United States District Court, D. New Mexico
A Harrison, Attorney for Mr. Nash
Lee Autrey and Mark A. Saltman ASSISTANT UNITED STATES
ATTORNEYS Attorneys for the United States
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED'STATES DISTRICT JUDGE.
matter comes before the Court on defendant Quincy D'Own
Nash's Motion to Suppress Physical Evidence and
Statements and Corrected Motion to Suppress Physical Evidence
and Statements. [Docs. 15, 32]. The government opposes the
motions. Based upon the pleadings of the parties, the facts
of this case and applicable law, Mr. Nash's motions are
evening of September 17, 2016, Hobbs Police Department
Officer Jayson Hoff stopped a 2000 silver Cadillac Escalade
for throwing a lit cigarette out the window and having an
unreadable license plate. According to his report, Officer
Hoff approached the car and, while talking to the driver, Mr.
Nash, he observed signs that he was intoxicated. The driver
told him he had a previous DUI conviction and had served time
in federal prison for possession of drugs. Officer Hoff's
video recorder was not functioning, so he requested backup
with working video for a field sobriety test. Two other
Hoff ordered Mr. Nash out of the car and conducted a pat down
search for weapons, holding Mr. Nash's hands behind his
back as he did so. No weapons were detected, but the officer
felt what he believed to be a baggie of drugs in Mr.
Nash's pants pocket. He asked for permission to reach
into the pocket, but Mr. Nash refused. Officer Hoff stated
that he was going to reach into the pocket anyway. Mr. Nash
jerked away and tried to run, but was tackled by the three
officers and arrested.
searched Mr. Nash's person and removed two baggies from
his pants pockets. One field tested positive for
methamphetamine and the other for marijuana. When officers
searched the car, which belonged to Mr. Nash's
grandmother, they found a firearm under the front seat.
was charged with possession with intent to distribute five
grams and more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2;
possession of a firearm and ammunition in furtherance of a
federal drug trafficking crime, in violation of 18 U.S.C.
§ 924(c); and felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1).
to Fed. Crim. R. 12(b)(3)(C), Mr. Nash moves for suppression
of any physical evidence or statements seized as a result of
his September 17, 2016 detention, search and arrest; and any
statements made by him after his detention and arrest.
Nash asserts any evidence garnered during the traffic stop
should be suppressed because:
A. Officer Hobbs lacked reasonable suspicion to execute the
B. Officer Hobbs lacked reasonable suspicion of criminal
conduct on Mr. Nash's part to prolong the traffic stop
beyond its original purpose;
C. The officer's pat down was illegal because he lacked a
specific articulable suspicion of danger that would permit a
pat down; and
D. Even if the officer had a specific articulable suspicion
of danger which would permit a pat down, when the officer
went from conducting a pat down looking for weapons to trying
to seize evidence of a crime, police “crossed the line,
” and any evidence seized from that point forward
should be suppressed.
Court considers each of Mr. Nash's arguments in turn and
finds that the government has failed to carry its burden of
showing Officer Hoff had not completed his pat down before
locating what he believed to be a baggie of dope in Mr.
Nash's pocket. Therefore, Mr. Nash's Motion to
Suppress must be granted.
The Initial Traffic Stop Was Based on Reasonable
government bears the burden of proof to justify warrantless
searches and seizures. United States v.
Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001)
(citing United States v. Maestas, 2 F.3d 1485, 1491
(10th Cir. 1993). A traffic stop is treated as an
investigative detention, and is governed by the standards set
forth in Terry v. Ohio, 392 U.S. 1 (1968).
United States v. Bradford, 423 F.3d 1149, 1156 (10th
Cir. 2005). To determine the reasonableness of an
investigative detention, the Court makes a dual inquiry,
asking first “whether the officer's action was
justified at its inception, ” and second,
“whether it was reasonably related in scope to the
circumstances which justified the interference in the first
place.” Id. Mr. Nash argues neither prong has
been met in this case.
traffic stop is justified at its inception if an officer has
(1) probable cause to believe a traffic violation has
occurred, or (2) a reasonable articulable suspicion that a
particular motorist has violated any of the traffic or
equipment regulations of the jurisdiction.” United
States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009)
(citing United States v. Martinez, 512 F.3d 1268,
1272 (10th Cir. 2008)). See also United States v.
Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)
(“A traffic stop is valid under the Fourth Amendment if
the stop is based on an observed traffic violation or if the
police officer has a reasonable articulable suspicion that a
traffic or equipment violation has occurred or is
Tenth Circuit “ha[s] long since rejected the notion
that an officer's subjective motivations in effecting a
stop are relevant to the Terry analysis.”
Winder, 557 F.3d at 1134 (10th Cir. 2009) (citations
omitted). “Instead, we consider the reasonableness of
an officer's actions using an ‘objective
standard' that takes the ‘totality of the
circumstances' and the ‘information available'
to the officer into account.” Id. (citing
United States v. Sanchez, 519 F.3d 1208, 1213 (10th
Cir. 2008)). “Under this standard, an officer's
‘actual motivations or subjective beliefs and
intentions' are, quite simply, irrelevant.”
Id. (quoting United States v. DeGasso, 369
F.3d 1139, 1143 (10th Cir. 2004)). “We ask, instead,
whether ‘the facts available' to the detaining
officer, at the time, warranted an officer of
‘reasonable caution' in believing ‘the action
taken was appropriate.'” Id. (citing
Terry, 392 U.S. at 2122).
reasonable suspicion to exist, an officer ‘need not
rule out the possibility of innocent conduct;' he or she
simply must possesses ‘some minimal level of objective
justification' for making the stop.”
Winder, 557 F.3d at 1134 (quoting United States
v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004)).
“Evidence falling ‘considerably short' of a
preponderance satisfies this standard.” Id.
(quoting United States v. Arvizu, 534 U.S. 266, 274
(1968)). “[I]f a traffic stop was justified at its
inception, we determine whether ‘the resulting
detention was reasonably related in scope to the
circumstances that justified the stop in the first
place.'” Id. (quoting United States v.
Valenzuela, 494 F.3d 886, 888 (10th Cir. 2006)).
“‘Generally, an investigative detention must last
no longer than is necessary to effectuate the purpose of the
stop.'” Id. (quoting United States v.
Cervine, 347 F.3d 865, 870-71 (10th Cir. 2003)).
Hoff testified that he stopped Mr. Nash because (1) he threw
a lit cigarette butt out of the car, in violation of NMSA
30-8-4 (littering), and (2) his license plate was not clearly
legible, in violation of NMSA 66-3-18 (Display of
Registration Plates). [TR at 9-11]. Officer Hoff issued
citations to Mr. Nash for both infractions. [Govt. Exs. 2-3].
Nash denies he threw a cigarette out the window and asserts
he is not a smoker. However, during the stop, after Officer
Hoff told him he had seen him throwing a lit cigarette out
the window, Mr. Nash responded, “I'm sorry . . . I
did not think that was bad. . .” [Govt. Exs. 4; 4(a) at
7; TR at 23]. Moreover, after Mr. Nash's arrest, a
lighter and a pack of grape flavored Swisher sweet cigars
were found in his pocket. [Govt. Ex 5; TR at 112]. Therefore,
the Court concludes that the facts available to Officer Hoff
at the time warranted his belief that “the action taken
was appropriate.” Winder, 557 F.3d at 1134.
respect to the license plate, Officer Hoff testified that
“[a]s I got closer to the vehicle, I had to get
extremely close because I having a hard time reading the
license plate. There was a lot of glare on the license plate,
which drowned out the letters and numbers, and I had to get
extremely close . . . approximately 10 feet.” [TR at
10]. Pursuant to New Mexico law, a license plate must be
maintained in a condition that makes it clearly legible. NMSA
66-3-18. But Officer Hoff acknowledged on the witness stand
that in a later picture of the car's license plate taken
during daylight hours [Govt. Ex. 9], he could see the letters
and numbers clearly. [TR at 53]. Further, on
cross-examination by Mr. Nash's attorney, he admitted
that after seeing Ex. 9, he had sent the government's
attorney an email stating, in part, “The plate is
pretty clear. I was wrong.” [TR at 55].
“[t]hat an officer's suspicions may prove unfounded
does not vitiate the lawfulness of a stop, provided the
officer's error was made in good faith and is objectively
reasonable under the circumstances.” Winder,
557 F.3d at 1134 (citation omitted). “Police errors, in
this context, are simply unavoidable, as reasonable suspicion
involves ‘probabilities' rather than ‘hard
certainties.'” Id. (citations omitted).
The Court concludes that if, in ...