U.S. v. Gonzalez, PICS Case No. 14-0241 (ED Pa. Jan. 30, 2014) Rufe, J. (11 pages).

U.S. DISTRICT COURT - EASTERN

The Legal Intelligencer

CRIMINAL LAW

Motion to Suppress • Unlawful Search • Witness Credibility

U.S. v. Gonzalez, PICS Case No. 14-0241 (ED Pa. Jan. 30, 2014) Rufe, J. (11 pages).

The court denied defendant's motion to suppress physical evidence of two guns observed by a police officer while he accompanied the resident of a home to retrieve personal items following a home invasion.

Gonzales was charged with possession of a firearm by a convicted felon and possession of a firearm with an obliterated serial number. Gonzalez was a felon previously convicted of selling drugs. Gonzalez filed a motion to suppress the two guns that formed the basis for his indictment, claiming the police discovered the guns in the course of an unlawful search.

On September 7, 2012, Gonzalez was attacked and kidnapped. Later that same day, two armed men broke into the house where Gonzalez lived with his girlfriend, Cordero. The men handcuffed Cordero, searched the home, then left. Cordero tried calling her mother and her cousin, but neither answered. She then called her brother, Victor Ortiz, a Philadelphia police officer. Ortiz called local police who arrived at the scene. The police secured the home. After the house was secured, Cordero, accompanied by Officer Elkins, re-entered the home to retrieve items for her baby. Elkins was in close proximity to Cordero when Cordero entered the bedroom she shared with Gonzalez. When Cordero opened the drawer of a nightstand, Elkins observed the contents of the open drawer, which included two handguns. Elkins then escorted Cordero from the house. Cordero told Elkins the handguns belonged to Gonzalez.

Police obtained a search warrant for the Gonzalez residence for firearms, in part based on the information from Elkins. When police entered the home pursuant to the search warrant, they found the two guns in the nightstand.

Gonzalez moved to suppress evidence of the two guns, arguing that it was Elkins who opened the drawer and that action constituted an unlawful search. Elkins maintained Cordero opened the drawer and Elkins saw in plain view the two firearms that he suspected were evidence of a crime.

If a police officer lawfully gains entry to a home and perceives contraband in plain view, its subsequent seizure pursuant to a lawfully obtained warrant does not violate the Fourth Amendment. It is irrelevant whether the police officer deliberately looked for contraband as long as the officer is lawfully in a place where contraband is in plain view. Inadvertence is not required.

The issue before the court was whether Cordero or Elkins testified credibly about who opened the nightstand drawer. The court concluded Elkins was the more credible witness.

The court held the government satisfied its burden of proving its version of the facts by a preponderance of the evidence.