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United States v. Torres

United States District Court, D. New Mexico

January 18, 2019




         THIS 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. 35).[1] Having reviewed the Motion and the applicable law, I RECOMMEND that the Court DENY Defendant's Motion to Suppress.

         I. Background

         On May 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.

         Officers 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.

         After 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.[2] 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.

         The 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.[3] 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.

         Although 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.

         After 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, [4]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?
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, right?
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 don't know.
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.

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.

         Mr. 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.

         II. Legal Standard

         The 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).

         III. Analysis

         A. The traffic stop was valid at its inception.

         Mr. 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.

         “A 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)).

         1. Parking Violation

         Officer 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.[5] 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.

         Mr. 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.

         2. D ...

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