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United States v. Elliott

United States District Court, D. New Mexico

September 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK WILLIAM ELLIOTT, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on Defendant Mark William Elliott's Motion for Suppression of Evidence [Doc. 33]. As grounds for the motion, Elliott argues that he was unconstitutionally searched and seized without a warrant by Albuquerque police, and that the evidence obtained as a result should be suppressed as “fruit of the poisonous tree.” On September 5, 2017, the Court conducted an evidentiary hearing on the motion, at which Elliott was present. After considering the briefs, the evidence, and the oral arguments of counsel, the Court concludes that the motion to suppress should be denied. The initial encounter, including the officers' questions to the Defendant, was justified under the community caretaker exception to the Fourth Amendment. However, that initial encounter quickly gave way to a pat-down search that was justified for officer safety under the Supreme Court's opinion in Terry v. Ohio, 392 U.S. 1, 19 (1968). Defendant's attempt to conceal from the officers the fact that he had a gun and his subsequent attempt to flee the pat-down justified his arrest. The drug evidence found in Defendant's jacket was properly discovered in a search pursuant to that arrest.

         FACTUAL AND PROCEDURAL BACKGROUND

         On March 25, 2016, a 911 caller who identified herself as “Donna” alerted police to an unresponsive adult male lying on the sidewalk beside a red motorcycle near the intersection of Hermosa Drive NE and Candelaria Rd. NE in Albuquerque, New Mexico. See Exhibit 1 (recording of call) and Exhibit 2 (transcript of call). Donna said that she did not think the man was breathing, but that she did not want to get too close. Id. The Albuquerque Police Department (“APD”) dispatched officers to the scene.

         Three APD officers-Sabrina Lopez, Jon Oguin, and Robert Sanchez-arrived at the scene and saw the motorcycle parked at the side of the road in close proximity to a stop sign, with Elliott lying on his back on the sidewalk next to the motorcycle with his eyes closed. Transcript of hearing at 12, 15-17, 47-49, 64-65. There were keys lying on the sidewalk near Elliott. Id. at 18. Sanchez moved the keys away from Elliott. Id. at 18-19. Then, Sanchez tugged on Elliott's jacket, id. at 19; he awoke immediately and quickly stood up. Id. The officers asked Elliott several times if he was alright, but he did not respond at first. Id. at 20-21; Exhibit 1. Eventually, Elliott said that he was tired. Exhibit 1. Sanchez asked, “What are you tired for?” Exhibit 1. Again, Elliott gave no audible response. Id. At the hearing, all three officers testified that Elliott was verbally non-compliant by refusing to answer their questions, and that he displayed unusual and nervous behavior by glancing around quickly, as though scanning for a route of escape. Transcript at 20-21, 52-53, 70-71. He also rubbed his hands on his pockets and repeatedly picked his foot up and put it down. Id. at 56, 70. One of the officers asked for Elliott's identification, which he obtained by twisting his body and using his left hand to cover his right front pants pocket and his right hand to reach into his right rear pants pocket to get the identification card. Exhibit 1; Transcript at 24-25, 71. This behavior was unusual and caused Lopez to be suspicious that Elliott might have a weapon in that front pocket. Transcript at 71. Elliott handed his identification to Lopez. Id. at 32, 72. Observing a bulge in Elliott's right front pants pocket that she believed might be a weapon, Lopez alerted Oguin and then told Sanchez to pat down Elliott for weapons. Id. at 22, 50-51, 71-72.

         Sanchez directed Elliott to turn around and put his hands behind his head. Exhibit 1 and Transcript at 26. Elliott complied. During the pat down, Sanchez asked Elliott if he had anything that would “poke or prick” him, to which Elliott responded that he had needles in his pocket. Exhibit 1; Transcript at 23. Sanchez asked Elliott if the needles were capped. Id. Elliott did not answer this but instead offered to get them out for Sanchez, who warned Elliott not to reach into his pockets. Exhibit 1; Transcript at 27, 75. Sanchez asked which way the needles were pointing, but Elliott ignored the question. Exhibit 1. Sanchez asked Elliott if he could remove Elliott's jacket so that Sanchez could see what he was doing; Elliott did not object verbally and appears to have complied in removing the jacket. Exhibit 1; Transcript at 25, 73. Next, Sanchez patted Elliott's right front pants pocket and felt a hard object there. Transcript at 24. He opened the top of Elliott's pocket and saw the handle of the firearm; when Sanchez attempted to remove the gun, Elliott turned and attempted to break free, turning and running away from Sanchez. Transcript at 26. However, Elliott ran straight into Oguin. Id. at 54. Sanchez exclaimed, “He has a gun, he has a gun!” Id. at 54; Exhibit 1. Oguin grabbed Elliott and prevented him from fleeing. Transcript at 54. Sanchez held Elliott's right hand to prevent him from grabbing the gun. The officers cuffed Elliott behind his back. According to testimony by Sanchez and Lopez, Elliott resisted their efforts to place him in handcuffs. Transcript at 26-27, 76.

         The officers searched Elliott and his jacket further and found a white powdery substance and drug paraphernalia. A field test of the substance was a presumptive positive for methamphetamine.

         Elliott asserts that his seizure and subsequent search were unconstitutional, and that therefore the gun and drug evidence found as a result must be suppressed. In response, the Government argues that (1) it did not require a warrant to detain and search Elliott because of the community caretaker exception, (2) the pat down was proper under Terry v. Ohio, (3) the evidence would have been inevitably discovered, and (4) the detention and search were permissible under the good faith exception.

         EVIDENTIARY BURDEN

         “Suppression of evidence is an appropriate remedy only when the search violates a person's constitutional rights.” United States v. Gama-Bastidas, 142 F.3d 1233, 1238 (10th Cir. 1998). The purpose of a suppression hearing is “to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments.” United States v. Merritt, 695 F.2d 1263, 1269 (10th Cir. 1982). “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 search.' ” Gama-Bastidas, 142 F.3d at 1238 (quoting United States v. Skowronski, 827 F.2d 1414, 1417 (10th Cir. 1987)). Defendant's burden to show a violation of his constitutional rights is distinct from the government's burden regarding admissibility of evidence it seeks to introduce: “[U]pon a motion to suppress, the ‘burden of showing admissibility rests, of course, on the prosecution.”' United States v. Mikolon, 719 F.3d 1184, 1189 (10th Cir. 2013) (quoting Missouri v. Seibert, 542 U.S. 600, 608 n.1 (2004)).

         DISCUSSION

         I. Community Caretaker Exception

         The Government argues that the initial encounter between Elliott and the three APD officers was justified by the community caretaker exception to the Fourth Amendment. The Court agrees.

         A warrantless arrest may be justified if the arresting officer was acting in a “community caretaking” role. This doctrine allows law enforcement officers to “effect a brief non-investigatory detention in the exercise of their community caretaking functions, regardless of suspected criminal activity, when articulable facts indicate the need ‘to assure the safety of the public and/or the individual.'” Novitsky v. City of Aurora, 491 F.3d 1244, 1253 (10th Cir. 2007) (quoting United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993)). “We have recognized that, in fulfilling their duties, police officers may exercise functions-‘community caretaking functions'-wholly separate and apart from detecting, investigating, or acquiring evidence of a crime.” Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir. 2010). These functions may include, for example, restraining an intoxicated individual, see Novitsky v. City of Aurora, 491 F.3d 1244, 1253-54 (10th Cir. 2007); impounding a vehicle left on the side of the road, see United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998); or transporting an individual to safety, see United States v. Madrid, 30 F.3d 1269, 1277 (10th Cir. 1994). A detention under the community-caretaking exception:

must be based upon specific and articulable facts which reasonably warrant an intrusion into the individual's liberty. Additionally, the government's interest must outweigh the individual's interest in being free from arbitrary governmental interference. Finally, the detention must last no longer than is necessary to effectuate its ...

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