United States v. Rodriguez

• Decision Date: 08 December 2011
• Docket Number: No. CR 11–2158 JB.,CR 11–2158 JB.
• Citation: 836 F.Supp.2d 1258
• Parties: UNITED STATES of America, Plaintiff, v. Daniel Manuel RODRIGUEZ, Defendant.
• Court: U.S. District Court — District of New Mexico

836 F.Supp.2d 1258

UNITED STATES of America, Plaintiff,

v.Daniel Manuel RODRIGUEZ, Defendant.

No. CR 11–2158 JB.

United States District Court, D. New Mexico.

Dec. 8, 2011.

Kenneth J. Gonzales, United States Attorney, Charles Barth, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for the Plaintiff.

Kimberly A. Middlebrooks, Albuquerque, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion and Memorandum to Suppress Evidence, filed October 3, 2011 (Doc. 24)(“Motion”). The Court held an evidentiary hearing on November 16, 2011. The primary issues are: (i) whether the Albuquerque Police Department (“APD”) officers lacked reasonable suspicion to conduct an investigatory stop to question Defendant Manuel Rodriguez; (ii) whether Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), principles apply to investigation of a misdemeanor; (iii) whether the scope of the investigatory stop exceeded the bounds permitted by the Fourth Amendment; (iv) whether officers obtained Rodriguez' pre-arrest statements in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (v) whether officers obtained an involuntary confession from Rodriguez in violation of the Due Process Clause; and (vi) whether any exceptions to the exclusionary rule should apply. The Court will deny the Motion. The Court concludes that the officers had reasonable suspicion to conduct an investigatory stop to question Rodriguez. Terry v. Ohio principles apply to investigations of ongoing misdemeanor offenses such as the offenses in this case. The officers did not exceed the permissible scope of an investigatory stop. The officers were not required to give Rodriguez warnings under Miranda v. Arizona when they interviewed him outside the convenience store. Because Rodriguez has not identified any confession he made to officers, the Court does not decide this issue. Because the Court concludes that the officers engaged in no constitutional violations, the Court need not and does not decide whether any exceptions to the exclusionary rule should apply.

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. SeeFed.R.Crim.P. 12(d) (“When factual issues are involved in deciding a [pretrial] 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 requiresa 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). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. SeeFed.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. Garcia, 324 Fed.Appx. 705 (10th Cir.)(unpublished)(recognizing that it was not necessary to “resolve whether Crawford's¹ protection of an accused's Sixth Amendment confrontation right applies to suppression hearings,” but indicating that Tenth Circuit precedent prior to Crawford v. Washington does not provide such protection), cert. denied,––– U.S. ––––, 130 S.Ct. 223, 175 L.Ed.2d 154 (2009); United States v. Merritt, 695 F.2d at 1269;United States v. Christy, 810 F.Supp.2d 1219, 1223 (D.N.M.2011)(Browning, J.)(“Thus, the Court may consider hearsay in ruling on a motion to suppress.”); United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.2011)(concluding “that Crawford v. Washington does not apply to detention hearings”).

1. On July 27, 2011, at approximately 5:52 p.m., APD officers received a 911 dispatch call from a female caller. See 911 Call Audio Recording (Government's Exhibit 1)(“911 Recording”); Bernalillo County Sheriff's Department Computer Aided Dispatch at 1 (dated July 27, 2011)(Government's Exhibit 2)(“CAD Report”).²

2. She advised the 911 operator that, while at a convenience store, she observed two employees of the store showing each other handguns-one black and the other silver. See 911 Recording at 0:08–1:10.

3. The caller identified one of the suspects as a heavy set man, wearing a yellow shirt, and stated that he put the black gun down his belt. See 911 Recording at 1:09–17.

4. She said that the other suspect, who was more slender, had the gun in his hands, but that she was not sure what he did with the gun. See 911 Recording at 1:17–21, 2:36–38.

5. She stated that both men were about five feet and seven inches tall. See 911 Recording at 3:03–3:05.

6. The caller noted that there were three or four people in the store. See 911 Recording at 1:21–23.

7. The caller stated that she would prefer if officers investigated the situation. See 911 Recording at 1:40–44.

8. The caller stated that the convenience store was on the southwest corner of 61st and Central. See 911 Recording at 1:52–59.

9. The caller asserted that Arabic people ran the convenience store. See 911 Recording at 2:04–06.

10. The caller stated that the employees were not pointing guns at anyone. See 911 Recording at 2:13–21.

11. The caller identified herself as Nancy and provided her telephone number. See 911 Recording at 3:21–35; Transcript of Hearing at 11:5–9 (taken November 16, 2011)(Barth, Munoz)(“Tr.”); ³ Tr. at 38:8–12 (Middlebrooks, Munoz).

12. The location that Nancy described in her 911 call is an area with a high crime rate. See Tr. at 7:21–22 (Munoz).

13. Police receive a high number of calls for assistance in this area for violent crimes and property crimes. See Tr. at 7:23–8:4 (Barth, Munoz).

14. Officer Frank Munoz is a detective with the APD who has worked there for ten years. See Tr. at 5:23–6:2 (Barth, Munoz).

15. Before working with the APD, Munoz worked for the Los Lunas Police Department for six years. See Tr. at 6:6–11 (Barth, Munoz).

16. Munoz was on duty as a patrol officer in the field on July 27, 2011. See Tr. at 7:5–8 (Barth, Munoz).

17. Munoz was in a full police uniform on July 27, 2011. See Tr. at 8:10–15 (Barth, Munoz).

18. While on duty, Munoz received an order around 5:57 p.m. from the APD dispatch to respond to a situation at 6102 Central Avenue SW. See CAD Report at 1; Tr. at 8:16–19, 12:14–15 (Barth, Munoz).

19. APD dispatch labeled the incident as a Type–31 call-a suspicious person/vehicle. See Tr. 10:23–11:4.

20. Munoz did not know the identity of the person who made the 911 call. See Tr. at 38:5–12 (Middlebrooks, Munoz).

21. Munoz did not know the 911 caller's motivation for making the 911 call or whether she had any prior relationship or experiences with the individuals in the store. See Tr. at 38:15–39:12 (Middlebrooks, Munoz).

22. Munoz did not contact Nancy before he arrived at the convenience store. See Tr. at 38:8–12 (Middlebrooks, Munoz).

23. APD dispatch informed Munoz that the person who made the 911 call saw two employees showing each other handguns, one of which was black and one of which was silver. See CAD Report at 1.

24. APD dispatch informed Munoz that one of the suspects was five feet and seven inches tall, was Arabic, and had a slender build. See CAD Report at 1.

25. APD dispatch informed Munoz that the other suspect was five feet and seven inches tall, was Arabic, had a heavy build, and was wearing a yellow shirt. See CAD Report at 1.

26. APD dispatch also informed Munoz that the heavy set suspect concealed the black handgun in his waistband and that it was unknown where the slender suspect had concealed his weapon. See CAD Report at 1.

27. The conduct reported on this dispatch was not necessarily criminal activity. See Tr. at 41:8–11 (Middlebrooks, Munoz).

28. Officer Steve Miller also received an order to visit 6102 Central Avenue SW. See Tr. at 11:12–13 (Munoz).

29. A gas station is located at the address, 6102 Central Avenue SW. See Tr. at 8:20–21 (Barth, Munoz).

30. Munoz had gone to this location around fifty to sixty times before in the three years preceding July 27, 2011 to respond to calls for police assistance. See Tr. at 8:23–9:2 (Barth, Munoz).

31. The calls to which Munoz responded at this location in the past involved conduct such as drug activity, use or possession of firearms, and traffic violations. See Tr. at 9:3–5 (Barth, Munoz).

32. Munoz and Miller both pulled into the gas station parking lot at the same time. See Tr. at 13:14–20 (Barth, Munoz).

33. Miller was also in his APD uniform. See Tr. at 13:21–23 (Barth, Munoz).

34. The officers observed Rodriguez in the convenience store. See Tr. at 14:2–12 (Barth, Munoz).

35. The officers did not draw their weapons when they entered the store. See Tr. at 14:16–19 (Barth, Munoz).

36. The officers observed Rodriguez near one of the shelves in the store and concluded that he was stocking the shelves with items. See Tr. at 14:22–24 (Munoz).

37. Based on that observation, it would have been reasonable for the officers to conclude that Rodriguez was an employee of the store. See Tr. at 48:16–18 (Middlebrooks, Munoz).

38. As Rodriguez was bending over stocking the shelves, Munoz observed a silver handgun tucked in the waistband of the back of Rodriguez' pants. See Tr. at 14:22–15:9 (Barth, Munoz).

39. The handgun was concealed by Rodriguez' shirt before he bent over. See Tr. at 15:1–9 (Munoz).

40. This handgun officers...