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United States v. Avalos

United States District Court, D. Nebraska

April 1, 2019

MARCO A. AVALOS, Defendant.


          Michael D. Nelson, United States Magistrate Judge.

         This matter is before the Court on the Motion to Suppress and Request for Evidentiary Hearing and Oral Argument (Filing No. 15) filed by Defendant, Marco A. Avalos. Defendant filed a brief in support of the motion (Filing No. 16) and the government filed a brief in opposition (Filing No. 18).

         The Court held an evidentiary hearing on the motion on February 14, 2019. Defendant was present with his attorney, David Stickman. The government was represented by Assistant United States Attorney, Thomas Kangior. Oscar Gabriel Garcia (“Supervisor Garcia”), a security supervisor with the Creighton University Department of Public Safety, and City of Omaha police officer Matthew McDonald (“Officer McDonald”) testified on behalf of the government. The Court received into evidence Exhibits 1 and 2 offered by the government and Exhibit 101 offered by Defendant. A transcript (TR.) of the hearing was prepared and filed on February 28, 2019. (Filing No. 25). This matter is now fully submitted to the Court. For the following reasons, the undersigned magistrate judge recommends that Defendant's motion be granted, in part, and in part denied.


         On October 25, 2018, Creighton University public safety officers responded to a call from a female student on campus who felt threatened by a man, later identified as Defendant, cat-calling her and attempting to enter her residence hall. (TR. 6-7). Supervisor Garcia testified that public safety officers sought to stop Defendant to ask for his identification and to ban and bar him from campus. (TR. 8-9). Public safety officers located Defendant based on the student's description. (TR. 7-8). The public safety officers attempted to detain Defendant; Defendant resisted, and after a struggle, Defendant hit the ground and a concealed handgun fell from his person. (TR. 9-11). The public safety officers called 911, handcuffed Defendant, and waited for Omaha Police Department (“OPD”) officers to arrive. (TR. 10-11). Creighton's security cameras recorded these events. See Exhibit 1.

         OPD officers McDonald and Carrera arrived at the scene approximately five minutes later. Officer McDonald's body camera recorded OPD's encounter. See Exhibit 2. Officer McDonald testified that upon his arrival, a public safety officer turned over the firearm recovered from Defendant. (TR. 12, 26). Officer McDonald secured the firearm in his cruiser while Officer Carrera patted down Defendant, who was still in handcuffs. (TR. 27). Officer Carrera asked Defendant if he had “anything else” on him, to which Defendant reportedly responded, “I have dope.” (Ex. 2, at 1:30-1:59). Officer Carrera searched Defendant's person and recovered drug paraphernalia and a brown powder substance. (Id. at 4:54-6:53; 14:01-16; TR. 30-32, 36). Officer Carrera asked Defendant what the brown substance was, and Defendant stated, “crystal.” (Ex. 2, at 19:36; TR. 31-32). Defendant was not advised of his Miranda rights prior to making such statements. (TR. 28, 36).

         Defendant is charged in the Indictment with one count of being a felon in possession of a firearm under 18 U.S.C. § 924(g)(1). (Filing No. 1). Defendant moves the Court for an order suppressing all evidence obtained from the seizure and search of his person, including his statements, arguing he was stopped and detained without reasonable suspicion and arrested without probable cause in violation of the Fourth Amendment. Defendant also seeks to suppress his statements made without being advised of his Miranda rights, in violation of the Fifth Amendment.

         The government contends that Creighton public safety officers detained Defendant on private property and were not acting under the authority of any governmental agency, and therefore the Fourth Amendment is not implicated. The government further argues that Defendant's statements do not need to be suppressed as such statements were not the product of custodial interrogation and such questioning was permitted for purposes of officer safety.


         I. Initial Detention

         Defendant argues that Creighton University public safety officers did not have reasonable suspicion to stop and detain him for “catcalling” in violation of the Fourth Amendment. (Filing No. 16 at p. 2). The government asserts that the Fourth Amendment's protections do not apply because the security officers who initially stopped and detained Defendant are private persons employed by a private institution. (Filing No. 18 at p. 3).

         The Fourth Amendment only applies to state action; its protection against unreasonable searches and seizures “is wholly inapplicable to a search or seizure . . . effected by a private individual not acting as an agent of the Government.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Accordingly, “the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative but it does protect[ ] against such intrusions if the private party acted as an instrument or agent of the Government.” United States v. Highbull, 894 F.3d 988, 991-92 (8th Cir. 2018), reh'g denied (Jan. 11, 2019)(quoting Skinner v, Ry. Labor Execs.' Ass'n, 489 U.S. 602, 614 (1989))(internal quotation marks omitted)(alteration in original). “Whether a private party should be deemed an agent or instrument of the government for Fourth Amendment purposes necessarily turns on the degree of the government's participation in the private party's activities, a question that can only be resolved in light of all the circumstances.” Id. (quoting United States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010). When evaluating agency in the Fourth Amendment context, the court considers “[1] whether the government had knowledge of and acquiesced in the intrusive conduct; [2] whether the citizen intended to assist law enforcement or instead acted to further his own purposes; and [3] whether the citizen acted at the government's request.” Id. (citing Wiest, 596 F.3d at 910). “A defendant bears the burden of proving by a preponderance of the evidence that a private party acted as a government agent.” Id. (internal citations and quotation marks omitted).

         In this case, all three factors weigh in favor of a finding that agency did not exist between Creighton public safety officers and local law enforcement on October 25, 2018, such that the Fourth Amendment should apply to their seizure of Defendant. First, there is no evidence that any local law enforcement officers knew of or acquiesced in the actions of Creighton's public safety officers at the time of the initial contact with Defendant. Supervisor Garcia testified that public safety had no prior contact with, and received no instructions from, OPD upon receiving the call from the Creighton student. (TR. 11, 23). Officer McDonald similarly testified that OPD gave no directions to the public safety officers before his arrival. (TR. 12-13). Creighton public safety officers do not have any closed system communications with OPD, and instead Creighton's public safety dispatcher must call 911 for assistance from local law enforcement just like any other private citizen. (TR. 20). Here, Creighton public safety called 911 only after the struggle with Defendant and the discovery of the handgun which had fallen from his clothing. (TR. 11).

         The evidence also reflects that Creighton's public safety officers were acting to further the private university's own purposes and did not act at the government's request. Supervisor Garcia testified that public safety officers first approached Defendant to identify him to ban and bar him from Creighton's property. Creighton's public safety department provides services 24/7/365 as first responders, including first-aid, and foot and bicycle patrol. (TR. 21-22; Ex. 101). As a private institution, Creighton public safety officers are employees of Creighton University, and are responsible for the safety of its students, faculty, and visitors. Creighton's Department of Public Safety is a “private security force, ” although they do carry handcuffs and firearms with open-carry permits issued by the City of Omaha. However, public safety officers do not receive training or guidance from OPD nor any other law enforcement academy training. And while “[t]he department . . . maintains a close working relationship with municipal, state and federal law enforcement agencies, ” “there is no formal agreement or written memoranda of understanding between Creighton and governmental law enforcement agencies on the investigation of alleged criminal offenses.” (Ex. 101 at p. 3, 11). Creighton will contact governmental law enforcement agencies for more serious crimes. (Ex. 101 at p. 11). There is no evidence in this case that the public safety officers acted at the government's request. See, e.g, United States v. Gonzalez, 781 F.3d 422, 427 (8th Cir. 2015)(finding Fourth Amendment was not implicated by search by a private company where there was “no evidence of a close and ongoing relationship” between ...

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