U.S. v. Gonzalez, PICS Case No.14-xxxx (E.D. 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-xxxx (E.D. 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 asked if she could go back into the home to retrieve items for her baby. Officer Elkins accompanied her to ensure she did not disturb evidence in an active crime scene. Elkins was in close proximity to Cordero while she was retrieving items from the home. When Cordero entered the bedroom she shared with Gonzalez, she 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 about his observations while inside the house with Cordero. 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. He argued that it was Elkins who opened the nightstand drawer, not Cordero, and that opening the drawer 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. Elkins testified he was directly behind Cordero when she opened the drawer of the nightstand, and the reason for his proximity was to make sure Cordero did not accidentally or intentionally disturb any evidence in the home. There was no testimony that Elkins searched anywhere in the house other than the nightstand. The court concluded it did not stand to reason that Elkins would look in the nightstand where before he had done nothing other than trail Cordero as she retrieved items from the home.