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United States v. Kinney

United States District Court, D. New Mexico

March 7, 2019



          Judith C. Herrera U.S. District Judge

         The relevant facts of this case arise from a series of four armed robberies of Subway restaurants and marijuana dispensaries in the spring of 2018. Early police investigation of the first robbery zeroed-in on a man named C. Ramos-Goodrich as a primary suspect. However, Mr. Ramos-Goodrich dropped-out as a suspect when surveillance of him produced no leads and a state judge refused to authorize a warrant for his arrest. Meanwhile, three more robberies unfolded, and a trail of clues pointed to Defendants as suspects. So police went to a different state judge and obtained warrants to search Defendants' homes. In the accompanying affidavits, police made no mention of Mr. Ramos-Goodrich's earlier role as a suspect or the fact that a judge had previously denied a warrant for his arrest.

         The second judge authorized the search warrants and police executed the warrant on Defendant Shakeam J. Kinney's home, police found numerous firearms in Mr. Kinney's home, leading to federal charges. Mr. Kinney filed a motion to suppress evidence of the firearms, arguing that under Franks v. Delaware, 438 U.S. 154 (1978), the police's failure to mention Mr. Ramos-Goodrich in their affidavits amounted to material omissions that affected the issuing judge's probable cause determination. The Court held a hearing on the motion on February 5, 2019. After carefully considering the motion, briefs, evidence from the hearing, and relevant law, the Court concludes that the motion should be denied.


         The Court makes the following findings of fact, as supported by the record, in accordance with Rule 12(d) of the Federal Rules of Criminal Procedure.

         On March 19, 2018 two individuals robbed a Subway restaurant in Albuquerque, New Mexico by gunpoint. The restaurant employees described one of the robbers as a six-foot-five-inch African-American male, 250-plus pounds, dressed in black and carrying an AK-47 style rifle. The second robber was described as an African-American or Hispanic-American male of average height and build with facial hair and carrying a handgun. The robbers fired bullets in the restaurant, leaving behind casings which officers sent to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for testing. Video footage captured the robbers fleeing in a Dodge Caravan with the license plate clearly visible.

         Albuquerque Police Department Detective Tyler Burt traced the Dodge's license plate to a man named A. Salazar-Amador, who lived at the Continental Arms Apartments, an apartment complex in Southeast Albuquerque.[1] Police surveilled the Dodge, Mr. Salazar-Amador, and the apartment complex for a while. But the surveillance of Mr. Salazar-Amador generated no leads that he was involved in the robbery. However, from time-to-time police did observe a different man at the apartment complex who physically resembled the description of the larger Subway robber. Officers learned that this man's name was C. Ramos-Goodrich and that he and Mr. Salazar-Amador were Facebook friends. These facts led officers to suspect that Mr. Ramos-Goodrich was the larger of the Subway robbers.

         Detective Burt assembled a photo line-up that included Mr. Ramos-Goodrich's photo and showed the photos to the Subway employees. Neither employee positively identified anyone. One employee did say that Mr. Ramos-Goodrich “kinda” looked like one of the robbers, but ultimately concluded that Mr. Ramos-Goodrich was not the robber because the employee knew Mr. Ramos-Goodrich and so knew he was not the perpetrator. The other employee said that Mr. Ramos-Goodrich could have been the robber, saying that he was 60% certain of that identification.

         Based on the employees' statements, Mr. Salazar-Amador and Mr. Ramos-Goodrich's Facebook friendship, Mr. Ramos-Goodrich's presence at the apartment complex, and Detective Burt's review of the Subway video footage, Detective Burt applied for an arrest warrant for Mr. Ramos-Goodrich on March 23, 2018. The judge denied the warrant, finding no probable cause. Detective Burt did, however, obtain a warrant to search Mr. Ramos-Goodrich's historical cellular phone data to discern whether the phone's tracking data would have placed him at the Subway on the day of the robbery.

         On April 3, 2018, two same-day armed robberies occurred, one of another Subway restaurant and one of a marijuana dispensary. Only one individual robbed the Subway restaurant that morning, while two individuals robbed the marijuana dispensary later in the day. A witness at the second robbery described one of the suspects as a “huge” African-American man, standing at about six feet and five inches. The second suspect, the shorter of the two, wore black and neon green Nike running shoes. A silver Mercedes sedan was used in both robberies.

         Detective Burt traced the Mercedes' license plate to Defendant Lalonzo Simmons. Detective Burt's search of the Motor Vehicle Database showed that Mr. Simmons was six-foot-five, African-American, and weighed 290 pounds. The next day, on April 4, officers obtained a warrant to place a GPS tracker on Mr. Simmons' car. Moreover, Detective Burt's review of the video footage from the first Subway robbery on March 19, 2108 and the marijuana dispensary robbery showed that the taller suspect wielded the same distinctive rifle in each robbery. It was at this point that Detective Burt realized that officers misidentified Mr. Ramos-Goodrich for Mr. Simmons.

         Meanwhile, on April 9, 2018 ATF got back to Detective Burt about the two bullet casings found at the first Subway restaurant robbery from March. According to ATF, the casings were connected to casings recovered from a shooting that happened across the street from the Continental Arms Apartments. This shooting occurred two-days after the first Subway robbery, or on March 21, 2018. Officers spoke to the Continental Arms Apartment manager, who said that she saw Mr. Kinney entering the building after the shooting. At that point police earnestly suspected Mr. Kinney was involved in that shooting and possibly the robberies because of the matching bullet casings and his physical resemblance to the smaller of the robbers seen on video footage. Police began surveilling Mr. Kinney throughout April 2018. On April 10, 2018, for example, officers saw Mr. Kinney at the Continental Arms Apartments wearing black and neon green Nike shoes. Detective Burt no longer considered Mr. Ramos-Goodrich a suspect in any of the robberies.

         On May 1, 2018 at about ten o'clock in the morning, Defendants were allegedly seen on video robbing another marijuana dispensary by gunpoint. Footage allegedly captured Mr. Kinney entering the dispensary with his face uncovered, firing a round into the ceiling, and putting a gun to an employee's head as she emptied the cash register. Mr. Simmons was filmed standing guard at the door. Two-minutes later, the men fled in a stolen getaway truck that was found abandoned about an hour later. The GPS tracker on Mr. Simmons' Mercedes revealed that the Mercedes was in the same location where the truck was found abandoned, suggesting that the Mercedes retrieved Defendants from the getaway truck.

         Arrest warrants were assembled. At 7:52 P.M. a state judge signed a warrant to search Mr. Kinney's apartment, which officers executed at 8:56 P.M. However, the Computer Aided Dispatch or “CAD” report had a notation - “Entry is Inside” - at 7:31 P.M, roughly 20 minutes before the judge signed the search warrant. Detective Burt could not explain the chronology of entries appearing on the CAD report and why the “Entry is Inside” notation appeared before the judge authorized the warrant because he was not on ...

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