D.P.R.: Criminal 4A violation proved by LEO being lookout on duty for robbery of recent ATF arrestee’s home

Defendant was a Puerto Rico police officer on a task force with the ATF. He worked the 4 pm to midnight shift, and he was involved as a police lookout to enable a condominium robbery to occur. He was convicted of conspiring to violate civil rights, 18 U.S.C. § 241, namely the right to be free from unreasonable searches and seizures. He admitted the first element and challenged that the Fourth Amendment was involved or that his action as a lookout was state action. The court disagreed. The target of the robbery was a recent ATF arrestee, and the purpose was to steal his property that ATF learned he had. Moreover, he was on duty at the time he was the lookout to warn the robbers inside if police came by. Judgment of acquittal denied. United States v. Martinez-Mercado, 2016 U.S. Dist. LEXIS 81129 (D.P.R. June 17, 2016):

A. Victim’s Fourth Amendment Rights

Martinez contends that the United States did not prove that the conspiracy targeted the victim’s Fourth Amendment rights. (Docket No. 171 at pp. 2-4.) Specifically, Martinez argues that there is insufficient evidence to show that the victim had the requisite reasonable expectation of privacy in the place searched the property seized. Id.

The Fourth Amendment protects people “against unreasonable searches and seizures” of their “persons, houses, papers, and effects.” U.S. Const. amend. IV. This protection applies only when the person has “a legitimate expectation of privacy in ‘the place searched or the thing seized.'” United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009) (quoting United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983)). “Without question, the home is accorded the full range of Fourth Amendment protections.” Lewis v.United States, 385 U.S. 206, 211, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966). If a person abandons her property, however, she loses Fourth Amendment protection of it. United States v. Hoey, 983 F.2d 890, 892 (8th Cir. 1993) (explaining that abandonment is determined by “act and intent” and may be inferred from “all the relevant circumstances”).

Here, Lopez testified that he and defendant Martinez agreed to do a “job” that involved breaking in to a condominium that belonged to someone who the ATF had recently arrested and stealing money, jewelry, and drugs from inside. This proves that the conspiracy had an intended victim: the person who the ATF had recently arrested. It also proves that the intent of the conspiracy was to search to the person’s home, a place that is accorded full Fourth Amendment protection, and to seize items from inside.

Photographs taken of the inside of the condominium the morning after the break-in depict kitchen cabinets full of food, dishes in the sink, items on the a dining room table, photographs and greeting cards on a dresser in the bedroom, clothes in the dresser drawers, sheets and pillows on the bed, and a blanket on the couch. See Gov’t Exh. 11. A reasonable jury could infer from these photographs that the condominium was occupied and not “abandoned” at the time of the break-in.

The Court finds that the United States presented sufficient evidence to enable a rational jury to conclude beyond a reasonable doubt that Martinez entered into a conspiracy, the object of which was to interfere with the victim’s Fourth Amendment right to be free from unreasonable searches of his home and seizures of his belongings. The Court next addresses whether this interference was intended to be carried out under color of law.

B. Under Color of Law

Defendant Martinez argues that the United States did not prove that the conspiracy intended to interfere with the victim’s rights while acting “under color of law.” (Docket No. 171 at pp. 4-7.)

“[A] police officer who exercises, but misuses or exceeds, his lawfully possessed authority is generally thought to be acting under color of law.” Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). “[W]hether a police officer is acting under color of state law turns on the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.” Id. Although no “easily determinable factor will control whether a police officer was acting under color of state law,” relevant factors include the officer’s “garb,” “duty status,” “use of a service revolver,” and the “location of the incident.” Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999). The “key determinant is whether the [officer], at the time in question, purposes to act in an official capacity or to exercise official responsibilities.” Martinez, 54 F.3d at 986. An officer’s “private conduct, outside the line of duty and unaided by any indicia of actual or ostensible state authority, is not conduct occurring under color of state law.” Id. at 986-87.

Here, Martinez argues that the involvement of officers Lopez and Ramos in the conspiracy was “tangential at best” and that their “mere presence” near the scene of the illegal search and seizure did not amount to “an actual exercise of apparent or real authority.” (Docket No. 171 at p. 5.)

The evidence presented at trial showed that defendant Martinez and Lopez agreed that the illegal search and seizure would take place on an evening when Lopez was on duty as a police officer in charge of investigating home invasions and thefts in Carolina, where the condominium was located. Martinez and Lopez agreed that Lopez would sit in his patrol car near the condominium to give the impression to the public that the area was safe and that a crime was not being committed. Lopez would also listen to his police radio while the thugs were in the condominium, and if a complaint came in, he would alert the thugs to leave and would deviate the investigation.

Thus, Lopez’s status as being on duty, the fact that his official duties at the time included investigating home invasions in the municipality where the illegal home invasion was to take place, and the use of his official patrol car and police radio are all factors that support the conclusion that the conspiracy intended for Lopez to act under of color of law. See Barreto-Rivera, 168 F.3d at 45.

Thus, the Court finds that the United States presented sufficient evidence to enable a rational jury to conclude beyond a reasonable doubt that defendant Martinez entered into a conspiracy with the intent to interfere with the victim’s Fourth Amendment rights under color of law. Accordingly, the Court DENIES Martinez’s motion for a judgment of acquittal.

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