USA v. Avitia-Enriquez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JESUS AVITIA-ENRIQUEZ, and
STEVEN KYLE PHILLIPS,
Defendants.
Case No. 4:23-cr-00002-RRB
ORDER DENYING
MOTION TO SUPPRESS
(Docket 55)
I. 	INTRODUCTION
Before the Court is Defendant Avitia-Enriquez’s Motion to Suppress, which
Defendant Steven Kyle Phillips has joined.1 	The Government has opposed the motion.2
The matter was referred to Magistrate Judge Scott Oravec, who held an evidentiary hearing
on the Motion to Suppress.3 	The Government called law enforcement officers Charles
Flockhart, Byron Johnson, and Caleb Reuter.4 The Defense called no witnesses.
1 Dockets 55, 62. The Government asserts that Defendant Phillips has failed to establish
standing to challenge the protective sweep and subsequent search of the residence. Docket 92 at
1–2. This argument is moot in light of the Court’s ultimate finding that the initial search was valid.
2 Docket 68.
3 The transcript of the evidentiary hearing is found at Docket 82.
4 Docket 82 at 2.
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Judge 	Oravec 	ordered supplemental 	briefing at 	the 	conclusion 	of the
evidentiary hearing.5 	The Government, as well as both Defendants, filed supplemental
briefing and responses.6 	Defendant Avitia-Enriquez also referenced additional exhibits,
including conventionally-filed copies of video footage from inside the residence at the time
of the search.7 After the hearing, the magistrate judge was deployed to temporary active
miliary duty prior to issuing a Report and Recommendation. Accordingly, the referral has
been withdrawn. 	This Court has reviewed the briefing and the transcript of the hearing
and, being fully advised, finds that the totality of circumstances justifies the officers’
actions in the January 25, 2021, search. 	For the reasons set forth below, the Motion to
Suppress is DENIED.
II. 	FACTUAL BACKGROUND
Fairbanks Drug Enforcement Agency (“DEA”) began investing Michael
Patrick Meath’s drug trafficking activities in Fairbanks, Alaska, in November 2017.8 	At
that time, Meath lived with Lisa Cartier in a house at 379 Shannon Drive, which was owned
by the Cartier Trust.9 	The following summary of facts is taken from the Government’s
briefing and testimony at the evidentiary hearing.
5 Docket 79.
6 Dockets 83, 84, 87, 90, 92.
7 Dockets 85, 86. The Court notes that although counsel requested to conventionally file
the videos at Docket 86, they had been previously lodged with the Clerk. See Dockets 57, 58 (text
entry). This footage was obtained from Avitia-Enriquez’s personal video surveillance, which was
seized by agents during the search. Docket 55 at 9.
8 Docket 68 at 1.
9 Docket 82 at 10.
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On October 24, 2019, members of Fairbanks Area Narcotics Task Force
(“FANT”) were conducting surveillance on Meath at the Shannon Drive house. 	While
surveilling the Shannon Drive house, members of FANT observed Meath depart the home
with a backpack and get into a grey truck. Shortly after departing the house in his vehicle,
Meath was stopped for a traffic violation. 	K9 units alerted on the truck and the agents
secured a warrant to search the vehicle. 	Inside the backpack that was carried out of the
Shannon Drive house was a loaded Colt .45 semi-automatic pistol, 4 digital scales, multiple
Ziplock baggies, approximately 60 grams of heroin, and 1.25 pounds of Methamphetamine.
On January 18, 2021, the federal Grand Jury indicted Meath, and a warrant for his arrest
was issued. 	After the warrant for Meath’s arrest was issued, investigators conducted
additional surveillance on the Shannon Drive house, where they believed Meath lived.
Meath frequently was seen at this location, although there is some suggestion in the record
that Meath no longer resided at the house.10
On January 25, 2021, at approximately 1:00 p.m., investigators observed
Meath pull into the driveway of 379 Shannon Drive in a Dodge Ram truck that was pulling
a trailer. Agents observed Defendant Avitia-Enriquez exit the residence and assist Meath
with the trailer. 	Meath shortly thereafter left and returned with Marc Wahlgren.11
Wahlgren was known to local law enforcement as part of the local drug scene.12 	Both
10 Docket 68 at 2–3.
11 Id. at 3.
12 One agent testified: “Mr. Wahlgren first became known to me in 2017 connected with
an OCDETF case that we started here. But from that point forward, in any drug circle when we’re
reviewing intelligence -- when we’re doing our intelligence gathering, he is always in the -- seems
to be always in the circle of the drug trafficking scene.” Docket 82 at 35.
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Meath and Wahlgren entered the Shannon Drive house. 	Agents watched Meath make
multiple trips to and from the house carrying garbage bags, handbags, and a backpack and
place them in the truck. 	Meath was inside the residence as agents first approached the
residence to arrest him at 2:45 p.m.13 As officers were approaching the house, Meath had
already exited the residence and was getting into the 	truck as they made contact.14 The
agents conducted a brief search of the area of the truck within Meath’s reach and located a
loaded .44 revolver in the center console and a black backpack behind the center console
containing 	approximately 	$65,000.00, 	124.71 	grams 	of 	heroin, 	216.79 	grams 	of
methamphetamine, and 105.2 grams of fentanyl pills.15 Defendants dispute whether or not
anyone saw Meath’s backpack come from inside the house.
Officer testimony indicates that, upon his arrest, Meath asked the officers to
inform someone inside the house that he had been arrested.16 	Because of this request,
officers went to the front door, where they knocked, but no one came to the door.17 The
officers decided to enter the house at approximately 3:05 p.m.18 One officer testified:
So we determined, because of Mr. Meath walking out of the
residence with that backpack that contained drugs and money,
and that we knew that there were people inside and the
unwillingness to come to the door, we believed that inside the
house still contained evidence of a crime, and then we began
13 Docket 68 at 3; Docket 82 at 70.
14 Docket 82 at 35; Docket 55 Exhibit E at 14:47:39 (2:47 p.m.) Marc Wahlgren comes
into Avitia’s living space and says, “There is a bunch of cops with guns walking up to Mike’s truck
dude. I swear to god.” The timing of this also corroborates the report that states officers arrested
Meath at approximately 2:45 p.m.
15 Docket 68 at 3.
16 Docket 82 at 36, 134, 135.
17 Id. at 134–35.
18 Id. at 135–36.
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to enter the residence to do a protective sweep and seize the
property pending the application of a search warrant.19
Once in the house, officers announced themselves and Walhgren, Avitia-Enriquez, and
Phillips all came down from upstairs.20 At this point all three were detained by the agents.21
Phillips and Avitia-Enriquez claimed to be presently employed within the home as painters,
and paint on their clothing as well as painting equipment in the home corroborated their
statements in this regard.22 	After detaining the three individuals found in the house, the
agents began searching the living area for additional people.23 At approximately 3:24 p.m.,
officers opened Avitia-Enriquez’s living room space and turned on the lights.24 	The
testimony of the officers is consistent with the video that ultimately was seized. 	The
officers can be heard discussing how people can hide in unusual places. While flipping the
couch cushions and searching Avitia-Enriquez’s living area for individuals who may be
hiding, investigator Reuter and another officer looked into a lunch pack in plain view on
the coffee table in Avitia-Enriquez’s living area.25 	Sometime after initially leaving the
room, Avitia-Enriquez (while handcuffed) was brought back into his living space and is
19 Id. at 37.
20 Id. at 225.
21 Id. at 42.
22 Docket 68 at 6.
23 Id. at 6; Docket 55 Exhibit D at 15:24:49–15:26:00 officers are seen flipping cushions
of the couch in Avitia-Enriquez’s living space.
24 Docket 55 Exhibit D at 15:24:12 the officers open the doors to Avitia-Enriquez’s living
space and at 15:24:31 officers are seen turning the lights on the living space.
25 Docket 82 at 96; Docket 55 Exhibit D at 15:25:59–15:26:05 the first officer is seen
peering into the lunch pack and at 15:26:20–15:26:24 the second officer is peering into the lunch
pack again.
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seen speaking with an agent.26 A search warrant for the house was issued by Magistrate
Judge Scott Oravec at 5:52 p.m.27 	During the search of the residence, evidence of drug
contraband and a video camera were seized. 	Later at the Fairbanks Police Department,
Avitia-Enriquez and Phillips were questioned by officers.28
III. 	APPLICABLE LAW
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.”29
The Court has emphasized that the mandate of the Fourth Amendment requires adherence
to judicial processes, “and that searches conducted outside the judicial process, without
prior 	approval 	by 	judge 	or 	magistrate, 	are 	per 	se 	unreasonable 	under 	the 	Fourth
Amendment—subject 	only 	to 	a 	few 	specifically 	established 	and 	well-delineated
exceptions,” 	which 	are 	discussed 	in 	more 	detail 	below.30 	Briefly, 	“[t]he 	Fourth
Amendment permits a properly limited protective sweep in conjunction with an in-home
arrest when the searching officers possesses a reasonable belief based on specific and
articulable facts that the area to be swept harbors an individual posing a danger to those on
the arrest scene.”31 Additionally, “‘exigent circumstances,’ including the need to prevent
26 Docket 55 Exhibit D at 15:41:03 officers are seen leaving Avitia-Enriquez’s living
space; Docket 55 Exhibit F at 15:41:03–15:43:51 an officer is communicating with Avitia-
Enriquez.
27 Docket 82 at 103.
28 Id. at 50.
29 U.S. Const. Amend. IV.
30 Katz v. United States, 389 U.S. 347, 357 (1967).
31 Maryland v. Buie, 494 U.S. 325, 333 (1990).
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the destruction of evidence, permit police officers to conduct an otherwise permissible
search without first obtaining a warrant.”32
The controlling burden of proof at a suppression hearing is “no greater
burden than proof by a preponderance of the evidence.”33
IV. 	DISCUSSION
Warrantless searches are per se unreasonable, and, where a defendant makes
an initial showing that a search occurred without a warrant, the burden shifts to the
government to show that a search warrant exception applies.34 It is undisputed that when
Officer Byron Johnson and other law enforcement entered the residence at 379 Shannon
Drive, shortly after Meath’s arrest in the driveway, the officers did so without a warrant.
Defendant made a sufficient showing on this issue as a threshold matter, and it is
undisputed. 	As a result, the burden shifts to the Government to show that an exception
applies.
The Government asserts that the entry was justified both as a protective
sweep and under exigent circumstances to preserve the integrity of the evidence inside. It
argues that officers were aware this was the second time Meath had been arrested with
large amounts of drugs and a firearm leaving the Shannon Drive residence, and that
Wahlgren and likely Avita-Enriquez currently were inside the residence, which was being
used in Meath’s drug trafficking operation. 	“Because officers expected that there was
32 Kentucky v. King, 563 U.S. 452, 460 (2011).
33 United States v. Matlock, 415 U.S. 164, 178 n.14 (1974).
34 Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971).
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additional evidence pertaining to Meath’s drug trafficking operation in the residence and
knew there was at least one person inside who could destroy evidence and endanger them,
they entered the residence to ensure officer safety and preserve evidence pending a search
warrant application.”35 	They then obtained a search warrant, and ultimately secured
evidence of Defendants’ roles in the conspiracy which forms the basis of the current
indictment.36
A. 	Protective Sweep
“The Fourth Amendment permits a properly limited protective sweep in
conjunction with an in-home arrest when the searching officers possess a reasonable belief
based on specific and articulable facts that the area to be swept harbors an individual posing
a danger to those on the arrest scene.”37 A protective sweep is a “quick and limited” search
of the premises, which may last “no longer than it takes to complete the arrest and depart
the premises.” 38
It is undisputed here that officers entered the house after arresting Meath on
a valid arrest warrant in the driveway. Although a protective sweep may be justified even
if the arrestee is not arrested inside their home,39 protective sweeps serve the purpose of
protecting officers from unexpected attacks while they are arresting a suspect.40 As Meath
35 Docket 68 at 4.
36 Id. at 1.
37 Maryland v. Buie, 494 U.S. 325, 333 (1990).
38 Buie, 494 U.S. at 335–36.
39 United States v. Hoyos, 892 F.2d 1387, 1397 (9th Cir. 1989) (overruled on other grounds
by United States v. Ruiz, 257 F.3d 1030 (9th Cir. 2001) (“If the exigencies to support a protective
sweep exist, whether the arrest occurred inside or outside the residence does not affect the
reasonableness of the officer’s conduct.”)).
40 Buie, 494 U.S. at 333.
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was arrested outside of the house and no one inside the house answered the door, the Court
is not persuaded that entering the house in order to do a protective sweep was necessary
for officer safety related to Meath’s arrest. Accordingly, the protective sweep exception to
the Fourth Amendment does not justify entry into the house.
B. 	Exigent Circumstances
“[T]he need ‘to prevent the imminent destruction of evidence’ has long been
recognized 	as 	a 	sufficient 	justification 	for 	a 	warrantless 	search.”41 	The 	exigent
circumstances exception involves circumstances in which “a substantial risk of harm to the
persons involved or to the law enforcement process would arise if the police were to delay
a search until a warrant could be obtained.”42
According to the Affidavit of Joshua Carr in Support of an Application for a
Search Warrant, officers believed that “additional evidence existed in the residence and
acting under the knowledge that at least one other adult was present in the home,
investigators entered the premises to secure all tangible property and persons to preserve
evidence pending this application for a search warrant.”43 Put simply, the officers reasoned
that additional evidence that could easily be destroyed was likely located in the residence.
This belief came from the fact that officers had found drugs in Meath’s backpack, which
they believed he carried from the house, in conjunction with the refusal of anyone in the
41 Kentucky v. King, 563 U.S. at 460.
42 United States v. Salvador, 740 F.2d at 758 (quoting United States v. Robertson, 606 F.2d
853, 859 (9th Cir. 1979)).
43 Docket 55-2 at 6.
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house to answer when the police knocked.44 Furthermore, Officer Byron Johnson testified
that while knocking at the front door, officers heard movement coming from inside the
garage,45 although Defendants argue that there is no mention of this movement in any of
the subsequent reports.
When considering destruction of evidence, the government must prove that
officers acted on probable cause and in good faith, reasonably believing from the totality
of the circumstances that evidence or contraband would imminently be destroyed.46
Moreover, because exigent circumstances imply insufficient time to obtain a warrant, the
government also must show that a warrant could not have been obtained in time.47
Defendant Avilia-Enriquez argues that “over 2 hours elapsed from when the
officers first entered the house to when their search warrant was obtained. They could have
just as easily secured that warrant (if they had probable cause) waiting outside the house
and question anyone leaving the house.”48 	Defendant’s argument does not, however,
explain how this tactic would have prevented the destruction of evidence inside the home.
The likelihood of the destruction of evidence is the same whether the arrest is indoors or
in an outside area within the sight or hearing range of an accomplice within the
residence.”49 Defendants characterize the alleged exigency as being created by the officers
themselves, suggesting that the officers did not need to put themselves in harm’s way by
44 Docket 82 at 6, 135.
45 Id. at 37.
46 United States v. Iwai, 930 F.3d 1141, 1144 (9th Cir. 2019).
47 United States v. Lindsey, 877 F.2d 777, 782 (9th Cir. 1989).
48 Docket 84 at 9.
49 Hoyos, 892 F.2d at 1397.
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approaching the house at all, and could have just returned later with a warrant.50 	Again,
this tactic would not have prevented the destruction of evidence inside the home.
The Supreme Court has rejected the suggestion that the police merely
knocking on the door creates the exigent circumstance, thereby voiding the exception.51
The Court has said that “[l]aw enforcement officers are under no constitutional duty to call
a halt to criminal investigation the moment they have the minimum evidence to establish
probable cause.”52 	“Faulting the police for failing to apply for a search warrant at the
earliest possible time after obtaining probable cause imposes a duty that is nowhere to be
found in the Constitution.”53
Investigators entered the premises at approximately 3:05 p.m. “to secure all
tangible property and persons to preserve evidence pending an application for a search
warrant of the residence.”54 A search warrant was issued at 5:52 p.m.55 In the meantime,
officers stayed inside the house with the three individuals they had detained.56
50 Docket 83 at 24; Docket 84 at 3.
51 See Kentucky v. King, 563 U.S. at 468–69 (Rejecting a “police-created exigency”
doctrine where police officers are penalized for opting to knock on the door rather than
immediately seeking a warrant. “If respondent’s test were adopted, it would be extremely difficult
for police officers to know how loudly they may announce their presence or how forcefully they
may knock on a door without running afoul of the police-created exigency rule. And in most cases,
it would be nearly impossible for a court to determine whether that threshold had been passed.
The Fourth Amendment does not require the nebulous and impractical test that respondent
proposes.”).
52 	Kentucky v. King, 563 U.S. at 467 (citing Hoffa v. United States, 385 U.S. 293, 310
(1966)).
53 Id.
54 Docket 55-3 at 2.
55 Docket 82 at 103.
56 Id. at 97.
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Video footage from Avilia-Enriquez’s personal video camera captured part
of the warrantless search, which has been submitted to the Court by the defense. The Court
has reviewed those videos. 	Officers can be seen in only one room of the house. 	The
defense argues that “agents were captured rummaging through the house, tossing up couch
cushions, and digging through personal belongings.”57 “During the 2 hour wait time, video
footage shows agents continuing to go through Mr. Avitia-Enriquez’s living space
searching for stuff after what they claimed was a protective sweep . . . [and] an agent is
captured looking through Mr. Avitia’s living space, opening and looking into a cooler
container on the coffee table and searching the residence with other officers, even using an
iPhone charging cord they found.”58
The Court’s review of the footage yields a less dramatic description. Officers
initially were actively searching for anyone hiding in large spaces, like inside the couch,
and can be heard discussing the types of spaces people can hide in. 	Once the room is
cleared, the officers visibly relax. There was drug paraphernalia in plain view at this point.
The video shows officers just after 5 p.m. carefully stepping through what already was a
cluttered room prior to their entry, apparently waiting for the search warrant to be granted
before actively searching the premises. 	Officers peered into open containers and dark
corners with flashlights, but obviously were careful not to perform a search of anything not
in plain view. It appears that the officers were not aware they were being recorded.59 While
57 Docket 84 at 10.
58 Id.
59 See Supplemental Exhibit F, conventionally filed.
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the ends do not justify the means, the videotaped behavior of Phillips and Avitia-Enriquez
stashing items here and there prior to the police entering the room is illustrative of why
officers generally are concerned about the destruction of evidence in a case such as this
one. As the Supreme Court has explained:
When law enforcement officers who are not armed with a
warrant knock on a door, they do no more than any private
citizen might do. And whether the person who knocks on the
door and requests the opportunity to speak is a police officer or
a private citizen, the occupant has no obligation to open the
door or to speak. . . . When the police knock on a door but the
occupants choose not to respond or to speak, “the investigation
will 	have 	reached 	a 	conspicuously 	low 	point,” 	and 	the
occupants “will have the kind of warning that even the most
elaborate security system cannot provide.” . . . And even if an
occupant chooses to open the door and speak with the officers,
the occupant need not allow the officers to enter the premises
and may refuse to answer any questions at any time.
Occupants who choose not to stand on their constitutional
rights but instead elect to attempt to destroy evidence have only
themselves to blame for the warrantless exigent circumstances
search that may ensue.60
The Court finds that exigent circumstances warranted entry of the Shannon
Drive house in order to preserve destruction of evidence while waiting for a search warrant.
C. 	Search Warrant
Finally, Defendants argue that the search warrant ultimately obtained was the
“fruit of the poisonous tree” that was the initial warrantless search. 	This argument
essentially is moot, but the Court acknowledges the Government’s argument that the search
60 Kentucky v. King, 563 U.S. at 469–70.
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warrant ultimately obtained was valid without relying on anything obtained during the
warrantless entry.61 	A magistrate requires a “substantial basis” for concluding that
probable cause existed.62 	The Government argues that, even if the two sentences
describing the drug paraphernalia observed in plain view were removed from the warrant
affidavit, there still was probable cause for a warrant: 	“Meath, a known drug trafficker,
carried a bag containing drugs, money, and a firearm from his residence immediately prior
to his arrest.”63 	“In the case of drug dealers, evidence is likely to be found where the
dealers live.”64
V. 	CONCLUSION
In light of the foregoing, the Motion to Suppress at Docket 55 is DENIED.
A trial date setting conference previously has been scheduled for Friday, May 10, 2024, at
10:00 a.m. in Fairbanks Courtroom 1.
IT IS SO ORDERED this 1st day of May, 2024, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
61 Docket 68 at 2.
62 Illinois v. Gates, 462 U.S. 213, 238–39 (1983) (quoting Jones v. United States, 362 U.S.
257, 271 (1960)).
63 Docket 68 at 10.
64 United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986).
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