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United States v. Kinney

United States District Court, D. New Mexico

October 16, 2019




         This matter is before the Court on Defendant Lalonzo J. Simmons' Motion to Suppress Tangible Evidence and Statements (ECF No. 63). The Court held a hearing on the motion on September 12, 2019. After carefully considering the motion, briefs, evidence, and being fully-informed, the Court concludes that Defendant's motion should be granted in part and denied in part.


         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.

         In March 2018, Defendants robbed a Subway restaurant in Albuquerque, New Mexico by gunpoint. See Motion Hearing Transcript 11:13-16 (Mot. Hr'g Tr.). Albuquerque Police Department Detective Tyler Burt reviewed the surveillance footage from inside the restaurant and observed Mr. Simmons' unconcealed face. Id. 10:20; 12:22-24. The robbers fired bullets in the restaurant, leaving behind casings which officers sent to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for testing. Id. 12:13-14, 15:9-12. Video footage captured the robbers fleeing in a Dodge Caravan with the license plate clearly visible. Id. 13:4-8.

         Detective Burt traced the Dodge's license plate to a suspect who lived at the Continental Arms Apartments, an apartment complex in Southeast Albuquerque. Id. 15:19-21. Police surveilled the Dodge with a Global Position System tracker, but the surveillance generated no leads, and when Detective Burt looked at a photograph of the Dodge's owner from the Motor Vehicle Department database, he knew that the suspect was not one of the Subway robbers. Id. 16:17-19, 17:1-3. Police had a second suspect in mind, but as the investigation unfolded and a state judge denied a warrant for that suspect's arrest, police determined the second suspect also was not the involved in the Subway robbery. Id. 17:4-7, 17:23-23 - 18:1.

         On April 3, 2018, two same-day armed robberies occurred. The first was of another Subway restaurant. Id. 18:4-5. The second was of a marijuana dispensary. Id. 18:25 - 19:1-2. Only one individual, believed to be Mr. Kinney based on officers' review of video footage, robbed the Subway restaurant that morning by gunpoint. Id. 18:7-8. Both Defendants robbed the marijuana dispensary later that day. Id. 50:25 - 51:1-6. Detective Burt's review of the video footage from the first Subway robbery on March 19, 2108 and the marijuana dispensary robbery showed that the taller suspect, believed to be Mr. Simmons, wielded the same distinctive firearm in each robbery. Id. 51:7-16.

         A tannish silver Mercedes was used in the April 3 robberies, the license plate visible. Id. 18:9, 20:5-9. Detective Burt traced the vehicle's license plate to its registered owners, Mr. Simmons and Crystal Baca. Id. 11-12. The detective's search of the MVD database showed that Mr. Simmons was six-foot-five, African-American, and weighed 200-plus pounds, which is how the Subway employees from the first robbery described one of the robbers. Id. 18:11-12, 13:21- 22. The next day, on April 4th, officers obtained a warrant to place a GPS tracker on Mr. Simmons' and Ms. Baca's Mercedes. Id. 25:3; 52:7-9. Officers observed Mr. Simmons driving the sedan. Id. 75:9-12.

         On April 9, 2018, ATF got back to Detective Burt about the two bullet casings from the first Subway restaurant robbery from March. Id. 22:10-14. The casings were connected to casings recovered from a shooting that happened across the street from the Continental Arms Apartments, the apartment complex where Mr. Kinney resided. Id. 22:15-25 - 23:1-22. This shooting occurred two-days after the first Subway robbery, or on March 21, 2018. Id. 22-13-14. When officers spoke to the apartment complex manager, she said that she saw Mr. Kinney entering the building after the shooting. Id. 23:2-11.

         On April 10, Detective Burt learned that a “source of information” told an ATF agent that Mr. Simmons was involved in some robberies and gave the agent Mr. Simmons' phone number, which turned out to be the same phone number Mr. Simmons' gave in a post-arrest interview. Id. 52:17-25 - 53:1, 53:18-24. During this same period, Detective Stone, whom the Court finds credible based on his officer training and experience, observed Mr. Simmons engage in activity consistent with counter-surveillance, such as drive different routes to and from home and do loops in the neighborhood before pulling into his driveway. Id. 77:24-25 - 78:1-10.

         On May 1, 2018, at about ten o'clock in the morning, Defendants were allegedly seen on video robbing another marijuana dispensary by gunpoint. Id. 26:17-18, 23, 27:10-12. Footage captured Mr. Kinney entering the dispensary with his face uncovered, firing a round into the ceiling, and robbing cash and merchandise. Id. 26:24-25, 27:9-12. Mr. Simmons was filmed standing guard in the doorway. Id. 27:13-16. The men fled in a stolen getaway truck that was found abandoned. Id. 27:22-25, 30:1. The GPS tracker on Mr. Simmons' Mercedes revealed that the Mercedes left Mr. Simmons' residence, and then traveled to the same location where the truck was found abandoned, suggesting that someone driving Mr. Simmons' car retrieved Defendants from the getaway truck. Id. 30:21-25 - 31:1-3. When Detective Burt shared the video footage of the robbery with Detective Church, Detective Church identified Defendants as the robbers based on his weeks-long surveillance of the Defendants. Id. 97:1-6. Surveillance teams observed both men at their respective residences while Detective Burt began drafting warrants for the Defendants' arrest and search of their residences. Id. 31:24-25 - 32:1-5. Detective Burt knew that Mr. Simmons had a criminal record for aggravated battery, armed robbery, aggravated burglary and false imprisonment. Id. 34:7-15.

         As Detective Burt prepared the warrants, APD detectives coordinated with other law enforcement units to arrest the Defendants simultaneously. Meanwhile, though, Detective Church covertly watched Mr. Kinney behaving “erratic[ally].” Id. 100:9. He would dart in and out of his apartment, look up and down the street, stare down passing cars and pedestrians, and talk on a two-way radio. Id. 100:11-25. He held a black drawstring bag, hand inside the bag, making Detective Church fearful that he was hiding a gun. Id. 101:10-14. When another surveilling officer had to move his car from the street to an alleyway, Mr. Kinney followed the car into the alleyway. Id. 101:15-19.

         Police manpower was split into two, half of the team was at Mr. Simmons' residence, half at Mr. Kinney's. Id. 102:24-25 - 103:1. Detective Church called Detective Burt several times asking about the status of the warrants. Id. 103:3-7. Detective Church testified that because of Mr. Kinney's behavior and Defendants' use of firearms in the April 3 and May 1 robberies, he and his sergeant decided to simultaneously arrest the Defendants before Detective Burt completed the warrant process. Id. Detective Church believed that simultaneous arrests minimized the risk of Mr. Simmons' learning of Mr. Kinney's arrest and then fleeing or destroying evidence. Id. 105:4-7. SWAT, bomb squad, and K-9 officers told Mr. Kinney over a PA system to give himself up. Id. 108:13-13. He exited his apartment and was detained. Id. 108-13-15. Officers entered the apartment and conducted a protective sweep to look for occupants. Id. 108:23-25 - 109:1-6.

         Officers detained Mr. Simmons using the same tactics, although with a smaller law enforcement contingent of ten to 12 officers. Id. 105:13-17, 108:15-18, 137:4-7. Officers knew that other occupants were inside the house with Mr. Simmons, but they were unsure how many. Id. 146:1-5. They used a spike belt on in case Mr. Simmons attempted to flee in his parked vehicle. Id. 127:13-16. After a series of announcements, his partner Crystal Baca also exited and was taken into custody. Id. 139:19-22. No. evidence was seized by officers during the protective sweep of Mr. Simmons' residence, although officers did see a rifle in a crawl space. Id. 130:3-19. Detective Burt did not know about or rely upon the existence of the rifle when he drafted the search warrants. Id. 130:20-25 - 131:1-3.

         Around this time, Detective Burt had received word that Defendants were arrested, so he stopped working on arrest warrants but continued drafting warrants to search the Defendants' homes. Id. 34:1-4, 35:4-10. At 7:50 P.M. that same evening, a state judge signed the search warrant to search Mr. Simmons' home based on Detective Burt's affidavit. As noted earlier, the detective did not know of any evidentiary content within the home when he drafted the warrants. Id. 38:25 - 39:1. Officers found the evidence at issue while executing the ...

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