United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Defendant Eric Salazar's
Motion to Suppress Evidence as a Result of Fourth Amendment
Violation. Doc. 20. On October 26, 2017, the Honorable M.
Christina Armijo, Chief United States District Judge,
referred this matter to me to recommend an ultimate
disposition of this Motion. Pursuant to the Order of
Reference, I held a hearing in this matter on December 21,
2017. Doc. 30. Given the current trial setting, I informed
the parties at the hearing that I would be entering oral
findings and my recommended disposition from the bench in
order to give them sufficient time to file objections to my
report and recommendation and for Chief Judge Armijo to then
consider any objections that are filed. Tr. at 124-25. I
further informed the parties that the objection period would
run from the entry of the transcript of the proceedings on
the docket as it would constitute my written decision for
purposes of 28 U.S.C. § 636(b)(1)(B) and (C).
Id. The parties did not object to this procedure.
to this Order is the transcript of the proceedings in this
case. My report and recommendation is contained on pages 126
to 163 and pages 166 to 170 of the attached transcript. This
report and recommendation, however, is modified as follows:
137, lines 8-11. The test to determine whether a warrantless
entry or search is justified by exigent circumstances has
been updated. The second prong of the current test is whether
“the manner and scope of the search is
reasonable.” United States v. Najar, 451 F.3d
710, 718 (10th Cir. 2006); Cortez v. McCauley, 478
F.3d 1108, 1123-24 (10th Cir. 2007); United States v.
Gordon, 741 F.3d 64, 70 (10th Cir. 2014).
139, line 15. The word “in” is changed to the
word “to”. This change more accurately reflects
the testimony on page 10, line 19 through page 11, line 10
and on page 15, line 19 through page 16, line 2.
142, line 9. As stated elsewhere in my findings, additional
factors in support of exigent circumstances that justify the
entry include Deputy Armijo's hearing of footsteps
retreating farther into the interior of the apartment in
response to his announcing the presence of law enforcement
and the fact that police were responding to a priority two
911 call from a non-anonymous person who appeared to have
145, lines 19-21. This section of the transcript is modified
to acknowledge that police talked to Defendant while he was
in the bathroom, but that such conversation primarily
involved police officers' attempt to convince Defendant
to come out of the bathroom. Police were not able to confirm
or dispel their reasonable suspicion that Defendant was
involved in criminal activity until they were able to address
him outside of the bathroom.
147, line 18. The phrase “for ID” is replaced
with the phrase “for concealing ID”.
150, lines 10-13. Although I conclude that the primary reason
Detective Cornell went into the bathroom was to look for a
weapon, I find his testimony that he also went into the
bathroom to check for the presence of other people to be
151, lines 24-25. The citation to United States v.
Gordon is corrected to United States v. Walker,
474 F.3d 1249, 1254 (10th Cir. 2007).
152, lines 4-7. Here, and at other places, I sometimes use
the term “protective sweep” to describe a search
permitted by the existence of exigent circumstances even in
the absence of an arrest. See Walker, 474 F.3d at
1254 (stating that although a “protective sweep”
permitted pursuant to Maryland v. Buie, 494 U.S.
325, 327 (1990), may only take place incident to arrest, a
sweep may nevertheless be permitted in the absence of an
arrest under the exigent-circumstances doctrine set out in
Najar). This general use of the term
“protective sweep” excludes protective sweeps in
the first situation identified in Buie where
incident to arrest and without any articulable suspicion
“authorities can look in ‘closets and other
spaces immediately adjoining the place of arrest from which
an attack could be immediately launched.” United
States v. Bagley, No. 16-3305, 2017 WL 6419027 at *2
(10th Cir. December 18, 2017) (slip op.) (quoting
Buie, 494 U.S. at 334). It includes, however,
“sweeps” justified, even in the absence of an
arrest, by exigent circumstances. Such exigent circumstance
searches are similar to protective sweeps justified pursuant
to arrest in Buie's second-identified situation
where “authorities can look elsewhere in the house upon
specific, articulable facts supporting a reasonable belief
that someone dangerous remains in the house.”
Bagley, 2017 WL 6419027 at *2.
156, line 13. The number “133” is replaced with
the number “71”.
Page 158, lines 12-24 and page 159, line 20 through page 160,
line 4. I retract my initial conclusion that, assuming the
search of the bathroom was legal, the extended seizure of the
gun and NCIC check to determine whether the gun was stolen
was, nonetheless, illegal. As I set forth on page 25 of my
analysis, police would be justified in seizing the gun if
they saw the gun in plain view somewhere they were legally
authorized to be during the time they were investigating a
domestic violence 911 call. This is because, as I noted on
page 156 of the transcript, if an officer is lawfully
positioned in a place from which an object can be plainly
viewed, the officer is permitted to notice whatever is put on
display and the observation of the article is generally not
considered a search. Gordon, 741 F.3d at 71.
“If an article is already in plain view, neither its
observation nor its seizure would involve any invasion of
privacy.” Id. Accordingly, if law enforcement
lawfully seized the gun, law enforcement could lawfully
observe the serial number in plain view on the gun and run an
NCIC check to determine if the gun was stolen. The record is
not sufficiently developed to determine whether police held
the gun longer than allowed by law before they checked to see
if the gun was stolen. In other words, the record does not
indicate whether police ran an NCIC check before or after
they were able to speak with Defendant and determine that no
domestic violence had taken place and that Defendant did not
pose a threat. If the Court accepts my findings that Deputy
Cornell unconstitutionally entered the bathroom where he then
saw the gun in plain view and seized the gun, however, the
Court does not have to resolve this issue. If Deputy Cornell
could not legally enter the bathroom and seize the gun, he
could not legally run an NCIC check on the gun.
Page 161, line 19. The word “entry” is