United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Defendant's Motion to
Suppress Evidence and Statements (“Motion”),
filed August 23, 2018. (Doc. 26). The United States responded
on September 11, 2018. (Doc. 31). Defendant replied on
September 25, 2018. (Doc. 32). On October 9, 2018, the Court
held an evidentiary hearing on the Motion. Assistant United
States Attorney Mark Saltman appeared for the United States,
and Assistant Federal Public Defenders Jane Greek and Megan
McLoughlin appeared on behalf of Defendant Brannon Shelton,
who was present. Having considered the briefing, the oral
arguments of counsel, the applicable law and the evidence,
the Court DENIES the Motion.
February 23, 2018, the United States charged Defendant with
violating 18 U.S.C. §§ 922(g)(1) and 924(e)(1), for
allegedly possessing a firearm after being convicted of a
felony. (Doc. 1) at 1. On June 20, 2018, Defendant was
indicted for allegedly violating 18 U.S.C. § 922(g)(1)
by knowingly possessing a firearm and ammunition after having
been convicted of felony crimes. (Doc. 16). The evidence
adduced at the evidentiary hearing on Defendant's Motion
included testimony from Roswell Police Department
(“RPD”) Officer Johnny Estrada, RPD Sergeant Ryan
Craine, RPD Sergeant Jeffrey Prince, Penny Cherry, Federal
Public Defender Investigator Gilbert Apodaca, and Chaves
County Detention Officer Gabriel Mauldin, who testified
telephonically. The evidence also included United
States' Exhibits 1 through 3 and 5 through 15, all
admitted without objection. Tr. at 31. Exhibit 1 is an
audio/video recording from Officer Estrada's lapel
Findings of Fact
January 4, 2018, Estrada was on patrol during the 4:00 p.m.
to 2:00 a.m. shift. Tr. at 17. He was wearing his duty
uniform, displaying his badge of office, and driving a marked
patrol car. Tr. at 17-18. At the time, Estrada had been
working for the RPD for approximately 10 months. Tr. at 13,
63, 77. His duties included patrolling designated areas in
Roswell. Tr. at 13-14.
11:58 p.m., Estrada was traveling northbound on South
Richardson Avenue when he looked over at West Tilden Street.
Id. Estrada observed several subjects standing
around a vehicle with what appeared to be flashlights,
looking through the vehicle while one of the doors was open.
Id. The vehicle, a blue Saturn, was parked in the
driveway of 205 West Tilden. Id.; (Doc. 26-1), at 1.
on these observations, Estrada suspected there was a vehicle
burglary in progress. Tr. at 18. Moreover, this address is
located in a residential area with heavy foot traffic and is
a high crime area. Id. Crimes that have occurred in
that neighborhood include property crimes, shootings, and
vehicle burglaries, among others. Tr. at 19. Estrada
estimated he had investigated five vehicle burglary cases
before January 4, 2018. Tr. at 63. Estrada testified that
vehicle burglaries commonly occur at night in driveways and
involve the use of flashlights. Tr. at 15-16.
result, Estrada turned his vehicle around on Richardson and
drove to West Tilden. Tr. at 19. Estrada reported to dispatch
he would be out with three subjects. Tr. at 68. Approximately
15 to 25 seconds elapsed from the time he first observed the
subjects until he arrived at 205 West Tilden. Tr. at 19.
Estrada parked his car on the street at the entrance of the
driveway and behind the Saturn, positioning his car to shine
his spotlight on the Saturn in the driveway. Tr. at 19-20.
The driveway was open and accessible to Estrada. Tr. at 26.
Estrada did not see any lights inside the Saturn, and he
noticed that all of the car doors were closed. Tr. at 20. He
also noted that the subjects no longer were visible outside
the Saturn, suspecting they were attempting to conceal
themselves inside the vehicle. Tr. at 20. He further noticed
the Saturn's headlights and tail lights were on,
indicating the subjects may have been attempting to
burglarize or steal the vehicle. Tr. at 21. Estrada
additionally noticed that the light on the exterior of the
house at the porch was lit. Tr. at 22. That did not dispel
his suspicion that a burglary was occurring because vehicle
burglaries are a crime of opportunity that occur regardless
of the time of day or whether the area is illuminated.
activated his emergency lights and exited his patrol car.
Id. As he stepped out of his vehicle and started
walking toward the driveway, he observed the subjects get out
of the Saturn, including Defendant, who had been in the
driver's seat. Tr. at 22-24. All three subjects walked
away from Estrada and toward the backyard of 205 West Tilden.
Tr. at 23. Estrada suspected that the subjects were
attempting to flee. Tr. at 24.
result, Estrada twice shouted at the subjects to stop,
commanding, “Come here!” Id. When the
subjects refused to stop and continued to walk away, Estrada
became certain that he had happened upon a vehicle burglary,
a felony offense in New Mexico. Tr. 25, 27. Consequently, he
continued his approach onto the driveway and toward the
subjects as they walked away. Tr. at 25.
then observed one subject, Defendant, and a second male,
identified as Thomas Dellavecchio, begin to run toward the
backyard. Tr. at 26. As a result, Estrada gave chase.
Id. The third subject, later identified as Lynette
Burrell, and Dellavecchio stopped when Estrada started to
pursue them. Tr. at 26-27. Estrada continued to pursue
Defendant, ordering Burrell and Dellavecchio to remain where
they were. Tr. at 27.
ran into the backyard, initially losing sight of Defendant.
Id. Defendant then ran toward and into Estrada.
Id. Estrada commanded Defendant to stop and to get
on the ground, briefly grabbing Defendant when he ran into
Estrada. Id. Defendant then pushed Estrada away and
ran into an adjacent yard, where he hid underneath a travel
trailer until Estrada located him there. Tr. at 28-29.
Defendant had a flash light in his hands when he came out
from underneath the trailer. Tr. at 30. The entire chase
lasted approximately one minute. Tr. at 29.
arrested Defendant for resisting or evading arrest, and for
battery on a police officer. Id. Estrada handcuffed
Defendant and placed him in Estrada's patrol car.
Id. When Estrada asked Defendant who owned the
Saturn, Defendant responded that he did not know. Tr. at 30.
Estrada then advised Defendant of his Miranda
warnings. Tr. at 39. Without prompting from Estrada,
Defendant stated that anything found in the vehicle did not
belong to him. Id. Estrada testified this statement
was significant to him because, “When [subjects] try to
separate themselves or not claim ownership of an object,
it's usually because there's something they don't
want to get in trouble for.” Id.
at approximately 11:58 p.m., Sergeant Craine responded to the
scene because he heard Estrada advising officers that
multiple suspects were fleeing from him. Tr. at 90. Craine
located Dellavecchio walking down West Tilden and arrested
him for failing to obey Estrada's command to remain at
205 West Tilden. Tr. at 39-40, 90-92. Craine searched
Dellavecchio and found an uncapped syringe in his pocket. Tr.
at 91. Dellavecchio stated he forgot he had the syringe and
told Craine he was “just a user.” Id.
Dellavecchio did not make any statements about the Saturn,
but stated he was just trying to get a ride. Id.
arranged for the Saturn to be towed to the Roswell Police
Department so a search warrant could be obtained. Tr. at 40.
Before the Saturn was towed, the engine was running and the
doors were not locked. Tr. at 56. Estrada was not able to
make contact with the registered owner, further suspecting a
vehicle burglary. Tr. at 41. Estrada also could not find
anyone at 205 West Tilden to claim the vehicle. Tr. at 56.
Estrada requested a warrant to search for “any drug
paraphernalia, any illegal narcotics, any proof of ownership,
proof of occupancy, any burglary tools (i.e., flashlights,
gloves, entry tools).” Tr. at 45. The warrant was
approved on January 8, 2018, by a Chaves County magistrate
judge, and Estrada executed it the same day. Tr. at 43-46.
found drug paraphernalia inside the Saturn, as well as a
backpack, which was on the front passenger floor board. Tr.
at 47, 52. The backpack contained a wallet with
Defendant's identification, a firearm, drug
paraphernalia, and a white crystalline substance.
Id. After discovering that Defendant has a felony
conviction in his record, Estrada sought and obtained an
amended search warrant on January 11, 2018, to include a
search for a firearm. Tr. at 48. Estrada executed the amended
warrant the same day and seized the firearm. Tr. at 49-52.
hearing, Defendant offered testimony from Penny Cherry, who
said she had dated Defendant for approximately one year,
including a period from October 2017 until January 2018. Tr.
at 120, 122-23. She also said their relationship was off and
on until his arrest on January 5, 2018. Id. Cherry
testified Defendant had lived at 205 West Tilden for
approximately three months prior to his arrest. Tr. at 121,
123. She stated Defendant had a female roommate at 205 West
Tilden, but Cherry did not remember her name. Tr. at 122. The
last time Cherry spent the night at 205 West Tilden was
between Christmas 2017 and New Year's Day 2018, and at
that time Defendant had his own bedroom in which he kept all
of his possessions. Tr. at 125. Cherry said she picked up
Defendant's belongings at 205 West Tilden after his
arrest. Tr. at 122.
also offered testimony from Officer Mauldin, a county
detention officer, who testified that he remembered booking
Defendant into the detention center on January 5, 2018. Tr.
at 141. Mauldin stated that 205 West Tilden “does ring
a bell in my head” with respect to whether law
enforcement records listed that address as Defendant's
address, although he did not remember specifically how he
obtained Defendant's address. Id.; (Doc. 32-1)
at 1. The booking sheet identified Defendant's address as
205 Tilden. (Doc. 32-1) at 1. Mauldin testified that he has
never put any information on a booking sheet that he believed
to be false, and that he follows up with the person being
booked about their contact information. Tr. at 139. Mauldin
typically has a “hunch” when an inmate is lying
about his or her address. Tr. at 143-44. Mauldin acknowledged
inmates have an incentive to lie about their personal
information when they are being booked, including their
Prince testified he cleared the home at 205 West Tilden after
Estrada arrested Defendant. Tr. at 109-10. He knocked on the
front door at 205 West Tilden to find out whether the
homeowner knew about the Saturn or knew Defendant,
Dellavecchio, or Burrell. Tr. at 109. No. one answered the
door, so Prince entered the home through a partially open
side door. Id. He did not find anyone inside, nor
did he observe any evidence Defendant lived in the home,
though he conceded he was not searching for such evidence.
Tr. at 110. Prince also checked the travel trailer parked in
the backyard. Id. A man identified as Mike Chips
answered the door of the travel trailer. Tr. at 110-11. When
asked, Chips stated someone named “Valerie” lived
at 205 West Tilden, and he did not mention Defendant as a
resident of that home. Tr. at 111. Prince conceded he did not
ask Chips if he was aware whether Valerie had rented a room
to anyone. Tr. At 115.
argues that his initial detention in the driveway was
unreasonable, and that Estrada acted without reasonable
suspicion or probable cause. (Doc. 26) at 5-6. Further,
Defendant asserts that Estrada's search of the curtilage
at 205 West Tilden without a warrant was unlawful, and that
the RPD acted unlawfully by impounding the Saturn.
Id. at 6-16. The United States responds that Estrada
had reasonable suspicion to detain Defendant, which then
ripened into probable cause to arrest him. (Doc. 31) at 5-13.
The United States also contends that Defendant lacks standing
to challenge Estrada's search of the curtilage at 205
West Tilden and Estrada's search and seizure of the
Saturn. Id. at 13-17. The United States argues that
Estrada's hot pursuit of Defendant justified his entry
into the backyard, and that RPD's impoundment of the
Saturn was proper because there was probable cause to search
the vehicle. Id. at 17-21. Finally, the United
States asserts that Estrada should benefit from the
Leon good-faith exception if the Court concludes
that the search warrants were not supported by probable
cause. Id. at 21-23.
purpose of a suppression hearing is ‘to determine
preliminarily the admissibility of certain evidence allegedly
obtained in violation of defendant's rights under the
Fourth [ ] Amendment[ ].'” United States v.
Maurek, 131 F.Supp.3d 1258, 1261-1262 (W.D. Okla. 2015)
(quoting United States v. Merritt, 695 F.2d 1263,
1269 (10th Cir. 1982)). “The proper inquiry is whether
the challenged action violated the Fourth Amendment rights of
the criminal defendant making the challenge.”
United States v. Allen, 235 F.3d 482, 489 (10th Cir.
2000) (alteration omitted) (quoting United States v.
Erwin, 875 F.2d 268, 270 (10th Cir. 1989)). “The
proponent of a motion to suppress has the burden of adducing
facts at the suppression hearing indicating that his own
rights were violated by the challenged [action].”
United States v. Eckhart, 569 F.3d 1263, 1274 (10th
Cir. 2009) (quoting Allen, 235 F.3d at 489). In the
context of an allegedly unlawful search or seizure, the
United States bears the burden of “proving the
reasonableness of the officer's suspicion.”
United States v. Hernandez, 847 F.3d 1257, 1263
(10th Cir. 2017) (quoting United States v. Simpson,
609 F.3d 1140, 1146 (10th Cir. 2010)). Finally, the Court
views the evidence in the light most favorable to the United
States. See, e.g., United States v. Turner, 2013 WL
5727404, at *9 (D. Kan.) (“While the Court is cognizant
that it must view the facts in the light most favorable to
the Government, it may not draw inferences that are not
supported by the record, nor accept facts that are contrary
to the record.”); United States v. Ortega,
2012 WL 12894242, at *4 (S.D. Fla.) (“viewing the facts
adduced at the suppression hearing in the light most
favorable to the government”).
Defendant was Not Seized in Violation of the ...