U.S. v. Miramonted, No. 03-1199.

• Decision Date: 21 April 2004
• Docket Number: No. 03-1199.
• Citation: 365 F.3d 902
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Vincente MIRAMONTED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

365 F.3d 902

UNITED STATES of America, Plaintiff-Appellant, v. Vincente MIRAMONTED, Defendant-Appellee.

No. 03-1199.

United States Court of Appeals, Tenth Circuit.

April 21, 2004.

James C. Murphy, Assistant United States Attorney (John W. Suthers, United States Attorney, with him on the brief), Office of the United States Attorney, Denver, CO, for Plaintiff-Appellant.

Matthew C. Golla, Assistant Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Denver, Colorado.

Before TYMKOVICH, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and PAYNE, District Judge.^*

McWILLIAMS, Senior Circuit Judge.

In a two-count indictment filed on November 5, 2002, Vincente Miramonted ("the defendant") was charged as follows: (1) Unlawful possession on October 5, 2002, of a firearm, namely an Intratec, model Tec-9, 9mm semi-automatic pistol, after having been previously convicted of a felony, in violation of 18 U.S.C § 922(g)(1); and (2) Unlawful possession on October 5, 2002, of less than five grams of cocaine in violation of 21 U.S.C. § 844(a). On April 4, 2003, the defendant filed a motion to suppress "any and all evidence obtained as a result of Mr. Miramonted's illegal and unlawful detention and arrest on October 5, 2002, and any evidence derived from that arrest, specifically an Intratec, model Tec-9, 9mm semi-automatic pistol seized from a blue Ford-150 parked in the 1300 block of 29th Street in Denver, Colorado." The government filed a response and requested the district court to deny the motion to suppress on the grounds that the police did have probable cause to arrest the defendant, setting forth therein the chronology leading up to the defendant's arrest. In connection with the semi-automatic, the government in its response, stated, inter alia, that "Officer Kristy Garcia could see the gun laying on the seat in plain view."

At the hearing on the motion to suppress, the government called one witness, Kristy Garcia, a Denver Police Officer, who was examined and cross-examined at length, without any objection. The defendant called no witness. After a brief colloquy between court and counsel, the district court granted the motion. The government filed a motion for reconsideration. In that motion the government again asserted that "the police had probable cause to believe that a crime had been committed (i.e., felony menacing....)" In that same motion, the government also stated that, in any event, the seizure of the gun was justified under the doctrine of "motor vehicle exception," citing Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). The motion for reconsideration also stated that at the suppression hearing, "the government tried to explain that ["the motor vehicle exception"] was the government's theory for justifying police action in this case." After a short colloquy between court and counsel, the motion to reconsider was peremptorily denied, with no further hearing. Pursuant to 18 U.S.C. § 3731, the government appeals. We reverse.

In granting the motion to suppress the district court stated that Officer Garcia "was nothing but a spectator" and granted the motion, stating that "you haven't proved anything with this witness, except she saw a gun in a car and got it."

At the outset, we agree with counsel that some, if not much, of Garcia's testimony was based on hearsay. But hearsay testimony is admissible at suppression hearings such as the present one and should be considered by a district court in deciding whether an arrest was based on probable cause. U.S. v. Matlock, 415 U.S. 164, 173, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (Rules of evidence applicable in criminal jury trials do not govern at hearings before a judge to determine pre-trial evidentiary matters, such as the admissibility of evidence at trial.) See also U.S. v. Merritt, 695 F.2d 1263, 1270 (10th Cir.1982)(Police should be permitted to offer hearsay as testimony to support reasonable suspicion.) See Federal Rules of Evidence 104.

It would appear that the district court in describing Garcia as a "mere spectator" did not consider Garcia's testimony as to the events leading up to the defendant's arrest, much of which was based on hearsay. However, as indicated, hearsay is admissible at a hearing on a motion to suppress and should have been considered by the district court. It is true, as suggested by the district court, that if a Mr. Munoz had, for example, testified, the court might have denied the motion to suppress. But Munoz didn't testify, and the present question is whether Garcia's testimony, standing alone, was sufficient to defeat the defendant's motion to suppress. Viewed in this light, what is a fair assessment of Garcia's testimony at the suppression hearing?

On October 5, 2002, Officer Garcia received a radio call that a Mr. Munoz, bouncer and co-owner of the Mariachi Bar, had reported that a "man with a gun" was in his bar. Garcia, and her fellow officer, Pine, responded to that call. Alighting from their marked vehicle at the entrance to the bar, they were met outside by Munoz. In the ensuing colloquy between Munoz, Garcia and Pine, the police were advised that a person later identified as the defendant, was at that very moment inside the bar. Garcia initially testified at the suppression hearing that prior to the arrest, Munoz had told her that the defendant, on meeting Munoz at the entrance to the bar, was told he could not come in, whereupon the defendant raised his shirt which revealed a weapon, which he then pointed at Munoz, and that the defendant said something like "do we have a problem now." Munoz, in response, indicated it was all right to enter the bar, whereupon the...