United States District Court, D. New Mexico
C. Anderson United States Attorney Paul H. Spiers Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico Attorneys for the Plaintiffs
Charles E. Knoblauch Charles E. Knoblauch Attorney at Law
Albuquerque, New Mexico Attorney for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's Motion
to Suppress the Fruits of Illegal Arrest and Supporting
Brief, filed May 10, 2018 (Doc. 43)(“Motion”).
The primary issues are: (i) whether Albuquerque Police
Department (“APD”) Officer Jason Harvey detained
Defendant Apache Young when he took Young's pocketknife
and told Young to wait with another police officer while
Harvey inspected the scene and investigated Young's
criminal history; (ii) whether Harvey had reasonable
suspicion to detain Young after he saw Young on Albuquerque,
New Mexico's West Mesa emerge from an empty water tank
shirtless and covered in tattoos, and place what Harvey
suspected was a firearm in a holster into a pickup truck bed;
(iii) whether the circumstances justify the length and manner
of Young's detention; (iv) whether the Court should
suppress Young's post-arrest statements, because no one
Mirandized Young; and (v) whether Harvey violated
Young's constitutional rights, because Harvey -- an APD
officer -- arrested Young outside Albuquerque's city
limits. The Court concludes that:
Harvey detained Young, because a reasonable person in
Young's position would not have felt free to leave; (ii)
Harvey had reasonable suspicion to detain Young, because the
circumstances' totality suggests that Young might have
been involved in a crime; (iii) the circumstances justify the
length and manner of Young's detention, because it was
reasonable for Harvey to detain Young long enough to
determine whether he had outstanding warrants or is a felon;
(iv) the Court will not suppress Young's post-arrest
statements under Miranda v. Arizona, because Harvey
did not interrogate Young; and (v) Harvey was authorized to
operate throughout the County of Bernalillo, but, even if he
was not so authorized, the arrest did not violate the
Constitution of the United States of America. Accordingly,
the Court denies the Motion.
12(d) of the Federal Rules of Criminal Procedure requires the
Court to state its essential findings on the record when
deciding a motion that involves factual issues. See
Fed. R. Crim. P. 12(d)(“When factual issues are
involved in deciding a motion, the court must state its
essential findings on the record.”). The findings of
fact in this Memorandum Opinion and Order serve as the
Court's essential findings for rule 12(d) purposes. The
Court makes these findings under the authority of rule 104(a)
of the Federal Rules of Evidence, which requires a judge to
decide preliminary questions relating to the admissibility of
evidence, including the legality of a search or seizure, and
the voluntariness of an individual's confession or
consent to a search. See United States v. Merritt,
695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such
preliminary questions, the other rules of evidence, except
those with respect to privileges, do not bind the Court.
See Fed.R.Evid. 104(a). Thus, the Court may consider
hearsay in ruling on a motion to suppress. See United
States v. Merritt, 695 F.2d at 1269 (“The purpose
of the suppression hearing was, of course, to determine
preliminarily the admissibility of certain evidence allegedly
obtained in violation of defendant's rights under the
Fourth and Fifth Amendments. In this type of hearing the
judge had latitude to receive it, notwithstanding the hearsay
rule.”); United States v. Garcia, 324
Fed.Appx. 705, 708 (10th Cir. 2009)(unpublished) (“We
need not resolve whether Crawford [v. Washington,
541 U.S. 36 (2004)]'s protection of an accused's Sixth
Amendment confrontation right applies to suppression
hearings, because even if we were to assume this protection
does apply, we would conclude that the district court's
error cannot be adjudged
‘plain.'”); United States v. Ramirez,
388 Fed.Appx. 807, 810 (10th Cir. 2010)(unpublished)
(“It is beyond reasonable debate that Ramirez's
counsel were not ineffective in failing to make a
Confrontation Clause challenge to the use of the confidential
informant. The Supreme Court has not yet indicated whether
the Confrontation Clause applies to hearsay statements made
in suppression hearings.”). Cf. United States v.
Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.
2011)(Browning, J.) (concluding “that Crawford v.
Washington does not apply to detention
West Mesa is a desolate area west of Albuquerque, New Mexico.
See Transcript of Motion to Suppress Proceedings at
3:2-3 (held June 26, 2018), filed August 10, 2018 (Doc.
59)(“Tr.”); Motion at 2 (asserting this fact).
See also “West Mesa, ” Wikipedia,
available at https://en.wikipedia.org/wiki/WestMesa
(The West Mesa is an elevated landmass lying west of the Rio
Grande stretching from south of Albuquerque northward to
West Mesa is in Bernalillo County, New Mexico. See
Bernalillo County Water Conservation Development Standards
and Guidelines at 4, available at https://www.
“The West Mesa Bioregion reaches from the western edge
of Bernalillo County to the western edge of the Rio Grande
of the West Mesa is not in the City of Albuquerque's
limits. See Albuquerque Metropolitan Area map,
local law enforcement, the West Mesa is known for its use as
a place to abandon stolen vehicles, see Tr. at
21:13-16 (Harvey)(asserting that he has “personally
recovered hundreds” of stolen vehicles from the West
Mesa), shoot firearms, see Tr. at 20:13-17 (Harvey),
and distribute drugs, see Tr. at 15:3-4 (Harvey).
Albuquerque police officers are commonly cross-commissioned
to operate outside of Albuquerque within the County of
Bernalillo. See Tr. at 19-6-15 (Harvey).
2016, Jason Harvey was an officer with the Albuquerque Police
Open Space Division. See Tr. at 17:18-22 (Spiers,
Harvey has patrolled the West Mesa since 2002. See
Tr. at 19:20 (Harvey).
Harvey has an identification card from the Bernalillo County
Sheriff's Department that states that Manuel Gonzales,
the Bernalillo County Sheriff, “hereby commission[s]
and appoint[s]” Harvey to be “a special deputy
sheriff in and for Bernalillo County . . to do and perform
all acts pertaining to this duty.” Special Deputy
Commission Card at 2 (Government Hearing Exhibit 3).
Special Deputy Commission Card's expiration date is
December 31, 2018. See Special Deputy Commission
Card at 1.
Special Deputy Commission Card does not indicate when the
card became active. See generally Special Deputy
Commission Card at 1-2.
Every time a new Bernalillo County Sheriff takes office,
Albuquerque Police Officers must secure new Special Deputy
Commission Cards. See Tr. at 24:4-12 (Spiers,
Harvey was issued the Special Deputy Commission Card shortly
after Manuel Gonzales III became Bernalillo County Sheriff.
See Tr. at 24:18-21 (Spiers, Harvey).
Gonzales was elected Bernalillo County Sheriff on November 4,
2014. See Official Results General November 4, 2014,
New Mexico Secretary of State, available at
map=CTY (showing Gonzales defeating his opponent with 52% of
the vote); Fed.R.Evid. 201(b) (stating that a court may take
judicial notice “of “a fact that is not subject
to reasonable dispute” because it “can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned”).
2009, law enforcement found the bodies of eleven women and
one fetus buried in an area on the West Mesa. See
Tr. at 22:6-12 (Spiers, Harvey); West Mesa Homicide
Investigation, City of Albuquerque,
(last visited August 28, 2018); West Mesa Murders,
visited August 28, 2018).
victims were between 15 and 32 years old, and had gone
missing between 2001 and 2005. See Who is the West Mesa
Bone Collector?, Vice, https://www.vice.com/
(last visited August 28, 2018).
murders remain unsolved, and APD suspects that a serial
killer is responsible. See West Mesa Homicide
Investigation, City of Albuquerque,
(last visited August 28, 2018)(“West Mesa Serial Killer
-- $100, 000 Reward”).
Harvey was the “primary officer” on the West Mesa
Murders. Tr. at 22:6-7 (Harvey)
Harvey has “personally recovered hundreds” of
stolen vehicles from the West Mesa. Tr. at 21:13-16 (Harvey).
When Harvey looks for stolen vehicles on the West Mesa, he
looks for vehicles that have its doors open, its hood up, its
wheels removed, is burnt, or people are standing nearby it.
See Tr. at 26:13-19 (Harvey).
November 13, 2016, Harvey drove out to the West Mesa to check
for stolen cars or other crime. See Tr. at 26:13-19
Harvey stopped on a high vantage point on the West Mesa
within a half mile of the West Mesa Murders burial site.
See Tr. at 25:13-26:2 (Harvey); id. at
22:4-16 (Spiers, Harvey).
temperature high that day was sixty-six degrees. See
Motion at 2 n.2 (asserting this fact) (citing Albuquerque,
USA History November 13, 2016, available at
2:00 p.m., the temperature was about 63 degrees. See
Albuquerque, USA History November 13, 2016, available at
Harvey was on the West Mesa around 2:00 p.m. See Tr.
at 38:5-8 (Spiers, Harvey).
Using his binoculars, Harvey spotted a red pickup truck with
its driver's side door open. See Tr. at 27:4-13
pickup truck was about a third or a half mile away from
Harvey. See Tr. at 28:2-5 (Spiers, Harvey).
Harvey continued to monitor the pickup truck as he waited for
his partner, Officer Pat Smith, to arrive. See Tr.
at 27:22-23 (Harvey).
Once Smith arrived, Harvey and Smith drove together towards
the pickup truck. See Tr. at 30:11-21 (Harvey).
When they were about 300 feet from the pickup truck, they saw
Young step out of an abandoned water tank. See Tr.
at 30:22-31:4 (Harvey, Spiers).
Young was wearing pants and no shirt. See Tr. at
38:10 (Harvey); Lapel Cam Video, “Young (Harvey)”
at 00:01 (Government Hearing Exhibit 1)(“Lapel Video
Young had tattoos on his torso. See Tr. at 38:14-15
(Harvey); Lapel Video at
Harvey thought they “appeared to be prison
tattoos.” Tr. at 38:14-15 (Harvey) (asserting this
Harvey thought they were prison tattoos, because they
“were blue in color, what you would see in
prison.” Tr. at 39:11-13 (Harvey).
Harvey's experience, the tattoos that his colleagues have
are colorful, while the tattoos that people who have served
time have are blue. See Tr. at 40:8-13 (Harvey).
Harvey thought it was odd for someone to be shirtless while
on the West Mesa in November. See Tr. at 38:15-17
Harvey saw an object in Young's right hand, which Harvey
thought looked like a hand gun in a black holster.
See Tr. at 31:21-32:3 (Harvey).
Harvey watched Young place the black object in the left side
of the truck's bed. See Tr. at 32:15-19
Young began walking from the pickup truck towards Harvey and
Smith, which made Harvey wonder why he was choosing to
distance himself from the vehicle. See Tr. at
Harvey and Smith called Young to them, and Young began
walking towards them. See Tr. at 35:12-14 (Harvey).
Harvey and Smith walked towards Young and met him halfway
between the two vehicles. See Tr. at 35:14-16
Harvey and Smith asked Young what he was doing on the West
Mesa. See Tr. at 35:16-18 (Harvey).
Harvey's lapel video begins in the middle of their
conversation with Young. See Officer Harvey Belt
Tapes at 2:1 (Young)(Government Hearing Exhibit
2)(“Harvey Tr.”); Lapel Video 1 at 00:00.
Harvey told Young that “[w]e're just going to check
this out real quick, ” and then asked whether there are
“any guns or weapons we need to know about.”
Harvey Tr. at 2:12-14 (Harvey).
Young answered: “No sir.” Lapel Video 1, at
Harvey asked whether Young had any weapons on him, and Young
took a pocketknife out of his pants pocket, displayed it for
Harvey, and said, “a pocketknife.” Lapel Video 1,
at 00:57-01:01 (Harvey, Young); Harvey Tr. at 2:16-17
Harvey paused for a moment and said, “[l]et me just
hold onto that for a second while we check everything out.
And just hang out tight right here, okay?” Harvey Tr.
at 2:18-21 (Harvey); Lapel Video 1, at 01:01-01:03.
Young handed Harvey his pocketknife, and Harvey began walking
towards the pickup truck, leaving Young with Smith.
See Lapel Video 1, at 01:02-01:25.
Harvey looked in the bed of the truck, which was full of
various objects, such as shoes, a blowtorch, and a bucket.
See Lapel Cam Video, “Young (Harvey) 2,
” at 00:10-00:40 (“Lapel Video 2”).
Harvey used his radio to call in the pickup truck's plate
number, and someone identified as Sergeant Perea replied over
the radio that it was registered to “Andy Baca.”
Harvey Tr. at 3:2-7 (Harvey, Perea); Lapel Video 2 at
00:22-00:55 (Harvey, Perea).
Harvey walked from the pickup truck to the water tank, which
was deteriorating, and its metal sides were peppered with
bullet holes. See Lapel Video 2 at 00:50-01:40.
Harvey hopped down into the water tank, looked, and lifted a
white board. See Lapel Video 2 at 01:40-03:00.
Harvey saw a “clear fluid, ” blood, and fecal
matter on the white board. Tr. at 45:2-8 (Harvey).
When he lifted the white board, the fluid, blood, and fecal
matter flowed down the board, which indicated to Harvey that
the material was “fresh, it had just happened.”
Tr. at 45:19-23 (Harvey).
Harvey also saw a short green tube on the ground, which
Harvey described as a “water toy” for children
that is about two feet long with “fecal matter and
blood” on one end. Tr. at 45:10-14 (Harvey).
See Lapel Video 2 at 02:25-02:35.
Harvey left the water tank and returned to the pickup truck.
See Lapel Video 2 at 03:14-3:30.
Harvey looked in the back of the pickup truck's bed, this
time looking into a narrow space between the side of the
truck bed and a plastic bin. See Lapel Video 2 at
Harvey “could just see the butt of the gun, the grip of
it” between the side of the truck bed and the plastic
bin. Tr. at 48:12-16 (Harvey).
Harvey returned to Young and Smith and Smith asked for
Young's name, birthdate, and social security number,
which Young provided. See Harvey Tr. at 4:9-19
(Smith, Young); Lapel Video 2 at 04:30-05:30 (Smith, Young).
Harvey asked Young to whom the truck was registered, and
Young replied that it should be registered to Andy Baca.
See Tr. at 4:21-24 (Harvey, Young); Lapel Video 2 at
05:30-05:37 (Harvey, Young).
Harvey said “I'll be right back” and walked
back to his squad car leaving Smith and Young together. Tr.
at Harvey Tr. at 4:25-5:1 (Harvey); Lapel Video 2 at
Harvey got into the driver's seat of his squad car and
began speaking over the radio with Sergeant Sanchez.
See Harvey Tr. at 5:12-16 (Harvey, Sanchez); Lapel
Video 2 at 06:50-7:20 (Harvey, Sanchez).
Harvey described to Sergeant Sanchez his encounter with Young
and what he saw in the water tank and stated that
“it's almost like he was keistering”
something with the tube. Harvey Tr. at 5:18-6:11 (Harvey,
Harvey asked if Sanchez had ever heard of “guy sticking
large tubes up them to keister that stuff” and Sergeant
Sanchez said that it may be for “smuggling stuff,
” but wondered why someone would be doing that
“in the middle of the desert.” Harvey Tr. at
6:12-15 (Harvey, Sanchez).
Sergeant Sanchez asked Harvey if Young was a felon, and
Harvey replied: “I'm going to guess he is. He's
covered in tats like he is.” Harvey Tr. at 7:1-3
Harvey next called Dispatch to ask whether any warrants were
out on Young, and Dispatch said that there were not.
See Harvey Tr. at 9:6-22 (Harvey, Dispatch).
Dispatch told Harvey that Young is “under a discharge
status under probation of parole” but did not know
whether it was for a felony. Harvey Tr. at 9:21-10:9
Harvey called Sandra Perea who told Harvey that Young was a
felon. See Harvey Tr. at 10:19-11:9 (Harvey); Tr. at
60:3-9 (Harvey) (asserting this fact).
Lapel Video 2 captures only Harvey's side of the
conversation with Perea:
Hi, yes, this is Officer Harvey with Albuquerque Police. Hey
I'm trying to find out if you've got some information
on a subject I'm out with right now. [Long pause.] Young,
Apache. [Long pause.] Okay. [Long pause.] He discharged out.
And was it for a felony? [Pause.] Does it say what it was
for? [Long pause.] Okay. [Pause.] And he did time for it, so
he's convicted[.] [Pause.] And what's your name?
[Pause.] Sandra Perea with the New Mexico . . . probation and
Harvey Tr. at 10:19-11:9 (Harvey).
Harvey then asked Dispatch to send a police unit to the area
because he is going to try to arrest Young. See
Harvey Tr. at 11:21-12:12 (Harvey, Dispatch).
Young's arrest is not captured on video. See Tr.
at 84:18-12 (Knoblauch, Harvey). See generally Lapel
Video 1; Lapel Video 2; Lapel Cam Video, “Young
(Harvey) 3” (Government Hearing Exhibit 1)(“Lapel
Harvey told Young that “he was being placed in
handcuffs until law enforcement could figure out what was
going on.” Response at 4 (asserting this fact).
Harvey “purposefully did not tell him that that he was
under arrest” as to “minimize the possibility
that Defendant would become resistant, agitated, and
violent.” Response at 4 (asserting this fact).
When Harvey began walking to the pickup truck, Young, in
handcuffs, “insisted that Officer Harvey couldn't
go into the truck.” Response at 4-5 (asserting this
Harvey then informed Young that he was under arrest for being
a felon in possession of a firearm. See Response at
5 (asserting this fact).
Harvey removed the handgun and holster from the pickup truck
bed, and “ran the firearm through the NCIC data
base” which “confirmed that it was stolen.”
Response at 5 (asserting this fact).
After arresting Young, Harvey told Young that police were
going to tow away the pickup truck. See Tr. at
When Harvey told Young that the pickup truck would be towed,
“his behavior changed” and Young became
“very upset” and wanted someone to retrieve the
pickup truck instead of having it towed. Tr. at 22:24-25
Because of Young's reaction, Harvey “decided that
there was maybe something else in that vehicle” and he
and his supervisor decided to “have the vehicle sealed,
towed, and then a search warrant performed.” Tr. at
Harvey did not place Young inside his squad car; instead he
walked Young along a dirt road to hand Young over to another
squad car waiting on the road. See Motion at 4;
Lapel Video 3 at 00:01.
Harvey did not Mirandize Young at any time. See Tr.
at 62:11-13 (Spiers, Harvey).
Harvey's lapel video begins recording as he and Young are
already walking. See Lapel Video 3 at 00:01.
they walked, Harvey and Young have a casual-sounding
conversation during which Officer Harvey asks Young about his
driving route out onto the West Mesa and whether Young has
been out there before. See Harvey Tr. at 13:6-14:5
Young says that he comes out there “about once a
month” and says something about “scrap cigarette
money.” Harvey Tr. at 14:9-11 (Harvey, Young).
enforcement searched the pickup truck pursuant to a warrant.
See Tr. at 63:11-14 (Spiers, Harvey).
search turned up a rifle, a shotgun, and ammunition.
See Motion at 5 (asserting this fact).
March 14, 2017, a federal Grand Jury returned an indictment
charging Young with being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). See
Indictment at 1, filed March 14, 2017 (Doc. 2). Young was
arraigned in federal court on April 11, 2017. See
Clerk's Minutes at 1, filed April 11, 2017 (Doc. 9).
See also Arrest Warrant at 1, filed March 15, 2017
Motion to Suppress.
Motion, Young first argues that the APD officers made a de
facto arrest on Young when they took Young's pocketknife
and told him not to leave. See Motion at 5-6. Young
also contends that the APD officers were not within their
jurisdiction when they made the arrest. See Motion
at 6. Second, Young contends that the APD officers arrested
him without probable cause and violated Young's rights
under the Fourth Amendment to the Constitution of the United
States of America. See Motion at 7-8. Young argues,
alternatively, that Harvey violated his rights under the
Fifth Amendment to the Constitution of the United States of
America when he told Young that Young must stay. See
Motion at 9. Young contends that, given the circumstances --
namely, that Harvey was in full uniform and displaying a
firearm when he told Young to stay and took Young's
pocketknife -- “it is not reasonable that anyone ...