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United States v. Sanchez

United States District Court, D. New Mexico

August 7, 2018

UNITED STATES, Plaintiff,
v.
FABIAN I. SANCHEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

         On May 19, 2017, a Grand Jury indicted Defendant Fabian I. Sanchez (“Defendant”) for knowingly possessing a firearm after previously being convicted of a felony crime in violation of 18 U.S.C. §922(g)(1). The indictment arose out of an encounter between Rio Rancho Police Department and Defendant, which culminated in Defendant's arrest. On January 11, 2018, the Government filed a motion in limine seeking to admit certain statements made during the course of the encounter.[1] The Government amended the motion in limine on May 18, 2018.[2] On April 25, 2018, Defendant filed a motion to suppress all physical evidence and all statements arising from and pertaining to his arrest.[3] The Government responded on May 9, 2018, [4] and Defendant replied on May 25, 2018.[5]

         On June 18 and June 19, 2018, the Court held an evidentiary hearing on the Government's and Defendant's motions. Defendant was present with his counsel Assistant Federal Public Defender Sylvia Baiz. Assistant United States Attorneys Nicki Tapia-Brito and Eva Fontanez appeared for the Government. The Court requested additional briefing on issues presented at the hearing.[6] After considering the parties' written submissions, the exhibits, the testimony, and the arguments of counsel, the Court will deny Defendant's Motion to Suppress and will grant the Government's Motion to Admit Statements.

         I. FACTUAL BACKGROUND

         On June 18 and June 19, 2018, at an evidentiary hearing on Defendant's Motion to Suppress, the Court heard the testimony of Officer Aaron Brown[7] and Officer Alexander Cordova (hereinafter, when referred to jointly, “Officers”) of the Rio Rancho Police Department (“RRPD”). The Court found the Officers to be credible. During the hearing, the Court reviewed exhibits presented by the Government and by Defendant. Based on the testimony of Officer Aaron Brown and Officer Alex Cordova, and the Court's review of the exhibits, the Court makes the following factual findings:

         On November 30, 2016, at approximately 4:15 p.m. RRPD issued a Be On the Look Out (“BOLO”) report for a silver Hyundai, license plate number NWX956, that had been stolen in the Rio Rancho area. That evening, because Officer Brown knew that stolen cars were often kept in motel or hotel parking lots, Officer Brown patrolled the parking lot at Extended Stay America. He was in plain clothes and drove an unmarked vehicle equipped with lights and a siren.

         Office Brown saw a tan colored Hyundai, license number NXZ755 parked at an odd angle with its wheels across the white lines demarking a parking space. The way the Hyundai was parked coupled with the BOLO concerning a stolen Hyundai made Officer Brown suspicious. Officer Brown ran the Hyundai's license plate number and it returned to a gold 2005 Hyundai. Office Brown believed the Hyundai in the parking lot to be a newer model. He then approached the Hyundai to obtain the last four digits of the Hyundai's vehicle identification number (“VIN”), which he relayed to dispatch.

         Per RRPD policy, Officer Brown requested additional assistance. RRPD Officer Alex Cordova responded to Officer Brown's request. Wearing plain clothes, Officer Cordova arrived in an unmarked vehicle equipped with sirens and lights. He parked at a diagonal to the Hyundai in an adjacent space.

         Dispatch informed Officer Brown that the last four digits of the VIN did not match the information on the Hyundai's license plate. Following RRPD policy, Officer Brown started to obtain the full VIN to give to dispatch. However, before Officer Brown exited his car to get the complete VIN, Defendant, Fabian Sanchez, arrived in the parking lot in a gold Lexus SUV. Defendant backed the Lexus into the parking space next to the driver's side of the Hyundai. Officer Cordova had parked his vehicle on the passenger side of the Hyundai. Both RRPD officers, who were seated in their cars, could see Defendant and watched him as he got out of the Lexus. Defendant left open the driver's side door, which partially obscured the area between the Hyundai and the Lexus. The Officers observed that Defendant wore a black trench style coat (“trench coat'). Defendant went to the back of the Lexus and retrieved a toolbox. Defendant then crouched between the two vehicles at a place where the open door of the Lexus partially shielded Defendant from view. Officer Brown believed Defendant was preparing to tamper with the Hyundai.

         Officers Brown and Cordova approached the Hyundai to get its complete VIN. Officer Brown wore soft body armor with the word “Police” on the chest. Officer Cordova put on a tactical vest, which was marked clearly on the front and back with the word “Police.” As the Officers got close to the Hyundai, Defendant rose from between the two vehicles. Defendant held the toolbox in one hand and appeared surprised to see the two officers. Both Officers announced themselves as police. For officer safety reasons, they asked Defendant to drop the toolbox, which he did.

         Officer Brown asked Defendant what he was doing. Defendant stated that the Hyundai was his girlfriend's car and that he was working on it. Officer Brown asked Defendant about the Lexus. Defendant denied stepping out of the Lexus and stated that the Lexus was not his. Officer Brown told Defendant that the officers had witnessed him exiting the Lexus. Defendant continued to deny any association with the Lexus.

         Officer Brown noticed Defendant moving his hands near his trench coat pockets. Defendant's behavior caused Officer Brown to have safety concerns because, based on Officer Brown's training and experience, he believed Defendant's behavior was consistent with someone who might have a weapon. Officer Brown ordered Defendant to show his hands and then place his hands on his head for a weapons pat down. At that moment, based on their training and experience, both Officers thought Defendant looked as though he was going to run.

         Defendant stated, “I didn't do nothing” and then ran from the Officers east through the hotel parking lot. Both Officers commanded him to stop. Both Officer Brown and Officer Cordova saw Defendant reach into his coat pocket with his right hand. Defendant appeared to have some difficulty getting his hand in his pocket. Defendant looked back toward the Officers. The Officers became concerned for their safety. Officer Cordova deployed his department-issued taser.[8] One of the taser's two capsules hit Defendant in the back of his trench coat. The trench coat appeared to interfere with the effectiveness of the taser. The other capsule did not deploy.

         Defendant contracted his shoulder muscles but appeared otherwise unaffected by the taser. He continued to flee. While running, he shrugged off his trench coat. Then, he changed directions and ran back toward the Lexis and the Hyundai. Officer Brown intercepted Defendant. Defendant was then taken to the ground.[9] Officer Cordova handcuffed Defendant.

         Officer Brown went to the area where Defendant had discarded his trench coat. Officer Brown lifted the trench coat and noted it was heavier on one side. He examined the trench coat's pockets. He found a small, silver Jimenez Arm Inc., model J.A. 380 caliber firearm in a cloth holster.

         For officer safety reasons, Officer Brown told Officer Cordova that there was a gun.

         Defendant exclaimed, “That's why I ran.” Later, the Officers discovered that the handgun was loaded with five rounds of .380 ammunition, and one round was fully chambered.

         II. DISCUSSION

         Two motions are before the Court: Defendant's Motion to Suppress and the Government's Motion to Admit Statements. Defendant's Motion to Suppress alleges that upon Defendant's first encounter with the Officers, the Officers seized Defendant without probable cause in violation of his Fourth Amendment rights. Alternatively, Defendant argues that Officer Brown violated his Fourth Amendment rights because when Officer Brown searched Defendant's trench coat, Officer Brown did not have probable cause or a warrant to do so. In the Government's Motion to Admit Statements, the Government seeks to admit several statements made by Defendant that Defendant argues Officer Brown elicited in violation of his Fifth Amendment rights. The Court finds that Officer Brown and Officer Cordova did not violate Defendant's Fourth or Fifth Amendment rights and that all physical evidence and Defendant's statements are admissible.

         A. Seizure of Defendant

         The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. Const. amend. IV. The Tenth Circuit recognizes three types of encounters between police and citizens: 1) consensual encounters; (2) investigative detentions; and (3) arrests. United States v. Hammond, 890 F.3d 901, 904 (10th Cir. 2018). Because consensual encounters occur as an agreed interaction between police and citizens, consensual encounters do not “'implicate the Fourth Amendment.'” Id. (quoting United States v. Davis, 94 F.3d 1465, 1467-68 (10th Cir. 1996). Investigative detentions ‘“are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity.'” Id. Arrests are ‘“the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.'” Id.

         In differentiating between the types of encounters, a court must examine whether law enforcement has seized a citizen. A seizure occurs when law enforcement “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “When an officer does not apply physical force to restrain a subject, a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen ‘submits to the assertion of authority.'” United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010) (quoting California v. Hodari D., 499 U.S. 621, 625-26 (1991)). Law enforcement engages in a show of authority when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). However, a show of authority is not enough to establish a seizure unless it is accompanied by an individual's actual submission. Brendlin v. California, 551 U.S. 249, 254 (2007); United States v. Roberson, 864 F.3d 1118, 1121-22 (10th Cir. 2017). “Submission ‘requires, at minimum, that a suspect manifest compliance with police orders.'” Roberson, 864 F.3d at 1122 (quoting United States v. Mosley, 743 F.3d 1317, 1326 (10th Cir. 2014)).

         In his Motion to Suppress, Defendant argues that, from the inception of their encounter, Officer Brown and Officer Cordova seized him. Specifically, Defendant contends that seizure occurred at three times: 1) when Officer Brown and Officer Cordova approached him in the parking lot; 2) when Officer Brown told him they were going to do a protective pat down for weapons; and 3) when Officer Cordova tased him.

         1. Initial Encounter with Defendant

         Defendant argues that when Officer Brown and Officer Cordova first approached him in the parking lot, they unconstitutionally seized him because they had no reason to believe that he was involved in criminal activity. The Government responds that at its inception the encounter between the Officers and Defendant was consensual and did not implicate the Fourth Amendment. The Court agrees.

         The Supreme Court has clarified “that a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). In addition to asking questions, law enforcement also may look at the individual's identification, may ask to search an individual's luggage, and may actually search personal belongings “as long as the police do not convey a message that compliance with their requests is required.” Id. “Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth ...


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