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United States v. Otero

United States District Court, D. New Mexico

March 15, 2019

United States of American, Plaintiff,
Miguel Otero, Defendant.


          J. Thomas Marten, Judge

         Defendant 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.[1] 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.

         The 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.

         The 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, [2] 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.

         The 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.

         Both 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 pistol.[3]

         The 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.

         During 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.

         Holmes 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.

         Rosenburg 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.

         When 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.

         Otero 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.

         Only 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.

         As 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.

         The 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 ...

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