MIDVALE — The attorney for one of the men accused of kidnapping and killing a Kearns woman wants evidence seized from his client's apartment — namely the suspected murder weapon — suppressed because he claims police served a search warrant on the wrong apartment.
Orlando Esiesa Tobar, 29, who goes by the moniker "Chaparro," is one of the two men accused of kidnapping Conzuelo "Nicole" Solorio-Romero, 25, from her home in Kearns on Feb. 6. A total of six people have been charged in connection with her disappearance and death.
Tobar, along with Jorge Rafael Medina-Reyes, 21, took Solorio-Romero to a residence in West Valley City, 1136 W Elba Ave., where Tobar questioned her "regarding what she told police that resulted in one of his close associates being arrested and taken into federal custody," according to charging documents.
After Tobar told the woman "that she knew too much," Reyes shot her in the head, the charges state. The two later took her body to an undisclosed location.
Both men have been charged in 3rd District Court with aggravated murder.
When Tobar was arrested, charging documents say police searched Tobar's apartment and found "a .40-caliber Bersa pistol that was the same caliber that was used in the homicide. The pistol had been soaked in a chemical that had started corroding the gun. Witnesses identified the pistol as the same gun used to shoot Nicole. It was later discovered the pistol had been reported stolen out of Vernal, Utah, one year prior."
But in a court motion filed last week, Tobar's attorney, Neal Hamilton, claims Unified police served their search warrant on the wrong apartment, meaning officers did not enter Tobar's residence legally and therefore any evidence collected during their search should be suppressed.
In the motion, Tobar and his attorney are requesting that if a judge won't suppress evidence that a "Franks hearing" be held in the alternative. A Franks hearing is conducted to determine whether a police officer lied or gave false information in the affidavit used to obtain a search warrant from a judge.
Unified police began holding surveillance on Feb. 12 on the English Manor Apartments, 7953 Allen Street in Midvale, to collect information on Tobar, according to the motion. On Feb. 15, after maintaining surveillance on Tobar at his apartment for three days and keeping a tracking device on his vehicle for four days, police obtained a warrant to enter his apartment.
But the warrant was written for apartment No. 16, which is next door to No. 15 where Tobar lived and from where detectives seized the gun, according to the motion.
"A warrant was not sought, or obtained, to search apartment No. 15, nor were any efforts made to update the warrant obtained for apartment No. 16 before or after entering apartment No. 15. Apartment No. 16 was never entered," the motion states.
The court filing contends that detectives were aware they were not entering the apartment the warrant was written for but did so anyway without updating their warrant. Hamilton also argues that even if police had probable cause to make a warrantless arrest, it still did not give them authority to search the wrong apartment for evidence.
The motion further contends the affidavit used to obtain a search warrant lacked many details about the apartment to be searched.
"There is simply no excuse for (the detective's) lack of detail in his search warrant. Officers had been maintaining surveillance of the building for three days," the court documents state. "They had plenty of opportunity to observe and describe the location to be searched."
Despite days of holding surveillance and having numerous resources, "it turned out that their efforts to identify the correct apartment were haphazard at best, intentionally deceptive at worst, as officers were uncertain which apartment to search until they prepared to serve the warrant.
"Rather than discontinue the service of the warrant and seek to remedy the mistake they had discovered, detectives 'served the search warrant on No. 15' which they felt was the 'actual target apartment,'" the motion says.
Tobar and his attorney also argue it is "irrelevant" that detectives searched the apartment they intended to.
"Police do not get to cause the problem and then claim to be the solution to it," according to the motion.
The Salt Lake County District Attorney's Office declined comment Monday, saying it will later file a response to the motion in court.