United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United
States' “Motion for Clarification of the
Court's Memorandum Opinion and Order (Doc. 42)”
(ECF No. 43). The Government seeks clarification as to
whether the Court intended to suppress the evidence of
eyewitness testimony that Defendant spat on the officer as
charged in the indictment. Defendant opposes the motion as
moot and procedurally defaulted, asserting that the
Government's motion is an attempt to raise arguments for
the first time that it waived by not raising before or during
the hearing on the motion to suppress. Although the Court
agrees that the Government should have raised this issue in
its response in the initial briefing, the Court finds good
cause to reconsider the scope of its Memorandum Opinion and
Order given the holding of United States v.
Waupekenay, 973 F.2d 1533, 1538 (10th Cir. 1992). The
Court will therefore reconsider its prior decision
suppressing all evidence, and the Court will not suppress
evidence of the separate, independent crime of spitting on
Inspector Jose Carrillo committed in the officers'
presence after Defendant's illegal detention.
Maestas filed a motion to suppress, arguing that Christopher
Sena, a Protective Security Officer (“Sena”), did
not have reasonable suspicion that a crime occurred, or in
any event, reasonable suspicion that Defendant committed a
crime for which Sena had authority or jurisdiction to make an
arrest. See Def.'s Mot. to Suppress 3-4, ECF No.
35. Defendant also contended in his motion that all evidence
following his detention, including DNA evidence and his
spitting on law enforcement, was tied directly to his false
arrest and was not attenuated from his arrest. Id.
at 5-7. Consequently, Defendant asserted that his seizure was
unconstitutional, and all evidence derived therefrom,
including his statements, DNA evidence, and any evidence that
he spat on law enforcement, was tainted and must be
suppressed. See id.
response, the Government argued there was reasonable
suspicion that Defendant committed the federal crime of
assault to justify Defendant's detention by Sena and that
Sena was authorized to detain and search Defendant.
See Gov.'s Resp. 9-12, ECF No. 36. The
Government also asserted that the fugitive recovery agents
and Sena could lawfully detain Defendant under the doctrine
of citizen's arrest. See Id. at 6-9. The
Government, however, in its response did not make an
attenuation argument or assert that not all evidence must be
suppressed as fruit of the poisonous tree. See Id.
Court held a hearing on Defendant Maestas's motion to
suppress on December 11, 2018. Following the hearing, the
Court entered a Memorandum Opinion and Order, in which the
Court granted Defendant Maestas' Motion to Suppress after
finding and concluding the following:
Although Sena had reasonable suspicion to believe that
Maestas was the person who threw the bottle based on what the
security officer told him she witnessed, he did not have
reasonable suspicion to believe that throwing the bottle
constituted the federal offense of assault….The
distance between the bottle and any person in this case,
combined with the lack of any interaction between Defendant
and anyone in the vicinity of the bottle, does not indicate
that Defendant threw the bottle in a manner intending to
cause anyone serious bodily injury.
Sena therefore lacked reasonable suspicion to believe
Defendant committed the federal crime of assault and lacked
grounds to lawfully detain Defendant at the time Defendant
was forcibly brought to the corner and initially detained.
Because Defendant's detention was not justified at its
inception, his seizure violated the Fourth Amendment and the
evidence derived afterwards, including the threatening
statements Defendant made after his unlawful detention, must
Mem. Op. and Order 11-12, ECF No. 42.
the Court's ruling, the Government filed its motion
seeking clarification that the Court's ruling does not
prevent the Government from presenting evidence from
eyewitnesses that Defendant spat on Inspector Carrillo. For
the first time, the Government argued that the fruit of the
poisonous tree doctrine does not extend to evidence of the
charged assault and cited in support for the first time
United States v. Waupekenay, 973 F.2d 1533, 1538
(10th Cir. 1992).
response to the motion for clarification, Defendant argues
that this Court granted the motion to suppress, which clearly
sought the suppression of all evidence post-detention.
Defendant also asserts that the Government raises the issue
of attenuation for the first time in the motion for
clarification, and thus, the Government waived the issue and
waived the development of factual evidence to support any
argument regarding attenuation.
Court did not address the attenuation argument in its
Memorandum Opinion and Order because the United States had
not argued that evidence of the spitting did not need to be
suppressed if the Court found the detention illegal. This
issue, however, is now squarely before the Court on the
Government's motion for clarification.
case cited by the Government, United States v.
Waupekenay, 973 F.2d 1533 (1992), the Tenth Circuit held
that, even though police officers did not have consent to
enter a trailer, evidence that the occupant pointed a rifle
and aimed it at officers after they unlawfully entered the
trailer “should not have been suppressed because the
defendant-appellee did not have a reasonable expectation of
privacy at the time he initiated the assault.”
Id. at 1534. The Tenth Circuit explained that the
determinative factor in its fruit-of-the-poisonous-tree
inquiry is whether the defendant initiated the attack upon
the officers with a legitimate expectation of privacy.
Id. at 1536. To determine the answer to that
question, courts look at (1) whether the defendant by his
conduct exhibited an actual, subjective expectation of
privacy, in other words, did he show that he sought to
preserve his actions as private, and (2) is the subjective
expectation of privacy one that society is prepared to
recognize as reasonable. Id. at 1536-37. The Tenth
Circuit concluded that the defendant did not have a
reasonable expectation of privacy because he obviously
intended for the police to see him aim the weapon at them.
Id. at 1537.
circuit noted there are multiple rationales for the
limitation of the fruit-of-the-poisonous-tree doctrine in the
context of subsequent attacks on law enforcement: a lack of
reasonable expectation of privacy; the intervening act is so
separate and distinct from the illegal entry or arrest as to
break the causal chain; and/or the strong public interest in
preventing and punishing force or threats of force directed
against police officers. See Id. at 1538. The Tenth
Circuit stated: “However, whatever rationale is used,
the result is the same: Evidence of a separate, ...