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United States v. Leib

United States District Court, D. New Mexico

September 20, 2019

JOSHUA LEIB, Defendant.



         Police 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.

         Defendant 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.


         The 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.

         Defendant 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.

         Because 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. 13:17-24.

         Officer 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.

         From 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 – 7:1-3.

         Officers 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.” Id. 10:18.

         Roughly 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.

         Lapel 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.


         After 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 ΒΆΒΆ 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 ...

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