USA v. Tuttle et al.

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
FRANCISCO VILLANUEVA, a/k/a
“Gumby,” a/k/a “Pancho,”
Defendant.
CR. 17-50049-02-JLV
ORDER
INTRODUCTION
A grand jury indicted Francisco Villanueva, together with three other
defendants, in a multiple count superseding indictment. 	(Docket 129). 	Mr.
Villanueva is charged with count I: first degree premediated murder in violation
of 18 U.S.C. §§ 1111(a), 2, 1152 and 1153; count II: first degree felony murder
in violation of 18 U.S.C. §§ 1111(a), 2, 1152 and 1153; count III: conspiracy to
commit assault in violation of 18 U.S.C. §§ 113(a)(3), 1152, 1153 and 371;
count IV: use of a firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii); and count VI: prohibited person in possession of ammunition
in violation of 18 U.S.C. § 922(g)(1). 	Id.
Pending before the court is defendant’s motion to suppress all evidence
seized from his residence. 	(Docket 107). 	The United States opposes
defendant’s motion. 	(Dockets 150 & 266).
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Defendant’s suppression motion was referred to Magistrate Judge Daneta
Wollmann for a report and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B) and the court’s April 1, 2018, standing order. 	An evidentiary
hearing was held on August 29-30, 2018. 	(Dockets 248 & 251). 	Following
post-hearing briefing, Magistrate Judge Wollmann issued a report and
recommendation (“R&R”) on defendant’s motion to suppress. 	(Docket 289).
The magistrate judge recommended defendant’s motion to suppress “be denied
in full.” 	Id. at p. 16. 	The defendant timely filed his objections to the R&R.
(Docket 293). 	The government filed a response to defendant’s objections.
(Docket 298).
For the reasons stated below, the court finds the R&R is an appropriate
application of the law to the facts presented by the parties at the suppression
hearing. 	Defendant’s objections are overruled and the R&R is adopted in its
entirety.
DEFENDANT’S OBJECTIONS
Defendant’s objections to the R&R are summarized as follows:
1. 	Mr. Villanueva objects generally to all factual findings and
legal conclusions made by the magistrate judge.
2. 	Mr. Villanueva objects to the magistrate judge’s conclusion
that Tenth Circuit and Eighth Circuit case law are the same
on the objective findings required to support a protective
sweep.
3. 	Mr. Villanueva objects to the magistrate judge’s finding that
during an earlier shooting the Metro Gang Task Force
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contacted the Denver Police Department about defendant’s
arrest warrant.
4. 	Mr. Villanueva objects to the magistrate judge’s finding that
the warrantless entry into his home was the result of his
arrest inside his home.
5. 	Mr. Villanueva objects to the magistrate judge’s conclusion
that the officers were uncertain as to whether there were
other dangerous people inside the home after his arrest.
6. 	Mr. Villanueva objects to the magistrate judge’s lack of
objective findings to support a protective sweep of his home.
(Docket 293). 	“For the foregoing reasons,” Mr. Villanueva argues “the
district court should not accept the Magistrate Court’s [R&R] . . . and
should grant Defendant’s Motion to Suppress.” 	Id. at p. 17.
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files
written objections to the magistrate judge’s proposed findings and
recommendations, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 	Id. 	The court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 	Id. 	See also Fed. R. Crim. P. 59(b)(3). 	The court
completed a de novo review of those portions of the R&R to which objections
were filed.
Each of defendant’s objections will be separately addressed.
ANALYSIS
The court completed a de novo review of the transcripts of the
suppression hearing, the three video and audio recordings (“video recording”)
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produced by three law enforcement officers’ body cameras and two affidavits in
support of search warrants. 	(Dockets 248 & 251 and suppression hearing
Exhibits 1-3, 102 & 106; see also Docket 236). 	The court takes judicial notice
of the arrest warrant for the defendant issued on November 22, 2017, in this
case. 	(Docket 50). 	Unless otherwise indicated, the court’s findings of fact are
consistent with the findings made by the magistrate judge.
1. 	MR. VILLANUEVA OBJECTS GENERALLY TO ALL FACTUAL
FINDINGS AND LEGAL CONCLUSIONS MADE BY THE
MAGISTRATE JUDGE.
“Congress has mandated that the district court give de novo review to
those portions of a Magistrate’s report and recommendation to which
objections are made.” 	Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994)
(referencing 28 U.S.C. § 636(b)(1)). 	“There is a court-created exception in
some circuits: ‘. . . [T]he district court need not conduct de novo review when a
party makes general and conclusory objections that do not direct the court to a
specific error in the magistrate judge’s proposed findings and
recommendations.’ ” 	Id. (citing Johnson v. Knable, 934 F.2d 319 (4th Cir.
1991) (unpublished opinion) (citing Orpiano v. Johnson, 687 F.2d 44, 47-48
(4th Cir. 1982); United States v. Merz, 376 U.S. 192, 199, 84 (1964); Pendleton
v. Rumsfeld, 628 F.2d 102, 105-06 (D.C. Cir. 1980)). 	“There is language in an
Eighth Circuit case which indicates this Circuit’s approval of such an
exception.” 	Id. (referencing Branch v. Martin, 886 F.2d 1043 (8th Cir. 1989)
(“In the present case, plaintiff's objections to the magistrate’s factual
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conclusions were timely filed and specific enough to trigger de novo review).
See, e.g., Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984) (per curiam) (no de novo
review if objections are untimely or general)”). 	“[D]e novo review is not
required ‘when a party makes general and conclusory objections that do not
direct the court to a specific error in the magistrate judge’s proposed findings
and recommendations.’ ” 	Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir.
1995) (citing Belk, 15 F.3d at 815) (citations omitted).
The court will address Mr. Villanueva’s specific objections to the R&R as
they are “certainly definite enough to require de novo review.” 	Id. (citing Belk,
15 F.3d at 815). 	The court is not compelled to evaluate defendant’s
generalized and conclusory objection.
Defendant’s first objection to the R&R is overruled.
2. 	MR. VILLANUEVA OBJECTS TO THE MAGISTRATE JUDGE’S
CONCLUSION THAT TENTH CIRCUIT AND EIGHTH CIRCUIT
CASE LAW ARE THE SAME ON THE OBJECTIVE FINDINGS
REQUIRED TO SUPPORT A PROTECTIVE SWEEP
Mr. Villanueva argues the magistrate judge should have applied the
standard of the United States Court of Appeals for the Tenth Circuit in United
States v. Nelson, 868 F.3d 885 (10th Cir. 2017) as opposed to the standard of
the United States Court of Appeals for the Eighth Circuit in United States v.
Alatorre, 863 F.3d 810 (8th Cir. 2017). 	(Docket 293 at pp. 7-13). 	Mr.
Villanueva submits “the warrantless entry was a violation of Prong Two of the
[Maryland v. Buie, 494 U.S. 325 (1990)] standard as the Government cannot
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meet its burden as properly described in [Nelson, 868 F.3d 885].” 	Id. at p. 10.
Defendant argues Nelson is the proper standard:
In Buie, the Court recognized two exceptions to the general rule that
police must obtain a warrant to search a home. Under the first
exception (Prong One) the police may, in conjunction with an arrest
in a home, “as a precautionary matter and without probable cause
or 	reasonable 	suspicion, 	look 	in 	closets 	and 	other 	spaces
immediately adjoining the place of arrest from which an attack could
be immediately launched.” . . . Under the second exception (Prong
Two), 	police 	may 	conduct 	a 	“protective 	sweep” 	beyond 	areas
immediately adjoining the arrest if there are “articulable facts which,
taken together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on the arrest
scene.”
(Docket 293 at pp. 6-7) (citing Buie, 494 U.S. at 334-35). 	Mr. Villanueva
contends Nelson compels the following analysis:
Under Prong Two, the government is required to articulate specific
facts giving rise to the inference of a dangerous third person’s
presence. 	[Buie, 494 US at 337]. 	As we’ve previously explained,
“there could always be a dangerous person concealed within a
structure. 	But that in itself cannot justify a protective sweep,
unless such sweeps are to be permitted as a matter of course. . . .”
United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir. 2004);
see United States v. Roof, 103 Fed. Appx. 652, 658 (10th Cir. 2004)
(unpublished) 	(“A 	mere 	absence 	of 	information 	about 	whether
anyone remains in a home does not justify a protective sweep.”). 	In
short, “ ‘[n]o information’ cannot be an articulable basis for a sweep
that requires information to justify it in the first place.” 	United
States v. Colbert, 76 F.3d 773, 778 (6th Cir. 1996). 	Accordingly, if
the deputies had no knowledge regarding the potential presence of
a third person, then the government is per se unable to make the
affirmative showing that Buie requires.
Id. at pp. 8-9. 	Mr. Villanueva believes Nelson supports his argument that the
magistrate judge “failed to identify any scene specific facts which gives rise to
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the inference that a dangerous person was inside the apartment.” 	Id. at p. 11.
“As for the unattended sleeping child,” Mr. Villanueva argues “the Magistrate
Court has never provided a single case nor authority supporting the legal
conclusion that an unattended child in and of itself authorizes warrantless
entry into a home.” 	Id. at p. 9.
The government opposes Mr. Villanueva’s objection. 	(Docket 298). 	The
government “agrees with the [R&R] that, in this particular area of the law, there
is no split between the 8th and 10th Circuits. . . . Both have adopted
substantially the same standard outlined in [Buie], which addresses in-house
arrests.” 	Id. (referencing Alatorre, 863 F.3d at 814; United States v. Cavely,
318 F.3d 987, 995 (10th Cir. 2003)).
In the choice of law section of the R&R, the magistrate judge analyzed
this issue. 	(Docket 289 at pp. 7-10). 	The magistrate judge concluded:
[S]ignificant differences do not exist between Tenth Circuit and
Eighth Circuit law. . . . The Tenth Circuit case which Defendant
claims 	should 	control 	this 	issue 	[Nelson, 	868 	F.3d 	at 	888-91]
directly relied on . . . Buie, 494 U.S. 325 . . . in reaching its decision
. . . . In fact, the Eighth Circuit cited a Tenth Circuit decision in
addressing a case factually similar to this one. . . . [Alatorre, 863
F.3d at 814] (citing [Cavely, 318 F.3d at 995-96]). 	Because no
significant 	differences 	exist 	between 	Tenth 	Circuit 	and 	Eighth
Circuit 	law 	on 	the 	issues 	presented 	here, 	a 	choice-of-law
determination is not necessary.
Id. at pp. 9-10).
“A ‘protective sweep’ is a quick and limited search of premises, incident
to an arrest and conducted to protect the safety of police officers or others.”
Buie, 494 U.S. at 327. 	The Supreme Court confines a protective sweep “to a
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cursory visual inspection of those places in which a person might be hiding.”
Id. 	The standard for justifying a protective sweep incidental to an arrest is
“that there must be articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger to
those on the arrest scene.” 	Id. at 334. 	“The sweep lasts no longer than is
necessary to dispel the reasonable suspicion of danger and in any event no
longer than it takes to complete the arrest and depart the premises.” 	Id. at
335-36.
Nelson acknowledges Buie established two limited exceptions to the
requirement that a search warrant be issued to enter a home. 	Nelson, 868
F.3d at 888 (“In Buie, the Court recognized two exceptions to the general rule
that police must obtain a warrant to search a home.”). 	Rather than identify
the two exceptions by those labels, Nelson identifies them as prongs. 	“Under
the first exception (Prong One) the police may, in conjunction with an arrest in
a home, ‘as a precautionary matter and without probable cause or reasonable
suspicion, look in closets and other spaces immediately adjoining the place of
arrest from which an attack could be immediately launched.’ ” 	Id. (citing
Buie, 494 U.S. at 334). 	“Under the second exception (Prong Two), police may
conduct a ‘protective sweep’ beyond areas immediately adjoining the arrest if
there are ‘articulable facts which, taken together with the rational inferences
from those facts, would warrant a reasonably prudent officer in believing that
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the area to be swept harbors an individual posing a danger to those on the
arrest scene.’ ” 	Id. (citing Buie, 494 U.S. at 334). 	As part of this analysis,
the Nelson court concluded that “ ‘[n]o information’ cannot be an articulable
basis for a sweep that requires information to justify it in the first place.’ . . .
Accordingly, if the deputies had no knowledge regarding the potential presence
of a third person, then the government is per se unable to make the affirmative
showing that Buie requires.” 	Id. at 889 (citing Colbert, 76 F.3d at 778).
Applying the principals of Buie and Nelson, the Tenth Circuit recognized
“that the same exigent circumstances present in Buie can sometimes
accompany an arrest just outside a residence . . . .” 	United States v. Banks,
884 F.3d 998, 1014 (8th Cir. 2018) (citing Cavely, 318 F.3d at 995-96).
“Moreover, Buie isn’t expressly limited to arrests inside the home. 	And it
allows protective sweeps based on a reasonable belief that ‘the area to be swept
harbors an individual posing a danger to those on the arrest scene.’ ” 	Id. at
1015 (emphasis in original) (citing Buie, 494 U.S. at 334). 	“Further, although
a sweep should last ‘no longer than it takes to complete the arrest and depart
the premises,’ officers are also ‘permitted in such circumstances to take
reasonable steps to ensure their safety after, and while making, the arrest.’ ”
Id. (emphasis in original) (citing Buie, 494 U.S. at 336).
In Alatorre, when the defendant “finally opened the front door,” the
officers, armed with an arrest warrant, “quickly placed him in handcuffs and
removed him to the porch.” 	Alatorre, 863 F.3d at 812. 	Defendant’s girlfriend
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then told the officers there was no one else inside the residence. 	Id. 	The
court’s analysis acknowledged that a protective sweep may occur “after an
arrest outside of a residence.” 	Id. at 814 (referencing Cavely, 318 F.3d at 995-
96; United States v. Boyd, 180 F.3d 967, 975 (8th Cir. 1999) (A protective
sweep is permitted even though the defendant “had already been handcuffed
and taken to [another area].”); United States v. Davis, 471 F.3d 938, 944-45
(8th Cir. 2006) (finding that a protective sweep of the defendant’s barn is
permitted after he is arrested outside the barn); (other citations omitted). 	A
residential protective sweep “is not invalid merely because [the defendant] may
have been removed from the immediate area during, or preceding, the sweep.”
United States v. Waters, 883 F.3d 1022, 1026 (8th Cir. 2018) (refencing Boyd,
180 F.3d at 975-76; Alatorre, 863 F.3d at 814-15). 	In every case, “[t]he
inquiry as to the reasonableness and validity of a protective sweep is
necessarily fact-specific.” 	Alatorre, 863 F.3d at 814 (citing United States v.
Thompson, 842 F.3d 1002, 1009 (7th Cir. 2016)). 	The Alatorre court
emphasized that “ ‘[a] protective sweep is justified by the threat of accomplices
launching a surprise attack during an arrest and is particularly important
during an in-home arrest, due to the heightened potential for an ambush in
unfamiliar surroundings.’ ” 	Id. (citing Davis, 471 F.3d at 944) (quoting Buie,
494 U.S. at 333).
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The court agrees with the magistrate judge’s conclusion there are “no
significant differences . . . between Tenth Circuit and Eighth Circuit law on the
issues presented” in Mr. Villanueva’s case. 	(Docket 289 at p. 10).
Defendant’s second objection to the R&R is overruled.
3. 	MR. VILLANUEVA OBJECTS TO THE MAGISTRATE JUDGE’S
FINDING THAT DURING AN EARLIER SHOOTING THE METRO
GANG TASK FORCE CONTACTED THE DENVER POLICE
DEPARTMENT ABOUT DEFENDANT’S ARREST WARRANT
The magistrate judge found “[d]uring the operation, the Metro Gang Task
Force (“MGTF”) contacted the Denver Police Department and stated [MGTF] had
a federal arrest warrant for Francisco Villanueva.” 	Id. at p. 4. 	Defendant
objects to this finding claiming that during a prior “shooting investigation or
‘operation’ the [MGTF] contacted the Denver Police Department concerning
Defendant’s arrest warrant.” 	(Docket 293 at pp. 2-3). 	He argues the briefing
by MGTF “was not ancillary to some ‘shooting’ investigation.” 	Id. at p. 3. 	Mr.
Villanueva argues “[a]ll law enforcement involved in carrying out the arrest
were exclusively handling Defendant’s arrest, they were not also involved in
some other gang shooting investigation.” 	Id.
Reading the R&R in context, the court finds the magistrate judge was not
connecting the early description of gang related shootings directly to the
operation focusing on the arrest of Mr. Villanueva. 	The R&R simply intended
to place in context the activities of the MGTF and Denver Police Department
(“DPD”) to initiate their activities to arrest Mr. Villanueva. 	In context, the
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statement of the magistrate judge is most cogently read as follows: “During the
operation [to arrest Mr. Villanueva], the [MGTG] contacted the [DPD] and stated
[MGTF] had a federal arrest warrant for Francisco Villanueva.” 	(Docket 289 at
p. 4). 	The court adopts the magistrate judge’s statement with that
understanding.
Defendant’s third objection to the R&R is overruled.
4. 	MR. VILLANUEVA OBJECTS TO THE MAGISTRATE JUDGE’S
FINDING THAT THE WARRANTLESS ENTRY INTO HIS HOME WAS
THE RESULT OF HIS ARREST INSIDE HIS HOME
Turning to the specific facts of Mr. Villanueva’s arrest, the court notes
the defendant does not challenge the vast number of the findings made by the
magistrate judge. 	See Docket 293 ¶¶ 2-4, 6 & 8-12. 	The court adopts the
magistrate judge’s factual findings subject only to those facts specifically
challenged by Mr. Villanueva and resolved in this order.
The magistrate judge found “although Defendant was arrested after he
stepped onto the front porch, the officer safety concerns articulated in Buie
apply. 	The arrest took place directly outside the home, and the officers were
vulnerable to potential attacks from someone inside the residence.” 	(Docket
289 at p. 13). 	With this finding, the magistrate judge adopted the legal
analysis of an “in-home” arrest to conclude that “[i]f the officers possessed a
reasonable belief that the area harbored a dangerous individual, they further
were entitled to conduct a limited protective sweep of the premises.” 	Id.
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(referencing Buie, 494 U.S. at 334). 	In arriving at this conclusion, the
magistrate judge examined Alatorre, Davis and Boyd. 	Id. at pp. 12-13.
Mr. Villanueva objects to this finding on the basis “the warrantless entry
was not the result of an ‘arrest in a home.’ ” 	(Docket 293 at p. 7) (referencing
Docket 289 at pp. 12-13). 	He argues Alatorre “did not apply [the] Buie
exception one, i.e. ‘in-home’ arrest to the facts of the case.” 	Id. at p. 12. 	Mr.
Villanueva contends Alatorre “applied prong two, which requires probable
cause or reasonable suspicion in that law enforcement must possess
articulable facts which, taken together with the rational inferences from those
facts, would warrant a reasonably prudent officer in believing that the area to
be swept harbors an individual posing a danger.” 	Id. (referencing Alatorre,
863 F.3d at 814-15). 	He argues “[t]his is very different that (sic) the ‘in-home’
arrest standard applied because that requires no probable cause or reasonable
suspicion.” 	Id.
Mr. Villanueva is correct that as he came to the front door of his
residence, Officer Lombardi asked him to step thorough the threshold and
stand on the small porch landing. 	He was immediately handcuffed while
standing in that area.
In Buie, the defendant was arrested inside his residence. 	Buie, 494
U.S. at 328. 	The court held there was an “interest of the officers in taking
steps to assure themselves that the house in which a suspect is being, or has
just been, arrested is not harboring other persons who are dangerous and who
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could unexpectedly launch an attack.” 	Id. at 333. 	The court held the officers
were not required to have probable cause or even reasonable suspicion to
execute a protective sweep, but rather “there must be articulable facts which,
taken together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” 	Id. at 334. 	“This is
no more and no less than was required in Terry 1 and Long, 2 and as in those
cases, we think this balance is the proper one.” 	Id.
In Alatorre, the defendant was arrested and placed in handcuffs inside
the residence and “removed . . . to the porch.” 	Alatorre, 863 F.3d at 812.
Contrary to defendant’s argument, the Alatorre court did not require probable
cause or reasonable suspicion to justify a protective sweep. 	Like Buie, the
Alatorre court required only “articulable facts and rational inferences
supporting the officers’ reasonable beliefs that someone else could be inside
posing a danger to them during or following the arrest.” 	Id. at 814 (emphasis
omitted) (referencing Buie, 494 U.S. at 327).
Use of the term “in-home” arrest is not limited to only those arrests
which occur inside a residence, but instead includes those arrests occurring at
or near an entry to the residence. 	See United States v. Pile, 820 F.3d 314,
1 Terry v. Ohio, 392 U.S. 1 (1968).
2 Michigan v. Long, 463 U.S. 1032 (1983).
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317 (8th Cir. 2016) (“Pile misreads Buie’s ‘in-home arrest’ language. 	See
[Buie, 494 U.S. at 337]. 	To be sure, the arrest in Buie occurred inside of a
home. 	But the rationale supporting the Court’s recognition of the protective
sweep—safety of police officers and others—may extend beyond a home’s four
walls, depending on the facts.”). 	See also Cavely, 318 F.3d at 995-96; Banks,
884 F.3d at 1015.
The “in-home” description is not used when other structures or places
are the subject of a protective sweep. 	See Davis, 471 F.3d 938 (barn); United
States v. Aguilar, 743 F.3d 1144 (8th Cir. 2014) (front lawn); United States v.
Arzola, No. 16-00290-01, 2017 WL 4837198, at *4 (W.D. Mo. Sept. 1, 2017),
report and recommendation adopted, No. 4:16-CR-00290-01, 2017 WL
4819109 (W.D. Mo. Oct. 25, 2017) (inside garage); United States v. Hoyos, 892
F.2d 1387, 1394 (9th Cir. 1989) (back yard), overruled on other grounds by
United States v. Ruiz, 257 F.3d 1030 (9th Cir. 2001); United States v. Jones,
193 F.3d 948, 949 (8th Cir. 1999) (common area of apartment building
permitted search of apartment shared by defendant).
Defendant’s objection is without merit. 	The magistrate judge properly
identified Mr. Villanueva’s arrest as being an “in-home” arrest, subject to the
first exception articulated in Buie and Alatorre.
Defendant’s fourth objection to the R&R is overruled.
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5. 	MR. VILLANUEVA OBJECTS TO THE MAGISTRATE JUDGE’S
CONCLUSION THAT THE OFFICERS WERE UNCERTAIN AS TO
WHETHER THERE WERE OTHER DANGEROUS PEOPLE INSIDE
THE HOME AFTER HIS ARREST
Mr. Villanueva asserts the magistrate judge failed to “identify one single
scene specific fact which gives rise to the inference that a dangerous person was
inside the home. 	The only scene specific fact that has ever been found is that a
child was sleeping in the residence. 	Literally nothing else.” 	(Docket 293 at
p. 15).
The magistrate judge found “the protective sweep of the residence was
justified by several articulable facts and rational inferences supporting the
officers’ reasonable belief that someone else could be inside posing a danger to
them during or following the arrest.” (Docket 289 at p. 14) (citing Alatorre, 863
F.3d at 814 (emphasis in original) (citing Buie, 494 U.S. at 327)). 	The
magistrate judge identified those factors to include:
(1) 	[T]he officers knew Defendant was a member of the East Side
Oldies, 	a 	violent 	gang 	known 	for 	frequent 	gun 	violence,
homicides, and noncompliance with law enforcement;
(2) 	[T]he 	officers 	were 	aware 	the 	Oldies 	planned 	to 	violently
retaliate against the Crips that evening;
(3) 	[T]he 	officers 	knew 	Defendant 	had 	an 	outstanding 	arrest
warrant for homicide;
(4) 	[G]iven 	the 	Oldies’ 	proclivity 	for 	gun 	violence, 	guns 	were
conceivably present in the home;
(5) 	[G]iven the Oldies’ known tendency to flee, cause distractions,
or 	shoot 	at 	law 	enforcement, 	other 	dangerous 	persons
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conceivably were in the home and prepared to engage in
violence; and
(6) 	[A] four-year old child was unsupervised inside the home and
any violent outburst would seriously endanger the child.
Id. at pp. 14-15. 	While there was no direct evidence other potentially
dangerous people were in the Villanueva’s residence, the magistrate judge
found “considering the officers’ experience with gang members in the
neighborhood, coupled with the specific facts of the arrest, . . . it was entirely
reasonable for the officers to believe other dangerous individuals could be
inside the home.”3 	Id. at p. 15 (referencing Alatorre, 863 F.3d at 814-15).
Defendant’s objection suggests law enforcement must physically observe
the actual presence of a dangerous individual either entering or being in the
house before a protective sweep would be justified. 	The court acknowledges
“[a] mere absence of information about whether anyone remains in a home
does not justify a protective sweep” and “ ‘no information’ cannot be an
articulable basis for a sweep that requires information to justify it in the first
place.” 	Nelson, 868 F.3d at 889 (internal citations and brackets omitted).
But like in Cavely and Banks, “[w]hile the officers weren’t expressly told that
someone else was in [Villanueva’s] house, their suspicion that [others may have
3 Mr. Villanueva specifically did not object to the magistrate judge’s
“recitation of the testifying officers’ training, experience, and background as
testified to. . . . [and did not object to] the Court’s recital of various gang
activity investigations, intelligence, and/or operations that various testifying
law enforcement officers have been engaged in[.]” 	(Docket 293 ¶ 2).
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been] inside was reasonable.” 	Banks, 884 F.3d at 1015 (referencing Cavely,
318 F.3d at 996). 	Additionally, under the specific circumstances of
Villanueva’s arrest, the officers knew he was wanted on an arrest warrant for
murder, was a member of the East Side Oldies gang and that the gang had a
history of violent conduct and refusing to obey law enforcement orders.
(Docket 289 at pp. 14-15). 	The court finds the magistrate judge’s articulation
of the information known to trained and experienced law enforcement officers
is sufficient to give rise to the inference that a dangerous person may still be in
the Villanueva’s residence after he and three other men were removed.
Defendant’s fifth objection to the R&R is overruled.
6. 	MR. VILLANUEVA OBJECTS TO THE MAGISTRATE JUDGE’S
LACK OF OBJECTIVE FINDINGS TO SUPPORT A PROTECTIVE
SWEEP OF HIS HOME
Mr. Villanueva asserts “[t]he testifying officers’ subjective motives and
thoughts play no role in this analysis, it’s an objective standard.” 	(Docket
293 at p. 9) (referencing Buie, 494 U.S. 325). 	In addition to the alleged
absence of specific facts concerning other dangerous individuals being in the
Villanueva’s residence, the defendant asserts there are no “other scene specific
facts giving rise to officer safety concerns. . . . All officer safety concerns were
known prior to approaching the residence which did not authorize a search
warrant.” 	Id.
The magistrate judge reported that Mr. Villanueva “does not dispute the
government’s summary of the facts supporting the officers’ decision to conduct
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a protective sweep.” 	(Docket 289 at p. 14) (referencing Docket 287 at p. 12
n.1) (referencing Docket 266 at pp. 4-7). 	To be clear, that knowledge included
the following:
1. 	The officers all had experience working with Denver’s gangs
and were familiar with the gangs operating within Denver’s
Cole-Whittier neighborhood, where Defendant was arrested.4
(Docket 289 at p. 2).
2. 	Sergeant Lombardi had 29 years of experience in law
enforcement, 20 of which have been with the [DPD] gang
unit. 	Id.
3. 	Sergeant Simmons had 20 years of experience with the DPD
and Broomfield Police Department and had served in the
gang unit. 	Id.
4. 	Officer Nielsen had worked for DPD since 2014 and had been
exclusively assigned to the Cole-Whittier neighborhood. 	Id.
at pp. 2-3.
5. 	Officer Kay had 14 years of experience with DPD and was a
member of the gang unit at the time of Defendant’s arrest.
Id. at p. 3.
6. 	Sergeant Grove had 21 years of experience, 12 of which were
with DPD, and at that time was a sergeant with the Vice and
Narcotics Bureau which assists the gang unit with
surveillance. 	Id.
7. 	Detective Hamel had two years of experience working in the
Cole-Whittier neighborhood doing gang surveillance. 	Id.
8. 	Each officer testified that he is familiar with the
neighborhood’s East Side Oldies gang and its violent
tendencies. 	Id.
4 The magistrate judge found the officers’ testimony credible. 	(Docket at
p. 3).
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9. 	The Crips gang and the East Side Oldies gang have a long-
standing feud in the Cole-Whittier neighborhood, resulting in
shootings and other gun-related violence. 	Id.
10. 	The testifying officers described removing firearms from
Oldies members; encountering Oldies members who would
attempt to flee from law enforcement; arresting Oldies
members and having other gang members attempt to cause
a distraction or fire rounds in order to allow the arrestees to
flee; and Oldies members partaking in drive-by shootings,
homicides, and other shootings. 	Id.
11. 	Members of the Crips gang had recently shot members of the
East Side Oldies gang in the neighborhood, and Denver
police received information that the Oldies planned to
retaliate against the Crips on the evening of November 28,
2017. 	Id. at pp. 3-4.
12. 	The [MGTF] . . . had a federal arrest warrant for Francisco
Villanueva . . . for a homicide. 	Id. at p. 4.
13. 	Mr. Villanueva is an active Oldies gang member. 	Id.
14. 	Based on the information in the warrant, the tensions
between the Crips and Oldies, and officers’ experience with
gang members carrying firearms and fleeing from law
enforcement, the officers approached the arrest with
heightened concerns. 	Id.
15. 	Tabitha Villanueva informed Officer Nielsen that Defendant,
along with her four-year-old son, were inside the Villanueva
residence. 	Id.
16. 	The front door of the residence was controlled by a locked
security door. 	Id. at p. 5.
17. 	An unidentified male answered the door . . . and the male
called [Mr. Villanueva] . . . to the door. 	Id.
18. 	Mr. Villanueva willingly exited the home and . . . complied
with the arrest. 	Id.
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19. 	Three other unknown males were present and visible
through the front door. 	Id.
20. 	[T]he three [men were ordered] to step out of the home,
patted them down for weapons, and had them sit down on
the front porch. 	Id.
21. 	An officer asked if anyone else was present in the home, and
one of the individuals said, “My friend’s stepson is inside,”
and told the officers the child was four years old. 	Id.
22. 	Based on officer safety concerns, as well as concerns for the
welfare of the child, Sergeant Lombardi immediately ordered
a protective sweep of the home and welfare check of the
child. 	Id. at pp. 5-6.
23. 	The officers entered the home approximately two minutes
after first knocking on the door. 	Id. at p. 6.
The magistrate judge organized these facts and associated inferences into the
summary of six factors identified earlier in this order. 	The magistrate judge
found “the officers’ decision to conduct a protective sweep was objectively
reasonable under the totality of the circumstances[.]” 	Id. at p. 16.
The court finds the magistrate judge properly concluded there were
“articulable facts which, taken together with the rational inferences from those
facts, would warrant a reasonably prudent officer in believing that the area to
be swept harbors an individual posing a danger to those on the arrest scene.”
Buie, 494 U.S. at 334. 	Those findings support the protective sweep in this
case.
Defendant’s sixth objection to the R&R is overruled.
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ORDER
Based on the above analysis, it is
ORDERED that defendant’s objections to the magistrate judge’s report
and recommendation (Docket 293) are overruled.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation (Docket 289) is adopted in full.
IT IS FURTHER ORDERED that defendant’s motion to suppress (Docket
107) is denied.
Dated May 29, 2019.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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