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United States v. Young

United States District Court, D. New Mexico

August 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
APACHE YOUNG, Defendant.

          John 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

         THIS 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[1] 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:

         (i) 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.

         FACTUAL BACKGROUND

         Rule 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[2] 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.'”)[3]; 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 hearings”).[4]

         1. The 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 Bernalillo”).

         2. The West Mesa is in Bernalillo County, New Mexico. See Bernalillo County Water Conservation Development Standards and Guidelines at 4, available at https://www. bernco.gov/uploads/FileLinks/0259d13039274e6fbd3c12361ca869d6/Intro.pdf “The West Mesa Bioregion reaches from the western edge of Bernalillo County to the western edge of the Rio Grande Valley.”).

         3. Much of the West Mesa is not in the City of Albuquerque's limits. See Albuquerque Metropolitan Area map, available at http://documents.cabq.gov/planning/agis/ largeformatmaps/CABQMetroAreaE.pdf.

         4. To 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).

         5. Albuquerque police officers are commonly cross-commissioned to operate outside of Albuquerque within the County of Bernalillo. See Tr. at 19-6-15 (Harvey).

         6. In 2016, Jason Harvey was an officer with the Albuquerque Police Open Space Division. See Tr. at 17:18-22 (Spiers, Harvey).

         7. Harvey has patrolled the West Mesa since 2002. See Tr. at 19:20 (Harvey).

         8. 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).

         9. The Special Deputy Commission Card's expiration date is December 31, 2018. See Special Deputy Commission Card at 1.

         10. The Special Deputy Commission Card does not indicate when the card became active. See generally Special Deputy Commission Card at 1-2.

         11. 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).

         12. 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).

         13. Gonzales was elected Bernalillo County Sheriff on November 4, 2014. See Official Results General November 4, 2014, New Mexico Secretary of State, available at http://electionresults.sos.state.nm.us/resultsCTY.aspx?eid=2&type=CTY&rid=2035&osn=510& 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”).

         14. In 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, https://www.cabq.gov/police/contact-the-police/west-mesa-homicide-investigation (last visited August 28, 2018); West Mesa Murders, Wikipedia, https://en.wikipedia.org/wiki/WestMesamurders (last visited August 28, 2018).

         15. The 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/ enus/article/yvqxn5/who-is-the-west-mesa-bone-collector-0000439-v21n9 (last visited August 28, 2018).

         16. The murders remain unsolved, and APD suspects that a serial killer is responsible. See West Mesa Homicide Investigation, City of Albuquerque, https://www.cabq.gov/ police/contact-the-police/west-mesa-homicide-investigation (last visited August 28, 2018)(“West Mesa Serial Killer -- $100, 000 Reward”).

         17. Harvey was the “primary officer” on the West Mesa Murders. Tr. at 22:6-7 (Harvey)

         18. Harvey has “personally recovered hundreds” of stolen vehicles from the West Mesa. Tr. at 21:13-16 (Harvey).

         19. 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).

         20. On 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).

         21. 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).

         22. The 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 https://www.wunderground.com/history/daily/us/nm/albuquerque/KABQ/date/2016-11-13).

         23. At 2:00 p.m., the temperature was about 63 degrees. See Albuquerque, USA History November 13, 2016, available at https://www.wunderground.com/history/daily/us /nm/albuquerque/KABQ/date/2016-11-13.

         24. Harvey was on the West Mesa around 2:00 p.m. See Tr. at 38:5-8 (Spiers, Harvey).

         25. Using his binoculars, Harvey spotted a red pickup truck with its driver's side door open. See Tr. at 27:4-13 (Spiers, Harvey).

         26. The pickup truck was about a third or a half mile away from Harvey. See Tr. at 28:2-5 (Spiers, Harvey).

         27. 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).

         28. Once Smith arrived, Harvey and Smith drove together towards the pickup truck. See Tr. at 30:11-21 (Harvey).

         29. 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).

         30. 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 1”).

         31. Young had tattoos on his torso. See Tr. at 38:14-15 (Harvey); Lapel Video at

         00:01.

         32. Harvey thought they “appeared to be prison tattoos.” Tr. at 38:14-15 (Harvey) (asserting this fact).

         33. Harvey thought they were prison tattoos, because they “were blue in color, what you would see in prison.” Tr. at 39:11-13 (Harvey).

         34. In 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).

         35. Harvey thought it was odd for someone to be shirtless while on the West Mesa in November. See Tr. at 38:15-17 (Harvey).

         36. 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).

         37. Harvey watched Young place the black object in the left side of the truck's bed. See Tr. at 32:15-19 (Harvey).

         38. 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 33:14-22 (Harvey).

         39. Harvey and Smith called Young to them, and Young began walking towards them. See Tr. at 35:12-14 (Harvey).

         40. Harvey and Smith walked towards Young and met him halfway between the two vehicles. See Tr. at 35:14-16 (Harvey).

         41. Harvey and Smith asked Young what he was doing on the West Mesa. See Tr. at 35:16-18 (Harvey).

         42. 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.

         43. 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).

         44. Young answered: “No sir.” Lapel Video 1, at 00:55-00:57 (Young).[5]

         45. 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, Young).

         46. 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.

         47. 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.

         48. 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”).

         49. 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).

         50. 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.

         51. Harvey hopped down into the water tank, looked, and lifted a white board. See Lapel Video 2 at 01:40-03:00.

         52. Harvey saw a “clear fluid, ” blood, and fecal matter on the white board. Tr. at 45:2-8 (Harvey).

         53. 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).

         54. 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.

         55. Harvey left the water tank and returned to the pickup truck. See Lapel Video 2 at 03:14-3:30.

         56. 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 03:40-03:50.

         57. 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).

         58. 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).

         59. 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).

         60. 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 05:37-05:50 (Harvey).

         61. 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).

         62. 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, Sanchez).

         63. 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).

         64. 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 (Sanchez, Harvey).

         65. 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).

         66. 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 (Dispatch, Harvey).

         67. 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).

         68. The 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 parole. Okay.

Harvey Tr. at 10:19-11:9 (Harvey).

         69. 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).

         70. 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 Video 3”).

         71. 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).

         72. 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).

         73. 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 fact).

         74. 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).

         75. 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).

         76. After arresting Young, Harvey told Young that police were going to tow away the pickup truck. See Tr. at 62:22-23 (Harvey).

         77. 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 (Harvey).

         78. 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 63:1-10 (Harvey).

         79. 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.

         80. Harvey did not Mirandize Young at any time. See Tr. at 62:11-13 (Spiers, Harvey).

         81. Harvey's lapel video begins recording as he and Young are already walking. See Lapel Video 3 at 00:01.

         82. As 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 (Harvey, Young)[6].

         83. 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).

         84. Law enforcement searched the pickup truck pursuant to a warrant. See Tr. at 63:11-14 (Spiers, Harvey).

         85. The search turned up a rifle, a shotgun, and ammunition. See Motion at 5 (asserting this fact).

         PROCEDURAL BACKGROUND

         On 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 (Doc. 3).

         1. Motion to Suppress.

         In his 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 ...


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