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Man accused by Richmond police of plotting mass shooting asks federal judge to suppress evidence

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Police seized guns from this house on Columbia Street in Richmond in July.

Richmond Police Chief Gerald M. Smith addresses tip received about planned mass shooting for July 4th and the resulting arrests. (Source: Richmond Police Department)

A man identified by Richmond police as one of two people behind an alleged mass shooting plot on July 4 at Dogwood Dell has asked a federal judge to suppress the evidence against him, saying city officers violated his Fourth Amendment rights against unreasonable search and seizure.

The evidence consists of two AR-15 assault-style rifles, a 9mm semiautomatic pistol and about 200 rounds of ammunition that Richmond police seized from a home where Julio Alvarado Dubon, 52, was living in the 3100 block of Columbia Street. Dubon’s alleged accomplice, Rolman Balcarcel-Bavagas, 38, was also living there.

Julio Alvarado Dubon

Julio Alvarado Dubon faces charges in an alleged mass shooting plot on July 4.

In an 11-page motion filed this week by Jose Aponte, Dubon’s attorney, the defendant claims three Richmond police conducted an illegal search of his home, looked around without his consent and seized the firearms without a search warrant. Dubon further alleges there were no “exigent circumstances” to justify the officers’ entry into the house, and their actions did not constitute a valid “protective sweep.”

Exigent circumstances permit law enforcement to enter property or conduct a warrantless search outside the context of a criminal investigation.

A “protective sweep” has been recognized in case law as an exception to the warrant requirement, but it must be conducted “as an incident to arrest” and based on specific and articulable facts that the premises contains an individual posing a danger to the officers or others, Dubon says in his motion.

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Dubon’s motion also notes that police obtained a search warrant later, but it does not justify the earlier constitutional intrusion, the defendant says.

“If they believe that there is a need for a search warrant, they have the ability to freeze the scene and obtain the search warrant,” the motion says. “Police have the two occupants of the residence in the living room.”

Dubon, a citizen of Guatemala living in the U.S. illegally, was charged Aug. 2 in U.S. District Court in Richmond with possession of a firearm by a person residing in the U.S. illegally.

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According to the defense’s review of evidence provided by authorities during the discovery process, Richmond police Detective M.P. Kiniry and Sgt. B. Rodgers of the special investigations division, along with a Spanish-speaking officer identified only as Ferrerias, went to the Columbia Street home on July 1.

The motion says Kiniry and Rodgers were following up on a tip about a “mass shooting” that was supposed to occur on July 4.

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The three officers, dressed in tactical vests emblazoned with the word “Police” and armed with weapons, attempted a “knock and talk” at the home.

As the three officers stood on the front porch, loud music was blaring from the street. After about 45 seconds of knocking, Dubon came to the door. Ferrerias then asked Dubon if he could open the door, the motion states.

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After the officers asked if they could come in to talk, Dubon opened the door and allowed the officers into the house. Following some initial conversation with Dubon and the other occupant of the home, Kiniry says, “Let them know we are going to look around to make sure no one else is here,” according to the motion.

At that point Dubon states, “It is my understanding that without a warrant you can’t get into my house,” the motion states.

Ferrerias responded immediately, saying, “We are going to check to make sure there is no one else.” By this time, Kiniry has already begun walking through the house.

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Dubon attempts to walk toward his room and is immediately directed back to the living room by Kiniry. Kiniry’s entry into the bedroom of the house results in the discovery of firearms in Dubon’s bedroom, according to the motion.

A trial for Dubon in U.S. District Court in Richmond is set for Oct. 6, but whether the case proceeds to trial likely will depend on the success of Dubon’s suppression motion.

His alleged accomplice, Balcarcel-Bavagas, pleaded guilty last month in federal court to re-entering the U.S. after having been deported. He is scheduled to be sentenced Nov. 10.

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The immigration conviction is not related to Balcarcel-Bavagas’ alleged role in the mass shooting plot cited by Richmond police.

The U.S. Attorney’s Office assumed prosecution of both men after the Richmond Commonwealth’s Attorney’s Office withdrew firearm charges against the pair during an Aug. 3 hearing in Richmond General District Court.

During questioning by Judge David Hicks, Assistant Richmond Commonwealth’s Attorney Clint Seal said the prosecutor’s office had no evidence that a mass shooting was planned by the defendants for Dogwood Dell on July 4.

Richmond police Chief Gerald Smith has steadfastly maintained since a July 6 news conference announcing the men’s arrests that Dogwood Dell had been targeted by the pair for a mass shooting and that his department thwarted the attack after receiving a tip from a concerned citizen.

But not only had the tipster not specified a location, Smith’s own department had provided him information in writing before his news conference that the location of any potential incident was “unknown,” according to records the Richmond Times-Dispatch obtained last month under the Virginia Freedom of Information Act.

A police official emailed those records to Smith and an assistant seven minutes before Smith’s July 6 news conference. The records also show that Richmond police shared with the FBI that a location was unknown. That information was vetted by a detective.

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It remains murky why the chief would opt to provide a specific location for the alleged attack when the information he received from his department was that a location was unknown.

In an interview with The Times-Dispatch a week before the newspaper published a story about the FOIA records, Smith said his “experience” was part of how he concluded that Dogwood Dell must have been the intended target.