United States v. Colbert

• Docket Number: CR 21-1221 JB
• Decision Date: 01 September 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM D. COLBERT, Defendant.
• Court: U.S. District Court — District of New Mexico

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UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM D. COLBERT, Defendant.

No. CR 21-1221 JB

United States District Court, D. New Mexico

September 1, 2023

Alexander M. M. Uballez United States Attorney Elaine Y Ramirez Eva Mae Fontanez Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

Margaret Katze Federal Public Defender Buck T. Glanz Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorney for the Defendant

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Motion to Suppress Statements and Tangible Evidence, filed December 21, 2021 (Doc. 24)(“Suppression Motion”). The Court held evidentiary hearings on August 31, 2022, and on October 4, 2022. See Clerk's Minutes, filed August 31, 2022 (Doc. 48)(“August Clerk's Minutes”); Clerk's Minutes, filed October 4, 2022 (Doc. 55)(“October Clerk's Minutes”). The primary issues are: (i) whether police officers unlawfully arrested Defendant William D. Colbert in violation of the Fourth Amendment of the Constitution of the United States when they arrested him inside a residence without an arrest warrant; (ii) whether the allegedly unlawful arrest tainted Colbert's subsequent grant of consent to search the residence; and (iii) whether Colbert gave consent to search the residence freely and voluntarily. The Court concludes that: (i) the officers' warrantless in-home arrest of Colbert was unlawful and that exigent circumstances do not justify the arrest; (ii) Colbert's signing of a consent-to-search form which the officers explained to him attenuates the taint of the unlawful arrest and (iii) Colbert gave his consent freely and voluntarily. Accordingly, the Court denies the Suppression Motion.

FACTUAL BACKGROUND

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); Fed.R.Evid. 104(a). 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). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 (“The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule.”); United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir. 2009)(unpublished)(“We need not resolve whether Crawford[ v. Washington, 541 U.S. 36 (2004)]'s^[1]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.'”);^[2] United States v. Ramirez, 388 Fed.Appx. 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. 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] 1. On August 3, 2021, Deputy United States Marshal Joshua Marreel, a full-time enforcement deputy with the Southwest Investigative Fugitive Task Force, then-Task Force Officer David Booth^[4], and other officers were attempting to locate and execute an arrest warrant on Jerome Marcel Bland for a grade C probation violation. See Transcript of Motion Proceedings at 22:4-23:2 (dated August 31, 2022), filed September 14, 2022 (Doc. 51)(“Aug. 31 Tr.”)(Marreel, Ramirez); Id. at 111:15-22 (Booth, Ramirez).

2. The arrest warrant lists “447 WISCONSIN NE APT C Albuquerque NM 87108” as Bland's address. Bench Warrant at 1 (dated June 23, 2021)(admitted on August 31, 2022, at the suppression hearing as U.S. Hearing Ex. 17). See Aug. 31 Tr. at 25:5-6 (Marreel); id. at 112:3 (Booth).

3. Marreel and Booth surveilled generally the area around 447 Wisconsin Street NE, an address on Texas Street NE, and 524 Vermont Street NE. See Aug. 31 Tr. at 25:9-25 (Marreel, Ramirez); id. at 112:8-9 (Booth).

4. 524 Vermont Street NE lies on Vermont Street NE's east side. See Photograph of Aerial View over 524 Vermont Street NE (undated)(admitted on August 31, 2022, at suppression hearing as United States Ex. 1)(“524 Vermont St. NE Aerial Photo.”).

5. 524 Vermont Street NE lies between 528 Vermont Street NE to the north, 520 Vermont Street NE to the south, and the backyard of a house on 523 Virginia Street NE to the east. See 524 Vermont St. NE Aerial Photo.; Google Maps, 524 Vermont St NE, Albuquerque, NM 87108, https://goo.gl/maps/VHvu3NnoU3Z34ApD8 (last visited August 9, 2023).

6. The lot at 520 Vermont Street NE contains a house with a detached garage to its north, separated by a small gap, and a backyard to the two structures' east. See 524 Vermont St. NE Aerial Photo.; Photograph of 520 Vermont Street NE's Front (undated)(admitted on August 31, 2022, at the suppression hearing as United States Ex. 4).

7. An apartment complex and parking lot stand on the 524 Vermont Street NE lot. See 524 Vermont St. NE Aerial Photo.

8. Apartment A is on the complex's west side on the ground floor. See Aug. 31 Tr. at 38:24-25 (Marreel).

9. Apartment A's front door is its only entrance. See Aug. 31 Tr. at 121:1-10 (Booth, Ramirez).

10. The following is an aerial view showing 524 Vermont Street NE -- the white building in the center with the parking lot -- and 520 Vermont Street NE directly below:

(Image Omitted)

524 Vermont St. NE Aerial Photo.

11. In the early afternoon, “roughly right after lunch,” Aug. 31 Tr. at 31:16-17 (Marreel), as Marreel was driving past 524 Vermont Street NE, he spotted Bland “on foot walking into the northeast apartment, which [Marreel] . . . later found out to be Apartment A,” Aug. 31 Tr. at 31:8-10 (Marreel). See Id. at 30:24-31:17 (Marreel, Ramirez); id. at 112:14-16 (Booth).

12. Upon identifying Bland, Marreel radioed the other Task Force members who, together with Marreel, set up a perimeter around the block to surveil the residence into which Marreel observed Bland enter. See Aug. 31 Tr. at 31:23-32:11 (Marreel, Ramirez); id. at 112:17-20 (Booth, Ramirez).

13. The operation was taking place in “a high crime area in Albuquerque, if not the highest crime area in Albuquerque.” Transcript of October 4, 2022, Hearing at 239:14-16 (taken October 4, 2022), filed October 25, 2022 (Doc. 53)(“Oct. 4 Tr.”)(Salcido).

14. During the surveillance operation, Marreel noted an individual walking up and down the street conducting “counter-surveillance,” and observed two Black males exit 524 Vermont Street NE Apartment A at different times, meet with vehicles which would pull up to the apartment complex, and conduct what the believed to be “hand-to-hand” drug sales. Aug. 31 Tr. at 34:9-17 (Marreel, Ramirez). See id. at 33:17-34:10 (Marreel, Ramirez); id. at 35:16-18 (Marreel); id. at 117:17-22 (Booth, Ramirez).

15. The person conducting counter-surveillance “[o]ccasionally . . . would go back in, come back out.” Aug. 31 Tr. at 37:10-11.

16. Marreel did not observe Bland exit the residence during these sales. See Aug. 31 Tr. at 35:10 (Marreel).

17. The two individuals who exited Apartment A and conducted hand-to-hand sales were Colbert and Ruben Edwards. See Aug. 31 Tr. at 35:19-25 (Marreel, Ramirez); id. at 117:23-118:15 (Booth, Ramirez); id. 118:24-120:24 (Court, Booth, Fernandez, Ramirez).

18. Edwards was wearing camouflage shorts and a black T-shirt. See Aug. 31 Tr. at 35:15-16 (Marreel); Id. at 222:4-7 (Salcido).

19. Colbert was wearing a gray T-shirt, but the officers did not identify what type of pants he was wearing. See Aug. 31 Tr. at 35:13-15 (Marreel).

20. Although Marreel did not see drugs in Edwards' or Colbert's hands while the two men engaged the vehicles, Booth witnessed Colbert exchange currency. See Aug. 31 Tr. at 78:23-79:2 (Fernandez, Marreel); id. at 160:14-18 (Booth, Fernandez).

21. Marreel witnessed “three to four hand-to-hands,” after which four individuals, including Edwards and Bland, exited the residence; the other two individuals -- the person conducting counter-surveillance and an unidentified fourth individual -- entered a white Mercedes Benz and left the area. Aug. 31 Tr. at 37:12. See id. at 37:16-38:7 (Marreel, Ramirez); id. at 121:13-15 (Booth).

22. Colbert was not among the four individuals who left the residence. See Aug. 31 Tr. at 38:8-10 (Marreel, Ramirez).

23. After the Mercedes Benz left the area, Bland, who was carrying a red backpack, approached and entered a black Kia's driver-side door, while Edwards entered the Kia's front passenger door....