Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona THOMAS C. SIMON Assistant U.S. Attorney Arizona State Bar No. 3857 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-1100-PHX-DGC Plaintiff, v. William Kevin Domingo, Defendant. The United States, through counsel undersigned, respectfully moves this Court to deny RESPONSE TO MOTION TO SUPPRESS EVIDENCE

15 the defendant's Motion to Suppress Evidence for the reasons set forth in the following 16 Memorandum of Points and Authorities. 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 21st day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Thomas C. Simon THOMAS C. SIMON Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES

2 FACTS: On January 12, 2003, at approximately 10:30 p.m., friends Russell Blackwater, Lawrence 3 4 Kisto, Lisa Pablo and Hubert Evans, in Blackwater's pickup truck, arrived and parked in front 5 of defendant's residence, a mobile home located in Lavene, Arizona, on the Gila River Indian 6 Reservation. Kisto and Blackwater knew defendant and were returning defendant's cordless 7 phone left by defendant in Blackwater's truck the night before. They were greeted by defendant 8 and defendant's friend, Theopholis James and invited into defendant's residence. While there, defendant, who had been drinking, argued with Kisto and Blackwater. 9 10 Defendant was reportedly upset that Kisto and Blackwater had driven around the Gila 11 Reservation the night before with the defendant "passed out" in the bed of Blackwater's pickup 12 truck. Kisto, Blackwater, Pablo and Evans decided to leave defendant's residence. As they were 13 leaving, defendant produced a machete with a dull blade and struck Kisto in the back several 14 times, injuring Kisto. As defendant continued to strike at Kisto with the machete, Kisto, 15 Blackwater, Pablo and Evans retreated to Blackwater's pickup truck. 16 Defendant then produced a handgun and shot at Kisto as he, Kisto, took cover behind the 17 front passenger door of Blackwater's pickup truck. Defendant also shot at Blackwater, as 18 Blackwater took cover behind the driver's door of the pick-up truck, the bullet shattering the 19 driver's door window. Defendant then shot Evans, who was standing in the bed of the pickup 20 truck, causing a life-threatening injury. Evans, who carried a handgun for protection, had 21 returned defendant's fire before falling in the pickup bed. Kisto retrieved Evans' handgun and 22 began shooting in defendant's general direction. 23 During the exchange, defendant sustained bullet wounds to his shoulder and abdomen. 24 Theopholis James, essentially a bystander, was shot in the head and back. James fell and died 25 in front of defendant's residence. Kisto, Blackwater, Pablo and Evans, unaware that James had 26 been shot, fled in Blackwater's pickup truck. Gila River Police Officers were contacted regarding the shooting. Detective Romo 27 28 Lewis was assigned to investigate the case at 10:41 p.m., on January 12, 2003. He arrived at
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1 defendant's residence at 11:49 p.m. Detective Lewis was informed by police officers already 2 at the scene that defendant had been transported by air to the hospital, with gunshot wounds to 3 his shoulder and abdomen. Detective Lewis also noted Theopholis James' body lying in front 4 of defendant's residence with gunshot wounds to the head and back. 5 Detective Lewis initially secured the front of defendant's residence and began the scene 6 investigation. While processing the scene, Detective Lewis noted apparent bullet holes to the 7 front of defendant's residence. Detective Lewis also determined from on-scene officers that 8 although defendant had been removed from the residence, the residence interior had not been 9 secured. Detective Lewis then made a warrantless entry into the defendant's residence with the 10 initial intent of securing the residence interior for the officers continuing safety and thereafter 11 to continue his scene investigation. 12 After entry, at approximately 4 a.m., while in the process of securing the residence 13 interior, Detective Lewis saw a .38 caliber Smith and Wesson revolver in an open storage box 14 that was on the floor of the kitchen storage room. Detective Lewis seized the .38 Smith and 15 Wesson revolver as evidence. 16 LAW AND ARGUMENT: 17 A warrantless residential entry is prohibited by the Fourth Amendment absent exigent 18 circumstances. Payton v. New York, 445 U.S. 573, 586-88 (1980); United States v. Shabu, 920 th 19 F.2d 1423, 1425 (9 Cir. 1990). However, the Fourth Amendment does not require police 20 officers to delay in the course of an investigation if to do so would gravely endanger their lives 21 or the lives of others. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99 (1967); Bailey
th 22 v. Newland, 263 F.3d 1022, 1033 (9 Cir. 2001). Police must be allowed to protect themselves 23 before a potential threat of danger develops into a tragedy. United States v. Flippin, 924 F.2d th 24 163, 166 (9 Cir. 1991). When police are responding to a possible crime, police judgment should be afforded an 25 th 26 extra degree of deference. Murdock v. Stout, 54 F.3d 1437, 1442 (9 Cir. 1995). "Courts must 27 be careful not to use hindsight in limiting the ability of police officers to protect themselves as

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1 they carry out missions which routinely incorporate danger." United States v. Astorga-Torres, th 2 682 F.2d 1331, 1335 (9 Cir. 1982). 3 Exigent circumstances are present when a reasonable person would believe that entry was 4 necessary to prevent physical harm to the officers or other persons, the destruction of relevant 5 evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate 6 law enforcement efforts. Bailey, 363 F.3d at 1033. Only mild exigency need be shown where 7 entry can be accomplished without physical destruction of property. Murdock v. Stout, 54 F.3d 8 at 1442. When weighing the risk of danger, the gravity of the crime may be considered. 9 10 Minnesota v. Olson, 495 U.S. 100 ( 1990 ); Welsh v. Wisconsin, 466 U.S. 747-53 (1984)(holding 11 that a important factor be considered when determining whether exigency exists is the gravity 12 of the underlying offense.) However, a warrantless search must be strictly circumscribed by the 13 exigency that justified the initial entry. Mincey v. Arizona, 437 U.S. 385, 393 (1978). 14 Police may seize any evidence that is in plain view during the course of their legitimate
th 15 emergency activities. Id. at 393; United States v. Servantez, 219 F.3d 882, 893 (9 Cir. 1992). 16 To fall within the plain view exception, two requirements must be met: The officer must be

17 lawfully searching the area where the evidence is found and the incriminatory nature of the 18 evidence must be immediately apparent. Horton v. California, 496 U.S. 128, 135-37 (1990); 19 United States v. Stafford, 416 F.3d 1068, 1076 (2005). The requirement of the plain view exception that the incriminatory nature of the evidence 20 21 be immediately apparent focuses on whether the officers had probable cause to believe they were 22 associated with criminal activity. Id. at 1076. A practical non-technical probability that 23 incriminating evidence is involved is all that is required. Id. at 1076. Here, Detective Lewis arrived on scene and made an initial assessment of the crime scene, 24 25 that is, defendant had been transported from the scene with gunshot wounds and that the victim, 26 Theophilus James, died from gunshot wounds to the head and back. While the initial crime 27 scene, that is, the front of the defendant's residence, was secured by the officers and processed, 28 Detective Lewis determined that further evidence may be located inside defendant's residence.
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However, the inside of the residence had not been secured. Recognizing the gravity of

2 the offense under investigation and the potential danger, Detective Lewis thereafter made a 3 warrantless entry into the defendant's residence, accomplished without physical destruction of 4 property, with the initial intent to secure the residence for both his and the other officers' safety. 5 Once the interior of the residence was secured, Detective Lewis intended to continue his scene 6 investigation. In the course of securing the interior of defendant's residence, Detective Lewis saw in 7 8 plain view the .38 caliber Smith and Wesson handgun. Considering the surrounding 9 circumstances, it became immediately apparent to Detective Lewis that the gun may reasonably 10 be associated with the criminal activity involved, that is, a practical non-technical probability 11 that the .38 Smith and Wesson revolver was incriminating evidence. Lewis lawfully seized the 12 handgun. Therefore, based on the foregoing, the United States respectfully moves this court to deny 13 14 the defendant's Motion to Suppress. Respectfully submitted this 21st day of December, 2005. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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I hereby certify that on December 21, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David Lee Titterington

PAUL K. CHARLTON United States Attorney District of Arizona S/Thomas C. Simon THOMAS C. SIMON Assistant U.S. Attorney

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