United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. HERRERA SENOR U.S. DISTRICT JUDGE.
officers received a nighttime 911 call that Defendant Joshua
Leib was firing gunshots in his parents’ house where he
resided. In an attempt to attract his attention, responding
officers on the scene yelled to Defendant through his open
bedroom window. He would not respond so police, without a
warrant, looked inside Defendant’s bedroom window and
then entered the home and seized a gun in Defendant’s
bedroom, leading to a federal gun charge.
moved to suppress the gun evidence. See Def.’s
Am. Mot., ECF No. 46. He contends that police illegally
entered his home and seized the weapon when the scene had
been secured and there was no immediate danger to any
individual. Because the evidentiary record establishes that
police were faced with an unstable situation, the Court holds
that the exigent circumstances exception to the Fourth
Amendment’s warrant requirement justified the
warrantless search of Defendant’s bedroom and seizure
of the weapon. Defendant’s motion is therefore denied.
Court makes the following findings of fact, as supported by
the record, in accordance with Rule 12(d) of the Federal
Rules of Criminal Procedure.
resided with his mother and father, Mrs. and Mr. Leib, in a
northwest Albuquerque, New Mexico home. On the night of
August 28, 2018, Mrs. Leib’s friend called 911 and
reported that Defendant was shooting a gun in the Leib home.
Motion Hearing Transcript 8:2-4; 10:7-10 (Mot. Hr’g
Tr.). Albuquerque Police Department dispatch got a hold of
Mrs. Leib’s telephone number. Id. 12:9-11.
When the dispatcher spoke to Mrs. Leib, she confirmed that
she had heard three rounds fired inside the house, said that
that her son may have shot himself, and told officers that
she was hiding in a bedroom. Id. 11:24-25 –
12:1; 12:9-13. Although the 911 call was initially a
priority-two call, it was treated as a priority-one call by
the time Officer Dipaolo was dispatched to the scene.
Id. 10:14-16. A priority-one call means that life or
property are in danger and officers respond quickly.
Id. 10:17-22. Dispatch alerted officers that
Defendant had an extensive violent history during police
encounters. Id. 13:1-5; 16:12-13.
police were alerted that a gun was involved, the
investigating officers, Officers Dipaolo and Jones,
approached with their sirens and headlights off and parked
their vehicles at a distance from the scene. Id.
12:21-25; 13:17. This strategy was consistent with their
training to make their presence discreet in order to avoid
being the target of gunfire or ambushed. Id.
Dipaolo initially spoke to a neighbor who said that she heard
a loud bang, but was unsure if the noise was gunshot.
Id. 29:4-5. The neighbor also told Dipaolo that she
saw Defendant driving drunk earlier in the day. Transcript
from Lapel Camera of Officer Gianfranco Dipaolo, 3:9
(Def.’s Ex. B-1). Officers then went to speak with Mrs.
Leib, who met the officers in the driveway of her home. Lapel
Camera of Officer Gianfranco Dipaolo (Def.’s Ex. B).
Almost immediately Mrs. Leib told Officer Jones that she
thought Defendant shot himself. Transcript from Lapel Camera
of Officer Russell Jones, 1:20 (Def.’s Ex. A-1). She
said that her husband, Mr. Leib, was unconscious in a
backroom of the house and that Defendant was in a front room.
Mot. Hr’g Tr.. 1:22-25 – 2:1-3. Defendant was
“upset all day, ” Mrs. Leib said, and “may
be laying in there dead for all I know, ” even though
Defendant did not vocalize any suicidal or homicidal
statements. Id. 2:18; 2:20; Def.’s Ex. B-1,
6:5-7. As they spoke to Mrs. Leib in the driveway, officers
noticed a gun case and ammunition in Defendant’s parked
car. Def.’s Ex. A-1, 3:10-13.
the street side of a wall enclosing the home, officers cried
out public announcements or “PAs” to Defendant
through his open bedroom window. Def.’s Ex. B. They
asked Defendant to respond with “a grunt, noise,
anything, ” that he was “ok.” Def.’s
Ex. A-1, 4:17-20. Officers received no response. Mot.
Hr’g Tr. 18:8-9. As they conversed on the scene, one
officer told another, “there’s no reason for us
to go in there.” The other officer responded,
“none at all. Especially if he’s 27-8, ” to
which the other officer responded, “even though it is a
type of misdemeanor.” Def.’s Ex. A-1, 5:1-3.
After another unsuccessful PA, officers again said
“there’s no urgency, ” and “I’m
not hearing him screaming or anything[.]” Id.
7:7-8. Moreover, Officer Jones reported to dispatch a
“[negative] threat made with or to anyone with
weapon.” Computer Aided Dispatch, (Govt.’s Ex.
1.). Dispatch additionally tried, unsuccessfully, to call
Defendant on the landline inside the home as officers
continued to attempt to draw Defendant’s attention
through the window. Def.’s Ex. A-1, 6:1-4; 6:18-20
then decided to enter the home, telling Mrs. Leib that they
intended to see if Defendant was ok. Id. 8:6-7.
Officers arranged for a rescue team to standby or
“stage” near the house. Mot. Hr’g Tr.
23:12-22. As officers waited for the standby unit, they asked
Mrs. Leib if Defendant had made suicidal comments.
Def.’s Ex B-1, 10:4-5. She again said no, but also
repeated that he could be “laying in there dead.”
20 minutes and ten PAs later, officers approached the house,
which was secured by a wall and iron gate that opened onto a
small, enclosed patio. Def.’s Ex. B. Officer fanned
out. Id. Officers Jones and Torres proceeded
directly to Defendant’s bedroom window while Officer
Dipaolo stood by a nearby door. Mot. Hr’g Tr. 30:16-19.
Officer Jones moved aside the curtains of the open window and
inserted his head within the bedroom. He saw Defendant on the
ground passed out and making grunting noises. Id.
33:6-8. Officer Dipaolo asked Officer Jones if he saw any
visible blood, and Officer Jones responded, “he is
grunting, he is alive.” Id. 33:9-14. From
outside the window Officer Jones roused Defendant, asking him
if he was okay. Id. 34:1-3. Defendant responded
“what the fuck is going on?” Id.
34:15-17. At this point Officer Jones told his colleagues,
“I don’t see the gun, he’s very [drunk]. We
know he’s okay, um, I mean do we need to do anything
else?” Def.’s Ex. A-1, 12:16-17. Another officer
responded, “no, ” and that “we don’t
have anything to arrest on him.” Id. 12:18-19.
Defendant declined all offers of medical attention. Mot.
Hr’g Tr. 37:12-16.
camera video from Officer Jones shows that continued to
visually search the bedroom. Def.’s Ex. A. Roughly
three-minutes after Officer Jones first peered through
Defendant’s window, Officer Jones told his colleagues
that he spotted a firearm about five-feet away from the
officer’s position at the window. Def.’s Ex. A-1,
14:5. At this point Officers Dipaolo and Torres entered the
house without consent from Defendant or his mother while
Officer Jones remained at the window. Mot. Hr’g Tr.
38:23-25 – 39:1-8. When officers opened
Defendant’s bedroom door, Defendant appeared face down
on a mattress. Id. 41:10:12; 47:25 – 48:1.
Officer Dipaolo immediately seized the gun, which was on the
floor near the mattress. Id. 39:14-16; 40:16-17.
Defendant told officers to “get away” and
answered “no” when they asked him if he felt like
hurting himself or anyone else. Def.’s Ex. B-1, 19:17,
20:5-8. After concluding that Defendant was “very
drunk” but not in need of medical attention, officers
left the bedroom. Id. 20:20; Def.’s Ex. B.
They spoke briefly to Mrs. Leib and then left the scene about
four minutes after entering Defendant’s bedroom.
Id. Officers made no further intrusions into the
house. Mot. Hr’g Tr. 25:10-12. According to Officer
Dipaolo’s lapel camera, the entire event – from
when they first spoke to a neighbor until officers left the
scene - lasted about 35 minutes. Def.’s Ex. B.
APD officers took the firearm for safekeeping, officers
queried into Defendant’s criminal background.
See Criminal Compl. ECF No. 1, ¶ 24. Defendant
has four felony convictions for aggravated assault with
intent to commit a violent felony on a police officer,
driving while intoxicated, aggravated assault against a
household member with a deadly weapon, and aggravated
battery. Id. at ¶¶ 24, 31. After
determining that Defendant had felony convictions, a federal
law enforcement officer reviewing the case filed a federal
criminal complaint against Defendant in October 2018. On
September 11, 2019, a federal grand jury indicted ...