United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S
MOTION TO SUPPRESS
WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant's Motion
to Suppress [Doc. 26], filed May 6, 2019. Defendant moves the
Court to suppress all evidence and statements obtained from
Defendant as a result of his mistaken identity arrest. The
Supreme Court has explained that when “the police have
probable cause to arrest one party, and when they reasonably
mistake a second party for the first party, then the arrest
of the second party is a valid arrest.” Hill v.
California, 401 U.S. 797, 802 (1971). There is no
dispute that the officers had probable cause to arrest the
first party. See United States Exhibit 1 (Arrest
Order for Mr. Shamon Pacheco). Defendant's motion,
therefore, turns on whether the officers reasonably mistook
Defendant for the first party.
Court held an evidentiary hearing on December 10, 2019, at
which the following material facts were established. Doc. 44.
On February 27, 2019, the New Mexico Department of
Corrections Probation and Parole Division issued an arrest
order for Mr. Shamon Pacheco for failing to report. The order
described Mr. Pacheco as Hispanic male, 5 feet 8 inches tall,
187 pounds, with neck tattoos. The order also stated that his
vehicle was a black Dodge Charger and that his last known
address was 1001 Louisiana Blvd. NE, Apartment #18,
March 4, 2019, a team of fugitive apprehension officers
traveled to ABQ Elevate Apartments at 1001 Louisiana Blvd. NE
in Albuquerque to arrest Mr. Pacheco. Upon arrival, they
spoke with an apartment complex maintenance employee. The
employee told them that he knew Mr. Pacheco, and that he saw
Mr. Pacheco earlier that day wearing dark colored clothing
and a black hat leaving the apartment complex in a black,
four-door sedan. The employee also explained that Mr.
Pacheco's grandmother lived in apartment #18 and his
sister lived in apartment #42, and that he regularly saw Mr.
Pacheco come and go from both apartments.
officers then went to the apartment complex's leasing
office to interview employees about Mr. Pacheco. One of the
officers, however, positioned himself at the rear of
apartment #18 in case Mr. Pacheco tried to exit a back
window. After a few minutes there, the officer saw a male
wearing dark colored clothing and a black hat drive a black,
four-door sedan into the apartment's north parking lot.
The officer then returned to the leasing office and watched
apartment #42 through a window. Apartment #18 was not visible
from the office.
ten to fifteen minutes later, the officer saw a male wearing
dark colored clothing and a black hat with neck tattoos exit
apartment #42 with a female heading towards the north parking
lot. At that point, the officers believed the male was Mr.
Pacheco. The officers approached the male in the parking lot
and said, “Shamon, stop.” The male looked up at
them and said “huh.” Knowing that Mr. Pacheco had
a violent history and was known to be armed, the officers
ordered the male to the ground. As the male got on the
ground, he explained that he had a pistol in his back pocket.
The officers then saw the pistol in plain view sticking out
of his back-right pocket. The officers asked him what his
name was. The male stated his name was Vicente Rivera. The
officers then noticed that the male was wearing a hospital
wristband with the name Vicente Rivera.
the officers then asked Mr. Rivera if he was on probation or
parole. Mr. Rivera explained he was “off-paper”
(i.e. no longer on probation or parole). The officer then
asked who his probation officer was. Mr. Rivera said it was
Edmund Vigil. The officer knew Mr. Vigil from work, so he
called him and learned that Mr. Rivera was a convicted felon.
Shortly thereafter, the officers arrested Mr. Pacheco at
argues that the officers did not reasonably mistake Defendant
for Mr. Pacheco. Doc. 26 at 5-6. Defendant contends that
Defendant and Mr. Pacheco do not resemble each other and that
the dark colored clothing and black hat description was not
specific enough for the officers to have had an objectively
reasonable basis to believe Defendant was Mr. Pacheco.
Defendant's argument is not persuasive. During the
hearing, the United States introduced photos of Defendant and
Mr. Pacheco and, after reviewing them, it is clear to the
Court that Defendant and Mr. Pacheco do resemble each other.
Both are Hispanic males with mustaches and neck tattoos.
Compare United States Exhibit 10 (Photo of
Defendant), with United States Exhibit 11 (Photo of
Mr. Pacheco). Defendant also shortchanges the descriptors the
officers considered when they concluded Defendant was Mr.
Pacheco. The officers considered not only that Mr. Pacheco
was wearing dark colored clothing and a black hat, but also
that Mr. Pacheco was a Hispanic male with neck tattoos who
drove a black, four-door sedan and frequented apartments #18
also argued at the hearing that the manner the officers went
about their operation was unreasonable. Such an argument,
however, has no bearing on this motion. The dispositive
question is whether the officers reasonably mistook Defendant
for Mr. Pacheco, not whether the manner the officers
conducted their operation was reasonable. Absent controlling
authority requiring the Court to do so, the Court will not
Monday-morning quarterback the officer's operational
plans and strategic decisions, especially considering they
conducted their operation knowing that the person they were
looking for had a violent history and was known to be armed.
Court finds that the officers reasonably mistook Defendant
for Mr. Pacheco. Defendant not only matched Mr. Pacheco's
description, but the officers also witnessed Defendant
leaving an apartment Mr. Pacheco was known to frequent.
“[Sufficient probability, not certainty, is the
touchstone of reasonableness under the Fourth Amendment and
on the record before [the Court] the officers' mistake
was understandable and the arrest a reasonable response to
the situation facing them at the time.” Hill,
401 U.S. at 804. Defendant's Motion to Suppress [Doc. 26]