United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
MATTER is before the Court on Defendant's Objections
(Doc. 41) to the Magistrate Judge's Proposed Findings and
Recommended Disposition (“PF&RD”) (Doc. 38).
The Magistrate Judge recommended denial of Defendant's
Motion to Suppress (Doc. 18). Following a de novo
review of the parties' briefing (Docs. 18, 27, 34), the
evidentiary record, and the applicable law, the Court adopts
the findings and conclusions of the PF&RD except as
stated below, and therefore denies the Motion.
28 U.S.C. § 636(b)
case was referred to the Magistrate Judge to conduct hearings
and perform legal analysis pursuant to 28 U.S.C. §
636(b)(1)(B), (b)(3), and Va. Beach Fed. Sav. & Loan
Ass'n v. Wood, 901 F.2d 849 (10th Cir. 1990). (Doc.
25). Under the referral provision of § 636(b), the
Court's standard of review of a magistrate judge's
PF&RD is de novo. See 28 U.S.C. §
636(b)(1)(C). When resolving objections to the magistrate
judge's PF&RD, “[t]he district judge must
consider de novo any objection to the magistrate
judge's recommendation. The district judge may accept,
reject, or modify the recommendation, receive further
evidence, or resubmit the matter to the magistrate judge with
instructions.” Fed. R. Crim. P. 59(b)(3). “[A]
brief order expressly stating the court conducted de novo
review is sufficient.” Northington v. Marin,
102 F.3d 1564, 1570 (10th Cir. 1996) (citing In re
Griego, 64 F.3d 580, 583-84 (10th Cir. 1995)).
criminal defendant files a Fourth Amendment-based motion to
suppress, the Government bears the burden of showing, by a
preponderance of the evidence, that the criminal
defendant's Fourth Amendment rights were not violated.
United States v. Matlock, 415 U.S. 164, 177 (1974).
However, “[t]he 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 search.” United States v. Eckhart,
569 F.3d 1263, 1274 (10th Cir. 2009) (quoting United
States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000)). In
ruling on a motion to suppress, the Court views the facts in
the light most favorable to the Government. See United
States v. Matthews, 458 Fed.Appx. 717, 722 (citing
United States v. Myers, 308 F.3d 251, 255 (3d Cir.
Objections to Findings of Fact
makes a number of objections to the findings of fact
contained in the PF&RD, which the Court will address in
turn. Except as explicitly stated below, the Court adopts the
Magistrate Judge's findings of fact. (Doc. 38 at 1-6).
Defendants objects to the Magistrate Judge's findings
that Officer Arturo Morales was in the vehicle conducting
surveillance with Officer Lujan on the date in question (Doc.
41 at 3). Although Officer Morales' involvement was
described in the Government's Response brief, (Doc. 27),
his name was not mentioned during the December 6, 2018
hearing or in any of the submitted exhibits. Because Officer
Morales' name does not appear in the record,
Defendant's objection to this finding is sustained.
However, none the legal conclusions in the PF&RD relied
on the observations of Officer Morales and thus this amended
finding does not affect any of those conclusions.
Defendant objects to the Magistrate Judge's finding that
“Officer Morales observed a white SUV, ” again
because Officer Morales' name does not appear within the
record. (Doc. 41 at 3). This objection is essentially the
same as the first and is therefore sustained.
Defendant objects to the finding that “‘the
officers' saw the female passenger approach the duplex,
” because Officer Lujan did not have a clear view,
could not see the east side of the duplex, and did not see
the passenger entering an apartment. (Doc. 41 at 3). To the
extent the Magistrate Judge found that Officer Morales saw
the female passenger approaching the duplex, the objection is
sustained. However, the Court adopts the Magistrate
Judge's findings with respect to Officer Lujan.
Officer Lujan observed the passenger entering the apartment
is irrelevant to the finding that he observed her
“approach[ing] the duplex.” (Doc. 38 at 2).
Officer Lujan could have observed the passenger approaching
the duplex (a building) without seeing her enter a specific
apartment. Indeed, the Magistrate Judge found that Officer
Lujan saw the passenger approach the duplex but was
“unable to see which apartment she entered.”
(Doc. 38 at 2).
Officer Lujan's observation of the passenger approaching
the duplex, the Court does not agree with Defendant's
assertion that Officer Lujan did not have a clear view of the
east side of the duplex. Officer Lujan stated in his hearing
testimony: “I had a clear, free and unobstructed view
of the whole east side, the direction of where that apartment
was.” Tr. at 8. He later repeated, in response to
defense counsel's questioning about the two intervening
buildings in the area, “I had a clear view.” Tr.
at 20. Officer Lujan's only uncertainty was with respect
to the apartment the passenger entered, not the building she
approached. Also in response to defense counsel's
questioning about the building, Officer Lujan stated,
“I'm most certain that the female did not enter the
building with the green roofs. She entered the other
one.” Tr. at 19. “The other one” referred
to the target building under surveillance. Defendant presents
no argument that Officer Lujan's testimony on these
points was not credible and the Court finds it credible.
Officer Lujan admitted that he did not have a clear view of
whether she entered the target apartment. Tr. at 19.
This statement in no way undermines his stated conclusion
that the passenger approached the target duplex.
Defendant's objection is overruled as it pertains to
observations made by Officer Lujan.
Defendant's fourth objection appears to be substantively
identical to his third. Accordingly, for the same reasons, it
is overruled except with respect to any findings about
Officer Morales' involvement.
Defendant objects to the Magistrate Judge's
“implication that the passenger entered an
apartment.” (Doc. 41 at 3). Specifically, Defendant
objects to the following phrase in the PF&RD:
“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.” (Doc. 38 at 2). Defendant argues, once again,
that Officer Lujan did not have a clear view, that he did not
see the passenger approach or enter an apartment, and that he
could not see the east side of the duplex.
explained previously, Officer Lujan testified that he had a
“clear view” of the east side of the duplex. Tr.
at 8. He expressed certainty about which building the
passenger approached, but admitted that he could not see
which of the two apartments she approached. Tr. at 19. The
findings of the PF&RD were that the female passenger
approached the duplex, that Officer Lujan could not see which
of the two apartments the passenger approached, and that the
other apartment in the duplex was unoccupied. These facts of
record fully support the conclusion that the passenger
entered, or at least approached, the target apartment.
Viewing the evidence in the light most favorable to the
Government, the Court adopts the Magistrate Judge's
finding and overrules Defendant's objection.
Defendant next objects to the Magistrate Judge's omission
of a finding that Officer Lujan could not see the east side
of the duplex where the doors are located. (Doc. 41 at 3).
Again, Officer Lujan testified that he had a clear view of
the east side of the duplex. Tr. at 8. The Magistrate
Judge's findings were that Officer Lujan had a view of
the passenger approaching the duplex, but did not have a view
of which apartment she approached or entered. (Doc. 38 at 2).
These findings are both consistent with the record, and do
not omit the fact that Officer Lujan could not see the two
apartment doors. This objection is accordingly overruled.
Defendant objects to the Magistrate Judge's omission of a
finding that Officer Lujan could not see if the passenger
approached or entered the target apartment. (Doc. 41 at 4).
The Magistrate Judge found that Officer Lujan could not
clearly see which apartment the passenger approached or
entered, and added the additional relevant information that
only the target apartment was occupied. (Doc. 38 at 2). ...