United States v. Gilmore
| Decision Date | 14 May 2013 |
| Docket Number | Criminal Action No. 13–cr–0034–WJM. |
| Citation | 945 F.Supp.2d 1211 |
| Parties | UNITED STATES of America, Plaintiff, v. Andre GILMORE, Defendant. |
| Court | U.S. District Court — District of Colorado |
OPINION TEXT STARTS HERE
David M. Conner, U.S. Attorney's Office, Denver, CO, for Plaintiff.
Brian Rowland Leedy, Office of the Federal Public Defender, Denver, CO, for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
In this action, Defendant Andre Gilmore (“Defendant”) is charged in Count 1 of the Indictment with unlawful possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). (ECF No. 9.) This matter is before the Court on Defendant's Motion to Suppress (“Motion”). (ECF No. 13.) Defendant's Motion seeks suppression of the evidence obtained and statements resulting from the stop, pat-down search, and arrest of Defendant. ( Id.) The Government filed a Response to the Motion. (ECF No. 17.) No Reply was permitted. (ECF No. 18.)
On April 29, 2013, the Court held an evidentiary hearing on the Motion. (ECF Nos. 19–20.) Both parties were represented at the hearing by counsel, and were given a full opportunity to present witness testimony. Six witnesses testified for the Government at the hearing, including two parking attendants and a security guard stationed in the parking lot where Defendant was initially detained, two police officers involved in the stop and frisk, and an officer who interviewed Defendant. Defendant did not testify. The Court permitted brief closing statements after receipt of all of the evidence.
After carefully considering the evidence presented, counsel's arguments in their briefs and at the hearing, and the applicable law, the Court DENIES the Motion to Suppress in its entirety.
The testimony provided by the witnesses at the evidentiary hearing was largely consistent regarding the material facts. The Court finds credible the testimony of all of the witnesses, both because of their demeanor and because of the lack of inconsistencies in their testimony. See United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.2009) (). Based upon the parties' submissions and the evidence introduced at the evidentiary hearing, the Court finds the relevant facts as follows:
On January 13, 2013, Jason Morris and Richard Gomez were working as parking lot attendants in Parking Lot C at the National Western Stock Show in Denver, Colorado. Parking Lot C was located adjacent to the “cattle tie out” area, an area where livestock exhibitors held their cattle. The cattle tie out area was not open to the public. Lot C was a pass-only lot generally used by the exhibitors associated with the cattle and was not designated for the public. Lot C and the cattle tie out area were both bordered by fences, but the entrances and exits stood open for exhibitors to come and go. Exhibitors parking in Lot C were generally dressed in “rancher” style clothing and possessed exhibitor badges.
At approximately 11:00 a.m., Morris and Gomez noticed a man later identified as Defendant entering Lot C on foot through the exit driveway in the southeast corner of the parking lot. Morris verbally greeted Defendant, but Defendant did not respond, instead continuing to walk past Morris toward the cattle tie out area. Morris noted that Defendant was swaggering or swaying and appeared to be intoxicated. Gomez noted that Defendant was not dressed like a rancher, and that he had not seen Defendant in Lot C before. He also noticed that Defendant was walking in a swerving manner and appeared to be talking to himself. Gomez began following behind Defendant, monitoring his route as Defendant walked into the cattle tie out area. Gomez then verbally reported Defendant's presence to Vincent Garcia, who was a Stock Show security guard stationed in Lot C.
Garcia used a radio transceiver to communicate Defendant's presence to his supervisor, who in turn informed a police dispatcher. Via radio, the dispatcher reporteda brief description of Defendant, stated where he was located, and indicated that he was a suspicious party who was disoriented. Two officers of the Denver Police Department, Lieutenant Vincent Gavito (“Lt. Gavito”) and Sergeant Dino Gavito (“Sgt. Gavito”) (collectively “the Officers”), were working at the Stock Show and responded to the dispatcher's call. The Officers were aware that several thefts from vehicles had occurred in Stock Show parking lots in the days prior, although none had occurred in Lot C. The Officers drove into Lot C, and Gomez directed them to the area where Defendant was located. The Officers spoke briefly with Garcia, the security guard, who pointed out Defendant and stated that he appeared very disoriented or intoxicated.
By the time the Officers arrived, Defendant had walked to the north end of the cattle tie out area, which was closed off by a fence, and stood there for a moment before turning back toward the entrance to the cattle tie out area. The Officers drove through the entrance and parked their vehicle facing Defendant, as Defendant continued walking toward the entrance where the Officers were waiting.
The Officers noted that Defendant was wearing a maroon or burgundy overcoat over a second dark coat, dark jeans, and tennis shoes, and was carrying a cloth briefcase over his shoulder, with a small plastic bag and a large white jawbreaker candy in his hands. As the temperature was approximately six degrees Fahrenheit, two coats were not inappropriate for the weather. Defendant was staring blankly into the air, was walking in a meandering, unsteady fashion, and did not appear to notice the Officers' presence.
The Officers, who were both wearing police uniforms, exited their vehicle and approached Defendant. Lt. Gavito greeted Defendant, asking him if he was all right and what he was doing in the area. Defendant did not respond, but did turn to look at Lt. Gavito, appearing to acknowledge his presence for the first time. Lt. Gavito told Defendant to drop the items in his hands, which he did. Lt. Gavito identified himself as a police officer and asked Defendant again what he was doing in the area. Defendant responded by mumbling incoherently. Lt. Gavito asked Defendant if he had any weapons, and not receiving an answer, proceeded to conduct a pat-down search of Defendant's outer clothing. Lt. Gavito felt what he believed to be the butt of a handgun under Defendant's coat, and upon lifting the coat, Lt. Gavito saw and seized a pistol from Defendant's right front waistband. The Officers then handcuffed Defendant, placed him in their vehicle, and drove him to the Stock Show security office. While in the vehicle, Lt. Gavito asked Defendant for his name, which Defendant provided.
Once in the security office, the Officers asked Defendant for his birthdate and used Defendant's identifying information to access the records of his criminal history, at which point they discovered that Defendant had a prior felony conviction that prohibited him from possessing a firearm. During the time Defendant was detained in the security office, while the Officers were processing paperwork for Defendant's arrest, Defendant made statements requesting that the Officers return his gun to him. Defendant was subsequently transported to the Denver Detention Center, but was not immediately interviewed due to his apparent intoxication.
The following day, January 14, 2013, a number of law enforcement officers, including David Gallegos, an officer of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), met with Defendant in an interview room at the Denver Detention Center. Gallegos identified himself to Defendant, presented a form to Defendant entitled “Advice of Rights and Waiver,” and began to read Defendant his Miranda warnings. Defendant interrupted Gallegos and recited the first part of the warnings, and then picked up the waiver form and signed it. Gallegos took the waiver form back and informed Defendant that although the form was already signed, he wanted to read to Defendant the statement of his rights in full. Gallegos then read each line of the statement, asking Defendant after each line whether he understood. Defendant assented either verbally or with a nod of his head to each line of the statement, and Gallegos marked an “X” next to each line as he read it. Gallegos signed and dated the form as a witness. Defendant then proceeded to make several statements to Gallegos and the other officers, including discussing his prior felony conviction and his possession of the pistol.
The Fourth Amendment to the U.S. Constitution provides, in relevant part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” However, Davis v. United States, ––– U.S. ––––, ––––, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) (internal citations and quotation marks omitted). Pursuant to the exclusionary rule, a defendant may move for suppression of evidence obtained in violation of the Fourth Amendment. Id.
It is undisputed that the Officers did not have a warrant when they initially stopped Defendant or when they conducted the pat-down search. On a motion to suppress evidence obtained during a warrantless search or seizure, the Government bears the burden of proving the reasonableness of the search or seizure. See, e.g., United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir.1993) (...
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