United States v. Alderete, No. CR 19-1989 JB

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesUNITED STATES OF AMERICA, Plaintiff, v. ROBERT ALDERETE, Defendant.
Docket NumberNo. CR 19-1989 JB
Decision Date07 May 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT ALDERETE, Defendant.

No. CR 19-1989 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

May 7, 2020


MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Motion to Suppress Evidence, filed November 5, 2019 (Doc. 21)("Motion"). The Court held an evidentiary hearing on February 3, 2020. See Clerk's Minutes at 1, filed February 3, 2020 (Doc. 41). The primary issues are: (i) whether the Albuquerque Police Department ("APD") officer who opened the driver's seat door of Defendant Robert Alderete's vehicle to obtain the vehicle identification number ("VIN") when it was difficult to view the VIN on the vehicle's dashboard from outside the vehicle violated Alderete's rights under the Fourth Amendment to the Constitution of the United States of America; and (ii) whether the APD officers would have had probable cause to seek a search warrant for Alderete's vehicle if the APD officers had not conducted the VIN inspection and seen what appeared to be a firearm in Alderete's vehicle. The Court concludes: (i) the VIN inspection inside Alderete's vehicle did not violate Alderete's Fourth Amendment rights, because neither of the VIN's locations -- on the dashboard and on the driver's seat doorjamb -- is subject to a reasonable expectation of privacy; and (ii) the United States has not established a high level of confidence that, absent the VIN inspection, a warrant inevitably would have been issued and the firearm obtained, because impounding Alderete's vehicle was unlawful and the

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APD officers may not have found the firearms had they not impounded the vehicle and waited to obtain a search warrant. Because the Court concludes that the VIN inspection was lawful, the Court denies the Motion and will not suppress the evidence of the firearms.

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982)("[U]nder Rule[ ] 104(a) . . . , the district court 'is not bound by the Rules of Evidence except those with respect to privilege.'" (quoting United States v. Matlock, 415 U.S. 164, 174 (1974)). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege."). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Cook, 761 F. App'x 840, 846 n.12 (10th Cir. 2019)(unpublished)1(noting that the Confrontation Clause of the Sixth Amendment to the

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Constitution does not apply to sentencing hearings and that the defendant "does not direct us to any opinion from our court holding that the Confrontation Clause applies to suppression hearings"); United States v. Merritt, 695 F.2d at 1269; United States v. Garcia, 324 F. App'x 705, 708 (10th Cir. 2009)(unpublished)("We need not resolve whether Crawford [v. Washington, 541 U.S. 36 (2004)2]'s protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged 'plain.'"); United States v. Ramirez, 388 F. App'x 807, 810 (10th Cir. 2010)(unpublished)("It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings."). Cf. United States v.

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Hernandez, 778 F. Supp. 2d 1211, 1226 (D.N.M. 2011)(Browning, J.)(concluding "that Crawford v. Washington does not apply to detention hearings").3 Accordingly, the Court finds:

1. On May 3, 2019, Albuquerque Police Department ("APD") police officers responded to a 911 call at a Family Dollar Store, located at 7226 Central Ave. SE, Albuquerque, New Mexico 87108. Criminal Complaint at 1, filed June 11, 2019 (Doc. 1). See Motion ¶ 1, at 1 (asserting this fact); United States' Response in Opposition to Defendant's Motion to Suppress Evidence at 2, filed December 2, 2019 (Doc. 33)("Response")(asserting this fact)4; State of New Mexico Uniform Incident Report at 1, filed December 2, 2019 (Doc. 33-2)("Incident Report").

2. The caller reported that a male in a tan Infiniti car pointed a gun at the caller and his child. See Motion ¶ 1, at 1 (asserting this fact); Response at 2 (asserting this fact); Incident Report at 2; Affidavit of Victor J. Hernandez ¶¶ 6-7, at 2-3, filed June 11, 2019

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(Doc. 1)("Hernandez Aff.")5; Dispatch Recording at 1:20-1:30, filed November 5, 2019 (Doc. 21 Ex. A).

3. The caller described the male as a bald, Hispanic, thirty-to-forty-year-old male, who was wearing a white shirt and a gold chain, and who had many tattoos. See Motion ¶ 1, at 1 (asserting this fact); Response at 2 (asserting this fact); Incident Report at 2; Hernandez Aff. at ¶ 6, at 2; Dispatch Recording at 1:50-2:00.

4. The 911 call occurred at 5:17 p.m., APD officer Nathaniel Carter was dispatched at 5:19:59 p.m., and he arrived at the scene at 5:29:36 p.m. See Draft Transcript of Proceedings at 24:4-13 (held February 3, 2020)(Carter, Gagan)("Tr.").6

5. The caller's name is Gregory Stephens. See Motion ¶ 1, at 1 (asserting this fact); Incident Report at 2.

6. APD Sergeant Amy Sedler, and APD police officers Carter and Adam Theroux, arrived at the Family Dollar Store in three separate vehicles. See Response at 2 (asserting this fact).

7. When the APD officers arrived at the Family Dollar Store, they located a tan Infiniti with a male in the driver's seat, but they could not locate the caller. See Motion ¶¶ 2-3, at 1-2 (asserting this fact); Response at 2 (asserting this fact); Hernandez Aff. ¶¶ 8, 10, at 3; Incident Report at 2; Carter Lapel Video at 1:00-1:10 (dated May 3, 2019), filed November 5, 2019

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(Doc. 21 Ex. B)7; Dispatch Recording at 3:50-4:05; Tr. at 7:14-15 (Carter); id. at 24:15-18 (Gagan, Carter).

8. The Family Dollar Store employees "had not seen any kind of assault or altercation involving" the person in the Infiniti. Tr. at 25:9-15 (Gagan, Carter).

9. The Infiniti had a temporary New Mexico tag with the number 19T-153837. See Motion ¶ 3, at 2 (asserting this fact); Incident Report at 2; Hernandez Aff. ¶ 8, at 3.

10. The APD officers ran a check of the Infiniti's temporary tag, which indicated that the vehicle was registered to Defendant Robert Alderete. See Hernandez Aff. ¶ 9, at 3; Response at 2 (asserting this fact); Motion ¶ 6, at 2 (asserting this fact).

11. An APD officer ran a search of the temporary tag number "and learned that the registered owner of the vehicle had a warrant for his arrest." Tr. at 7:16-18 (Carter).

12. The APD officers also ran Alderete's name through police databases and confirmed that Alderete was wanted on a misdemeanor warrant. See Response at 2 (asserting this fact); Hernandez Aff. ¶ 10, at 3; Incident Report at 2.

13. For approximately ten minutes, the APD officers instructed the male in the Infiniti to exit the vehicle, using sirens, horns, and one of the police vehicle's public announcement ("PA") system. Response at 2 (asserting this fact). See Motion ¶ 7, at 2 (asserting this fact); Hernandez Aff. ¶ 10, at 3; Incident Report at 2; Carter Lapel Video at 2:45-13:15.

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14. The male in the Infiniti did not respond, see Response at 2 (asserting this fact), and one APD officer observed that the male inside the Infiniti was "not moving at all," Carter Lapel Video at 7:28-7:30. See Motion ¶ 7, at 2 (asserting that an APD officer observed the male as being "asleep"); Response at 2 (asserting that the male appeared "passed out"); Incident Report at 2 (reporting that the male "appeared to be unconscious"); Tr. at 7:22-8:1 (Outler, Carter); id. at 26:12-23 (Gagan, Carter).

15. The APD officers approached the Infiniti with their guns drawn to make a welfare check, see Carter Lapel Video at 16:10-16:20, opened the back passenger door, and woke the male in the vehicle, see Motion ¶ 7, at 2 (asserting this fact); Response at 2 (asserting this fact); Incident Report at 2; Carter Lapel Video at 17:20-17:50; Tr. at 8:22-9:1 (Carter, Outler); id. at 27:20-28:13 (Gagan, Carter).

16. As the APD officers approached the vehicle, they observed two cellular telephones in the front passenger seat and two cellular telephones on the male's lap. See Response at 2-3 (asserting this fact); Incident Report at 2; Tr. at 9:2-7 (Carter, Outler).

17. Owning multiple cellular telephones is a possible sign of drug trafficking. See Tr. at 9:11 (Carter).

18. The male complied with the APD officers' orders, exited the Infiniti, and closed the driver's seat door. See Motion ¶ 7, at 2 (asserting this fact); Response at 3 (asserting this fact); Incident Report at 2; Carter Lapel Video at 17:40-18:05; Tr. at 10:3-6 (Carter).

19. After the male exited the Infiniti, he identified himself as Alderete. See Motion ¶ 8, at 2 (asserting...

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