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United States v. Sedillo

United States District Court, D. New Mexico

November 7, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
BRUCE SEDILLO, LOREN SABAQUIE, and ROBERT GALLARDO. Defendants.

          James D. Tierney Acting United States Attorney Presiliano Torrez Howard R Thomas Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Daniel J Tallon Daniel J. Tallon, Attorney at Law Placitas, New Mexico Attorney for the Defendant Bruce Sedillo

          Alejandro Benito Fernandez Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorney for the Defendant Loren Sabaquie

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendants' Motion to Void Search Warrant For DNA Sample or For Return of DNA Sample Pursuant to F.R.C.P. 41(g), filed July 6, 2017 (Doc. 29)(“Motion”); and (ii) Defendant Sedillo's Opposed Motion to Join in Defendant Sabaquie's Motion to Void Search Warrant for DNA Sample or For Return of DNA Sample Pursuant to F.R.C.P. 41(g), filed July 31, 2017 (Doc. 35)(“Motion to Join”). The Court held a hearing on August 3, 2017. The primary issue is whether Plaintiff United States of America, pursuant to two search warrants, unlawfully seized DNA samples from Defendants Bruce Sedillo and Loren Sabaquie to test against DNA collected from clothing identified as theirs that appeared similar to clothing worn by masked robbers, when the clothing has yet to be tested for viable DNA samples. The Court grants the Motion to Join and concludes that the United States did not unlawfully seize the DNA, because probable cause supports the warrants. Specifically, probable cause exists, because facts tie the robbers' getaway vehicle to Sedillo and Sabaquie, and facts tie the robbers' descriptions and clothing to Sedillo's and Sabaquie's descriptions and clothing associated with them. Moreover, based on an FBI agent's sworn statement and existing precedent, it is sufficiently reasonable to infer that the clothing will yield relevant evidence to survive constitutional scrutiny. Accordingly, the Court will deny the Motion.

         FACTUAL BACKGROUND

         The Court draws its facts from the Criminal Complaint, filed May 5, 2017 (Doc. 1)(“Complaint”). On January 16, 2017, two men armed with handguns robbed Metro PCS, a cellphone and electronics distributor, in Albuquerque, New Mexico. See Complaint ¶ 3, at 1. Both of these men concealed their faces, the first with a purple bandana and the second with a Teenage Mutant Ninja Turtles[1] mask. See Complaint ¶ 3, at 1-2. Witnesses described the first man, later alleged to be Gallardo, as a skinny, black male who wore a black hooded sweatshirt, grey paisley pants, and blue latex gloves. See Complaint ¶¶ 3, 7, at 1, 3. Gallardo took electronic devices from the store and stuffed them into a green backpack. See Complaint ¶ 3, at 2. Witnesses described the second man, later alleged to be Sedillo, as a Hispanic male who wore a grey hooded sweatshirt, black pants, green and yellow shoes, and blue latex gloves. See Complaint at ¶¶ 3, 12, at 2, 5. Sedillo took cash from the store's cash register. See Complaint ¶ 3, at 2.

         On January 21, 2017, a similar theft occurred when three men, one wearing a Ninja Turtles mask and all armed with handguns, robbed a 7-Eleven in Albuquerque. See Complaint ¶ 4, at 2. Witnesses described the first robber, later alleged to be Kshawn Cornwell, as a skinny black male, standing 6'3” who wore a black hooded sweatshirt, grey pants, black and white “Chuck Taylor”[2] style shoes, black gloves, and covered his face with a red bandana. Complaint ¶¶ 4, 7, at 2-3. The second robber matched Sedillo's description from the Metro PCS robbery in that witnesses described him as a medium build, Hispanic male standing 5'8” who wore a red and black hooded sweatshirt, a Ninja Turtle mask, and gloves. See Complaint ¶ 4, at 2. Witnesses described the third robber, later alleged to be Sabaquie, as a Hispanic male standing 5'6” or 5'7” who wore a black and grey hooded sweatshirt, black pants, white shoes, and covered his face with a red bandana. See Complaint ¶ 4, at 7. The three men fled the scene in a Scion box-style vehicle. See Complaint ¶ 4, at 7.

         Over the next week, two more thefts occurred with similarly described men robbing another Metro PCS and a Wienerschnitzel. See Complaint ¶¶ 5-6, at 2-3. At both robberies, a man who matched Sedillo's description wore a Ninja Turtle mask and Nike high-top shoes. See Complaint ¶¶ 5-6, at 2-3. A man matching Gallardo's description robbed the Metro PCS while wearing grey paisley pants, a black hooded sweatshirt, and a white bandana over his face. See Complaint ¶ 6, at 3. An individual matching Sabaquie's description also robbed the Metro PCS, and wore a blue hooded sweatshirt, black pants, and white shoes. See Complaint ¶ 6, at 3. The robbers fled the Wienerschnitzel in a red, box-style vehicle. See Complaint ¶ 5, at 2.

         On January 30, 2017, the Albuquerque Police Department received an anonymous tip that Sedillo had been robbing cellular telephone stores and riding around in a red, box-style vehicle. See Complaint ¶ 7, at 3. On February 2, 2017, a detective observed four men wearing hooded sweatshirts and armed with handguns rob a Verizon Wireless store. See Complaint ¶ 8, at 3.

         The men fled the scene in a car that matched the Wienerschnitzel robbery's getaway vehicle, a red Scion XB with New Mexico license plate “HYY834.” See Complaint ¶ 8, at 3. Police pursued, but the car fled at high speed. See Complaint ¶ 8, at 4.

         The police tracked the vehicle to an Albuquerque neighborhood and found Gallardo approximately two blocks away from where they later found the car. See Complaint ¶ 9, at 4. Gallardo is a black male, standing 6'3” with a slender build, and on that night he wore black and white shoes, camouflage shorts, and a purple shirt. See Complaint ¶ 9, at 4. Witnesses had described one of the Verizon store's robbers as a black man, standing 6'3” with a slender build, who wore a black-striped hooded sweatshirt, black and white shoes, a purple shirt underneath his sweatshirt, and gloves. See Complaint ¶ 9, at 4. The police also spotted Sabaquie in the neighborhood “walking away quickly from the area.” Complaint ¶ 10, at 4. He wore a black hooded sweatshirt and white shoes. See Complaint ¶ 10, at 4. He matched one of the Verizon robbers' description. See Complaint ¶ 10, at 4.

         Police discovered the red Scion vehicle in an apartment parking lot. See Complaint ¶ 11, at 4. After executing a search warrant, they uncovered masks and clothing matching the robbers' clothing from the Verizon heist. See Complaint ¶ 11, at 4. They also recovered two active cellular telephones: one had pictures of Sabaquie; the other “had a distinctive background picture that matched a photo that Bruce Sedillo had posted on his Facebook page.” Complaint ¶ 12, at 5. Police also found Facebook photographs of Sedillo wearing the grey Nike high-top shoes that the Ninja Turtle masked robber wore at the Wienerschnitzel robbery. See Complaint ¶ 12, at 5.

         The police subsequently searched an apartment where Sedillo and Gallardo lived with Cornwell. See Complaint ¶ 13, at 5. They found clothing similar to the apparel that the robbers wore during the various heists, including: white and grey Nike high-tops, green and yellow shoes, grey paisley pants, a purple bandana, and a grey and black hooded sweatshirt. See Complaint ¶ 13, at 5. The police found the grey paisley pants and purple bandana in Gallardo's bedroom. See Complaint ¶ 13, at 5. The police discovered the white Nike high-top shoes, and green and yellow shoes, in Sedillo's bedroom. See Complaint ¶ 13, at 5. Sedillo's girlfriend told the police that the grey and black hooded sweatshirt found in the apartment belonged to Sabaquie, and that Cornwell wears black and white Chuck Taylor style shoes. See Complaint ¶ 14, at 5-6. She also told the police that she saw Gallardo and Sabaquie leave the apartment in the red Scion on the night of the Verizon robbery. See Complaint ¶ 15, at 6. Sedillo, Gallardo, and Sabaquie were subsequently arrested. See Arrest Warrant, filed May 11, 2017 (Doc. 11). Before the indictment, see Indictment at 1, filed May 24, 2017 (Doc. 13), Sabaquie's counsel indicated that Sabaquie would not consent to a DNA swab. See Motion ¶ 1, at 1.

         FINDINGS OF FACT

         Rule 12(d) of the Federal Rules of Criminal Procedure states: “When factual issues are involved in deciding a motion, the court must state its essential findings on the record.” Fed. R. Crim. P. 12(d). The findings of fact in the Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d)'s purposes. These facts are drawn from the Complaint and the Application for a Search Warrant for Loren Sabaquie, filed June 23, 2017, No. 17-0543 (Doc.1)(“Search Warrant”).[3] The Court accepts these facts as true only for the purposes of this Motion.

         A. The Robberies.

         1. On January 16, 2017, two masked men took cash and electronic items without paying for them from the Metro PCS located at 3551 Gibson Blvd. SE, Albuquerque. See Complaint ¶ 3, at 1-2; Search Warrant ¶ 3, at 1-2.

         2. The first man was black, stood 6'2”, wore a black hooded sweatshirt, a purple bandana that covered his face, grey paisley pants, and blue latex gloves, and carried a green backpack with an orange interior lining. See Complaint ¶ 3, at 1-2; Search Warrant ¶ 3, at 1-2.

         3. The second man was Hispanic, and wore a grey hooded sweatshirt, a Ninja Turtle mask, black pants, green and yellow shoes, and blue latex gloves. See Complaint ¶ 3, at 1; Search Warrant ¶ 3, at 1.

         4. The men carried handguns. See Complaint ¶ 3, at 1; Search Warrant ¶ 3, at 1.

         5. The first man's handgun was a chrome pistol with a black extended magazine. See Complaint ¶ 3, at 1; Search Warrant ¶ 3, at 1.

         6. The second man's handgun was a small black pistol. See Complaint ¶ 3, at 2; Search Warrant ¶ 3, at 2.

         7. On January 21, 2017, three masked men robbed a 7-Eleven convenience store located at 10324 Menaul Blvd. NE, Albuquerque. See Complaint ¶ 4, at 2; Search Warrant ¶ 4 at 2.

         8. The first man was black, stood 6'3”, and wore a black hooded sweatshirt, a red bandana that covered his face, grey pants, black and white “Chuck Taylor” style shoes, and black gloves. Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

         9. The second man was Hispanic, stood 5'8”, and wore a red and black hooded sweatshirt, a Ninja Turtle mask, and gloves. See Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

         10. The second man held a handgun. See Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

         11. The third man was Hispanic, stood 5'6” or 5'7”, and wore a black and grey hooded sweatshirt, black pants, white shoes, and a red bandana covering his face. See Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

         12. The three masked men fled from the business in a Scion style box car. See Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

         13. On January 25, 2017, three masked men robbed a Wienerschnitzel located at 2929 Carlisle Blvd. NE, Albuquerque, New Mexico. Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

         14. The first man was white, wore a black hooded sweatshirt, a Ninja Turtle mask, white Nike high-top shoes, and carried black bag with a strap. See Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

         15. The second man was Hispanic, wore a grey hooded sweatshirt, and a black mask. See Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

         16. The third man was black, and wore a checkered hooded sweatshirt and black and white “Chuck Taylor” style shoes. Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

         17. All three men carried handguns. See Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

         18. The three men fled the Wienerschnitzel in a red box-style vehicle. See Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

         19. On January 26, 2017, four masked men robbed the Metro PCS located at 3531 Gibson Blvd. SE, Albuquerque, New Mexico. See Complaint ¶ 6, at 2; Search Warrant ¶ 6, at 2.

         20. The first man was black, stood 6'3”, wore grey paisley pants, black and white shoes, a black hooded sweatshirt, a white bandana that covered his face, and carried a green backpack with orange lining. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 2-3.

         21. The second man was Hispanic, wore a black jacket, a Ninja Turtle mask, white or grey Nike high-top shoes, and carried a black bag slung over his shoulders. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 3.

         22. The third man was Hispanic, stood 5'6” and wore a blue hooded sweatshirt, black pants, and white shoes. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 3.

         23. The fourth man was black, stood 6'2”, wore flower patterned sweatpants, white shoes with blue and orange soles, a black jacket, and carried a blue bag with white spots. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 3.

         24. All four men carried handguns. See Complaint ¶ 6, at 2; Search Warrant ¶ 6, at 2.

         25. The first man held a chrome pistol with a black extended magazine. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 3.

         26. On January 30, 2017, an anonymous tipster told the Albuquerque Police Department that a man with the Facebook profile “OTF RJ Numero Cuatro” and a man named “Bruce Sedillo” were robbing cellular telephone stores and selling stolen telephones. Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

         27. The anonymous tipster also stated that the men drove a red box-style car of an unknown make during the robberies. See Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

         28. The anonymous tipster further said that the two men lived in an apartment located at the corner of Georgia St. SE and Gibson Blvd. SE, in Albuquerque. See Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

         29. The Albuquerque Police Department identified “OTF RJ Numero Cuatro” as Robert Gallardo. Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

         30. On Gallardo's Facebook account, there is a photograph of Cornwell holding a chrome pistol with an extended magazine and Gallardo. See Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

         31. On February 2, 2017, an Albuquerque police detective spotted four men wearing hooded sweatshirts and masks approach a Verizon Wireless located at 5737 Menaul Blvd. NE, Albuquerque. See Complaint ¶ 8, at 3; Search Warrant ¶ 8, at 3.

         32. The four men “entered the store and committed armed robbery.” Complaint ¶ 8, at 3; Search Warrant ¶ 8, at 3.

         33. One of the robbers was black, stood 6'3”, wore a black striped hooded sweatshirt, black and white shoes, a purple shirt underneath his sweatshirt, and gloves, and carried a green backpack with orange lining. See Complaint ¶ 9, at 4; Search Warrant ¶ 9, at 4.

         34. Witnesses described another one of the robbers as Hispanic, short, and thin. See Complaint ¶ 10, at 4; Search Warrant ¶ 10, at 4.

         35. The men fled the store after robbing it in a red Scion XB with New Mexico License Plate “HYY834.” Complaint ¶ 8, at 3; Search Warrant ¶ 8, at 3.

         36. Police followed the Scion XB and attempted to conduct a traffic stop, but the car fled at a high speed. See Complaint ¶ 8, at 4; Search Warrant ¶ 8, at 3.

         37. The red Scion XB entered a neighborhood near California St. SE and Zuni Rd. SE, in Albuquerque. See Complaint ¶ 8, at 4; Search Warrant ¶ 8, at 4.

         38. Officers set up a perimeter around the neighborhood and searched for suspects. See Complaint ¶ 8, at 4; Search Warrant ¶ 8, at 4.

         39. Officers located Gallardo at the corner of Florida St. SE and Acoma Rd. SE, about two blocks away from where the red Scion XB was later found parked. See Complaint ¶ 9, at 4; Search Warrant ¶ 9, at 4.

         40. Gallardo is black, stands 6'3”, and on that night wore black and white shoes, camouflage shorts, and a purple shirt. See Complaint ¶ 9, at 4; Search Warrant ¶ 9, at 4.

         41. Gallardo told the officers his name was “Ariel Bueno.” Complaint ¶ 9, at 4; Search Warrant ¶ 9, at 4.

         42. Officers also located Sabaquie, walking away “quickly” from the neighborhood. Complaint ¶ 10, at 4; Search Warrant ¶ 10, at 4.

         43. Sabaquie is Hispanic, short, thin, and on that night wore a black hooded sweatshirt and white shoes. See Complaint ¶ 10, at 4; Search Warrant ¶ 10, at 4.

         B. The Red Scion.

         44. Police discovered the red Scion XB with New Mexico license plate HYY834 in an apartment parking lot at the corner of Cochiti Rd. SE and California St. SE. See Complaint ¶ 11, at 4; Search Warrant ¶ 11, at 4.

         45. Officers saw, through the car's windows, masks, gloves, a red hooded sweatshirt, and a bag of unopened Verizon cellular telephones. See Complaint ¶ 11, at 4; Search Warrant ¶ 11, at 4.

         46. Police sought a search warrant for the vehicle. See Complaint ΒΆ 11, at ...


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