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United States v. Goebel

United States District Court, D. New Mexico

November 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFREY GOEBEL, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION TO GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION TO SUPPRESS

          STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before me on Defendant's Motion to Suppress [Doc. 17], filed on October 3, 2018. The United States responded on October 24, 2018. [Doc. 25]. Defendant replied on October 29, 2018. [Doc. 29]. The Honorable Kenneth J. Gonzales, United States District Judge, referred this matter to me for analysis and a recommended disposition. [Doc. 23]. I have considered the briefing, the relevant portions of the record, and the relevant law. Being otherwise fully advised in the premises, I recommend that Defendant's Motion to Suppress be GRANTED IN PART AND DENIED IN PART.

         I. PROCEDURAL BACKGROUND

         Defendant, a convicted felon, was arrested in Roswell, New Mexico, on June 22, 2017. The arresting officer found a handgun, ammunition, and holster near the location where Defendant was arrested. Defendant's DNA was later found on the holster.[1] Defendant spoke with the investigating officer, both before and after his arrest. The United States filed an Indictment charging Defendant with one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). [Doc. 4]. Defendant now seeks to suppress the handgun, ammunition, and holster, as well as the statements he gave to the police.

         II. PROPOSED FINDINGS OF FACT

         1. Officer Alex Barleen has been a patrol officer with the City of Roswell Police Department (“RPD”) for approximately four years. See Tr. at 4.

         2. Prior to becoming a patrol officer, Officer Barleen attended a 16-week training course at the New Mexico Law Enforcement Academy. The course taught legal topics, search and seizure, patrol, traffic stops, and various other areas of law enforcement. Officer Barleen also takes biennium training and in-department training. Before joining the RPD, he worked as a service aide for the police department. Officer Barleen has a high school diploma plus some college education. Tr. at 4-5.

         3. Officer Barleen was on duty during the early morning hours of June 22, 2017. See Tr. at 6-7.

         4. Officer Barleen was patrolling the area of South Michigan Avenue and West Hendricks Street in Roswell at approximately 2:45 a.m. when he heard dispatch radio traffic about a reckless driver driving with no headlights on. The only description of the vehicle was that it was a sedan. Tr. at 7.

         5. Around 3:34 a.m., Officer Barleen was at the intersection of West McGaffey Street and South Washington Avenue. Tr. at 8, 52.

         6. As Officer Barleen was proceeding through the intersection and traveling east on McGaffey Street, he observed a vehicle approach the stop sign behind his vehicle. Tr. at 8, 53.

         7. Officer Barleen noticed that the vehicle did not have its turn signal engaged when it approached the stop sign. Then, after stopping at the stop sign, the driver activated the right-turn signal and turned right onto Washington Avenue. See Tr. at 8.

         8. In Officer Barleen's experience, motorists who intend to turn at an intersection typically activate their turn signals prior to reaching the stop sign. Tr. at 88-89.

         9. Officer Barleen considered the sudden signal and subsequent turn, in conjunction with the previous radio traffic regarding a reckless driver, suspicious. Tr. at 88-89.

         10. Officer Barleen turned down an adjacent street and began following the vehicle as it made several subsequent turns. He was following from approximately one block behind the vehicle and was unable to determine the number of occupants in the vehicle or their ethnicity. Officer Barleen did not engage his overhead lights or sirens while following the sedan or at any point during the encounter. See Tr. at 10, 87.

         11. The sedan, a silver Lincoln, made several turns and then pulled into the driveway of a residence at 1504 South Adams Avenue. The driver parked the sedan with the tail end partially blocking the sidewalk and the front left tire partially on the residence's lawn. The sedan's taillights remained on. Tr. at 9-11, 21.

         12. Officer Barleen pulled over and stopped his patrol car approximately 100 feet north of the driveway to monitor the vehicle. Tr. at 12.

         13. He observed the driver exit the vehicle and walk quickly toward the house. Tr. at 12, 6214. The driver, a tall male wearing a light-colored shirt, later identified as Defendant, walked past a van parked in the driveway, past the front porch of the home, and entered the back yard through a side gate. Tr. at 14.

         15. Officer Barleen estimated that he had responded to approximately 30 to 45 police callouts in the area near 1504 Adams Avenue during the year preceding the incident. He described this area as having one of the “higher” crime rates in Roswell. Tr. at 13-14.

         16. Officer Barleen found it suspicious that at such an early hour, in an area of Roswell known for high crime rates, with the vehicle parked askew, the Defendant bypassed the home's front door and entered the back yard through a closed gate. See Tr. at 68-69.

         17. Officer Barleen then pulled his patrol unit forward and parked behind the parked sedan to monitor where the driver was proceeding and to read the vehicle's license plate. See Tr. at 14, 18, 20.

         18. As Officer Barleen pulled forward, he observed Defendant walk past the side door and proceed around to the back of the house. Tr. at 19.

         19. Officer Barleen's patrol car was blocking the driveway for about ten seconds. No one was in the vehicle's driver seat during that interval. Once Officer Barleen had determined the Lincoln's license plate number, he pulled his patrol unit back (north) and parked where his car was not blocking the driveway. Tr. at 20-21.

         20. As Officer Barleen parked his vehicle, he activated a video camera attached to his headband to record his interactions with the public. See Tr. at 16-17; Pl.'s Ex. 1.

         21. As soon as Officer Barleen parked north of the driveway, the Lincoln's front passenger, later identified as Ricky Riley, exited the Lincoln and approached Officer Barleen's patrol unit. See Tr. at 21.

         22. Officer Barleen testified that it is unusual for someone to get out of his vehicle and approach a patrol unit. He testified that occupants of a stopped vehicle sometimes do that to distract his attention from somebody else on the scene. Tr. at 22, 89-90.

         23. Officer Barleen then exited his patrol unit and spoke with Mr. Riley, who could not tell Officer Barleen the address of the residence. Tr. at 22.

         24. While speaking with Mr. Riley, Officer Barleen observed that the van parked in the driveway had an open side door. Tr. at 27.

         25. At this point, Defendant returned from the back of the residence and attempted to open the Lincoln's driver-side door. Tr. at 22; Pl.'s Ex. 1 at 01:00.

         26. Officer Barleen told Defendant not to get back in the Lincoln and instructed Defendant and Mr. Riley to stand on the sidewalk, away from the vehicle. See Tr. at 22-23; Pl.'s Ex. 1 at 01:03.

         27. Officer Barleen asked Mr. Riley and Defendant what they were doing at the residence and whether either man knew the address of the residence. Pl.'s Ex. 1 at 00:53-02:23.

         28. Neither Defendant nor Mr. Riley was able to provide Officer Barleen with the address of the residence. See id.

         29. While questioning Defendant and Mr. Riley, Officer Barleen told them that they did not “belong [t]here.” When asked to explain what he meant by this comment, Officer Barleen testified that he meant that he did not believe they were authorized to be at that particular property. Tr. at 25; Pl.'s Ex. 1 at 02:23.

         30. Defendant then told Officer Barleen that they were at the residence to pick up a friend, Joseph, to take him to work. Tr. at 71-72; Pl.'s Ex. 1 at 01:19.

         31. When questioned as to why he did not go to the front door, Defendant told Officer Barleen that Joseph had instructed him to go to the side door when ...


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