United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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. The Government amended the motion in
limine on May 18, 2018. On April 25, 2018, Defendant filed a
motion to suppress all physical evidence and all statements
arising from and pertaining to his arrest. The Government
responded on May 9, 2018,  and Defendant replied on May 25,
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. 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.
18 and June 19, 2018, at an evidentiary hearing on
Defendant's Motion to Suppress, the Court heard the
testimony of Officer Aaron Brown 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:
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.
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.
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.
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.
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.
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.
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.
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. 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.
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. Officer Cordova handcuffed Defendant.
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.
officer safety reasons, Officer Brown told Officer Cordova
that there was a gun.
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.
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
Seizure of Defendant
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.
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)).
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.
Initial Encounter with 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.
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