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United States v. Prado

United States District Court, W.D. Kentucky, Louisville Division

November 27, 2018

UNITED STATES OF AMERICA Plaintiff
v.
LEONARDO RODRIQUEZ PRADO Defendant

          MEMORANDUM OPINION & ORDER

          Rebecca Grady Jennings, District Judge United States District Court

         This 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On July 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 92].

         This 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].

         Specifically, 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 457-58].

         Mr. 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].

         On May 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].

         On 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.

         II. DISCUSSION

         A. Standard of Review

         The 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).

         As the 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 ...


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