United States v. Romero
| Decision Date | 19 April 2018 |
| Docket Number | Cr. No. 17-2190 KG |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MANUEL ROMERO, JR., Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Defendant's Motion to Suppress Evidence and Statements. (Docs. 20, 22). The United States has responded, (Doc. 25), and Defendant has replied, (Doc. 31). On March 29, 2018, the Court held an evidentiary hearing. Assistant United States Attorneys John Balla and Richard Williams appeared for the United States, and Assistant Federal Public Defenders Jane Greek and Elyse Battaller-Schneider appeared with Defendant Manuel Romero, Jr. Having considered the arguments of counsel, the applicable law and the evidence, the Court denies the Motion.
This case originated on August 16, 2017, when the United States filed an Indictment charging Mr. Romero in Count 1, felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1), and in Count 2, knowing possession of a stolen firearm, a violation of 18 U.S.C. § 922(j). As described above, Mr. Romero filed a motion to suppress evidence and statements. The evidence includes the firearm that was seized from Mr. Romero's possession on April 29, 2017, by Las Cruces Police Officer, Matthew Dollar.
Officer Dollar was the only fact witness at the evidentiary hearing on the motion to suppress. The Court admitted exhibits from both parties, and heard oral argument.
On Friday April 29, 2017, Officer Dollar was on routine patrol in an area he described as "District 6," in Las Cruces, New Mexico. As of that date, Officer Dollar had been an officer with the Las Cruces Police Department (LCPD) for approximately two and one-half years. Also, as of that date, Officer Dollar had been patrolling District 6 for approximately one-half to two years. Officer Dollar described his training to become a LCPD officer, including the LCPD academy where he studied law and investigations.
At approximately 5:30 p.m., Officer Dollar was patrolling District 6 near Del Rey Boulevard and Highway 70. As he drove past Emmanuel Lutheran Church, he observed an adult male standing at the front entry area of the church and peering into the church through a window. Officer Dollar is familiar with the Emmanuel Lutheran Church, having passed it 50-75 times each week while on patrol. He never sees cars at the church at this time of day. Several days before, Officer Dollar and other LCPD officers had received information regarding issues at area churches that had been vandalized and that items had been stolen. Government Exhibit 2. As a result of his observation and prior reports of vandalism and theft, Officer Dollar turned around and drove toward the church.
The Court admitted at the evidentiary hearing Government Exhibit 1, an excerpt of an audio-video recording from Officer Dollar's lapel camera.1 The recording speaks for itself. The Court notes from Government Exhibit 1 that the following occurred:
Officer Dollar parked in the church parking lot and approached the church entry area on foot. He turned a corner into the entry courtyard where a male figure wearing a backpack is visible crouching against the exterior church wall with his back to Officer Dollar. The Court also notes the following verbal exchange then took place:
At this point in the encounter, Officer Dollar drew his taser and pointed it at Mr. Romero.
Government Exhibit 1; Doc. 43. As is clear from the video exhibit, Mr. Romero was holding a cell phone in one hand and a water bottle in the other. When Officer Dollar pointed his taser, Mr. Romero put the items on the ground, turned toward the wall, then began to take off his back pack. Mr. Romero laid on the ground as Officer Dollar commanded "Go to the ground." Officer Dollar then began a pat down search, locating a knife.
Officer Dollar testified that when he initially approached Mr. Romero, he noticed a "pocket clip" consistent with a clip of a folding pocket knife on Mr. Romero's right side near his hip and waist. Officer Dollar also testified that he noticed a bulge on Mr. Romero's right bicep that he described as a "linear bulge" that he also suspected was a knife. He further testified that, in his experience, he has encountered multiple people with knives hidden under clothing.
Officer Dollar asked Mr. Romero whether he had any weapons, stating this question is "standard." Tr. at 28.2 Mr. Romero quickly reached toward his pocket where Officer Dollar had observed the pocket clip located. Officer Dollar interpreted this as a response to his question. He considered this a "safety problem" because Mr. Romero's intentions remained unknown. Tr. at 29. As a result, and for his own safety, he instructed Mr. Romero to turn around for a pat down search.
He also noted Mr. Romero's demeanor, which Officer Dollar interpreted to be "upset" and "aggravated." Officer Dollar also noted that Mr. Romero kept "dropping his hands to his midline" to the area where the knife was located. He determined Mr. Romero was resisting and failing to obey his commands.
"The purpose of a suppression hearing is 'to determine preliminary the admissibility ofcertain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments." United States v. Maurek, 131 F. Supp. 3d 1258, 1261-62 (W.D. Okla. 2015) (quoting United States v. Merritt, 695 F.2d 1263, 1269 (10th Cir. 1982)). "The proper inquiry is whether [the challenged action] violated the Fourth Amendment rights of [the] criminal defendant making the challenge." United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000) (quoting United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989)). "The proponent of a motion to suppress has the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search." United States v. Eckhart, 569 F.3d 1263, 1274 (10th Cir. 2009) (quoting Allen, 235 F.3d at 489). The United States bears the burden of proof by the preponderance of the evidence to show that the challenged action did not violate the defendant's Fourth Amendment rights. United States v. Matlock, 415 U.S. 164, 177 (1974). Finally, the Court views the evidence in the light most favorable to the United States. See, e.g., United States v. Turner, 2013 WL 5727404, at *9 (D. Kan.) (); United States v. Ortega, 2012 WL 12894242, at *4 (S.D. Fla.) ().
The Fourth Amendment guarantees individuals the right to be free from unreasonable searches and seizures of their person and property. U.S. Const. amend. IV. "[T]he ultimate touchstone of the Fourth Amendment is reasonableness." Riley v. California, 134 S. Ct. 2473, 2482 (2014) (internal quotation marks omitted). When law enforcement officers violate the commands of the Fourth Amendment the exclusionary rule applies which "forbids the use ofimproperly obtained evidence at trial." Herring v. United States., 555 U.S. 135, 139 (2009) (citing Weeks v. United States, 232 U.S. 383, 398 (1914)). The exclusionary rule "is designed to safeguard Fourth Amendment rights generally through its deterrent effect." Id. (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).
"The Supreme Court has identified three types of police/citizen encounters: consensual encounters, investigative stops, and arrests." Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000) (citing United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir. 1984)). "Consensual encounters are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing." Id. (citing Florida v. Royer, 460 U.S. 491, 497-98 (1983)).
"An investigative detention, which is also referred to as a Terry stop, is a seizure within the meaning of the Fourth Amendment, but unlike an arrest, it need not be supported by probable cause." Id. (citing United States v. Espinosa, 782 F.2d 888, 890 (10th Cir. 1986)). Rather, "the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ...
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