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United States v. Serna

United States District Court, D. New Mexico

April 5, 2019


          John C. Anderson United States Attorney Peter J. Eicker Thomas A. Outler Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          D. Eric Hannum Lomas Law Complex Albuquerque, New Mexico Attorney for the Defendant


         THIS MATTER comes before the Court on Defendant's Motion to Suppress Evidence Obtained as a Fruit of Unlawful Seizure, filed January 6, 2019 (Doc. 28)(“Motion”). The Court held an evidentiary hearing on February 21, 2019. See Clerk's Minutes at 1, filed February 21, 2019 (Doc. 37). The primary issues are: (i) whether Albuquerque[1] Police Department (“APD”) Sergeant Peter Silva seized Defendant William Serna by ordering that Serna keep his hands where Silva could see them; and (ii) whether Silva had reasonable suspicion to seize Serna after Silva observed Serna exchanging cash with Edward Fuentes in Robinson Park, [2] when Silva knew that APD had previously arrested Serna for drug-related activities and that Robinson Park has a reputation as a site for drug trafficking. The Court concludes that: (i) Silva seized Serna when he ordered that Serna keep his hands visible; and (ii) based on the facts recited above, Silva had reasonable suspicion to seize Serna.


         Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. The United States Court of Appeals for the Tenth Circuit has indicated that the restrictions in the Confrontation Clause of the Sixth Amendment to the Constitution of the United States of America do not apply to hearsay introduced in suppression hearings, so the Court may consider testimonial statements. See United States v. Lopez-Carillo, 536 Fed.Appx. 762, 768-69 (10th Cir. 2013)(unpublished)[3](“[T]he Supreme Court [of the United States] has made it clear hearsay is admissible in suppression hearings. . . . As a result, the restriction in the Confrontation Clause against admission of testimonial statements . . . is not implicated here.” (citing United States v. Matlock, 415 U.S. 164, 172-77 (1974); United States v. Sanchez, 555 F.3d 910, 922 (10th Cir. 2009); United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004)).

         1. APD has employed Silva as a sergeant for two years and as an APD officer for fourteen years. See Draft Transcript of Hearing at 5:15-19 (taken February 20, 2019)(Outler, Silva)(“Tr.”).[4]

         2. The Court deems Silva's testimony credible, with the exception of his testimony about what denomination of bill Fuentes held as Serna approached him.[5]

         3. As a sergeant, Silva supervises eight officers. See Tr. at 9:18-21 (Outler, Silva).

         4. In his supervisory role, Silva reviews these APD officers' reports and approves their complaints. See Tr. at 9:22 (Outler, Silva).

         5. Although before September 3, 2018, Silva had not personally arrested Serna, see Tr. at 13:24-25 (Silva), Serna was a “person of interest, ” see Tr. at 14:17-19 (Silva), and Silva knew that one of his APD officers had arrested Serna, see Tr. at 13:6-11 (Silva), “was aware of Serna's “previous booking slips” for the City of Albuquerque, Tr. at 14:14-16 (Silva), and had previously examined Serna's criminal record, see Tr. at 14:24-15:1 (Silva).

         6. Serna's previous offenses included drug-related activities. See Tr. at 14:21-23 (Silva).

         7. Silva had met Serna “a few days” before September 3, 2018, Tr. at 29:14 (Humman, Silva), but, at that earlier time, Silva initially mistook Serna for someone else, see Tr. at 29:20-22 (Silva).

         8. During that earlier encounter, Silva realized his mistake, see Tr. at 29:23-30:1 (Silva), and identified who Serna was, see Tr. at 33:2-9 (Outler, Silva).

         9. On September 3, 2018, Silva was on duty patrolling the downtown area, which encompasses the area bounded by Broadway Boulevard on the East, 12th Street on the West, Lomas Boulevard on the North, and Lead Avenue on the South. See Tr. at 6:2-12 (Outler, Silva).

         10. During his shift, Silva was on bicycle patrol, see Tr. at 7:10-12 (Outler, Silva), and rode around Robinson Park, which sits between Central Avenue, 8th Street, and Copper Avenue, see Tr. at 6:17-22 (Outler, Silva).

         11. Silva and/or the APD officers he supervises patrol Robinson Park daily. See Tr. at 7:4-9 (Outler, Silva).

         12. Silva and his APD officers “make constant contact with people at that park, and[, although] it doesn't always involve narc[otic] things, ” Tr. at 13:7-8 (Silva), Silva and his APD officers patrol the area daily because they receive complaints about drug activity in the park; people buy and sell drugs, and litter the area with syringes, see Tr. at 9:8-12 (Silva).

         13. Silva has read about such grievances and drug activity in his APD officers' reports and complaints. See Tr. at 9:18-24 (Outler, Silva).

         14. Each year, Silva and/or his APD officers arrest around twenty people for drug-related activity that occurs in Robinson Park. See Tr. at 9:25-10:5 (Outler, Silva).

         15. On September 3, Silva was bicycling west on Central Avenue when he arrived at Robinson Park with APD Officers George Gabaldon, Mike Avila, and Mark Wells. See Tr. at 7:18-8:2 (Outler, Silva).

         16. The officers rode in a line, one behind the other, with Silva at the back. See Tr. at 11:6-8; DVD: Bodycam Video from Sgt. P. Silva at 00:00:04-:14, taken September 3, 2018, filed February 20, 2019 (on file with court)(“Bodycam Video”).

         17. The officers were armed and in uniform. See generally Bodycam Video.

         18. Two men stood at the southeast end of Robinson Park, where the park nears 8th Street. See Tr. at 8:5-9 (Outler, Silva); Bodycam Video at 00:00:05-:17.

         19. The men were facing each other in close proximity, see Tr. at 8:14-19 (Outler, Silva); Bodycam Video at 00:00:05-:17, and were engaged in an “hand to hand exchange, ” Tr. at 8:12-13 (Silva). See id at 8:9-13 (Silva); Bodycam Video at 00:00:16-:21.

         20. Silva observed these men as he approached then rode alongside the park. See Tr. at 8:4-13 (Outler, Silva).

         21. When he first observed them, Silva was around thirty to forty feet from the men. See Tr. at 8:22-24 (Outler, Silva).

         22. At that time, Silva did not recognize Serna. See Tr. at 15:5-9 (Silva).

         23. To Silva, the men did not appear engaged in a “casual conversation.” Tr. at 13:21. See id. at 13:19-21 (Silva).

         24. After Silva observed the men, he turned and jumped his bicycle over the curb to enter the park. See Tr. at 10:11-16 (Silva); Bodycam Video at 00:00:14-:16.

         25. When Silva turned his bicycle, Gabaldon, who was riding immediately in front of Silva, turned with him, but Avila and Wells followed slightly later. See Tr. at 11:11-13 (Silva).

         26. As Silva “got into the park, ” he recognized Serna. Tr. at 15:8 (Silva). See id. at Tr. at 13:16-19 (Silva); id at 15:6-9 (Silva).

         27. Silva did not recognize the other man -- Fuentes, see Tr. at 16-18 (Outler, Silva), and Silva's APD officers had not previously arrested Fuentes, see Tr. at 16:19-21 (Outler, Silva).

         28. Once in the park, Silva observed that Serna and Fuentes were exchanging cash. See Tr. at 10:18-21 (Silva).

         29. As Silva approached them, he asked “what they were doing, ” Tr. at 11:21 (Silva), and, at the question, Fuentes “kind of raised a hand, Tr. at 11:22-23 (Silva). See Bodycam Video at 00:00:16-20.

         30. Silva then stopped his bicycle within ten to twenty feet of Serna and Fuentes. See Tr. at 10:17-18 (Silva); id at 29:16-17 (Silva).

         31. As Silva dismounted his bicycle, Silva told Serna and Fuentes to keep their hands where he could see them, see Tr. at 1123-24 (Silva); id at 12:5-7 (Silva), and Serna and Fuentes “immediately put their hands up in the air, ” Tr. at 12:7 (Silva); see Bodycam Video at 00:00:0024.

         32. Serna placed his hands on his head, see Tr. at 19:15-17 (Silva); Bodycam Video at 00:0025, although Silva had not told Serna to put his hands there, see Tr. at 19:18-24 (Silva).

         33. By asking Serna and Fuentes to keep their hands visible, Silva intended to prevent either man from throwing away or pocketing evidence of a drug sale, and/or from hiding a weapon. See Tr. at 1220-13:3 (Silva).

         34. Avila and Wells arrived at the scene about a minute later. See Tr. at 3120-23 (Hannum, Silva).

         35. Fuentes told Silva that he was “buying a lighter.” Tr. at 1125 (Silva).

         36. Silva responded: “You're buying a lighter for what ten dollars?” Bodycam Video at 00:00:31-:32.

         37. Fuentes replied: “Well, I didn't wanna walk.” Bodycam Video at 00:00:35-:36.

         38. Silva suspected that Serna and Fuentes were involved in a narcotics exchange, see Tr. at 13:13 (Silva); id at 17:2-5 (Silva), because he thought that the amount was high for a lighter, see Tr. at 16:1-3 (Silva), and hence that the answer was nonsensical and dishonest, see Tr. at 16:7-13 (Silva, Outler).

         39. Accordingly, Silva planned to continue questioning Serna and Fuentes. See Tr. at 17:2-5 (Silva).

         40. Silva repeated: “Keep your hands where I can see them, ” Bodycam Video at 00:00:37-:38, and Silva told Fuentes: “Put your hands on the top of your head, ” Bodycam Video at 00:00:39-:40.

         41. Silva approached Serna and placed his hands on Serna's hands, which Serna had kept on his head. See Bodycam Video at 00:00:42-:44.

         42. Simultaneously, Silva asked Serna if he had weapons on him, see Tr. at 17:7 (Silva); Bodycam Video at 00:00:42-:43, and Serna answered that he did, see Tr. at 17:8-9 (Silva).

         43. Serna's response surprised and concerned Silva, because individuals who have small weapons, such as pocketknives or razor blades, often specify that they have “pocketknives” or “razor blades.” Tr. at 17:9-17:22 (Silva).

         44. After hearing Serna's reply, Silva alerted Gabaldon, Avila, and Wells that Serna had a weapon. See Bodycam Video at 00:00:48-:49.

         45. Silva also began a pat down and directed Serna: “[S]pread your feet more; spread your feet more.” Bodycam Video at 00:00:49-:52.

         46. Although Silva did not ask Serna to get on his knees or to lay on the ground, see Tr. at 20:3-13 (Silva), Serna asked if he could lie down so that the APD officers did not “beat [him] up, ” Tr. at 18:5 (Silva); see Tr. at 18:3-5 (Silva); Bodycam Video at 00:00:43-:56.

         47. Silva helped Serna to his knees then to the ground, see Tr. at 18:5-7 (Silva); Bodycam Video at 00:00:57-:01:03, by holding Serna's hands to prevent Serna from falling forward as Serna worked his way down, see Tr. at 20:15-20 (Silva); Bodycam Video at 00:00:57-:01:03.

         48. After Silva asked Serna where the weapon was located, see Tr. at 18:7-8 (Silva); Bodycam Video at 00:0101:04-:05, Serna stated that the weapon was in his right pocket, see Tr. at 18:8-9 (Silva); Bodycam Video at 00:01:05-06.

         49. While Silva reached into the right pocket, Serna corrected himself and clarified that the weapon was in the left pocket. See Tr. at 18:10-11 (Silva); Bodycam Video at 00:01:09-:11.

         50. While reaching toward the left pocket, Silva asked Serna what the weapon was, and Serna revealed that he carried a gun. See Tr. at 18:11-12 (Silva); Bodycam Video at 00:01:11-:14.

         51. As he looked toward the left pocket, Silva saw and identified the gun as a semiautomatic. See Tr. at 18:13-15 (Silva); id. at 18:16-18 (Silva).

         52. As Silva removed the gun from the pocket, see Tr. at 18:19-21 (Silva), he announced to Gabaldon, Avila, and Wells that Serna had a weapon, see Tr. at 18:23-25 (Silva).

         53. Silva then stepped back from Serna, removed the bullets from the weapon, and stored it in his bike bag. See Tr. at 19:1-6 (Silva).

         54. Silva never drew a weapon, see Tr. at 21:18-21 (Outler, Silva), and Silva does not recall seeing any other APD officer draw a weapon, see Tr. at 21:22-25 (Silva).


         On September 3, 2018, a grand jury indicted Serna for violating 18 U.S.C. § 922(g)(1), “Felon in Possession of a Firearm.” See Indictment at 1, filed October 11, 2018 (Doc. 11). Serna's case arose on a Criminal Complaint, filed September 14, 2018 (Doc. 1), for the same offense. Criminal Complaint at 1. Serna filed the Motion four months later, on January 6, 2019. See Motion at 5.

         1. The Motion.

         Serna asks that the Court suppress all evidence obtained pursuant to Silva's alleged seizure, because Silva seized Serna without reasonable suspicion. See Motion at 1. Serna begins by contending that Silva seized Serna when Silva commanded Serna to keep his hands visible. See Motion at 3-4. Serna describes that police commit a seizure when, “considering all the surrounding circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.” Motion at 3 (internal quotation marks omitted) (quoting United States v. King, 990 F.2d 1552, 1556 (10th Cir. 1993)). Serna explains that, “[i]n California v. Hodari D., 499 U.S. 621 (1991), the United States Supreme Court made it clear that a seizure of the person under the Fourth Amendment to the Constitution of the United States occurs when an officer applies physical force, however slight, or when the person submits to an officer's show of authority.” Motion at 3 (emphasis in Motion). Serna contends that, according to these definitions, Silva committed a seizure when he gave Serna “some kind of command to raise his hands or put them on his head.” Motion at 3. Serna further fleshes out the definition for a seizure:

A seizure under the Fourth Amendment occurs when “a reasonable person would have believed that he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573 (1988)(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980). In United States v. Hill, 199 F.3d 1143 (10th Cir. 1999), the Tenth Circuit has recognized a set of non-exclusive factors to help guide a determination of whether a person has been seized. Among these factors are the threatening presence of several officers, some physical touching by an officer, and use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory. Id., at 1147-48.

         Motion at 3. Serna states that no single factor the Tenth Circuit lists is dispositive and that Silva “apparently commanded [Serna] in a tone sufficiently stern that Serna immediately turned around and place [sic] his hands on top of his head.” Motion at 3-4.

         Serna then argues that Silva lacked reasonable suspicion to seize Serna. See Motion at 4. According to Serna, Brown v. Texas, 443 U.S. 47 (1979), clarifies that a police officer does not obtain reasonable suspicion when he or she observes an individual with simply a suspicious appearance even if the individual is in a “high crime area.” Motion at 4 (quoting Brown v. Texas, 443 U.S. at 48-49). Serna avers that Silva observed only “two men standing together in a public park” and “some kind of exchange.” Motion at 5. In Serna's opinion, the caselaw establishes that these observations do not constitute reasonable suspicion. Motion at 5.

         2. The Response.

         Plaintiff United States of America responds and asks that the Court conclude that Silva lawfully seized Serna. See United States' Amended Response in Opposition to Defendant's Motion to Suppress Evidence at 1, filed January 22, 2019 (Doc. 34)(“Response”). The United States begins with the contention that Silva did not seize Serna by ordering Serna to keep his hands visible. See Response at 3. The United States would have the Court view the encounter as a “consensual police encounter.” Response at 5. The United States portrays the standard for seizure:

The seizure of a person occurs only “[w]hen a police officer accosts an individual and restrains his freedom to walk away.” Terry v. Ohio, 392 U.S. 1, 16 (1967). In contrast, “a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991).

         Response at 3-4. According to the United States, Silva did not limit Serna's freedom of movement or physically control Serna; rather, the United States describes that Silva just asked Serna some questions. See Response at 4. The United States compares the situation to United States v. Mendenhall, 446 U.S. 544 (1980), wherein the Supreme Court held that no seizure occurred where law enforcement agents approached and questioned a woman at an airport. See Response at 4. The United States contends that the Court should likewise conclude that Silva did not seize Serna. See Response at 4. According to the United States, that Silva, Gabaldon, Avila, and Wells carried guns, and wore uniforms, does not convert the action into a seizure. See Response at 4. Similarly, in the United States' view, a seizure under the Fourth Amendment did not occur simply because “both men immediately acted as though they had been busted by the police.” Response at 5.

         The United States next contends that Silva had reasonable suspicion to detain Serna. See Response at 5. The United States describes:

For an investigative detention to be justified at its inception, the officer must have specific, articulable facts, along with rational inferences drawn from those facts, that give rise to a reasonable suspicion that a person is committing a crime. See [United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009)]. While this requires the officer to have more than just a hunch, it requires considerably less proof than probable cause and it does not require the officer first to rule out innocent conduct. See Id. If an officer has a particularized and objective basis for suspecting a person, he may initiate an investigatory detention even if it is equally or even more likely that the person is not committing a crime. See United States v. Madrid, 713 F.3d 1251, 1256 (10th Cir. 2013).

         Response at 6. The United States describes that Serna “appeared in plain sight to be doing exactly that which the park is known for -- furtively taking cash from another individual while handing something small back.” Response at 7. According to the United States, Silva recognized Serna as a person who had previously engaged in drug trafficking. See Response at 7. For the United States, these factors together establish reasonable suspicion. See Response at 7.

         The United States continues and argues that Silva subsequently acted properly in patting down Silva. See Response at 7. The United States notes that the pat down was reasonable, because, according to the United States, Serna admitted that he was carrying a firearm and, even if Serna had not made that admission, Silva's prior knowledge about Serna and recent observations justified patting him down. See Response at 7-8.

         3.The Hearing.

         As Serna began his argument, the Court interrupted to clarify that an investigative detention as described in Terry v. Ohio, 392 U.S. 1, 16 (1967))(hereinafter, also “Terry stop”), is a seizure.[6]See Tr. at 35:4-6 (Court). After Serna agreed with the Court, see Tr. at 35:7 (Hannum), the Court asked: “So aren't we really just trying to determine at what point, if at all[, ] Mr. [Silva had] reasonable suspicion to conduct a [Terry stop]?]” ...

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