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United States of America v. Heber Franco-Lombera

July 20, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HEBER FRANCO-LOMBERA, DEFENDANT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it Defendant Heber Franco-Lombera's Motion to Suppress (Dkt. No. 48) in which co-Defendant Francisco Cardona Rodriguez joins. (Dkt. No. 67). The Court heard testimony and oral argument on July 11, 2011, and denied the motion in part. The Court will now deny the motion as to all evidence seized for the reasons expressed below.

BACKGROUND

The Government brought charges against Defendant Heber Franco-Lombera for conspiracy to manufacture or distribute 1,000 or more marijuana plants. The charges stem from evidence seized from his home in California which allegedly implicates him as a conspirator to a marijuana growing operation with activities in Oregon and Idaho. He claims that the search and seizure of this evidence violated his 4th Amendment rights, and moves to suppress it. Co-Defendant Francisco Cardona Rodriguez joins in the motion.

Around noon on August 21, 2010 in Bieber, California officers from several law enforcement agencies responded to a report of a gunshot at Franco-Lombera's residence. The report came from a neighbor. Once a perimeter was established, attempts to contact individuals inside the residence were made several times, in both English and Spanish, over Officer Luntey's PA system.

Co-Defendant Francisco Cardona Rodriguez exited the residence first. He was frisked, handcuffed and placed into the rear of a California Highway Patrol (CHP) squad car. He stated that two additional individuals remained in the residence. Franco-Lombera exited next and was frisked, handcuffed and placed in the rear of Deputy Scott Withrow's Lassen County Sheriff's Office (LCSO) squad car. He told officers that, in the living room, there was a shotgun behind the couch and a pistol within the safe. He noted that the key to the safe was "on the table." Gov. Exh. A p. 1. Franco-Lombera also stated that "[Jose Cardona] was in the house when he came out," but later stated that Cardona may be in the vehicle parked behind the residence. Id. That vehicle is directly tied to the alleged growing operation with activities in Oregon and Idaho. See Gandiaga Affidavit p. 14. Jose Cardona was not inside the vehicle, but officers did see a "green, leafy substance on the floorboard" and noticed "the smell of marijuana coming from inside." Gov Exh. A p. 1. Both Franco-Lombera and co-defendant Cardona Rodriguez were asked several times if Jose Cardona may be located inside, and both said he might be inside.

LCSO Officer Kevin Luntey attempted, in Spanish, to explain to Franco-Lombera both the permission to search form as well as his Miranda rights. Officer Luntey has had two years of formal Spanish lessons in high school, in 1987 and 1988, with an additional year of Spanish in college in 1989. He has had no other formal training, but testifies he currently uses the Spanish language five to six times a month and has previously served in a law enforcement capacity in Los Angeles, Oakland, and the Williams area of California, where he used it more regularly.

Franco-Lombera was either sitting on the instep of Deputy Withrow's vehicle, or standing beside it, no longer handcuffed, with only Deputy Withrow and Officer Luntey directly present during the conversation. Other armed and observable officers were nearby with weapons drawn. Both Officer Luntey and Deputy Withrow described Franco-Lombera as extremely cooperative and showing no signs of confusion. Their conversation was recorded. For completeness and accuracy, the relevant portions of the translated transcription are reproduced here.

Officer Luntey: OK. For our protection. Do you understand you are not in jail?

Do you understand you are not under arrest? (EN) Do you understand that? (EN) (UI) But we want ... talk with you and need to make rights, OK? Do you understand that you I have the rights to, to not say anything?

Franco-Lombera: (UI).

Officer Luntey: Do you know that you have the right to have an attorney? Do you understand? OK. And you don't have one... the money to pay an attorney, you have the right for the state to pay, OK? Uh, we want you to look in the house for the other person in the house, OK? But this is a paper to give us permission to go in the house and search the house for all the weapons, and drugs and (UI)

OK? Do you have a problem if we search the house? There is no problem? Yes or no? There is no problem? Is it OK if we go into your house?

Franco-Lombera: Yes, well I already have ...

Officer Luntey: And the correct address there? One, zero, four, Fourth Street (EN)?

Franco-Lombera: Yeah.

Officer Luntey: OK. Is it the green house here? OK? [Officer talking to another agent]. Do you ...


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