United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE JUDITH HERRERA SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 -
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 ...