United States District Court, D. New Mexico
MEMORANDUM AND ORDER
Thomas Marten, Judge
Miguel Otero is charged with violating 18 U.S.C. §
922(g)(1) and 924(a)(2) for possession of a firearm and
ammunition after having been previously convicted of a
felony. The charges arise from an incident which
arose on April 6, 2016, when Albuquerque police officers
responded to a call from the maintenance person at an
apartment complex. The report, made shortly before noon,
indicated that a blue Chrysler 300 had been parked at the
complex and had been idling since the maintenance
worker's shift began at 8:00 a.m.
police undertook a welfare check, and found Otero asleep in
the vehicle, along with a firearm and a glass tube, of the
type used for ingesting drugs. The officers detained Otero
and retrieved the firearm from the vehicle. The court
conducted an evidentiary hearing on Otero's motions. Both
officers testified at the hearing, and the court viewed two
videotapes made at the scene.
defendant presents two closely-connected motions (Dkt. 55,
56), seeking suppression of the search of the vehicle, and
his arrest. The first motion argues that the police illegally
searched the vehicle without consent,  and the second
argues that the police unlawfully arrested defendant (by
placing him in handcuffs after removing him from the
vehicle), and that the subsequent search of the vehicle is
fruit of the poisonous tree. Having reviewed all of the
evidence, as well as the additional briefs submitted by the
parties after the hearing, the court concludes that the
motions should be denied.
police acted reasonably in temporarily securing the scene
given the presence of a firearm and drug paraphernalia. The
officers did not need consent to search the vehicle, as their
limited detention of Otero and the firearm were justified by
a concern of public safety as well as a reasonable suspicion
of criminal activity. While Otero was being lawfully
detained, the police learned of an outstanding warrant for
his arrest. The search was not the “fruit, ”
poisonous or otherwise, of an illegal arrest.
officers testified credibly. The evidence establishes that
when the officers approached the vehicle, with their weapons
in low ready, they found a man (who proved to be Otero) lying
on the driver side with the seat reclined. Det. Cody Holmes,
the officer approaching the passenger side, saw that Otero
was sleeping with a handgun in his lap. Holmes was at that
time immediately next to the open passenger window, and was
in a good position to view the firearm. Although he saw only
the butt end of the weapon, he was able to identify
accurately that it was a magazine-fed semiautomatic
police immediately backed up, and began to loudly direct
Otero to exit the vehicle, and to keep his hands visible
through the open driver side window. When Otero seemed to
have difficulty doing both things at once, Holmes expedited
matters by reaching into the passenger side and engaging the
manual door unlock.
the encounter, Otero appeared to comply with the
officers' directives-in part. Otero got out with his car
with his hands up, but he also approached at a rapid pace
Officer Talia Rosenberg (the officer on the driver side) who
was standing about the length of the vehicle away, and at
times appeared to lower his hands towards his waist. In
addition, the officers had to tell Otero several times to
keep away from the vehicle.
then approached Otero and placed him in handcuffs. Holmes
told Otero he was not under arrest, but they were being
careful because they had seen that he had a gun. Otero
falsely stated that he had no firearm.
asked for Otero's name and date of birth. From this
information, she was able to learn Otero's social
security number, and a second search found that there was an
outstanding misdemeanor warrant for his arrest.
Otero got out of the vehicle, he left the door open. After
Otero denied having a gun, one of the officers approached the
vehicle and (without then entering) pointed to the pistol in
a holster, which although partly under the driver's seat,
was in plain sight through the open door. Rather than
verbally respond, the handcuffed Otero at one point
approached the vehicle as if to sit inside it, and was
physically pulled away from the open door.
indicated he lived in the apartment complex. Holmes asked
Otero how much he had smoked that morning, telling him he
could see a crack pipe sitting in plain view. Holmes told
Otero to be honest, as he could see the crack pipe. The
officer then asked Otero whether the gun was stolen.
after all this occurred did the officers retrieve the gun
through the open door of the vehicle. Later investigation
showed that the firearm's serial number had been
obliterated, and it contained nine rounds of ammunition, one
in the chamber and eight in the magazine.
noted earlier, in addition to the firearm, the officers
outside the vehicle observed a glass pipe, an item commonly
used to smoke crack cocaine or methamphetamine, on the center
console. A metal pipe was on the center console, along with a
plastic baggie which appeared to have a white substance
inside. Defendant was arrested on the outstanding warrant.
After the police learned of his criminal record, he was
charged with being in felon in possession of a firearm.
defendant, during the course of his motion, makes several
valid points - there is nothing illegal in sleeping in a car,
that once he was handcuffed the level of threat was
minimized, and that there were no additional passengers who
might have caused a disturbance. But none of these arguments
indicates that the police officers acted unreasonably under
the circumstances of the case. The same can be said for the
defendant's contention that the plain view doctrine is
inapplicable, as “the officer may have seen part of the
weapon, but it was not fully ‘in plain