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United States v. Romero

United States District Court, D. New Mexico

April 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MANUEL ROMERO, JR., Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Defendant's Motion to Suppress Evidence and Statements. (Docs. 20, 22). The United States has responded, (Doc. 25), and Defendant has replied, (Doc. 31). On March 29, 2018, the Court held an evidentiary hearing. Assistant United States Attorneys John Balla and Richard Williams appeared for the United States, and Assistant Federal Public Defenders Jane Greek and Elyse Battaller-Schneider appeared with Defendant Manuel Romero, Jr. Having considered the arguments of counsel, the applicable law and the evidence, the Court denies the Motion.

         I. Procedural Background

         This case originated on August 16, 2017, when the United States filed an Indictment charging Mr. Romero in Count 1, felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1), and in Count 2, knowing possession of a stolen firearm, a violation of 18 U.S.C. § 922(j). As described above, Mr. Romero filed a motion to suppress evidence and statements. The evidence includes the firearm that was seized from Mr. Romero's possession on April 29, 2017, by Las Cruces Police Officer, Matthew Dollar.

         Officer Dollar was the only fact witness at the evidentiary hearing on the motion to suppress. The Court admitted exhibits from both parties, and heard oral argument.

         II. Findings of Fact

         On Friday April 29, 2017, Officer Dollar was on routine patrol in an area he described as “District 6, ” in Las Cruces, New Mexico. As of that date, Officer Dollar had been an officer with the Las Cruces Police Department (LCPD) for approximately two and one-half years. Also, as of that date, Officer Dollar had been patrolling District 6 for approximately one-half to two years. Officer Dollar described his training to become a LCPD officer, including the LCPD academy where he studied law and investigations.

         At approximately 5:30 p.m., Officer Dollar was patrolling District 6 near Del Rey Boulevard and Highway 70. As he drove past Emmanuel Lutheran Church, he observed an adult male standing at the front entry area of the church and peering into the church through a window. Officer Dollar is familiar with the Emmanuel Lutheran Church, having passed it 50-75 times each week while on patrol. He never sees cars at the church at this time of day. Several days before, Officer Dollar and other LCPD officers had received information regarding issues at area churches that had been vandalized and that items had been stolen. Government Exhibit 2. As a result of his observation and prior reports of vandalism and theft, Officer Dollar turned around and drove toward the church.

         The Court admitted at the evidentiary hearing Government Exhibit 1, an excerpt of an audio-video recording from Officer Dollar's lapel camera.[1] The recording speaks for itself. The Court notes from Government Exhibit 1 that the following occurred:

         Officer Dollar parked in the church parking lot and approached the church entry area on foot. He turned a corner into the entry courtyard where a male figure wearing a backpack is visible crouching against the exterior church wall with his back to Officer Dollar. The Court also notes the following verbal exchange then took place:

Officer Dollar: Police Department. Hey, what's up man? How are you?
Mr. Romero: Pretty good.
Officer Dollar: What's going on?
Mr. Romero: I'm getting some water and charging my phone.
Officer Dollar: What's that?
Mr. Romero: I'm getting some water and trying to charge my phone.
Officer Dollar: You don't have any weapons or anything on you, do you?
Mr. Romero: No, I got a --.
Officer Dollar: Don't reach for it.
Mr. Romero: Okay.
Officer Dollar: Set that down. Let me pat you down real quick.
Mr. Romero: Oh, man. Why?
Officer Dollar: Listen to me. This can go smoothly or it can go rough for you. I suggest that you go with what I'm asking you, alright, or I'll charge you with ...

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