home, whether the area is included within an enclosure

surrounding the home, the nature of the uses to which the area is put, and the steps taken by

the resident to protect the area from observation by people passing by.” R&R (Doc. 55, pp.

3-4) (quoting United States v. Dunn, 480 U.S. 294, 301 (1987).

Velasco, however, argues that the magistrate judge failed to consider that the ability

to observe inside curtilage from a lawful vantage point is not the same as the right to enter

curtilage without a warrant for the purpose of conducting a search to obtain information not

otherwise accessible. However, the magistrate judge did not state this fact was dispositive;

rather, it was one of multiple factors to consider. Although Velasco argues Collins v.

Virginia, 138 S. Ct. 1663, 1675 (2018), supports his assertion, Velasco fails to acknowledge

the Supreme Court stated, “[s]o long as it is curtilage, a parking patio or carport into which

an officer can see from the street is no less entitled to protection from trespass and a

warrantless search than a fully enclosed garage.” In other words, only if a conclusion is

reached an area is curtilage does the protection extend to the area, whether it can be seen or

not.

In considering the Dunn factors, the magistrate judge stated: 

Although the property at New House #67 is in a residential neighborhood and it is

surrounded by a three-foot-high chain link fence (See Exh. 64), vegetation is sparse

and provides little, if any, privacy. The home is situated on a large lot. The Dodge

truck was parked next to the chain link fence, away from the residence and facing the

front yard of neighboring property. The aerial photographs received in evidence
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Because the Court declines to decide this issue, the Court need not decide if the

automobile exception applies here.

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establish that the neighbor had an unobstructed view into the truck’s passenger

compartment. There appears to be a driveway between the truck and the house. The

fencing around the property provided no privacy, except that it impeded people from

walking through the backyard. The area where the truck was parked appeared to be

used to park vehicles and the occupant did not take any steps to protect the area where

the truck was parked from observation by people passing by. In short, the truck’s

location did not appear to be in an area intimately associated with the sanctity of the

home and the privacies of life. Dunn, 480 U.S. at 300. (Doc 55, pg. 4).

R&R (Doc. 55, p. 6). The Ninth Circuit has recognized:

“[O]pen fields do not provide the setting for those intimate activities that the

Amendment is intended to shelter from government interference or surveillance” and

that, “as a practical matter these lands usually are accessible to the public and the

police in ways that a home, an office or commercial structure would not be.” [Oliver

v. United States, 466 U.S. 170, 179 (1984). For these reasons, the Court concluded

that “the asserted expectation of privacy in open fields is not an expectation that

‘society recognizes as reasonable.’” Id. 

United States v. Roberts, 747 F.2d 537, 541 (9th Cir. 1984).

Here, the truck was parked next to the chain link fence in an area that appeared to be

used to park vehicles; it does not appear any steps were taken to protect the parking area from

observation from people passing by. Indeed, the truck was facing the front yard of a

neighboring property and photographs admitted at the first evidentiary hearing establish the

neighbor had an unobstructed view into the truck’s passenger compartment. The truck was

parked in an open area, rather than in a carport, garage, or “an area immediately adjacent to

the home[.]” Oliver, 466 U.S. at 180. Further, if this parking area was within the curtilage,

the boundaries of the curtilage could conceivably extend to the entire property although the

outer-limits of the area clearly were used for purposes (e.g. parking) that are not necessarily

intimate activities of the residence. 

Nonetheless, the Court agrees with the magistrate judge that it need not decide if this

area was curtilage or an open field.3

 Rather, the search was justified under exigent

circumstances and the emergency doctrine. Under the exigency exception to the warrant

requirement, an officer may make a warrantless search if he has probable cause to believe

that the item or place to be searched contains evidence of a crime and the officer is facing
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exigent circumstances that require immediate police action. United States v. Camou, 773

F.3d 932, 940 (9th Cir. 2014). Exigent circumstances are defined as “‘those circumstances

that would cause a reasonable person to believe that entry [or search]. . . was necessary to

prevent physical harm to the officers or other persons, the destruction of relevant evidence,

the escape of the suspect, or some other consequence improperly frustrating legitimate law

enforcement efforts.’” Id. (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th

Cir. 1984) (en banc) (overruled on other grounds). “To be reasonable, a search under this

exception must be limited in scope so that it is ‘strictly circumscribed by the exigencies

which justify its initiation.’” Id. (quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978)).

The emergency doctrine exception to the warrant requirement applies where officers

are responding in their “community care taking function” to what they reasonably perceive

as an emergency involving a threat to life or property. United States v. Stafford, 416 F.3d

1068, 1073 (9th Cir. 2005). In order to justify a warrantless search under this doctrine: (1)

the officers must have reasonable grounds to believe that there is an emergency and an

immediate need for the assistance for the protection of life or property; (2) the search must

not be primarily motivated by intent to arrest and seize evidence; and (3) there must be some

reasonable basis, approximating probable cause, to associate the emergency with the area or

place to be searched. See id. 

The magistrate judge stated:

Here, TOPD officers were on foot patrol in the defendant’s neighborhood. They heard

loud voices and then a gunshot. The officers immediately ran to the location of the

shot. While in route their dispatch relayed concerning calls from others about the shot,

which identified the defendant’s address, New House #67, as the location of the

disturbance. When the officers arrived, only minutes after they heard the gun shot,

they had probable cause to believe the local offense of discharging a firearm in a

residential community had been committed. There was an exigency because they did

not know where the firearm was located and whether anyone had been shot. The

defendant approached the officers, walking from the truck’s location, as they arrived

at his house. After the officers secured the defendant, Det. Scout made a cursory

search of the property looking for a possible victim. Det. Scout walked directly to the

Dodge truck and peered inside to see whether there was a gunshot victim. He saw

ammunition in plain view. He continued around the property looking for a victim but

did not enter the home or any of the outbuildings located in the immediate proximity

to the house. This sweep only took minutes. When Det. Scout returned to the front,

Officer Lopez said he had learned the defendant had been to prison. Armed with this
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additional information Det. Scout had probable cause to believe the ammunition in the

defendant’s [truck] was illegally possessed and he went back and seized it.

R&R (Doc. 55, pp. 5-6).

Although Velasco argues the officers did not see or hear anything from the property

that would warrant the search, the officers had heard loud voices and a gunshot. Further,

dispatch identified New House #67 as the location of the disturbance. When the officers

arrived at the residence, Velasco approached them from the direction of the truck. Although

Velasco asserts he walked out from the back door of the house, it appears from the evidence

that, from the officers’ vantage point, Velasco was coming from the area in which the truck

was parked. See Exs. 66-D-1 and 66-F-1. This Court agrees with the magistrate judge that

the officers had reasonable grounds to believe that there was an emergency and an immediate

need for the assistance for the protection of life or property. Moreover, Detective Scout

testified he was investigating whether there was a gunshot victim. The officers had identified

this residence as associated with the gunshot and the person at this residence approached the

officers from the direction of the truck. Although the officer failed to search the remainder

of the property, the officer focused on where a possible victim or additional shooter would

most likely be found based on the circumstances; indeed, because the officers had heard loud

voices, it was reasonable for the officers to believe there may have been another shooter or

victim in the area from where Velasco had approached the officers. 

Furthermore, Velasco’s reliance on United States v. Gooch, 6 F.3d 673 (9th Cir.

1993), is misplaced. In Gooch, the threat had occurred several hours before the search.

Here, however, the residence had just been associated with the gunshot, Velasco had been

identified as participating in the disturbance, and the officers had recently heard loud voices,

indicating more than one person was possibly involved in the disturbance. Although Velasco

argues the emergency had concluded because both the victim and perpetrator had been

located, the information received from dispatch did not specify that the reporting victim was

secure or that she was the only victim. Further, the information received from the reporting

victim via Officer May did not specify the reporting victim was the only victim. The Court
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finds there was a reasonable basis for the officers to believe there was an ongoing emergency

and to associate that emergency with the truck. The Court agrees with the magistrate judge

and will adopt the R&R.

Accordingly, after an independent review, IT IS ORDERED:

1. The Reports and Recommendations (Docs. 55 and 76) are ADOPTED.

2. The Motions to Suppress Evidence (Docs. 26 and 29) are DENIED.

DATED this 18th day of July, 2019.