United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant Richard
Cardona's Motion to Suppress Evidence and Request for
Evidentiary Hearing (ECF No. 91). The Court held an
evidentiary hearing on the motion on August 6, 2019. The
Court, having considered the motion, briefs, evidence,
applicable law, and otherwise being fully advised, concludes
that the motion to suppress should be denied.
on the evidence submitted at the hearing, the Court finds the
testimony of the two witnesses to be credible and makes the
following factual findings.
November 25, 2016, the day after Thanksgiving, members of the
Albuquerque Police Department (“APD”) Foothills
Impact Team conducted a tactical operation to watch certain
big box stores in the Foothills Area Command in Albuquerque,
New Mexico, for criminal activity, particularly for thefts of
automobiles and merchandise. See Hr'g Tr.
6:4-8:3. The day after Thanksgiving, or Black Friday, has
statistically higher crime for thefts. See Id.
8:6-11. The APD law enforcement personnel taking part in the
tactical operation included Whitney Burton, Jason Allred,
Tommy Benavidez, Dolores Sanchez, and Ronald Clipp. See
Id. 11:9-21; Hr'g Ex. A. The APD officers drove
unmarked undercover vehicles and wore plain clothes and a
badge around their necks. See Hr'g Tr.
between approximately 12:00 p.m. and 12:15 p.m., Detective
Burton was surveilling the Best Buy parking lot, located on
Hotel Circle in Albuquerque, New Mexico, when she observed a
silver Honda driving very slowly up and down the aisles of
the parking lot, passing open parking spaces. See
Id. 9:22-11:14, 12:8-13:4, 42:1-43:11; Gov.'s Ex. 1.
The Honda backed into a parking space in the northwest corner
of the parking lot in between the Best Buy and Babies R Us
stores. See Hr'g Tr. 13:17-14:16. Detective
Burton saw a woman get out of the passenger side of the
Honda, approach another parked car, peer into the windows of
the car, and try to open the car doors using the door
handles. See Id. 14:18-15:5. She then returned to
the passenger side of the Honda. Id. 15:5-7.
point, Detective Burton notified the other detectives over
the secured radio frequency used by the tactical operation
about the woman and her actions. See Id.
15:12-18. Based on Detective Burton's law
enforcement experience, she suspected the woman and driver of
the Honda of attempting to commit auto burglary. See
Id. 17:19-18:11. It is common in Albuquerque for
citizens to leave their vehicles unlocked, so she suspected
the woman was trying to open the car doors to take items from
within the car for a “quick grab to go.”
Id. 18:4-7. Adding to her suspicion was the fact
that neither the woman nor the driver entered a store near
the parking lot, despite slowing driving in and around the
parking lot. See Id. 18:12-14.
Honda then drove out of the parking lot northwest towards
Lomas. Id. 17:13-15. The detectives on the tactical
team began following the Honda as it left the parking lot and
drove on back roads. See Id. 15:24-16:12, 17:16-18,
19:15-19. As they were following the Honda, around the time
they were leaving Hotel Circle and driving towards Lomas,
Detective Benavidez was able to read the temporary license
tag on the Honda and announced the numbers of the tag to the
team over the radio. Id. 18:15-20, 47:13-48:11,
49:8-19. One of the other detectives ran the tag through the
computer in his law enforcement vehicle and informed the team
via radio that the tag was registered to a BMW. See
Id. 18:21-25, 48:13-50:6, 52:23-53:5. Detective Burton
now suspected that the Honda might be a stolen vehicle.
Id. 18:25-19:5. Hondas are a highly stolen car in
Albuquerque. Id. 22:16-17. In addition, the fact
that the temporary tag did not match the vehicle to which it
was attached is a separate crime. See Id. 19:6-9.
detectives followed the Honda through back roads, while
Detective Burton drove to the Baldwin/Indian School
intersection where she waited for the car to leave again.
See Id. 19:15-20:5. Based on what the other
detectives said over the radio, Detective Burton learned that
the Honda went to a home with the address of 11621 Baldwin
and the female got out of the car, went up to the house, and
appeared to look through something, before returning to the
car. See Id. 20:2-18. It appeared suspicious to the
officers that the female walked up to the front of the house
and then walked back. Id. 20:23-24. The house did
not have a “For Sale” sign at the time.
Id. 21:23-24. For safety reasons, the detectives
were waiting for an opportunity to detain the driver and the
woman when they were both out of the vehicle, because
vehicles have been used as weapons against officers. See
Honda left the Baldwin address and drove on back roads until
it pulled into the driveway of a home with a Tracy address
(hereinafter “Tracy home”). See Id.
23:8-24:5. The home did not have a “For Sale”
sign and it appeared someone lived there because there was
property on the side of the house. Id. 24:22-25.
Detective Burton followed the Honda to the Tracy home and
observed the woman walk into the back area of the home, which
she found strange and suspicious that the woman would go to
the back area instead of the front door. See Id.
25:14-18, 33:14-34:11. The driver, later identified as
Defendant Richard Cardona, got out of the car and appeared to
be scanning the area and acting as a lookout. See
Id. 25:15-18, 27:2-4 28:1-14.
point in time, based on her training and experience,
Detective Burton suspected the couple of committing or
attempting to commit the following crimes: having a temporary
tag that did not match the car, possessing a stolen vehicle,
attempted auto burglary, and attempted burglary of the Tracy
home. See Id. 27:5-24, 33:10-34:11. Detective Burton
pulled her unmarked vehicle behind the Honda in the driveway
and blocked its egress. See Id. 26:1-16, 54:6-14.
Prior to pulling up behind the Honda in the driveway,
Detective Burton had learned the information about the tag
being registered to a BMW, not a Honda. See Id.
53:23-54:5, 57:3-6, 59:1-60:5.
Burton engaged in a felony stop for officer safety reasons
while Defendant and his female passenger were both out of the
car. See Id. 32:21-33:9. She jumped out of her
vehicle with her firearm drawn and yelled, “Albuquerque
Police. Let me see your hands.” Id. 34:21-22,
54:23-24, 56:1-4. Detective Burton positioned herself behind
her own car door, about 15-20 feet away from the suspects.
See Id. 35:22-36:1, 36:24-37:2. The female suspect
complied with Detective Burton's command by putting her
hands in the air. See Id. 34:22-24, 35:5-6.
Defendant Cardona, however, did not comply. See Id.
38:3-7. Instead, he started walking over to his female
companion, positioned himself right behind her, and put his
hand in his right jacket pocket. Id. 34:25-35:5.
Detective Burton believed he was trying to use the female
almost like a shield, id. 36:12-18, and he appeared
to be gripping something in his pocket, id.
36:20-23. Defendant Cardona was also looking back and forth
as if searching for an escape route. Id. 37:13-15.
Because of Defendant Cardona's behavior, Detective Burton
believed he had something in his pocket that could harm the
officers and she feared he was going to shoot her or her
fellow detectives. See Id. 37:3-7, 39:6-10.
seconds, Detective Allred arrived and stood behind Detective
Burton's car, and they both yelled at Defendant to get
his hands out of his pockets. Id. 35:7-10, 36:2-4,
37:8-12. Defendant continued to look to the right and left.
Id. 35:11-12. Shortly thereafter, Detectives
Benavidez, Clipp, and Sanchez arrived and positioned
themselves to Detective Burton's left-hand side. See
Id. 35:13-16, 37:16-19. Defendant Cardona did not comply
with Detective Burton's commands until the other
detectives arrived on scene. Id. 38:4-7. It took
approximately 30-45 seconds for Defendant Cardona to comply,
although it felt more like two to three minutes to Detective
Burton. See Id. 38:23-39:5. Detective Sanchez then
placed the female in handcuffs and moved her away.
Id. 39:11-14. Detective Benavidez talked to
Defendant Cardona who told him he had a gun in his pocket.
Id. 39:15-24. Detectives found a loaded Ruger
firearm in his pocket and ammunition. Id. 40:2-9.
jury subsequently charged Defendant Cardona with having been
convicted of a felony and knowingly possessing a firearm and
ammunition in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). Indictment, ECF No. 14. On July 9, 2019, the
Government superseded the indictment to charge felon in
possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1). Superseding Indictment, ECF No. 116.