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United States v. Rios

United States District Court, D. New Mexico

December 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BENEDICTO RIOS, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS

         THIS MATTER IS BEFORE THE COURT on Defendant Benedicto Rios' (“Defendant's”) Motion to Suppress Evidence and Statements (“Motion”) (Doc. 24). The Court, having reviewed the parties' briefing and considered counsels' oral arguments and the applicable law, finds that the Motion is not well-taken and is, therefore, DENIED.

         BACKGROUND

         This case arises out of Defendant's arrest by Lance Cerros and other officers of the Albuquerque Police Department (“APD”) inside of a Kohl's store on December 28, 2018. Defendant is charged with being a felon in possession of a firearm. Defendant moves to suppress the firearm and all other evidence obtained to support this charge on the grounds that the police lacked reasonable suspicion to detain him and/or probable cause to arrest him.

         At the hearing on this matter, the following events were established. Officer Cerros testified that he has been a law enforcement officer since 2008. Officer Cerros estimated that he has responded to 500 or more shoplifting calls for service. Based on his knowledge, training, and experience, he knows that shoplifters often carry weapons. In fact, Officer Cerros testified that ninety percent of the shoplifters he encounters are armed with some kind of weapon. On the evening of December 28, 2018, Officer Cerros was working patrol when he spotted a Toyota idling with its trunk open outside of the fire/rear exit of the Home Depot store near Cottonwood Mall in Albuquerque, New Mexico. Officer Cerros believed this was consistent with a “push out, ” a situation where shoplifters will use a back exit to take merchandise from a store into a waiting getaway vehicle. Officer Cerros recorded his interaction with the driver on his lapel camera, which was played at the hearing. He can be heard on the video asking the driver if he is staging a push out. The driver denied this and told Officer Cerros that he did not have any identification on him. Officer Cerros then asked the driver to step out of the vehicle, at which point the driver sped off, nearly colliding with another driver. Officer Cerros was unable to locate the vehicle and returned to Home Depot where a call for service was pending.

         That call for service came from Home Depot's store manager. He had contacted police regarding six individuals who had previously been issued criminal trespasses (meaning they were not permitted to be at the store). An audio recording of that call was presented at the hearing. The manager relayed to the APD operator that he believed the individuals were about to steal from the store. The manager further stated that he had a “funny feeling” that there was probably a car waiting in the back of the store. When Officer Cerros arrived he made contact with the store manager. At this time, there were multiple officers on scene. The officers, including Officer Cerros, and store employees were standing in the parking lot of the store. Officers received information that two of the subjects had left the store in a Mustang. Officer Cerros once again left Home Depot and pulled the Mustang over nearby. This encounter was also captured by lapel camera. Officer Cerros made contact with two male subjects (driver and passenger) who denied having been issued criminal trespasses, with one somewhat humorously stating that he had not ever “been caught” at Home Depot. After briefly speaking with the individuals, one of whom was an admitted parolee, Officer Cerros sent them on their way.

         Officer Cerros, believing his investigation was concluded, disengaged his lapel camera and went back to the parking lot of Home Depot. When he returned to Home Depot, an employee (who Officer Cerros could not identify) told him that another subject, a Hispanic male wearing a red sweatshirt and black hat, had run out of the store heading towards the nearby Wal-mart. Officer Cerros did not have his body camera engaged during this exchange. Although not viewed by Officer Cerros that evening, surveillance video from the Home Depot shows a man, later identified as Defendant, walking out of the store wearing black pants, a black jacket, a black and red beanie, and a red scarf. (See Gov.'s Ex. 1.)

         After receiving the report from the store employee, Officer Cerros got back in his car and went in search of the person the employee had described. He was then contacted by another officer who had spotted someone matching the description offered by the employee walking toward a furniture store near the Wal-mart. Officer Cerros advised the other officer that he thought perhaps the subject would lead them to the Toyota which fled earlier, so Officer Cerros drove to the area. He then personally observed the subject-later identified as the Defendant-walk into Kohl's.

         Officer Cerros entered Kohl's from a different entrance than Defendant and immediately went into the store's loss prevention office, which he was familiar with from other service calls. Although there were multiple cameras, Officer Cerros was watching Defendant from one in particular. Officer Cerros observed Defendant speaking with someone in the store. He then observed Defendant retrieve a Kohl's plastic bag from an employee at one of the registers. The video shows that Defendant was holding something underneath his arm, and had a black jacket tied around his waist. Officer Cerros then watched from the store's surveillance camera as Defendant moved away from the cash registers without paying and then walked toward a clothing display. Officer Cerros' view was partially obstructed by a large pillar, but he could see that Defendant was putting items into the bag. Defendant then walked out of the store into a vestibule area.

         Upon seeing Defendant place unknown items into the bag and walk out of the store without returning to the cash registers or paying, Officer Cerros left the loss prevention area and returned to his police vehicle where he planned to intercept Defendant by driving around the building toward the exit Defendant went through. When Officer Cerros pulled up, he engaged his body camera and could see Defendant in the vestibule. Defendant proceeded to head back inside the store.

         When Officer Cerros entered Kohl's, Defendant was standing near the cash registers, swinging a Kohl's bag.[1] Officer Cerros asked to speak with Defendant who replied “sure” and then began following Officer Cerros toward the exit. Defendant asked, “can I talk to my grandma real quick?” to which Officer Cerros replied, “no-hold on man.” Officer Cerros walked into the vestibule with Defendant following closely behind but still outside of the interior door to the vestibule. Officer Cerros then asked, “do you have any weapons on you?” Defendant responded, “what's that?” Officer Cerros repeated the question and Defendant replied “no-let me tell my grandma.” Officer Cerros then reached out for Defendant's arm and said “hey come here” to which Defendant replied, “what am I doing? I don't understand what I did wrong.” Officer Cerros stated, “I need to talk to you about this merchandise right here.” Defendant stated the merchandise was his. Officer Cerros asked Defendant if he had a receipt. At this point, another officer (Officer Aragon) can be seen on Officer Cerros' lapel footage holding Defendant's arm. Defendant stated, “you can ask that lady she just gave me one” and motioned with his chin toward the cash registers. Officer Cerros told Defendant that he needed to make sure that Defendant did not have any weapons on him. While Officer Aragon was still holding Defendant's arm, Officer Cerros began a pat-down of Defendant. While conducting the pat-down, Officer Cerros either felt or saw something and stated, “oh he has a gun.” Defendant immediately began struggling against the officers. Officer Cerros stated “do not reach for that gun!” as the officers struggled with Defendant. Eventually, Defendant was taken to the ground by officers in the struggle, and subsequently arrested. The officers later established that the items in the bag belonged to Defendant and were not shoplifted from Kohl's.

         Defendant avers that his encounter with Officer Cerros was an unlawful arrest not supported by probable cause. (Doc. 24 at 5.) The Government, in turn, contends that the encounter was merely an investigatory detention, requiring only reasonable suspicion.

         DISCUSSION

         I. The interaction between Defendant and Cerros was not a consensual encounter.

         The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures [ ...


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