United States v. Serna, No. CR 18-3321 JB

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
Citation406 F.Supp.3d 1084
Parties UNITED STATES of America, Plaintiff, v. William SERNA, Defendant.
Docket NumberNo. CR 18-3321 JB
Decision Date05 April 2019

406 F.Supp.3d 1084

UNITED STATES of America, Plaintiff,
v.
William SERNA, Defendant.

No. CR 18-3321 JB

United States District Court, D. New Mexico.

Signed April 5, 2019


406 F.Supp.3d 1090

John C. Anderson, United States Attorney, Peter J. Eicker, Thomas A. Outler, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

D. Eric Hannum, Lomas Law Complex, Albuquerque, New Mexico, Attorney for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant's Motion to Suppress Evidence Obtained as a Fruit of Unlawful Seizure, filed January 6, 2019 (Doc. 28)("Motion"). The Court held an evidentiary hearing on February 21, 2019. See Clerk's Minutes at 1, filed February 21,

406 F.Supp.3d 1091

2019 (Doc. 37). The primary issues are: (i) whether Albuquerque1 Police Department ("APD") Sergeant Peter Silva seized Defendant William Serna by ordering that Serna keep his hands where Silva could see them; and (ii) whether Silva had reasonable suspicion to seize Serna after Silva observed Serna exchanging cash with Edward Fuentes in Robinson Park,2 when Silva knew that APD had previously arrested Serna for drug-related activities and that Robinson Park has a reputation as a site for drug trafficking. The Court concludes that: (i) Silva seized Serna when he ordered that Serna keep his hands visible; and (ii) based on the facts recited above, Silva had reasonable suspicion to seize Serna.

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court 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 rule 12(d) purposes. 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. 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. 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 doing, 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. The United States Court of Appeals for the Tenth Circuit has indicated that the restrictions in the Confrontation Clause of the Sixth Amendment to the Constitution of the United States of America do not apply to hearsay introduced in suppression hearings, so the Court may consider testimonial statements. See United States v. Lopez-Carillo, 536 F. App'x 762, 768-69 (10th Cir. 2013) (unpublished)3 ("[T]he Supreme Court [of the United States] has made it clear hearsay is admissible in suppression hearings.... As a result, the restriction in the Confrontation Clause against admission of testimonial statements

406 F.Supp.3d 1092

... is not implicated here.") (citing United States v. Matlock, 415 U.S. 164, 172-77, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ); United States v. Sanchez, 555 F.3d 910, 922 (10th Cir. 2009) ; United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004).

1. APD has employed Silva as a sergeant for two years and as an APD officer for fourteen years. See Draft Transcript of Hearing at 5:15-19 (taken February 20, 2019)(Outler, Silva)("Tr.").4

2. The Court deems Silva's testimony credible, with the exception of his testimony about what denomination of bill Fuentes held as Serna approached him.5

3. As a sergeant, Silva supervises eight officers. See Tr. at 9:18-21 (Outler, Silva).

4. In his supervisory role, Silva reviews these APD officers' reports and approves their complaints. See Tr. at 9:22 (Outler, Silva).

5. Although before September 3, 2018, Silva had not personally arrested Serna, see Tr. at 13:24-25 (Silva), Serna was a "person of interest," see Tr. at 14:17-19 (Silva), and Silva knew that one of his APD officers had arrested Serna, see Tr. at 13:6-11 (Silva), "was aware of" Serna's "previous booking slips" for the City of Albuquerque, Tr. at 14:14-16 (Silva), and had previously examined Serna's criminal record, see Tr. at 14:24-15:1 (Silva).

6. Serna's previous offenses included drug-related activities. See Tr. at 14:21-23 (Silva).

7. Silva had met Serna "a few days" before September 3, 2018, Tr. at 29:14 (Humman, Silva), but, at that earlier time, Silva initially mistook Serna for someone else, see Tr. at 29:20-22 (Silva).

8. During that earlier encounter, Silva realized his mistake, see Tr. at 29:23-30:1 (Silva), and identified who Serna was, see Tr. at 33:2-9 (Outler, Silva).

9. On September 3, 2018, Silva was on duty patrolling the downtown area, which encompasses the area bounded by Broadway Boulevard on the East, 12th Street on the West, Lomas Boulevard on the North, and Lead Avenue on the South. See Tr. at 6:2-12 (Outler, Silva).

10. During his shift, Silva was on bicycle patrol, see Tr. at 7:10-12 (Outler, Silva), and rode around Robinson Park, which sits between Central Avenue, 8th Street, and Copper Avenue, see Tr. at 6:17-22 (Outler, Silva).

11. Silva and/or the APD officers he supervises patrol Robinson Park daily. See Tr. at 7:4-9 (Outler, Silva).

12. Silva and his APD officers "make constant contact with people at that park, and[, although] it doesn't always involve narc[otic] things," Tr. at 13:7-8 (Silva), Silva

406 F.Supp.3d 1093

and his APD officers patrol the area daily because they receive complaints about drug activity in the park; people buy and sell drugs, and litter the area with syringes, see Tr. at 9:8-12 (Silva).

13. Silva has read about such grievances and drug activity in his APD officers' reports and complaints. See Tr. at 9:18-24 (Outler, Silva).

14. Each year, Silva and/or his APD officers arrest around twenty people for drug-related activity that occurs in Robinson Park. See Tr. at 9:25-10:5 (Outler, Silva).

15. On September 3, Silva was bicycling west on Central Avenue when he arrived at Robinson Park with APD Officers George Gabaldon, Mike Avila, and Mark Wells. See Tr. at 7:18-8:2 (Outler, Silva).

16. The officers rode in a line, one behind the other, with Silva at the back. See Tr. at 11:6-8; DVD: Bodycam Video from Sgt. P. Silva at 00:00:04-:14, taken September 3, 2018, filed February 20, 2019 (on file with court)("Bodycam Video").

17. The officers were armed and in uniform. See generally Bodycam Video.

18. Two men stood at the southeast end of Robinson Park, where the park nears 8th Street. See Tr. at 8:5-9 (Outler, Silva); Bodycam Video at 00:00:05-:17.

19. The men were facing each other in close proximity, see Tr. at 8:14-19 (Outler, Silva); Bodycam Video at 00:00:05-:17, and were engaged in an "hand to hand exchange," Tr. at 8:12-13 (Silva). See id. at 8:9-13 (Silva); Bodycam Video at 00:00:16-:21.

20. Silva observed these men as he approached then rode alongside the park. See Tr. at 8:4-13 (Outler, Silva).

21. When he first observed them, Silva was around thirty to forty feet from the men. See Tr. at 8:22-24 (Outler, Silva).

22. At that time, Silva did not recognize Serna. See Tr. at 15:5-9 (Silva).

23. To Silva, the men did not appear engaged in a "casual conversation." Tr. at 13:21. See id. at 13:19-21 (Silva).

24. After Silva observed the men, he turned and jumped his bicycle over the curb to enter the park. See Tr. at 10:11-16 (Silva); Bodycam Video at 00:00:14-:16.

25. When Silva turned his bicycle, Gabaldon, who was riding immediately in front of Silva, turned with him, but Avila and Wells followed slightly later. See Tr. at 11:11-13 (Silva).

26. As Silva "got into the park," he recognized Serna. Tr. at 15:8 (Silva). See id. at Tr. at 13:16-19 (Silva); id. at 15:6-9 (Silva).

27. Silva did not recognize the other man -- Fuentes, see Tr. at 16-18 (Outler, Silva), and Silva's APD officers had not previously arrested Fuentes, see Tr. at 16:19-21 (Outler, Silva).

28. Once in the park, Silva observed that Serna and Fuentes were exchanging cash. See Tr. at 10:18-21 (Silva).

29. As Silva approached them, he asked "what they were doing," Tr. at 11:21 (Silva), and, at the question, Fuentes "kind of" raised a hand, Tr. at 11:22-23 (Silva). See Bodycam Video at 00:00:16-:20.

30. Silva then stopped his bicycle within ten to twenty feet of Serna and Fuentes. See Tr. at 10:17-18 (Silva); id. at 29:16-17 (Silva).

31. As Silva dismounted his bicycle, Silva told Serna and Fuentes to keep their hands where he could see them, see Tr. at 11:23-24...

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