United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant's Motion to
Suppress (doc. 18), the attendant briefing (docs. 27, 34),
and the hearing conducted on December 6, 2018 (doc.
Having reviewed the Motion and the applicable law, I
RECOMMEND that the Court DENY Defendant's Motion to
15, 2018 between 11:30 and 11:45 a.m., Las Cruces Police
Department (LCPD) Officer Paul Lujan and United States Border
Patrol Agent Arturo Morales were conducting surveillance of a
duplex apartment at the intersection of Alamo Street and
Colorado Avenue. Tr. at 6; doc. 27 at 1. Both Officer Lujan
and Agent Morales were on temporary assignment as Task Force
Officers with the Federal Bureau of Investigation (FBI). The
apartment was the subject of an ongoing federal investigation
into drug trafficking that had already resulted in the
seizure of methamphetamine and heroin from approximately four
to five traffic stops of vehicles leaving the house. Tr. at
13, 95- 96. These surveillance officers were located in a
parking lot northwest of the intersection of Colorado Avenue
and S. Espina Street, less than a block to the west of the
duplex. See Govt. Exhibit 9.
Lujan and Morales observed a white SUV approaching the target
residence on Colorado Avenue. It slowed to let out a female
passenger, did a U-turn, and parked illegally on the wrong
side of the road in front of the duplex. Tr. at 11. The
officers saw the female passenger approach the duplex. Though
they were unable to see which apartment she entered, Officer
Lujan explained in his testimony that only the target
apartment was occupied at the time; the other was vacant. Tr.
at 12. Approximately sixty seconds after exiting the white
SUV, the female passenger returned and got back into the
vehicle. Tr. at 17.
observing the parking violation, Officer Lujan, who was
conducting surveillance in an unmarked vehicle, radioed
nearby LCPD Officer Nathan Krause to make a traffic
stop. Tr. at 13. The radio communication
described the vehicle as a white SUV, but did not include a
model or license plate number. Tr. at 21-22, 56. Before
Officer Krause could make a traffic stop, the SUV drove
westbound on Colorado (toward the surveillance officers) and
turned southbound on S. Espina Street. Tr. at 56- 57. At this
time, the surveillance officers lost sight of the SUV. The
white SUV was next observed a block or two later by Officer
Krause when he was heading westbound on Arizona Avenue or
Nevada Avenue. Tr. at 53. Officer Krause concluded that the
white SUV he observed was the same white SUV because it was
the only white SUV traveling southbound on Espina at that
time and its arrival-only seconds after the surveillance
officers lost sight of the target white SUV-matched with
expected arrival of the target vehicle. Tr. at 77-78. At this
point, Officer Krause pulled behind the white SUV and soon
thereafter initiated the traffic stop. Immediately, LCPD
Officers Manuel Frias and Justin Ramirez arrived on scene to
assist. See doc. 27 at 2; Govt. Exhibit 2 at 0:33.
entirety of the traffic stop, up to and including the time of
Mr. Torres' arrest, lasted approximately seventeen
minutes and was recorded by the lapel cameras of Officers
Frias, Krause, and Ramirez. See Govt. Exhibits 1-6.
Officers approached Mr. Torres' vehicle, immediately
noting the strong odor of burnt marijuana. Officer Krause
explained the parking violation and asked Mr. Torres for his
license, registration, and medical marijuana card, which Mr.
Torres provided. See Govt. Exhibit 2 at 1:00. While
Officer Krause returned to his vehicle to check this
documentation, Officer Frias, standing by the passenger side
window, began questioning the female passenger about her name
and identification. This questioning began approximately two
minutes into the stop. See Govt. Exhibit 1 at 1:50. She
provided a name, Audrey Oliver, but no identification
documents. She was also unable to state her social security
number. Nearly four minutes into the stop, officers received
the “all clear” for Mr. Torres over dispatch.
See Govt. Exhibit 2 at 3:55; doc. 27-1,
Govt. Exhibit 1-A at 3. Officer Krause then reported to the
other officers that Mr. Torres had come back clear, stating,
“I got nothing.” See Govt. Exhibit 2 at
5:30; doc. 27-2, Govt. Exhibit 2-A at 3.
the name provided by the passenger, Audrey Oliver, had also
come back clear on dispatch, officers were suspicious about
her identity and asked her to step out of the vehicle to
speak with them. See Govt. Exhibit 1 at 5:37.
Officer Ramirez began questioning the passenger while Officer
Frias engaged in conversation with Mr. Torres about a recent
shooting in which Mr. Torres had been the victim. Officer
Ramirez explained to the passenger that they needed to obtain
photo identification and that he did not believe she was who
she claimed to be. He also informed her that her action of
briefly entering the house on Colorado Avenue was suspicious
and resembled a drug transaction. See Govt. Exhibit
3 at 5:45-6:20. He explained that he was going to run her
name and date of birth through the system in order to obtain
a photograph, which would conclusively determine whether she
was lying about her identity. See doc 27-3,
Govt. Exhibit 3-A at 5-6. While waiting to obtain the
photograph and just over nine minutes into the stop, the
passenger admitted that she had given a false name because
she had outstanding warrants. See Govt. Exhibit 3 at
8:13. Upon further questioning, around eleven minutes into
the stop, she admitted that she had gone into the house to
pick up some marijuana, then, when pressed by Officer
Ramirez, that she had actually gone to pick up
“black” (heroin). See Govt. Exhibit 3 at
10:20-10:30. She provided her real name, Samantha Espinoza,
as well as her date of birth and social security number.
See Govt. Exhibit 3 at 13:00. As Officer
Ramirez's questioning continued, she also admitted that
she had a blunt of marijuana concealed in her bra.
See Govt. Exhibit 3 at 14:33. However, she remained
firm in her statement that, while she had gone to the house
with the intention of purchasing drugs, she had not actually
purchased any. No. narcotics were later found on her person.
Ms. Espinoza admitted to going to the house to purchase
heroin and provided her real name, but before she admitted to
concealing the blunt of marijuana, Officer Krause explained to
Mr. Torres that Ms. Espinoza had given a false name and was
acting nervous, and requested Mr. Torres' consent to
search the vehicle:
NATHAN KRAUSE: She's acting pretty nervous. Is
there-would there be an issue with you letting us search the
vehicle real quick to make sure there's nothing in here?
RONALD WILLIAM TORRES: No, sir.
NATHAN KRAUSE: Huh? Like, no, you don't want me to or
yes, I can?
RONALD WILLIAM TORRES: You can (inaudible) search the vehicle
if you want.
NATHAN KRAUSE: We can search the vehicle?
RONALD WILLIAM TORRES: Like you're going to do a search,
NATHAN KRAUSE: That's what I'm asking for just
because of the way she's acting.
RONALD WILLIAM TORRES: Why is she acting like that?
NATHAN KRAUSE: I don't know, man. Maybe she's worried
about something else, but the way she's acting, I
MANUEL FRIAS: We're not hearing the conversation over
there, that's why so (inaudible) ask if it's okay to
search the car just real quick. Like I said, all we're
looking for is she (inaudible) at all.
RONALD WILLIAM TORRES: All right.
Doc. 27-2, Govt. Exhibit 2-A at 9. See also
Govt. Exhibit 2 at 15:46. Approximately sixteen minutes and
thirty seconds after initiation of the traffic stop, Officer
Frias asked Mr. Torres to step out of the car and informed
Mr. Torres that he would conduct a pat down to make sure Mr.
Torres had no weapons. See Govt. Exhibit 4 at 1:32;
Govt. Exhibit 2 at 16:27. While performing the pat-down
search, Officer Frias found a gun, which officers
subsequently determined to be loaded.
Torres, who had previously been convicted of murder in the
second degree and conspiracy to commit murder in the second
degree on May 17, 2007, was arrested for possession of a
firearm by a convicted felon in violation of 18 U.S.C.
922(g)(1). See doc. 1. Mr. Torres filed a
motion to suppress the firearm evidence, which he claims was
illegally obtained, on September 25, 2018. Doc. 18.
Fourth Amendment of the U.S. Constitution protects
“[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend IV. In order
to protect this right and deter police misconduct, courts
exclude unconstitutionally obtained evidence. “[T]he
judicially created exclusionary rule…when applied,
excludes evidence obtained in violation of the Fourth
Amendment from being used at trial.” United States
v. McCane, 573 F.3d 1037, 1042 (10th Cir. 2009) (citing
Herring v. United States, 555 U.S. 135 (2009)). The
defendant carries the burden of proving that evidence was
illegally obtained and should be excluded. United States
v. Long, 176 F.3d 1304, 1307 (10th Cir. 1999).
The traffic stop was valid at its inception.
Torres first argues that the traffic stop was invalid at its
inception because the officers lacked reasonable suspicion
that he had engaged or was engaging in any criminal activity.
Doc. 18 at 5. However, for the reasons that follow,
this argument lacks merit.
traffic stop for a suspected violation of law is a
‘seizure' of the occupants of the vehicle and
therefore must be conducted in accordance with the Fourth
Amendment.” Heien v. North Carolina, 135 S.Ct.
530, 536 (2014) (internal citation omitted). A traffic stop
satisfies the Fourth Amendment standard if either 1) the stop
is based on an observed violation, or 2) the officer has a
“reasonable articulable suspicion” that a
violation has occurred or is occurring. United States v.
McRae, 81 F.3d 1528, 1533 (10th Cir. 1996) (internal
quotation omitted); see also United States v.
Sanchez, 519 F.3d 1208, 1213 (10th Cir. 2008).
Reasonable suspicion, in this context, requires “a
particularized and objective basis for suspecting the
particular person stopped of breaking the law.”
Heien, 135 S.Ct. at 536 (citing Prado Navarette
v. California, 134 S.Ct. 1683, 1688 (2014)).
Krause had a reasonable, articulable suspicion that Mr.
Torres had just committed a parking violation. Both Officer
Lujan and Officer Krause personally observed a white SUV
illegally parked on Colorado Avenue. Tr. at 11, 30. Although the
officers lost sight of the vehicle after it turned south on
S. Espina Street, Officer Krause subsequently caught up to
the SUV in less than a block or two. Officer Krause testified
that the vehicle was not directly observed for only five to
ten seconds. Tr. at 85. When Officer Krause regained a clear
view of the vehicle, it was the sole white SUV headed
southbound on Espina. Tr. at 78.
Torres has argued in his briefing and in oral argument that
LCPD officers could not reliably identify Mr. Torres'
vehicle as the white SUV observed by Officer Lujan on
Colorado Avenue, because officers lost sight of the vehicle
and Espina is a busy road. See Tr. at 135, doc.
18 at 5-6. However, “reasonable suspicion”
does not require absolute certainty of wrongdoing. Based on
the description of the vehicle and Officer Krause's own
observation of the vehicle when it was illegally parked, the
extremely short period of time in which LCPD officers had no
eyes on the vehicle, and the fact that only one white SUV was
headed south on Espina Street, Officer Krause undoubtedly had
a reasonable, articulable suspicion that Mr. Torres'
vehicle was the same one that had, moments earlier, been
illegally parked on Colorado Avenue. This suspicion standing
alone justified a valid traffic stop.