United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION & ORDER
Rebecca Grady Jennings, District Judge United States District
matter comes before the Court on Defendant Leonardo Rodriquez
Prado's Motion to Suppress Search of Residence (the
“Motion to Suppress”). [DE 122]. The United
States of America filed a response to the Motion to Suppress
(the “Response”). [DE 127]. This matter is now
ripe for adjudication. For the reasons set forth below, the
Court will DENY Defendant's Motion to Suppress.
FACTUAL AND PROCEDURAL BACKGROUND
23, 2014, Louisville Metro Police Department
(“LMPD”) officers arrived at the home of Mr.
Prado and his girlfriend, Lisandra Diaz Garcia. Both Mr.
Prado and Ms. Garcia were present. Ms. Garcia signed a
“Consentimiento de Búsqueda” form
(translated into English, “consent to search”).
[DE 97-2]. Mr. Prado, despite being present, did not sign the
“Consentimiento de Búsqueda” form.
[Id.; DE 112 at 668-69]. After Ms. Garcia's
written consent was obtained, a search of the home was
conducted. [DE 112 at 668-69]. Mr. Prado was arrested and
interviewed at the police station. [Id. at 669; DE
115, Apr. 20, 2018 Tr., 698:9-10, ]. On August 17, 2016, Mr.
Prado was indicted on several counts of wire fraud and
aggravated identity theft, in violation of 18 U.S.C.
§§ 2, 1343, and 1028A((a)(1). [DE 1]. On December
21, 2017, Mr. Prado moved this Court to suppress the evidence
from the search of his home on July 23, 2014 among other
evidence (“Original Motion to Suppress”). [DE
Court referred Mr. Prado's Original Motion to Suppress to
Magistrate Judge Lindsay, who denied Mr. Prado's request
for an evidentiary hearing for failure to make an initial
showing of contested facts. [DE 109]. On June 15, 2018,
Magistrate Judge Lindsay submitted an Report and
Recommendation (“R&R”) recommending that the
Motion to Suppress be denied as to evidence procured from the
July 23, 2014 search of the house among other requested
evidence. [DE 112]. On June 27, 2018, Mr. Prado timely filed
objections to the R&R [DE 113].
with regard to the July 23, 2014 search of the home, Mr.
Prado objected to Magistrate Judge Lindsay's decision not
to hold an evidentiary hearing concerning the lawfulness of
the July 23, 2014 search. [DE 113 at 684-86]. Mr. Prado
argued two alleged issues of disputed facts required an
evidentiary hearing. First, whether Ms. Garcia's signing
of the “Consentimiento de Búsqueda” form
was a valid consent to the search. [DE 113 at 685-86].
Second, whether Mr. Prado consented to the search.
[Id. at 685]. Mr. Prado did not move, in his
Original Motion to Suppress, to suppress the evidence from
the July 23, 2018 search based on Ms. Garcia's consent.
Instead, he specifically recognized the Government's
position that “[t]he search of Mr. Prado's
residence on July 23, 2014 was reported to be a consent
search with consent from Mr. Prado's co-tenant, Ms. Diaz
[Garcia], ” but did not question the validity of that
consent in his Original Motion to Suppress. [DE 92 at
Prado first raised the issue of the validity of Ms.
Garcia's consent to the July 23, 2014 search at the April
30, 2018 hearing before Magistrate Judge Lindsay. [DE 115,
Apr. 30, 2018 Tr., 698:3-7, 711:2-10]. However, Mr. Prado did
not provide any facts probative of that issue.
[Id.]. Counsel for Mr. Prado merely asserted that
the government had “the burden . . . of establishing .
. . knowing and voluntary consent from [Ms. Garcia].”
[DE 115, Apr. 30, 2018 Tr., 698:3-5]. Magistrate Judge
Lindsay then determined that an evidentiary hearing was
unnecessary because there were no material facts in dispute
and permitted further briefing “to allow counsel to
make legal arguments on the motion to suppress.”
[Id. at 717:13-19].
11, 2018, Mr. Prado filed his Supplement, raising for the
first-time facts probative of Ms. Garcia's consent to the
July 23, 2014 search. [DE 110]. Specifically, Mr. Prado
asserted that: (1) the “list of items seized during the
search lists the search as having occurred at 0935, twelve
minutes before the consent was signed;” (2) immediately
prior to a 2016 consent-search of Ms. Garcia's residence,
officers used a “heavy-handed coercive approach”
in convincing Ms. Garcia to consent to that search; and (3)
during the 2016 search, Ms. Garcia “told the officer
that she wanted a paper to sign because last time they
searched the house they lied about everything.”
[Id. at 661-62].
October 29, 2018 this Court denied in part and granted in
part Defendant's objections to the Magistrate Judge's
R&R. [DE 119]. This Court found that because Mr. Prado
did not present any contested facts during or before the
April 30, 2018 hearing, Magistrate Judge Lindsay properly
determined that an evidentiary hearing was unwarranted. [DE
119 at 760 (citing United States v. Abboud, 438 F.3d
554, 577 (6th Cir. 2006))]. In addition, this
Court also found that the Magistrate Judge's refusal to
consider the facts first raised in the Supplement was also
correct. [DE 119 at 760 (citing Scottsdale Ins. Co.
v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008))].
Magistrate Judge Lindsay determined that an evidentiary
hearing was unnecessary and permitted the parties to file
supplemental briefs addressing the legal arguments
surrounding suppression, not to relitigate whether an
evidentiary hearing was warranted. [DE 115, Apr. 30, 2018
Tr., at 717:1-22]. Accordingly, Mr. Prado waived
consideration of those issues of contested facts raised after
his Motion to Suppress and the hearing to determine whether
an evidentiary hearing was warranted. Scottsdale Ins.
Co., 513 F.3d at 553. This Court, however, stated that
“[i]f appropriate, Mr. Prado may move this court for
leave to file a second motion to suppress pursuant to Fed. R.
Crim. Pro. 12(c)(3).” [DE 119 at 760 (citing United
States v. Walden, 625 F.3d 961, 964-66 (6th Cir.
2010))]. The instant Motion to Suppress was subsequently
filed on November 7, 2018.
Standard of Review
Fourth Amendment of the United States Constitution protects
citizens from unreasonable searches and seizures. U.S. CONST.
AMEND. IV. The Supreme Court has stated that “searches
conducted outside the judicial process, without prior
approval by a judge or magistrate, are per se unreasonable
under the Fourth Amendment - subject only to a few
specifically established and well-delineated
exceptions.” Arizona v. Gant, 556 U.S. 332,
338 (2009). A search conducted pursuant to voluntary consent
is a well-recognized exception to the Fourth Amendment's
warrant requirement. Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973). When the government seeks to rely on a
defendant's purported consent to constitutionally justify
a search, it bears the burden of proving that the consent was
freely and voluntarily given. Bumper v. North
Carolina, 391 U.S. 543, 548 (1968).
Sixth Circuit has stated “it is well settled that in
seeking suppression of evidence the burden of proof is upon
the defendant to display a violation of some constitutional
or statutory right justifying suppression.” United
States v. Feldman, 606 F.2d 673, 679 n.11 (6th Cir.
1979); see also, e.g., United States v. Payne, 588
Fed.Appx. 427, 431 (6th Cir. 2014) (“The defendant
bears the burden to demonstrate a violation of some
constitutional or statutory right justifying
suppression.”). “The defendant who requests
suppression bears the burden of production and