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United States v. James

United States District Court, D. New Mexico

May 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEREK JAMES, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         The 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.

         I. Statement of Facts

         On February 6, 2017, Farmington Police Officer Navid Babadi was on patrol. Tr. 5:25-7:22.[1] 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.[2] 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, 33:16-21.

         Mr. 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.[3] 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.

         Officer 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. 60:16-62:18.

         Officer 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.”[4] Def. Exh. D 23:35. He then said, “If not, I'm gonna . . . uh . . . gonna tow it just due to his suspension . . . .”[5] Def. Exh. D 23:35-23:36.

         After 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.

         Officer 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 following circumstances:
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 impaired.

Doc. 20-1 at 3.

         Officer 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 even ...


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