United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
FASHING UNITED STATES MAGISTRATE JUDGE
MATTER comes before me on defendant Derek James' Motion
to Suppress Tangible Evidence and Statements, filed on
February 25, 2019. Doc. 16. The United States opposes the
motion and filed its response on March 8, 2019. Doc. 20. The
Court held an evidentiary hearing on April 12, 2019. Doc. 28.
Honorable District Judge James O. Browning referred the
motion to me to conduct hearings, if warranted, including
evidentiary hearings, and to perform any legal analysis
required to recommend to the District Court an ultimate
disposition pursuant to the provisions of 28 U.S.C. §
636(b). Doc. 22. Having read the motion and response, and
having heard the evidence presented on April 12, 2019, I
recommend that the Court GRANT the motion.
Statement of Facts
February 6, 2017, Farmington Police Officer Navid Babadi was
on patrol. Tr. 5:25-7:22. According to Officer Babadi, he saw
defendant Derek James drive by him sometime between 11:00 and
11:30 p.m. Tr. 8:2-17, 10:19-22, 28:11-29:1. Officer Babadi
recognized Mr. James from prior encounters. Tr. 8:16-17.
Officer Babadi checked the license plate and the driver's
license status of Mr. James on the mobile system inside his
patrol unit, and the system indicated that Mr. James'
license was suspended. Tr. 8:18-21, 9:14-10:4, 40:2-41:5,
42:4-24. Officer Babadi then engaged his emergency
equipment and stopped Mr. James. Tr. 8:22-24, 10:5-14. Once
he engaged his emergency equipment, Officer Babadi's dash
camera automatically recorded the events from approximately
one minute before he turned on the equipment until Mr. James
pulled over, and that video recording was admitted into
evidence as Defendant's Exhibit C. Tr. 31:1-15, 32:21-22,
James pulled into a parking lot at San Juan and Scott. Tr.
10:12-14; 64:12-65:3; Def. Exh. C (showing that Mr. James
pulled off the road into some sort of parking area). Before
Mr. James stopped, Officer Babadi saw him moving around
inside his car, which Officer Babadi described as a
“furtive movement.” Tr. 10:14-18, 13:8-14,
65:4-16. Officer Babadi thought that Mr. James might be
hiding something. Tr. 65:17-66:11. Officer Babadi got out of
his patrol unit and told Mr. James from the driver's side
window that he pulled Mr. James over for a suspended license.
Tr. 11:14-18; Def. Exh. C; Def. Exh. D 23:28. Officer Babadi
asked Mr. James for his driver's license, registration
and insurance, and Mr. James handed him a state ID card and
his registration, but could not find his proof of insurance.
Tr. 54:8-12; Def. Exh. D 23:28-23:29. After a short
conversation, Officer Babadi went back to his patrol unit to
check with dispatch to confirm that Mr. James' license
was suspended. Tr. 11:19-12:7; Def. Exh. D 23:28-23:32.
Babadi checked with dispatch because he wanted to confirm
that Mr. James' license was suspended, and he also wanted
to know if there were any warrants out for Mr. James'
arrest originating in any other jurisdiction. Tr. 12:5-19.
The dispatch operator confirmed that Mr. James' license
was invalid, but she did not use the word suspended. Tr.
58:22-60:9. The dispatch operator said the license was
“invalid-expired” although the expiration date
she gave was a date in the future. Tr. 60:8-15. Officer
Babadi insisted, however, that the license was invalid. Tr.
Babadi asked the dispatch operator to send a backup officer.
Tr. 13:5-7. The backup officer, Sergeant Lacy, arrived before
Officer Babadi went back to talk to Mr. James. Tr. 13:5-10;
Def. Exh. D 23:35. When Sergeant Lacy arrived, Officer Babadi
told him (out of Mr. James' earshot) that Mr. James'
license was suspended and that he didn't have insurance,
but that as soon as Officer Babadi pulled him over, “he
like stuffed something under the seat.” Def. Exh. D
23:35. Officer Babadi also said, “I've dealt with
him before. I know he's Code 12.” Def. Exh. D
23:35. “Code 12” meant that Officer Babadi
thought that Mr. James was involved in narcotics activity.
Tr. 67:14-68:12. Officer Babadi also told Sergeant Lacy,
“I'm gonna see if he's gonna give me consent to
search the vehicle.” Def. Exh. D 23:35. He then said,
“If not, I'm gonna . . . uh . . . gonna tow it just
due to his suspension . . . .” Def. Exh. D 23:35-23:36.
his conversation with Sergeant Lacy, Officer Babadi went back
to Mr. James and asked him to step out of his car so that he
could ask him about the “furtive movement” he saw
just before the stop. Tr. 13:8-10. Mr. James said he had just
been reaching for his wallet. Tr. 13:11-14. When Mr. James
got out of his car, Officer Babadi asked him if he had any
illegal items on him and whether he could search his person.
Tr. 13:21-14:5. Mr. James consented to a search of his
person, and Officer Babadi did not find anything illegal on
him. Tr. 13:24-14:5. Mr. James refused, however, to let
Officer Babadi search his car. Tr. 71:16-18; Def. Exh. D
23:38, 23:40. At that point, Officer Babadi again went to
talk to Sergeant Lacy out of Mr. James' hearing. Def.
Exh. D 23:41. Officer Babadi told Sergeant Lacy,
“I'm just gonna tow it due to his suspension and no
insurance, and go from there.” Id.
Babadi testified that he decided to tow Mr. James' car
based on “department policy and procedures.” Tr.
14:9-10. He testified that Farmington Police Department
(“FPD”) policies allow police officers to tow
vehicles if “there's an arrest incident or if
there's lack of a licensed driver, suspended driver, or
no insurance, registrations. If the car hasn't been
registered, I believe it's for one year.” Tr.
14:15-18. The policies themselves state, in pertinent part:
An officer may consider towing a vehicle under any of the
3. Whenever the operator of the vehicle is found to have
suspended or revoked driving privileges and there exists no
properly licensed driver, designated by the owner of the
vehicle, readily available to drive the vehicle.
Doc. 20-1 at 3. The policies further provide:
An officer may consider alternative methods of releasing the
vehicle to the licensed owner, other than removing of a
vehicle by towing, under situations wherein the volume of
calls for service, roadway conditions, or other circumstances
or factors allow for an officer to research alternative
methods. An officer may not release a vehicle to a person who
has consumed alcohol or who is suspected of otherwise being
Doc. 20-1 at 3.
Babadi decided to tow Mr. James' car “[b]ecause of
the insurance and no license.” Tr. 15:1-4. Although
Officer Babadi acknowledged that he “could have not
towed the vehicle, ” he did not seem to think that this
was a feasible option because there was not another driver
present to take the vehicle. Tr. 73:7-74:8. Officer Babadi
did not explore any alternatives to towing Mr. James' car