United States District Court, D. New Mexico
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
Eric Hannum Lomas Law Complex Albuquerque, New Mexico
Attorney for the Defendant
MEMORANDUM OPINION AND ORDER
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 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,  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.
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)(“[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)).
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,
Court deems Silva's testimony credible, with the
exception of his testimony about what denomination of bill
Fuentes held as Serna approached him.
3. As a
sergeant, Silva supervises eight officers. See Tr.
at 9:18-21 (Outler, Silva).
his supervisory role, Silva reviews these APD officers'
reports and approves their complaints. See Tr. at
9:22 (Outler, Silva).
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).
Serna's previous offenses included drug-related
activities. See Tr. at 14:21-23 (Silva).
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).
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).
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).
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).
Silva and/or the APD officers he supervises patrol Robinson
Park daily. See Tr. at 7:4-9 (Outler, Silva).
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).
Silva has read about such grievances and drug activity in his
APD officers' reports and complaints. See Tr. at
9:18-24 (Outler, Silva).
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).
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).
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
officers were armed and in uniform. See generally
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.
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.
Silva observed these men as he approached then rode alongside
the park. See Tr. at 8:4-13 (Outler, Silva).
When he first observed them, Silva was around thirty to forty
feet from the men. See Tr. at 8:22-24 (Outler,
that time, Silva did not recognize Serna. See Tr. at
Silva, the men did not appear engaged in a “casual
conversation.” Tr. at 13:21. See id. at
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.
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 “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).
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).
Once in the park, Silva observed that Serna and Fuentes were
exchanging cash. See Tr. at 10:18-21 (Silva).
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.
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).
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
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).
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).
Avila and Wells arrived at the scene about a minute later.
See Tr. at 3120-23 (Hannum, Silva).
Fuentes told Silva that he was “buying a
lighter.” Tr. at 1125 (Silva).
Silva responded: “You're buying a lighter for what
ten dollars?” Bodycam Video at 00:00:31-:32.
Fuentes replied: “Well, I didn't wanna walk.”
Bodycam Video at 00:00:35-:36.
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).
Accordingly, Silva planned to continue questioning Serna and
Fuentes. See Tr. at 17:2-5 (Silva).
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.
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.
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).
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).
After hearing Serna's reply, Silva alerted Gabaldon,
Avila, and Wells that Serna had a weapon. See
Bodycam Video at 00:00:48-:49.
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.
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
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
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
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
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
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).
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 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).
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
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.
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
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.
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
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).
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
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).
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.
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.
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.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