United States District Court, D. New Mexico
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.
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
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. 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.
PROPOSED FINDINGS OF FACT
Officer Alex Barleen has been a patrol officer with the City
of Roswell Police Department (“RPD”) for
approximately four years. See Tr. at 4.
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
Officer Barleen was on duty during the early morning hours of
June 22, 2017. See Tr. at 6-7.
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.
Around 3:34 a.m., Officer Barleen was at the intersection of
West McGaffey Street and South Washington Avenue. Tr. at 8,
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.
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.
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.
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.
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.
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.
Officer Barleen pulled over and stopped his patrol car
approximately 100 feet north of the driveway to monitor the
vehicle. Tr. at 12.
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.
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.
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.
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.
Officer Barleen pulled forward, he observed Defendant walk
past the side door and proceed around to the back of the
house. Tr. at 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.
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.
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.
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.
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.
While speaking with Mr. Riley, Officer Barleen observed that
the van parked in the driveway had an open side door. Tr. 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.
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.
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.
Neither Defendant nor Mr. Riley was able to provide Officer
Barleen with the address of the residence. See id.
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.
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.
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 ...