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United States v. Sanchez-Munoz

United States District Court, W.D. Missouri, Western Division

March 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JONATHAN SANCHEZ-MUNOZ, Defendant.

          REPORT AND RECOMMENDATION

          SARAH W. HAYS UNITED STATES MAGISTRATE JUDGE

         This matter is currently before the Court on defendant's Motion to Suppress Evidence (doc #29). For the reasons set forth below, it is recommended that this motion be denied.

         I. INTRODUCTION

         On April 18, 2017, the Grand Jury returned a three-count indictment against defendant Jonathan Sanchez-Munoz. Count One of the indictment charges that defendant, then being an alien illegally and unlawfully in the United States, knowingly and unlawfully possessed, in and affecting commerce, a firearm. Count Two charges that defendant knowingly possessed a document prescribed by statute and regulation as evidence of authorized stay or employment in the United States, that is a Permanent Resident Card, which the defendant knew to be forged, counterfeited and falsely made. Count Three charges that defendant, an alien who had been previously deported and removed from the United States on or about April 28, 2015, was found in the United States without having obtained the express consent of the Secretary of Homeland Security or the Attorney General of the United States for readmission into the United States.

         On January 30, 2018, the undersigned conducted an evidentiary hearing on the motion to suppress. Defendant Sanchez-Munoz was represented by Assistant Federal Public Defender Stephen C. Moss. The Government was represented by Special Assistant United States Attorney Kimberlee L. Moore. The Government called Detective Steven Cook, Detective Jeffrey Pagel, and Officer Harold Echols of the Independence, Missouri Police Department as witnesses. The defense called no witnesses to testify.

         II. FACTS

         On the basis of the evidence adduced at the evidentiary hearing, the undersigned submits the following proposed findings of fact:

1. Detectives Steve Cook and Jeffrey Pagel were working as off-duty officers at the Independence Center mall on March 4, 2017. (Tr. at 3-4, 28-29) As Detective Cook was beginning his shift at approximately 5:00 p.m., he heard a mall security officer announce over the radio that there were some males and females pushing a baby carriage and that at least one of the males was wearing something described as MS-13 clothing. (Tr. at 5) Detective Cook walked around the mall trying to locate the people. (Tr. at 5) He was joined by Detective Jeffrey Pagel when he reported for his off-duty shift. (Tr. at 5, 29)
2. Simons Company, the property owner of Independence Center mall at the time, had a Code of Conduct policy. (Tr. at 4-6, 30) One of the things listed in the Code of Conduct is that guests wear appropriate clothing. (Tr. at 6; Government's Ex. 6) Inappropriate clothing includes gang-related clothing. (Tr. at 6, 30) If a guest is violating the Code of Conduct, they will be asked to leave the property. (Tr. at 6)
3. Detective Cook testified that he and Detective Pagel were on the upper level of the mall when they saw at a distance the individuals they believed mall security had earlier reported. (Tr. at 7) One individual was wearing a long-sleeve, dark-colored denim-type shirt which had on the back a very large number 13 with Old English script lettering above the number. (Tr. at 7) Detective Cook testified that from where he was standing he could not read the lettering. (Tr. at 7) Detectives Cook and Pagel approached the individuals, three males. (Tr. at 7-8) Detective Cook testified that it was not the complete group because mall security had reported that there were also females and at least one child. (Tr. at 8)
4. Detective Cook testified that he does training all over the United States pertaining to gangs. (Tr. at 9) Detective Cook testified that he is familiar with the number 13 as being affiliated with Sureno street gang members. When he was close enough the read the lettering above the number, Traviesos, he recognized that as a gang set of Sureno street gangs. (Tr. at 9) Detective Cook testified that the three males also had blue bandanas hanging out of their pockets. (Tr. at 8) Detective Cook testified that the three males had the appearance of being involved in gang activity. (Tr. at 8)
5. The detectives explained to the three males the policy of the mall and told them that they were in violation of the mall's Code of Conduct with their clothing and that they would have to leave.[1] (Tr. at 8, 13) The three males were very cooperative and said they understood and had no problem leaving the property. (Tr. at 8, 13, 31) Detective Cook told them that he and Detective Pagel would escort them out. (Tr. at 8) The detectives walked the three males to the main entrance of the mall, the 39th Street exit, and told them to leave the property. (Tr. at 8, 12) Detective Pagel testified that he explained that the property included the surrounding parking lots. (Tr. at 32) Detective Pagel also explained that mall security is very aggressive in making sure that people do not re-enter the mall and if they came back in that day, they would be arrested for trespassing. (Tr. at 32, 45-46) Detective Pagel testified that, based on his personal experience working off-duty at the Independence Center mall, it is very common for people to be cited for trespassing if they do not comply with a request to leave the mall. (Tr. at 32) The three males did not mention that they were at the mall with anyone else. (Tr. at 13, 38) Detective Pagel testified that when persons who are asked to leave the mall advise that they are at the mall with family members or friends, the officers will take them to the mall substation, [2] have them contact their family or friends to meet them there, and then they all leave the property together. (Tr. at 39)
5. Detectives Cook and Pagel stood outside and watched to make sure the three males were going to do what they were asked to do, that is leave the property. (Tr. at 13, 32) The officers watched the three males get into a vehicle and start to head out on the outer road, but then noticed that they were passing exits to 39th Street. (Tr. at 13, 33) Detective Cook testified that he thought, why aren't they leaving, they were told to leave. (Tr. at 13) At that point, Detective Pagel contacted Officer Harold Echols, who worked out of the substation, and told him that these people were told to leave the mall and they are currently driving around to the back of the mall. (Tr. at 13, 33) Detective Cook testified that a lot of times when officers put people out of the mall, they will get in a vehicle and then they will try to slip back in another entrance. (Tr. at 14) The officers were concerned that the three males were going to park somewhere else and sneak back in the mall. (Tr. at 14)
6. Officer Echols testified that he responded to the area to ensure that the subjects who were requested to leave did, in fact, leave the property due to the fact that they were possible gang members. (Tr. at 47) Detective Cook testified that Officer Echols picked up the subject vehicle as it passed another exit to get out and started to circle around to the back side of the Sears store, clearly not leaving the property. (Tr. at 13-14) Officer Echols activated the emergency lights on his patrol car and stopped the subject vehicle down in the lower lot of Sears. (Tr. at 14, 48, 51) Officer Echols testified that he stopped the subject vehicle because “at that point I believed that they were trespassing, or they at least didn't understand that they were trespassing. And I ...

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