JAMES O. BROWNING, District Judge.
Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) ("When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order are the Court's essential findings for rule 12(d)'s purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid.104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege."). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Garcia, 324 Fed. Appx. 705, 708 (10th Cir.2009)(unpublished)(recognizing that it was not necessary to "resolve whether Crawford's
1. On August 9, 2011, Vigil and Police Trainee Officer Stephen Ortega stopped Reyes-Vencomo while Reyes-Vencomo was operating his motor vehicle near his home in Taos. See Transcript of Hearing at 13:2-19 (January 27, 2012)(Torrez, Vigil)("Tr.").
2. Vigil and Ortega stopped Reyes-Vencomo and executed a traffic stop, because they observed Reyes-Vencomo failing to stop at a stop sign, and exceeding the posted speed limit. See Tr. at 13:2-19 (Torrez, Vigil); id. at 82:15-83:2 (Torrez, Ortega); State of New Mexico Uniform Traffic Citation for Failing to Complete a Stop (dated August 10, 2011)(Govt's Ex. 2 at hearing)("Stop Sign Citation"); State of New Mexico Uniform Traffic Citation for Going 40 Miles Per Hour in a 25 Miles per Hour Zone (dated August 10, 2011)(Govt's Ex. 3 at hearing)("Speeding Citation").
3. This traffic stop was Ortega's first stop where he would make contact with the driver. See Tr. at 14:13-19 (Torrez, Vigil).
4. While investigating the driver, Ortega, accompanied by Vigil, approached Reyes-Vencomo's vehicle and, pursuant to standard police procedure, asked Reyes-Vencomo for his driver's license, vehicle registration, and proof of insurance. See Tr. at 15:18-9 (Torrez, Vigil); id. at 83:16-21 (Torrez, Ortega); Grand Jury Testimony of Virgil Vigil at 5:17-23 (Vigil)(Govt's Ex. 6 at hearing)("Vigil GJ Testimony").
5. Reyes-Vencomo provided the officers with his vehicle registration information and proof of insurance on the vehicle, informed the officers where he lived, and gave his full name, but indicated that he did not have a driver's license or identification.
6. Vigil then asked Reyes-Vencomo to provide some form of identification, his name, date of birth, and Social Security number
7. Reyes-Vencomo then provided the officers with his date of birth and produced a Social Security card, giving it to Vigil. See Tr. at 18:24-19:3 (Torrez, Vigil); Vigil Incident Narrative at 1 (Def.'s Ex. A at hearing)("Vigil Report"); New Mexico v. Reyes, No. M-53-FR201100149, Statement of Probable Cause, dated August 11, 2011 (Def.'s Ex. B at hearing)("Probable Cause"); Ortega Incident Narrative at 1 (Def.'s Ex. C at hearing)("Ortega Report").
8. Vigil noted that the card's coloring and writing did not appear to be correct, and suspected that the card was fake. See Tr. at 19:12-19 (Torrez, Vigil); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
9. Vigil then stated to Reyes-Vencomo that he was not free to leave, as he was going to "run" — conduct a computer-assisted check on — the Social Security card. Tr. at 19:4-8 (Torrez, Vigil); id. at 37:17-23 (Juarez, Vigil).
11. The officers ran the card, and it could not be confirmed as a valid card. See Tr. at 20:2-3 (Torrez, Vigil); id. at 38:15-17 (Juarez, Vigil); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
12. Dispatch informed Vigil that no record existed matching the Social Security number that Reyes-Vencomo provided. See Tr. at 20:2-3 (Torrez, Vigil); id. at 38:15-17 (Juarez, Vigil); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
13. Vigil then returned to Reyes-Vencomo's vehicle and asked him where he got his Social Security Card, to which Reyes-Vencomo responded that he had received it in New Mexico, through the mail. See Tr. at 20:4-13 (Torrez, Vigil).
14. This answer set off a "red flag" for Vigil, because Vigil knew that an individual has to personally retrieve his or her Social Security card. Tr. at 20:13-14 (Vigil).
15. Vigil informed Reyes-Vencomo that he was going to detain him for further investigation, as he believed that Reyes-Vencomo was in possession of a fraudulent Social Security card. See Tr. at 20:15-20 (Torrez, Vigil); id. at 38:18-39:2 (Juarez, Vigil).
16. Reyes-Vencomo became frustrated and, without the officers' prompting, exited his vehicle. See Tr. at 20:21-23 (Torrez, Vigil); id. at 33:2-33:9 (Juarez, Vigil); id. at 86:11-17 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
17. As Reyes-Vencomo was exiting the truck, Vigil noticed a large machete in the vehicle's cab and informed Reyes-Vencomo that he would be temporarily detained outside of the vehicle for officer safety. See Tr. at 21:6-18 (Torrez, Vigil); id. at 39:20-40:4 (Juarez, Vigil); id. at 58:14 (Torrez, Holfelder); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
18. Vigil was attempting to escort Reyes-Vencomo to his police vehicle when Reyes-Vencomo's cellular telephone began to ring. See Tr. at 22:3-12 (Torrez, Vigil); id. at 86:24-87:6 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
19. For officer safety, Vigil instructed Reyes-Vencomo not to reach into his pockets, but Reyes-Vencomo ignored the order and attempted to retrieve the telephone from his pocket. See Tr. at 22:8-23:3 (Torrez, Vigil); id. at 74:11-17 (Torrez, Reyes-Vencomo); id. at 87:12-20 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
21. Reyes-Vencomo's telephone and wallet fell out of his pocket, and remained on the ground while Vigil attempted to gain control of Reyes-Vencomo. See Tr. at 23:14-25 (Torrez, Vigil);Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
22. The Social Security card, which Vigil had retained, also fell to the ground. See Tr. at 23:14-20 (Torrez, Vigil); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
23. Reyes-Vencomo's wife, Shirley Reyes, then arrived on the scene and, contrary to Vigil's directions, picked up Reyes-Vencomo's suspect Social Security card, tore it into pieces, and stuffed them into her shirt and mouth. See Tr. at 24:12-25:3 (Torrez, Vigil); id. at 75:15-18 (Torrez, Reyes-Vencomo); id. at 88:25-89:14 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
24. Vigil had previously met S. Reyes, but had not previously met Reyes-Vencomo. See Tr. at 36:6-17 (Juarez, Vigil).
25. Simultaneously, Reyes-Vencomo continued to resist Vigil's attempt to restrain him and head-butted Vigil in the nose as he was attempting to place Reyes-Vencomo in the back of the police unit. See Tr. at 25:4-19 (Torrez, Vigil); id. at 89:23-90:10 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1.
26. While awaiting backup, the officers placed Reyes-Vencomo and his wife under arrest. See Tr. at 26:9-27:12 (Torrez, Vigil); id. at 90:11-18 (Torrez, Ortega).
27. Reyes-Vencomo and S. Reyes were both placed in police vehicles. See Tr. at 90:15-22 (Torrez, Ortega).
28. Vigil issued citations to Reyes-Vencomo for: (i) driving without a driver's license, under N.M.S.A.1978, § 66-5-2; (ii) failing to come to a complete stop, under N.M.S.A.1978, § 66-8-116; and (iii) and driving forty miles per hour in a twenty-five miles-per-hour zone, under N.M.S.A. 1978, § 66-7-301. See Tr. at 27:20-28:10 (Torrez, Vigil); Stop Sign Citation at 1; Speeding Citation at 1; License Citation at 1.
30. Taos Police Department Policy provides:
Taos Police Department Towing Policy at 4-5 (Govt's Ex. 5 at hearing).
31. Pursuant to standard police procedure, Taos Police Department officers conducted a search of Reyes-Vencomo's vehicle before towing and inventoried the items in the vehicle. See Tr. at 53:24-56:7 (Torrez, Holfelder); Taos Police Department Towing Policy at 5; Taos Police Department Towing Authorization and Inventory at 1(Govt's Ex. 4 at hearing)("Inventory").
32. When Detective Barry Holfelder, the officer who conducted the search of Reyes-Vencomo's vehicle, arrived, the only individuals at the scene were two sheriff's deputies, five Taos police officers, and Reyes-Vencomo, who was in the back of a police vehicle. See Tr. at 63:2-14 (Juarez, Holfelder); id. at 55:8-19 (Torrez, Holfelder).
33. Holfelder arrived at the scene between 12:30 p.m. and 12:35 p.m., and the traffic stop took place "quite awhile" before he arrived. Tr. at 50:22-23 (Torrez, Holfelder).
34. Holfelder understood the "immediately available" requirement in the Taos Police Department Towing Policy to refer to another vehicle occupant or an individual traveling in tandem with the stopped vehicle. See Tr. at 55:16-23 (Torrez, Holfelder).
35. The purpose of the Taos Police Department Towing Policy is to remove the vehicle from the roadway, to inventory the items within the vehicle to protect the Taos Police Department and the Town of Taos, and to provide a document noting what the vehicle held at the time that it was towed. See Tr. at 53:24-54:10 (Torrez, Holfelder).
36. The Taos Police Department Towing Policy is a uniform standardized policy to do a complete inventory search of a vehicle when a vehicle will be towed, because the owner is under arrest and no one is immediately available to take possession of the vehicle. See Tr. at 53:24-54:10
37. Holfelder noticed that a young woman, whom he believes was Reyes-Vencomo's stepdaughter, arrived some point after he began his inventory search. See Tr. at 63:17-18 (Juarez, Holfelder); id. at 65:25-11 (Torrez, Holfelder).
38. Holfelder testified that he saw Gutierrez having a conversation with Vigil through the driver's door of Reyes-Vencomo's vehicle. See Tr. at 66:3-11 (Torrez, Holfelder)
39. At some point after the tow truck had been called, Betty Gonzales and Claudia Gutierrez, S. Reyes' daughter, asked Vigil whether they could drive Reyes-Vencomo's truck home. See Tr. at 43:16-44:7 (Juarez, Vigil).
40. Vigil left the scene, because paramedics advised that he proceed to the hospital for X-rays. See Tr. at 30:8-11 (Torrez, Vigil); Vigil Report at 1-2; Probable Cause at 1-2.
41. Holfelder was not aware that anyone had offered to drive the vehicle to Reyes-Vencomo's home. See Tr. at 51:14-18 (Torrez, Holfelder).
42. After his arrest, Reyes-Vencomo was placed in the back of a locked police car, with the windows rolled up, and made no contact with anyone at the scene. See Tr. at 55:2-57:4 (Torrez, Holfelder); id. at 90:15-91:3 (Torrez, Ortega).
44. Reyes-Vencomo is a citizen of Mexico and is unlawfully present in the United States. See Tr. at 78:6-10 (Torrez, Reyes-Vencomo).
45. Vigil and Ortega prepared narrative summaries of their encounter with Reyes-Vencomo, but did not note the decision to tow. See Tr. at 32:16-18 (Juarez, Vigil); id. at 64:22-65:4 (Juarez, Holfelder); id. at 91:20-22 (Juarez, Ortega); Vigil Report at 1; Ortega Report at 1.
On September 27, 2011, a federal grand jury in the District of New Mexico returned an indictment against Reyes-Vencomo, charging him with being an Alien in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). See Doc. 16. On October 6, 2011, Reyes-Vencomo appeared for arraignment and entered a not guilty plea. See Magistrate Clerk's Minutes of Arraignment at 1, filed October 6, 2011 (Doc. 21).
On November 30, 2011, Reyes-Vencomo filed a motion to suppress certain evidence, specifically the firearms and ammunition he is accused of possessing and any statements he made to law enforcement officers. See Motion to Suppress at 1. Reyes-Vencomo moves the Court to suppress all evidence recovered from his motor vehicle and all post-arrest statements that he made to law enforcement in connection with and as a result of his arrest on August 9, 2011. See Motion to Suppress at 1. He asserts that he was unconstitutionally detained after Vigil and Ortega pulled him over for running a stop sign. See Motion to Suppress at 3. Reyes-Vencomo asserts that, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court must determine: (i) whether the traffic stop was justified and supported by a reasonable suspicion; and (ii) whether the officers' actions during the detention were reasonably related in scope to the circumstances which justified the stop. See Motion to Suppress at 3 (citing United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997)). Reyes-Vencomo represents that the officers in this case have stated that they executed a traffic stop of Reyes-Vencomo because they observed him going through a stop sign without coming to a full stop. See Motion to Suppress at 4. He contends that, when the investigation of a traffic offense is complete, a driver must be allowed to proceed without further delay or additional questioning, unless an officer acquires an objectively reasonable and articulable suspicion of illegal activity. See Motion to Suppress at 5. Reyes-Vencomo asserts that the officers here had no such suspicion and that his continued detention violated his constitutional rights. See Motion to Suppress at 5.
Reyes-Vencomo argues that his involuntary detention never ceased, because Vigil never concluded the investigation of the traffic offense despite the lack of reasonable, articulable suspicion of criminal activity. See Motion to Suppress at 6. He asserts that he had already provided sufficient identification, and that Vigil had no right to request his Social Security number or card. See Motion to Suppress at 6-7. Reyes-Vencomo further contends that the officers' questions exceeded the scope of a lawful stop under New Mexico and federal law. See Motion to Suppress at 7. He argues that Vigil and Ortega were bound by New Mexico law as Taos police officers making a stop in New Mexico, and that he is entitled to the protections of New Mexico law. See Motion to Suppress at 7. He asserts that the Court should honor his protections against unreasonable searches and seizures as established under
On December 19, 2011, Plaintiff United States of America timely filed, pursuant to rule 45(c) of Federal Rules of Criminal Procedure and rule 5(b)(2)(E) of the Federal Rules of Criminal Procedure, its Response to Defendant's Motion to Suppress (Doc. 40)("Response"). The United States characterizes Reyes-Vencomo's Motion to Suppress as advancing two arguments: (i) that his continued detention after providing officers with his vehicle registration and proof of insurance constituted an unlawful seizure under the Fourth Amendment; and (ii) that Vigil's request for Reyes-Vencomo's Social Security number exceeded the lawful scope of the traffic stop. See Response at 4.
The United States argues that the traffic stop, detention, and arrest of Reyes-Vencomo was based on reasonable suspicion and probable cause that he was engaged in criminal activity. See Response at 4. The United States asserts that the initial traffic stop was based on an observed traffic violation, because Reyes-Vencomo failed to come to a complete stop at a stop sign. See Response at 5. It contends that the continued Reyes-Vencomo's detention was based on probable cause that he was driving without a valid driver's license. See Response at 5. The United States argues that requesting identification and running a check for warrants is lawful under such circumstances. See Response at 5. The United States asserts that Reyes-Vencomo had no driver's license and was driving the vehicle in violation of N.M.S.A.1978, § 66-5-2. See Response at 5. It argues that Vigil had probable cause to arrest Reyes-Vencomo and that an officer may arrest a defendant for a misdemeanor if a crime occurs in the officer's presence. See Response at 5. The United States asserts that New Mexico law requires persons to identify themselves when a law enforcement officer asks them to do so. See Response at 6 (citing N.M.S.A.1978, § 30-22-3). It argues that Vigil asked Reyes-Vencomo for his Social Security number, because Reyes-Vencomo had indicated he had no other form of identification and that Vigil was trying to determine, consistent with state law, who Reyes-Vencomo was. See Response at 6. The United States contends that Vigil had a reasonable suspicion that Reyes-Vencomo was concealing his identity in violation of N.M.S.A.1978, § 30-2-3, which provides that:
Response at 6-7 (quoting N.M.S.A.1978, § 30-2-3). It asserts that an officer may question a detainee during a stop to dispel or confirm his or her suspicions and that, through his questioning, Vigil was able to confirm his suspicions about Reyes-Vencomo's identity. See Response at 7. It argues that, when Reyes-Vencomo failed to produce a valid identifying document, Vigil had reasonable suspicion that Reyes-Vencomo might not be who he stated he was. See Response at 7. The United States further asserts that, when dispatch informed Vigil that there was no record of the Social Security number Reyes-Vencomo gave, Vigil had probable cause to believe that Reyes-Vencomo was concealing his identity. See Response at 7.
With respect to the inventory search, the United States asserts that a law enforcement agency may conduct an inventory
Finally, the United States argues that the Fourth Amendment permits officers to make a protective search of a vehicle which may contain a weapon. See Response at 9. The United States asserts that the machete, which Vigil observed inside the vehicle, constituted probable cause to believe that the vehicle contained weapons. See Response at 10. It argues that a protective sweep of the vehicle was thus permissible under the Fourth Amendment. See Response at 10.
On January 2, 2012, Reyes-Vencomo filed his Reply to Memorandum Brief in Opposition to Motion to Suppress Evidence Recovered from the Defendants' [sic] Vehicle and Post-Arrest Statements of the Defendant. See Doc. 41 ("Reply"). Reyes-Vencomo asserts that the officers could only detain and release him pursuant to N.M.S.A.1978, §§ 66-8-122 and 66-8-123 for the traffic infraction or for driving without a license. See Reply at 3. Reyes-Vencomo cites State v. Bricker, 139 N.M. 513, 134 P.3d 800 (Ct.App.2006), which he asserts clarifies the interplay between those statutes and the ability of an officer to arrest based upon those statutes. See Reply at 3. He also argues that the officers never stated that they were concerned whether Reyes-Vencomo was concealing his true identity and that their concern was with the Social Security card. See Reply at 3. Reyes-Vencomo further asserts that the officers did not cite him for concealing his identity. See Reply at 4.
With respect to the search, Reyes-Vencomo asserts that the inventory search violated his rights, because the officers had no occasion to arrest him in the first place and, therefore, no basis to impound his vehicles. See Reply at 4. He also contends that, at the time the search was conducted, he was restrained and in the back of a police unit. See Reply at 4. Reyes-Vencomo asserts that, because he no longer presented a danger, the protective search was invalid under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). See Reply at 5.
The Court held an evidentiary hearing on January 27, 2012. In opening remarks, Reyes-Vencomo asserted that it is the United States' burden to show that the warrantless search did not violate the Fourth Amendment. See Tr. at 4:7-11 (Juarez). Reyes-Vencomo stated that he does not contest that the initial stop was valid. See Tr. at 4:13-15 (Juarez). Reyes-Vencomo suggested that, the moment Vigil asked Reyes-Vencomo for his Social Security information, he ventured into the realm of trying to enforce federal immigration law, which he has no jurisdiction
In its opening remarks, the United States asserted that it would not address whether Reyes-Vencomo has presented a novel question of law, because that question was not raised in the briefing. See Tr. at 6:19-22 (Torrez). The United States argued that this case involves a "run-of-the-mill" traffic stop and that, when Reyes-Vencomo indicated that he did not have a driver's license, the officers had a reasonable, articulable suspicion of criminal activity under N.M.S.A.1978, § 66-5-16. See Tr. at 7:3-6 (Torrez). The United States represented that the Court addressed a similar issue in United States v. Jacquez, 409 F.Supp.2d 1286 (D.N.M.2005)(Browning, J.). See Tr. at 7:7-9 (Torrez). It argued that, when a driver is stopped for a traffic violation and indicates that he is without a driver's license, that alone gives an officer reasonable, articulable suspicion and authorizes further investigation. See Tr. at 7:9-16 (Torrez). The Court then heard testimony from Vigil, Holfelder, Reyes-Vencomo, and Ortega.
Reyes-Vencomo argued that this case is about a Social Security card. See Tr. at 98:8-11 (Juarez). He asserted that the testimony is clear that there was a traffic stop and that, when asked for his Social Security information, he produced one. See Tr. at 98:11-25 (Juarez). He contended that the traffic stop then went awry, but that all of the documents surrounding the truck are legitimate. See Tr. at 99:1-2 (Juarez). Reyes-Vencomo asserted that
With respect to the inventory search, Reyes-Vencomo asserted that two people were immediately available to drive the truck back to his house and that Vigil admitted this fact. See Tr. at 101: 19-21 (Juarez). He argued that Vigil knew Gonzales and Gutierrez. See Tr. at 101:22-102:3 (Juarez). Reyes-Vencomo additionally argued that both women asked Vigil whether they could drive the truck home, such that, under the Taos Police Department policy, someone was immediately available to take the vehicle. See Tr. at 102:5-9 (Juarez). Reyes-Vencomo asserted that the only way to establish whether someone is immediately available to take the vehicle is to ask, and Holfelder had no contact with him. See Tr. at 102:10-103:1 (Juarez). Moreover, Reyes-Vencomo contended that no officer noted in their report that no one was available to take the vehicle as required under the Taos policy. See Tr. at 103:1-7 (Juarez). Reyes-Vencomo argued that, even if the Court finds that the arrest was valid, the Court should grant the Motion to Suppress, because of the failure to follow the proper inventory-search procedure. See Tr. at 103:8-14 (Juarez).
The Court asked Reyes-Vencomo whether it would need to make a credibility determination to resolve the issues before it. See Tr. at 103:20-24 (Court). Reyes-Vencomo responded that he did not believe that the Court would need to make a credibility determination with respect to the inventory search question, because Vigil admitted that he recognized Gutierrez as S. Reyes' daughter and that she asked to take the vehicle home. See Tr. at 104:1-7 (Juarez).
The United States represented that the Court needs to answer four questions: (i) whether an officer may detain a driver following a failure to produce a driver's license; (ii) whether an officer may ask a driver for a Social Security number in the absence of a driver's license; (iii) whether an officer may detain a defendant for officer safety in the presence of a knife or weapon; and (iv) whether, following a lawful arrest, law enforcement officers may conduct an inventory search of the defendant's vehicle before having it towed. See Tr. at 104:17-105:4 (Torrez).
The United States contended that the Court addressed the first question in United States v. Jacquez. See Tr. at 105:5-9 (Torrez). It asserted that the Court found
The United States contended that driving without a license is a misdemeanor and that Vigil could have arrested Reyes-Vencomo for that offense, without violating the Fourth Amendment, when Reyes-Vencomo stated that he did not have a license. See Tr. at 108:23-109:2 (Torrez). It argued that Vigil asked Reyes-Vencomo for his Social Security number to try to confirm his identity. See Tr. at 109:3-7 (Torrez). The United States asserted that, when Reyes-Vencomo gave Vigil a false Social Security card, the officers had reasonable suspicion of criminal activity, that being a violation of N.M.S.A.1978, § 30-22-3, concealing identity from an officer. See Tr. at 109:7-11 (Torrez). It represented that State v. Andrews, 123 N.M. 95, 934 P.2d 289 (Ct.App.1997), is instructive, because there the Court of Appeals of New Mexico stated that name is synonymous with identity and details that, when officers
The Court noted that the United States was not arguing that this encounter was consensual. See Tr. at 111:7-8 (Court). The United States agreed that it was not making that argument. See Tr. at 111:9 (Torrez). The Court then asked the United States at what point it believes an arrest occurred. See Tr. at 111:10-11 (Court). The United States responded that Reyes-Vencomo was detained, but not arrested, up until the moment his cellular telephone began ringing, when Vigil issued the order not to answer the cellular telephone, and when Reyes-Vencomo began to resist. See Tr. at 111:12-21 (Torrez). The Court asked whether the United States was asserting that the encounter was still an investigative stop when Vigil began taking him to the police vehicle. See Tr. at 111:22-24 (Court). The United States asserted that it was an investigative stop and a detention, but not a "full-blown" arrest, until Vigil issued the order and Reyes-Vencomo resisted the order. Tr. at 111:24-112:7 (Torrez). The Court asked for what offense Vigil had probable cause to arrest Reyes-Vencomo at that point. See Tr. at 112:8-9 (Court). The United States responded that the officers had probable cause to arrest him for resisting arrest because he disobeyed a lawful command given for officer safety. See Tr. at 112:10-19 (Torrez). The United States asserted that the officers did not know for what Reyes-Vencomo was reaching in his pocket. See Tr. at 112:19 (Torrez). The United States suggested that the Court should decline Reyes-Vencomo's invitation to hold that he had a right to resist the arrest, because it was an unlawful arrest. See Tr. at 113:13-19 (Torrez). It argued that Reyes-Vencomo does not have that right; his right is to appear before a court to redress that violation. See Tr. at 113:19-114:2 (Torrez).
With respect to the second question, the United States asserted that it was unable to find, either in Reyes-Vencomo's briefings or in its own research, any federal or state statute that prohibits a law enforcement officer from requesting a Social Security number or card. See Tr. at 114:5-11 (Torrez). The United States argued that the closest case that Vencomo-Reyes cites in his briefing is People v. Farley, 20 Cal.App.3d 1032, 98 Cal.Rptr. 89 (1971), which states that a Social Security card is not for identification, because it contains no description or information concerning the holder. See Tr. at 114:13-18 (Torrez). The United States pointed the Court to State v. Chapman, 127 N.M. 721, 986 P.2d 1122 (Ct.App.1999), which holds that an officer may investigate matters unrelated to the stop if the officer has reasonable suspicion. See Tr. at 114:21-115:4 (Torrez). It asserted that, when Reyes-Vencomo indicated that he did not have a driver's license, the officers had independent
The United States then moved to the next two questions it posed. The United States asserted that an officer has the right to detain a driver for officer safety when in the presence of a weapon, when the driver is agitated, and when the driver is unable to identify himself. See Tr. at 115:16-19 (Torrez). The United States contended that Reyes-Vencomo has cited no authority establishing that an officer could not detain a driver in those circumstances. See Tr. at 115:19-116:2 (Torrez). With respect to the inventory search, the United States argued that an inventory search must be conducted in accordance with standard criteria and for a purposes other than investigation of criminal activity. See Tr. at 116:4-9 (Torrez). The United States asserted that Reyes-Vencomo never told the officers that he wished for Gutierrez or Gonzales to take his vehicle to his home. See Tr. at 116:16-117:5 (Torrez). It argued that the officers should not have to wait to see who might show up to take possession of an arrested individual's vehicle. See Tr. at 117:21-118:1 (Torrez). The United States asserted that Gutierrez and Gonzales showed up at some point, but that the tow truck had already been called and, if the inventory was already underway, then the bell had already rung, because the officers had found the weapons. See Tr. at 118:1-6 (Torrez). It contended that the officers acted in good faith, because, when they began the inventory search, no person was immediately available at the scene. See Tr. at 118:7-13 (Torrez). The United States asserted that the officers were under no obligation to wait to see if anyone would become available and that the inventory search was conducted according to policy. See Tr. at 118:14-25 (Torrez).
Reyes-Vencomo reiterated that it is the United States' burden to establish that the defendant's rights were not violated. See Tr. at 119:11-12 (Juarez). He emphasized that Gutierrez and Gonzales were at the scene before the tow truck arrived. See Tr. at 119:13-18 (Juarez). He asserted that the United States did not pursue that line of questioning with its witness. See Tr. at 119:21-23 (Juarez). Reyes-Vencomo argued that the officers were supposed to reflect whether someone is available to take possession of the vehicle and that none of the police reports contain a reference to that policy. See Tr. at 119:24-120:6 (Juarez). He contended that the United States failed to meet the inventory search exception. See Tr. at 120:7-9 (Juarez). Reyes-Vencomo asserted that Atwater v. City of Lago Vista and Virginia v. Moore stand for the proposition that the Fourth Amendment is paramount when analyzing an arrest, and that it is important for the Court to look closely at whether a violation of N.M.S.A.1978, §§ 66-5-16 or 66-5-2 is a crime. See Tr. at 120:9-16 (Juarez). He argued that, if violations of those statutes are not crimes, then the arrest was invalid under the Fourth Amendment, because Atwater v. City of Lago Vista and Virginia v. Moore provide that an officer may arrest an individual for any petty offense, so long as that offense is a crime. See Tr. at 120:19-25 (Juarez). Reyes-Vencomo contended that there is no crime here and that those provisions are mere policy statements without a penalty. See Tr. at 121:1-10 (Juarez). He asserted that it would be nice to believe that Vigil was investigating identity concealment, but that the testimony did not support such a suggestion. See Tr. at 121:11-16 (Juarez). Reyes-Vencomo contended that, for whatever reason, Vigil became fixated with the fraudulent Social Security card and detained him. See Tr. at 121:16-22 (Juarez). He argued that the question is not where the arrest occurred, but when the detention exceeded the scope of the stop. See
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. For Fourth Amendment purposes, the Supreme Court has identified three categories of police-citizen encounters: (i) consensual encounters, which are not considered "seizures" within the meaning of the Fourth Amendment, and therefore need not be supported by suspicion of criminal wrongdoing; (ii) investigative stops, in which an officer may briefly detain a person based on reasonable suspicion of criminal activity; and (iii) arrests, which are justified only if the officer has probable cause to believe that the subject has committed a crime. See, e.g., Florida v. Bostick, 501 U.S. 429, 434-36, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000)(citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).
An encounter that is not consensual may nevertheless be constitutional as an investigative detention. An investigative detention occurs when an officer stops and briefly detains a person "in order to determine his identity or to maintain the status quo momentarily while obtaining more information." Oliver v. Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). Inasmuch as such brief investigative detentions are not consensual, they constitute a seizure and must meet two distinct requirements to be "reasonable" under the Fourth Amendment. First, the officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Second, the investigative detention that follows the stop must be "reasonably related in scope to the circumstances" which justified the stop in the first place, Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. 1868, because the Fourth Amendment imposes "limitations on both the length of the detention and the manner in which it is carried out," United States v. Holt, 264 F.3d 1215, 1229 (10th Cir.2001)(en banc).
"For reasonable suspicion to exist, an officer `need not rule out the possibility of innocent conduct;' he or she simply must possess `some minimal level of objective justification' for making the stop." United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.2009)(quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004)). This standard is met by information "falling `considerably short' of a preponderance
An officer may "stop and frisk" an individual under the Fourth Amendment if a reasonably prudent person "in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868. A frisk "must ... be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. 1868. In evaluating the validity of the stop-and-frisk, the totality of the circumstances must be considered. See Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
These stop-and-frisk principles apply with equal weight to motorists and to pedestrians. See Michigan v. Long, 463 U.S. 1032, 1050-51, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The Tenth Circuit has adopted the doctrine in Terry v. Ohio for an investigative detention — "stop" — and for a protective search — "frisk."
United States v. King, 990 F.2d 1552, 1557 (10th Cir.1993) (citations omitted). The legal standard is whether a "stop and frisk" is reasonable under the Fourth Amendment. United States v. King, 990 F.2d at 1557.
In United States v. Johnson, 364 F.3d 1185 (10th Cir.2004), the Tenth Circuit held that an officer had reasonable suspicion to continue questioning and to frisk a suspect after: (i) the officer had responded to a call from a citizen who gave his telephone number, and gave a detailed and accurate description of possible criminal activity and of the suspect; (ii) the contact occurred in Albuquerque's highest-crime area; and (iii) the suspect displayed nervous behavior. See 364 F.3d at 1194. The Tenth Circuit noted that the officer's experience and training allowed him to make inferences, based on a combination of the surrounding circumstances, that criminal activity was afoot. See United States v. Johnson, 364 F.3d at 1194. ("His suspicions were particularized to [the suspect], and were based on how his training and experience taught him to interpret a number of objectively reasonable details."). While many of the factors that the Tenth Circuit considered did not, without more, give rise to reasonable suspicion, the combination of circumstances was sufficient. See United States v. Johnson, 364 F.3d at 1193 (noting that the district court had erred, because "[a]ll of these factors, mitigating and aggravating, should have been analyzed as part of the totality of the circumstances faced by [the officer] at the inception of the detention").
In United States v. Ceballos, 355 Fed. Appx. 226 (10th Cir.2009)(unpublished),
United States v. Ceballos, 355 Fed.Appx. at 228-30. The Tenth Circuit did not require the officer to identify the particular crime of which he she had reasonable suspicion, or even to acknowledge that he had reasonable suspicion. The Tenth Circuit was content to find that a reasonable officer would have reasonable suspicion that "Ceballos intended to assault or abduct the teenage pedestrian." United States v. Ceballos, 355 Fed.Appx. at 229. The Tenth Circuit demanded only that an officer have facts from which a reasonable officer could form a reasonable suspicion that criminal conduct was occurring or was about to occur. See United States v. Ceballos, 355 Fed.Appx. at 229.
"A traffic stop is a `seizure' within the meaning of the Fourth Amendment." United States v. Harmon, 785 F.Supp.2d 1146, 1158 (D.N.M.2011)(Browning, J.)(quoting United States v. Holt, 264 F.3d at 1220). Courts
United States v. Wilson, 96 Fed.Appx. 640, 643 (10th Cir.2004)(unpublished). "A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995). See United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.2009). Whether the police officer making the stop had any other motivation for the stopping the vehicle is irrelevant. See United States v. Cervine, 347 F.3d 865, 870 (10th Cir.2003); United States v. Botero-Ospina, 71 F.3d at 787; United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998). The Terry v. Ohio framework applies whether the traffic stop is based on probable cause or reasonable suspicion. See United States v. Harmon, 785 F.Supp.2d at 1158. A court must examine "both the length of the detention and the manner in which it was carried out," United States v. Holt, 264 F.3d at 1230, "keeping in mind that an officer may extend the duration and scope of the initial detention based on `an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring,'" United States v. Wilson, 96 Fed.Appx. at 643 (quoting United States v. Caro, 248 F.3d 1240, 1244 (10th Cir.2001)). "When the stop is extended based on reasonable suspicion, the further detention must, like the original traffic stop, `be temporary, lasting no longer than necessary to effectuate the purpose of the [further detention], and the scope of the [further] detention must be carefully tailored to its underlying justification.'" United States v. Wilson, 96 Fed.Appx. at 644 (alterations original)(quoting United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997)).
Requesting the driver's identification and running a check for warrants is unlawful under some circumstances. In United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the Supreme Court held that, where a defendant was stopped in response to a "wanted flyer" from another department, it was proper for the police to check his identification. 469 U.S. at 232, 105 S.Ct. 675. In the context of a traffic stop, the Tenth Circuit has "consistently held": "An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation." United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994), overruled on other grounds by United States v. Botero-Ospina, 71 F.3d at 787. See also United States v. Hunter, 663 F.3d 1136, 1144 (10th Cir.2011); United States v. Kelly, No. 10-2057, 2010 WL 5173599, at *11 (D.N.M. Nov. 17, 2010)(Browning, J.)(finding that the defendant's Fourth Amendment rights were not violated where police officer asked for the defendant's license, registration, and proof of insurance).
A seizure that exceeds the investigative detention's limited scope or duration may nevertheless be justified as an
"Probable cause to arrest exists only when the `facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.'" United States v. Valenzuela, 365 F.3d 892, 896-97 (10th Cir.2004)(quoting United States v. Edwards, 632 F.3d 633, 639 (10th Cir.2001))(citing Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)). Although "[p]robable cause does not require facts sufficient for a finding of guilt ..., it does require more than mere suspicion." United States v. Morris, 247 F.3d 1080, 1088 (10th Cir.2001)(internal quotation marks omitted). The Supreme Court has made the following distinction between reasonable suspicion, which is sufficient for an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and probable cause, which is required before an arrest can be made:
Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
Probable cause is measured against an objective standard. See Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). "The subjective belief of an individual officer as to whether there was probable cause for making an arrest is not dispositive." United States v. Valenzuela, 365 F.3d at 896-97 (citing Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States. v. Treto-Haro, 287 F.3d 1000, 1006 (10th Cir. 2002)). Thus, the primary consideration is "whether a reasonable officer would have believed that probable cause existed to arrest the defendant based on the information possessed by the arresting officer." Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.2002)(alterations omitted)(internal quotation marks omitted).
An inventory search undertaken pursuant to impoundment or the authority to impound "constitutes a well-defined exception to the warrant requirement." Illinois v. Lafayette, 462 U.S. 640, 643, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). See South Dakota v. Opperman, 428 U.S. 364, 372, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Discussing the relationship between probable cause and inventory searches in its opinion in United States v. Griffin, 729 F.2d 475 (7th Cir. 1984), the United States Court of Appeals for the Seventh Circuit stated:
729 F.2d at 481 (citations omitted)(internal quotation marks omitted)(quoting Illinois v. Lafayette, 462 U.S. at 643, 103 S.Ct. 2605). "The policies behind the warrant requirement are not implicated in an inventory search." Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987)(citing South Dakota v. Opperman, 428 U.S. at 370 n. 5, 96 S.Ct. 3092). Inventory searches developed in response to three needs: (i) the need to protect the owner's property while it remains in police custody; (ii) the need to protect the police against claims or disputes over lost, stolen, or vandalized property; and (iii) the need to protect the police from danger. See South Dakota v. Opperman, 428 U.S. at 369, 96 S.Ct. 3092. Inventory searches are allowed to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. See Florida v. Wells, 495 U.S. 1, 2, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)(citing South Dakota v. Opperman, 428 U.S. at 369, 96 S.Ct. 3092).
A warrantless inventory search is proper when the search is conducted pursuant to standard police procedures for the purpose of protecting the car and its contents. See United States v. Moraga, 76 Fed.Appx. 223, 228 (10th Cir.2003)(unpublished)("An impoundment must either be supported by probable cause, or be consistent with the police role as `caretaker' of the streets and completely unrelated to an ongoing criminal investigation."); United States v. Lugo, 978 F.2d 631, 636 (10th Cir.1992)("When the police acquire temporary custody of a vehicle, a warrantless inventory search of the vehicle does not offend Fourth Amendment principles so long as the search is made pursuant to `standard police procedures' and for the purpose of `protecting the car and its contents.'")(quoting South Dakota v. Opperman, 428 U.S. at 372, 96 S.Ct. 3092). "The policy or practice governing inventory searches should be designed to produce an inventory." Florida v. Wells, 495 U.S. at 4, 110 S.Ct. 1632 (citing Colorado v. Bertine, 479 U.S. at 376, 107 S.Ct. 738). "[I]n forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical `all or nothing' fashion." Florida v. Wells, 495 U.S. at 4, 110 S.Ct. 1632. A court can consider an officer's testimony regarding the procedures and the purpose of the search as evidence. See United States v. Lugo, 978 F.2d at 637. A written policy concerning inventory searches is not necessary; an oral policy is sufficient to meet the standard procedure test that the Tenth Circuit articulated in United States v. Lugo. See Molina v. Spanos, 208 F.3d 226, 1999 WL 626126, at *9 (10th Cir.1999)(unpublished table decision); United States v. Jacquez, 409 F.Supp.2d 1286, 1298 (D.N.M.2005)(Browning, J.)("Although there may not be a written policy concerning inventory searches, including inventory searches of unlocked containers, an oral policy is sufficient to meet the standard procedure test articulated in United States v. Lugo.").
If an inventory search is conducted pursuant to department policy, to find the inventory search unconstitutional, the officers must have acted out of bad faith, for the sole purpose of investigation. See Colorado v. Bertine, 479 U.S. at 371, 107 S.Ct. 738 ("[T]here was no showing
When evidence is obtained in violation of a person's constitutional rights, the police will be prohibited from using that evidence in a criminal prosecution of that person. See United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)("Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.") (citations omitted). The police are prohibited from using evidence that is obtained as a result of a constitutional violation as well. See McDonald v. United States, 335 U.S. 451, 453, 69 S.Ct. 191, 93 L.Ed. 153 (1948). For the exclusionary rule to apply, the defendant need show, by a preponderance of the evidence, a constitutional violation, and a causal nexus between the violation and the evidence sought to be excluded. See United States v. Torres-Castro, 470 F.3d 992, 999 (10th Cir.2006). Once the defendant makes this showing, if the prosecutor still desires to proffer the challenged evidence, the burden shifts to the prosecution to establish that some exception to the exclusionary rule applies. See United States v. Torres-Castro, 470 F.3d at 999.
In support of his motion, Reyes-Vencomo advances three arguments: (i) his continued detention after providing the officers his vehicle registration and proof of insurance constitutes an unlawful seizure under the Fourth Amendment; (ii) Vigil's request for Reyes-Vencomo's Social Security number exceeded the lawful scope of the traffic stop; and (iii) the inventory search was conducted in an unlawful manner. The Court finds that law enforcement officers lawfully detained Reyes-Vencomo to investigate and confirm his identity. The request for Reyes-Vencomo's Social Security number did not exceed the traffic stop's lawful scope, because Reyes-Vencomo could not provide his driver's license and the officer was attempting to confirm his identity. Furthermore, the inventory search was conducted in compliance with standardized police procedures and was for a non-investigatory purpose.
At the hearing it was apparent that some of the facts are in dispute. While the Court has resolved those disputes in its factual findings pursuant to rule 12(d), the Court notes that most of the facts at issue were not material for the purposes of this Memorandum Opinion and Order.
The first two factual disputes are not material to the ultimate question whether the stop violated the Fourth Amendment, because: (i) whether Vigil asked for a Social Security card or number presents the same issue about exceeding the scope of the stop; and (ii) whether Vigil yelled slurs against does not effect the legality of the stop, because there is no question of consent. The second two factual disputes both go to whether the inventory search was properly conducted and whether Reyes-Vencomo directed that someone immediately available at the scene take his vehicle to his home. Two police officers testified that Reyes-Vencomo was locked in the back of a police vehicle and that they did not observe him communicating with anyone at the scene. See Tr. at 55:2-57:4 (Torrez, Holfelder); id. at 90:15-91:3 (Torrez, Ortega). Reyes-Vencomo, however, asserted that he asked an officer to permit S. Reyes or Gutierrez to take the vehicle and that his stepdaughter was on the scene immediately. See Tr. at 69:17-20 (Juarez, Reyes-Vencomo); id. at 77:8-78:5 (Torrez, Reyes-Vencomo). During their testimony, the officers were calm and their statements consistent, both internally and with each other. In contrast, Reyes-Vencomo was much more animated on the witness stand, his statements were not always internally consistent, and some of his assertions, such as stating that the police officer never asked for a driver's license, were not credible. Based on the Court's careful observation of the testimony and review of the evidence submitted, the Court found the officers statements more credible. With respect to the order of persons arriving at the scene, the Court also needs to make a credibility determination. Reyes-Vencomo testified that his stepdaughter was immediately on the scene. See Tr. at 77:8-78:5 (Torrez, Reyes-Vencomo). Holfelder testified, however, that no one arrived until after he began his inventory search. See Tr. at 63:17-18 (Juarez, Holfelder); Tr. at 65:25-11 (Torrez, Holfelder). Vigil also testified that Gonzales arrived "way after" the arrest and after the tow-truck had been called. See Tr. at 43:18-22 (Juarez, Vigil). Reyes-Vencomo argued that the United States did not establish whether Gonzales or Gutierrez were there before the inventory search. See Tr. at 119:11-18 (Juarez). The Court finds, however, that the testimony of Holfelder is credible, and established that he arrived and began his inventory before Gutierrez or Gonzales arrived at the scene.
Vigil and Ortega lawfully stopped Reyes-Vencomo's vehicle. They observed Reyes-Vencomo fail to come to a complete stop at a stop sign and saw him traveling at fifteen miles per hour above the posted speed limit. Reyes-Vencomo's continued detention was justified, because the officers had probable cause to arrest him for driving without a driver's license or, alternatively, reasonable suspicion of criminal activity.
The first step in analyzing the reasonableness of a routine traffic stop is determining "whether the officer's action was justified at its inception." United States v. Wilson, 96 Fed.Appx. at 643. "A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Botero-Ospina, 71 F.3d at 787. See United States v. Winder, 557 F.3d at 1134.
Reyes-Vencomo does not dispute that he was stopped for a minor traffic infraction. See Tr. at 1. Vigil and Ortega testified at the evidentiary hearing that Reyes-Vencomo failed to come to a complete stop and was speeding. See Tr. at 12:24-13:13 (Torrez, Vigil); id. at 82:15-83:2 (Torrez, Ortega); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1. The citations issued to Reyes-Vencomo indicate that he was stopped for a failure to come to a complete stop, in violation of N.M.S.A.1978, § 66-8-116, and traveling forty miles per hour in a twenty-five miles-per-hour zone, in violation of N.M.S.A. 1978, § 66-7-301. See Stop Sign Citation at 1; Speeding Citation at 1. Vigil and Ortega were justified in stopping Reyes-Vencomo's vehicle because they observed two traffic infractions. "[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation." United States v. Williams, 403 F.3d 1203, 1206 (10th Cir.2005). Accord United States v. Kelly, 2010 WL 5173599, at *11 ("The Court finds that Fisher was justified in stopping Padilla's vehicle because he observed multiple traffic infractions."). Vigil and Ortega were justified in temporarily detaining Reyes-Vencomo, because he committed traffic offenses in their presence. See Whren v. United States, 517 U.S. 806, 808, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)("Here the District Court found that the officers had probable cause to believe that the petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment...."); United States v. Patterson, 472 F.3d 767, 775 (10th Cir.2006).
Reyes-Vencomo does not dispute that the officers had reasonable suspicion and, indeed, probable cause to stop him. Accordingly, because the officers observed two traffic infractions, their initial stop and detention of Reyes-Vencomo did not violate his rights under the Fourth Amendment.
Reyes-Vencomo contends that all evidence that the officers obtained, and all statements elicited from him, stem from his unconstitutional continued detention. See Motion to Suppress at 5. He asserts that when "the investigation of the traffic offense is complete ... the driver must be allowed to proceed without further delay." Motion to Suppress at 5 (citing United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997)). Reyes-Vencomo argues that a Social Security card is not identification, that he had already adequately identified himself, and that questions regarding his Social Security information exceeded the scope of the stop. See Motion to Suppress at 6-7. The United States asserts that, because Reyes-Vencomo was driving without a license, in violation of N.M.S.A.1978, § 66-5-2, Vigil had probable cause to arrest
At the hearing, Reyes-Vencomo asserted that Vigil has consistently testified that the only reason he detained Reyes-Vencomo was to further investigate the Social Security information. See Tr. at 99:15-18 (Juarez). He argued that, at that moment, Vigil exceeded the scope of the stop, violating his rights, and illegally detaining him from that moment onward. See Tr. at 99:23-100:1 (Juarez). Reyes-Vencomo contended that he could not be arrested for driving without a license and cited Atwater v. City of Lago Vista for support. See Tr. at 100:2-5 (Juarez). Reyes-Vencomo argued that, under N.M.S.A.1978, § 66-5-16, driving without a license is not a criminal offense and, thus, is not a violation for which he can be arrested. See Tr. at 100:15-20 (Juarez). He also asserted that using a false Social Security card as identification during a traffic stop is not a crime or at least not one for which that Vigil could arrest him. See Tr. at 100:22-101:4 (Juarez). The United States represented that the Court found that an officer could lawfully detain an individual driving without a license based on that violation. See Tr. at 105:24-106:4 (Torrez). The United States further asserted that the Tenth Circuit precedent, established in United States v. Galindo-Gonzales and United States v. Zubia-Melendez, supports the Court's decision in United States v. Jacquez. See Tr. at 106:7-11 (Torrez). The United States argued that there are two provisions in the vehicle code which reference unlicensed driver, but that another provision in the New Mexico traffic code states that violations that are not otherwise penalized are considered misdemeanors. See Tr. at 106:23-107:1 (Torrez)(citing N.M.S.A.1978, § 66-8-7).
Requesting the driver's identification and running a check for warrants is lawful under some circumstances. "[F]or example, the motorist may be detained for a short period while the officer runs a background check to see if there are any outstanding warrants or criminal history pertaining to the motorist, even though the purpose of the stop has nothing to do with such prior criminal history." United States v. Holt, 264 F.3d at 1221. In the context of a traffic stop, the Tenth Circuit has "consistently held" that: "An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation." United States v. Gonzalez-Lerma, 14 F.3d at 1483. See United States v. Hunter, 663 F.3d at 1144. New Mexico law provides that "no person shall drive any motor vehicle" unless that person "holds a valid license issued under the provisions of the Motor Vehicle Code." N.M.S.A.1978, § 66-5-2. Additionally, New Mexico law requires that "[e]very licensee shall have his driver's license in his immediate possession at all times when operating a motor vehicle and shall display the license upon demand of a magistrate, a peace officer or a field deputy or inspector of the division." N.M.S.A.1978, § 66-5-16. It also provides that it "is a misdemeanor
In Virginia v. Moore, a driver was arrested for driving on a suspended license despite a state law providing that the officer should have issued a summons for the driver instead of arresting him. See 553 U.S. at 164, 128 S.Ct. 1598. The Supreme Court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution." Virginia v. Moore, 553 U.S. at 176, 128 S.Ct. 1598. The Supreme Court noted that it had previously declined to "limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer." Virginia v. Moore, 553 U.S. at 175, 128 S.Ct. 1598. "Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater." Virginia v. Moore, 553 U.S. at 175, 128 S.Ct. 1598. In Atwater v. City of Lago Vista, the Supreme Court held that if "an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." 532 U.S. at 354, 121 S.Ct. 1536 (finding that officer lawfully arrested a driver, for the purposes of the Fourth Amendment, for a misdemeanor seatbelt violation).
Neither N.M.S.A.1978, § 66-5-2 nor N.M.S.A.1978, § 66-5-16, proscribe a penalty for its violation or otherwise categorize the offense. Accordingly, N.M.S.A.1978, § 66-8-7 applies. In State v. Trevizo, 150 N.M. 158, 257 P.3d 978 (Ct.App.2011), the Court of Appeals of New Mexico, interpreting N.M.S.A.1978, § 66-8-7, found that the New Mexico Legislature set the penalties for "violations of the Motor Vehicle Code to be consistent with the classification of petty misdemeanors found in the Criminal Code." 150 N.M. at 162, 257 P.3d at 982. The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, even when it is punishable only by a fine. See Atwater v. City of Lago Vista, 532 U.S. at 323, 121 S.Ct. 1536. Even though a petty misdemeanor is a minor criminal offense, the Fourth Amendment permits an arrest when "an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence." Atwater v. City of Lago Vista, 532 U.S. at 354, 121 S.Ct. 1536. States are free to provide motorists with more protection than the Fourth Amendment provides, but federal law is uniform across the country. Here, Vigil personally observed Reyes-Vencomo driving the truck and that Reyes-Vencomo was unable to produce a driver's license when he requested one, in violation of N.M.S.A.1978, § 66-5-16. Because failure to produce a driver's license constitutes a "misdemeanor" under N.M.S.A.1978, § 66-8-7, which is consistent with a "petty misdemeanor" in the Criminal Code, State v. Trevizo, 150 N.M. at 162, 257 P.3d at 982, Vigil could detain or arrest Reyes-Vencomo without running afoul of the Fourth Amendment. Furthermore, the Court has twice held that failure to produce a driver's license justifies the continued detention of a driver. In United States v. Jacquez, a police officer stopped a driver, because he believed that there was an outstanding warrant for the driver's arrest. See 409 F.Supp.2d at 1296. When the officer determined that he was mistaken, he continued to detain the driver. See United States v. Jacquez, 409 F.Supp.2d at
"Although probable cause to arrest is not necessary to justify the extension of an investigative detention, it is sufficient." United States v. Chavez, 660 F.3d 1215, 1224 (10th Cir.2011). Thus, Supreme Court and Tenth Circuit precedent establishes that Reyes-Vencomo's continued detention did not violate the Fourth Amendment, because Vigil had probable cause to believe that Reyes-Vencomo had violated N.M.S.A.1978, § 66-5-2 and N.M.S.A.1978, § 66-5-16.
An officer "conducting a traffic stop may request vehicle registration and a driver's license, run a computer check, ask about travel plans and vehicle ownership, and issue a citation." United States v. Zubia-Melendez, 263 F.3d at 1161. If a driver cannot provide a driver's license, a police officer is entitled to ask questions regarding identity. See United States v. Zubia-Melendez, 263 F.3d at 1161 ("Once it was established that Galindo-Diaz could not provide evidence of identity or authority to drive the vehicle, Officer Heim was justified in requesting identifying information from Appellant."); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989)(holding that an officer could ask questions "relating to the identity and travel plans" of a driver and passenger during the course of a Terry stop). The Tenth Circuit has held that "it is well-established that an officer may ask a suspect to identify himself" in the course of a Terry v. Ohio stop, because "obtaining a detainee's identity `serves important government interests.'" United States v. Burleson, 657 F.3d 1040, 1046 (10th Cir. 2011) (citations omitted). It reasoned that "an identity's utility in informing an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder, would be non-existent without the ability to use the identity to run a criminal background check." United States v. Burleson, 657 F.3d at 1046 (citing United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). The Tenth Circuit held that, "in obtaining the identities of ... individuals, it is reasonable not only to ask them for their names, but also request identifications to confirm the veracity of their answers." United States v. Burleson, 657 F.3d at 1048. The Supreme Court has also held that an officer does not need reasonable suspicion to ask a driver for their immigration status. See Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005).
Once Vigil obtained the suspicious Social Security Card and was informed that there was no record of the Social Security number, he had reasonable suspicion of criminal activity and could detain Reyes-Vencomo for further investigation. Vigil testified that he continued to detain Reyes-Vencomo, because the Social Security card he was given appeared fraudulent and dispatch indicated that there was no record of the Social Security number. See Tr. at 20:15-20 (Torrez, Vigil). The Tenth Circuit has stated that it judges an officer's "conduct in light of common sense and ordinary human experience, and ... accord[s] deference to an officer's ability to distinguish between innocent and suspicious actions." United States v. Ceballos, 355 Fed.Appx. at 229 (citing United States v. Williams, 271 F.3d 1262, 1268 (10th Cir.2001)). An officer's "subjective characterization of his actions is irrelevant." United States v. Ceballos, 355 Fed.Appx. at 229. In the context of probable cause to search, the Tenth Circuit has characterized the ultimate issue as "whether the facts and circumstances within the officer's knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." United States v. Ledesma, 447 F.3d 1307, 1316 (10th Cir.2006). The Court has stated, in other cases, that under the reasoning of United States v. Ceballos, even if the officer did not understand the basis for his reasonable suspicion, "so long as he was aware of facts from which a reasonable officer could draw an inference that criminal activity might be afoot, reasonable suspicion is present." United States v. McKenzie, No. 08-1669, 2010 WL 1795173, at *23 (D.N.M. Apr. 13, 2010)(Browning, J.). Accordingly, the Court looks to the totality of the circumstances to determine whether Vigil had reasonable suspicion of criminal activity that justified Reyes-Vencomo's continued detention. See United States v. Ceballos, 355 Fed.Appx. at 229.
Here, the facts known to Vigil were as follows: (i) Reyes-Vencomo was irate, see Tr. at 20:21-23 (Torrez, Vigil); (ii) Reyes-Vencomo had no driver's license, see Tr. at 17:19-23 (Torrez, Vigil); id. at 85:22-86:7 (Torrez, Ortega); (iii) Reyes-Vencomo had presented him with a suspicious Social Security card, see Tr. at 19:12-19 (Torrez, Vigil); (iv) dispatch had informed him that there was no record of such a Social Security number, see Tr. at 20:2-3 (Torrez, Vigil); and (v) Reyes-Vencomo had stated
The United States contends that Vigil had reasonable suspicion to believe that Reyes-Vencomo was concealing his identity in violation of N.M.S.A.1978, § 30-22-3. See Response at 6. N.M.S.A.1978, § 30-22-3 provides
The totality of the circumstances available to Vigil establish that he had reasonable suspicion to believe that Reyes-Vencomo might be concealing his identity. Reyes-Vencomo presented no identification to the officers when he was stopped. He could not produce a driver's license, turned over a possibly fraudulent Social Security card, and gave answer that set off a "red flag" when asked where the card came from. Tr. at 20:13-14 (Vigil). Vigil reasonably could have concluded that, if the Social Security card was fake, Reyes-Vencomo intended to conceal his identity to obstruct the due execution of the law, perhaps because a warrant existed for his arrest or that he had some other reason to hide his identity from law enforcement. The Court agrees that the suspect Social Security card warranted further investigation and that a reasonable officer would have reasonable suspicion that Reyes-Vencomo might be concealing his true identity. See United States v. Gonzalez, 290 Fed.Appx. 80, 84 (10th Cir.2008)("Thus, the `the evaluation is made from the perspective of the reasonable officer, not the reasonable person'").
Reyes-Vencomo argues that the officers never asserted that they were concerned whether Reyes-Vencomo was concealing his true identity. See Reply at 3. The Tenth Circuit, however, does not require that an officer state the basis of his reasonable suspicion. See United States v. Turner, 553 F.3d 1337, 1345 (10th Cir. 2009)("[T]he probable cause inquiry is not restricted to a particular offense, but rather requires merely that officers had reason to believe that a crime — any crime — occurred."); United States v. Ceballos, 355 Fed.Appx. at 229 ("But Gallegos's subjective characterization of his actions is irrelevant."); Apodaca v. City of Albuquerque, 443 F.3d 1286, 1289 (10th Cir.2006)("All that matters is whether [the officer] possessed knowledge of evidence that would provide probable cause to arrest [the defendant] on some ground." (emphasis original)). In United States v. Ceballos, the Tenth Circuit did not require the officer to identify the particular crime of which he or she had reasonable suspicion, or even to acknowledge that he or she had reasonable suspicion. The Tenth Circuit was content to find that a reasonable officer would have reasonable suspicion that "Ceballos intended to assault or abduct the teenage pedestrian." United States v. Ceballos, 355 Fed.Appx. at 229. Accordingly, based on the facts known to Vigil during Reyes-Vencomo's continued detention, reasonable suspicion of criminal activity existed and justified the continued detention. See
Because Vigil had probable cause to arrest Reyes-Vencomo, as well as reasonable suspicion of other criminal activity, Reyes-Vencomo's continued detention was justified.
At the hearing, Reyes-Vencomo suggested that Vigil was attempting to enforce federal immigration law, which he has no jurisdiction to enforce. See Tr. at 4:21-5:2 (Juarez). Whether a police officer has jurisdiction to arrest for an offense, however, is not determinative in the Fourth Amendment analysis. See United States v. Gonzales, 535 F.3d 1174, 1183 (10th Cir.2008).
In United States v. Turner, 553 F.3d 1337 (10th Cir.2009), the defendant argued that the only crime for which the authorities had probable cause was that of being a felon in possession of ammunition, a federal but not state law violation, and that the local police department did not possess authority to arrest him for that offense. See 553 F.3d at 1345. The Tenth Circuit held, pursuant to the Supreme Court's decisions in Virginia v. Moore and Atwater v. City of Lago Vista, that, "because arrests made in violation of state law are not per se unreasonable under the Fourth Amendment, it does not matter for the purposes of our analysis whether [the local police department] had jurisdictional authority under state law." United States v. Turner, 553 F.3d at 1346. The Tenth Circuit rejected the defendant's argument that, "because possession of ammunition is not a crime under state law, state law enforcement could not arrest and detain him on that basis." United States v. Turner, 553 F.3d at 1346. It concluded that, "[e]ven if state law prohibits state police from arresting for a federal offense (and we are not convinced that it does), that fact alone does not render the arrest a violation of the Fourth Amendment." United States v. Turner, 553 F.3d at 1346. Additionally, the Tenth Circuit, in United States v. Galindo-Gonzales, found that the police officers' traffic stop of the defendant, outside of their jurisdiction and in violation of Colorado law, did not violate the Fourth Amendment. See 535 F.3d at 1183. Other courts have also found, in the civil context, that a state or local police officer does not violate the clearly established Fourth Amendment law when he detains or arrests a defendant for an immigration violation, despite his lack of authority to do so under state law. See Martinez-Medina v. Holder, No. 06-75778, 673 F.3d 1029, 1037, 2011 WL 855791, at *8 (9th Cir.2011)("Thus, even if a reasonable Oregon law enforcement officer should have known he lacked authority under his own state's law to apprehend aliens based solely on a violation of federal immigration law, that cannot serve as the basis for finding an egregious Fourth
The Court addressed a similar issue in United States v. Hernandez-Lopez, 761 F.Supp.2d 1172 (D.N.M.2010)(Browning, J.), and found that, "[a] reasonable officer would not stop a vehicle based on suspicion of a crime over which the officer knew he or she no jurisdiction." 761 F.Supp.2d at 1199. There, a United States Border Patrol ("Border Patrol") agent stopped the defendant's vehicle. United States v. Hernandez-Lopez, 761 F.Supp.2d at 1177-78. In that case, however, the United States conceded that the agent must "have had reasonable suspicion of criminal activity that is within the jurisdiction of the Border Patrol" and that "the Border Patrol has no jurisdiction to enforce the New Mexico traffic code." United States v. Hernandez-Lopez, 761 F.Supp.2d at 1185. The United States also moved to dismiss the indictment against the defendant without appealing the Court's decision. See United States v. Hernandez-Lopez, No. 10-0769, Motion to Dismiss Indictment, filed January 15, 2011 (Doc. 54). The circumstances
The Court notes that Reyes-Vencomo does not appear to challenge that Vigil, upon viewing the machete in the truck, could order that Reyes-Vencomo remain outside of the truck for the duration of the investigative detention. See Tr. at 21:6-18 (Torrez, Vigil). He also does not challenge that Vigil could order Reyes-Vencomo not to reach into a pocket for his cellular telephone. See Tr. at 22:8-23:3 (Torrez, Vigil). In any case, the Court finds that officer safety concerns justified both of Vigil's actions.
The Court finds that it was reasonable for Vigil, out of concern for officer safety and after viewing a weapon, to order that Reyes-Vencomo step away from the truck and out of reach of the weapon while he conducted his investigation. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Supreme Court addressed whether an officer's routine practice of ordering drivers out of their vehicles was an unconstitutional intrusion on the drivers' Fourth Amendment rights. See 434 U.S. at 107-08, 98 S.Ct. 330. The Supreme Court held that ordering the driver out of the vehicle did not violate the Fourth Amendment. See Pennsylvania v. Mimms, 434 U.S. at 108, 98 S.Ct. 330. It found the "proffered justification — the safety of the officer — is both legitimate and weighty," and that the driver
It was also reasonable for Vigil to order Reyes-Vencomo to keep his hands out of his pockets and to prevent him from reaching into the pockets. Vigil had already observed a machete in Reyes-Vencomo's vehicle and did not know what Reyes-Vencomo might have in his pocket with the cellular telephone. Vigil testified that he had not searched Reyes-Vencomo, could not determine for what he was reaching, and was concerned for officer safety. See Tr. at 22:8-15 (Torrez, Vigil). He further testified that standard police policy is to order suspects to keep their hands out of their pockets, or to secure their hands so that they cannot pull out a knife or gun. See Tr. at 22:16-22 (Torrez, Vigil). The United States Court of Appeals for the Sixth Circuit, in United States v. Mays, 643 F.3d 537 (6th Cir. 2011), held that "a nervous defendant who is `digging' into his pockets" presented an officer safety concern, which justified frisking the defendant. 643 F.3d at 542. The Tenth Circuit has also held that, where an officer observes one weapon, that fact provides "a law enforcement officer with a reasonable belief that the person being briefly detained may be carrying other deadly weapons." United States v. Henning, 906 F.2d 1392, 1396 (10th Cir. 1996). In United States v. Robinson, 119 F.3d 663 (8th Cir.1997), the United States Court of Appeals for the Eighth Circuit found that a pat-down search of the defendant was justified where the defendant was nervous, and "had taken his hands off of the steering wheel and moved them towards his waist." 119 F.3d at 667. At the time Vigil ordered Reyes-Vencomo not to reach into his pockets, Vigil was aware of the following: (i) Reyes-Vencomo had given him a possibly fraudulent Social Security number; (ii) he had no way to confirm Reyes-Vencomo's identity; (iii) Reyes-Vencomo had a machete in his vehicle; (iv) Reyes-Vencomo was irate and visibly frustrated; and (v) Reyes-Vencomo exited his vehicle in frustration without being asked. In these circumstances, Vigil justifiably feared for his safety when Reyes-Vencomo reached into his pocket. Vigil did as he was trained and ordered Reyes-Vencomo not to reach for the telephone. See Tr. at 22:8-24 (Torrez, Vigil). When Reyes-Vencomo continued to reach into his pocket, Vigil was justified in attempting to restrain him for officer safety.
Accordingly, Vigil reasonably ordered Reyes-Vencomo away from his truck and to refrain from reaching into his pockets out of concern for officer safety. Furthermore, when Vigil attempted to restrain Reyes-Vencomo, Reyes-Vencomo intentionally head-butted Vigil in the nose.
The United States argues that the search of Reyes-Vencomo's vehicle was a valid inventory search. See Response at 9. In the alternative, the United States asserts that it was a valid protective sweep under United States v. Chambers, 383 Fed. Appx. 719 (10th Cir.2010)(unpublished). See Response at 9-10. Reyes-Vencomo argues that there was no basis for the inventory search and that any "protective sweep" would violate the Fourth Amendment as stated in Arizona v. Gant. Reply at 5. At the hearing, Reyes-Vencomo asserted that two people were immediately available to drive the vehicle back to his house and that Vigil had admitted that two people requested to take the vehicle home. See Tr. at 101:19-21 (Juarez). He asserted that the only way to establish whether someone is immediately available to take the vehicle is to ask and Holfelder had no contact with him. See Tr. at 102:10-103:1 (Juarez). Additionally, Reyes-Vencomo contended that no officer noted in his report that no one was available to take the vehicle, as the Taos policy requires. See Tr. at 103:1-7 (Juarez). Reyes-Vencomo argued that, even if the Court finds that the arrest was valid, the Court should grant the Motion to Suppress, because of the failure to follow the proper inventory search procedure. See Tr. at 103:8-14 (Juarez). The United States asserted that Reyes-Vencomo never told the officers that he wished for Gutierrez or Gonzales to take his vehicle to his home. See Tr. at 116:16-117:5 (Torrez). It argued that the officers should not have to wait to see who might show up to take possession of an arrested individual's vehicle. See Tr. at 117:21-118:1 (Torrez). The United States asserted that the women showed up after the tow truck had already been called and that, if the inventory was already underway, the bell had already rung, because the officers had found the weapons. See Tr. at 118:1-6 (Torrez). It contended that the officers acted in good faith because when they began the inventory search, no person was immediately available at the scene. See Tr. at 118:7-13 (Torrez). In rebuttal, Reyes-Vencomo reiterated that it is the United States' burden to establish that the defendant's rights were not violated. See Tr. at 119:11-12 (Juarez). He emphasized that Gutierrez and Gonzales were at the scene before the tow truck arrived. See Tr. at 119:13-18 (Juarez). Reyes-Vencomo argued that the officers were supposed to reflect whether someone is available to take possession of the vehicle and that none of the police reports contain a reference to that policy. See Tr. at 119:24-120:6 (Juarez). He contended that the United States failed to meet the inventory search exception. See Tr. at 120:7-9 (Juarez).
Because the inventory search was conducted in accordance with Taos Police Department Policy, it was a valid search in conformance with the Fourth Amendment. Because the search was valid, the Court will deny the Motion to Suppress on this basis.
The Taos Police Department Towing Policy provides that "[t]owing a vehicle may be necessary as a matter of public safety, to protect property, or to preserve evidence." Taos Police Department Towing Policy at 3. The policy further states that: "When the operator of a vehicle is arrested and there is no one immediately available whom they want to take charge of the vehicle, it will be towed. This decision shall be noted in the narrative of the report, which is completed." Taos Police Department Towing Policy at 4. Additionally, a "vehicle inventory will be completed and attached to any associated reports. If there is an Offense/Incident report completed, place the case number on the top right corner of the inventory." Taos Police Department Towing Policy at 5. While it is possible that "this decision" could be construed as referring to the officer's decision to tow, it is not the best interpretation. The Court construes the phrase "this decision" to refer to the driver's decision to allow someone else to take possession of his vehicle. The Court believes that this construction is the appropriate reading of the policy, because the police officer has no decision to make; the policy provides that, if no one is immediately available, the vehicle "will be towed." Taos Police Department Towing Policy at 4 (emphasis added). Accordingly, the police officer has no discretion and can make no decision. If no one is immediately available, the vehicle is towed. Holfelder's construction of the policy supports the Court's construction, see Tr. at 55:16-23 (Torrez, Holfelder); the policy has in mind people who are in the car — such as in a driving while intoxicated arrest — or when cars are driving in tandem, and there are additional drivers available. S. Reyes might have qualified, had she not also been under arrest. See Tr. at 26:9-27:12 (Torrez, Vigil); id. at 90:11-18 (Torrez, Ortega).
Holfelder testified that, when he arrived at the scene, another police officer suggested that he inventory Reyes-Vencomo's truck. See Tr. at 50:24-51:13 (Torrez, Holfelder). He asserted that, when he
The Taos Police Department Towing Policy states that it is designed to protect public safety and to protect property. See Taos Police Department Towing Policy at 3. Holfelder testified to the administrative function of the Taos Police Department Towing Policy and described an inventory search as an exercise of the caretaker function. See Tr. at 53:24-54:10 (Torrez, Holfelder). See also Florida v. Wells, 495 U.S. at 2, 110 S.Ct. 1632. Accordingly, the unchallenged testimony and evidence establish that there is a uniform standardized policy to do a complete inventory search of a vehicle when a vehicle will be towed, because the owner is under arrest and no one is immediately available to take possession of the vehicle. See United States v. Moraga, 76 Fed.Appx. at 228.
With respect to whether someone was immediately available to take possession of the vehicle, Holfelder testified that, when he arrived at the scene, only law enforcement officers, and Reyes-Vencomo, were present. See Tr. at 63:2-14 (Juarez, Holfelder). Holfelder also testified that he arrived at the scene between 12:30 p.m. and 12:30 p.m. and the traffic stop took place a long time before he got there. See Tr. at 50:22-23 (Torrez, Holfelder). He asserted that he understood "immediately available" to refer to another vehicle occupant who was not going to be arrested or traveling in tandem with that vehicle. Tr. at 55:16-23 (Torrez, Holfelder). Furthermore, all of the officers testified that Reyes-Vencomo never requested that anyone take charge of his vehicle. See Tr. at 55:2-57:4 (Torrez, Holfelder); id. at 90:15-91:3 (Torrez, Ortega); id. at 43:11-15 (Juarez, Vigil). The Taos Police Department Towing Policy does not require officers to ask whether there is someone available whom the operator of the vehicle wishes to take charge of the vehicle or that the officers wait for a designated person to arrive at the scene to take charge of the vehicle. See Taos Police Department Towing Policy at 4-5. The policy does not require officers to inquire whether someone is available to take the vehicle. Furthermore, because the policy states that the person must be "immediately available," it does not require an officer to inquire whether someone is immediately available. If officers were required, in every case, to ask whether someone was available to take the vehicle, then the officers would have to wait while the driver attempted to locate someone and for that person to arrive. The New Oxford American Dictionary defines "immediately" as "at once; instantly," or "without any intervening time or space." New Oxford American Dictionary 869 (A. Stevenson & C.A. Lindberg eds., 3d ed. 2010). Were an
The parties dispute whether someone was immediately available to take the vehicle. The officers undertook the search of Reyes-Vencomo's vehicle pursuant to standard police procedures. See United States v. Lugo, 978 F.2d at 631. The policy's plain language does not require that the officers inquire whether anyone is available to take charge of a vehicle that would otherwise be towed. The policy merely provides that, if someone is not "immediately available whom they want to take charge of the vehicle," it will be towed. Taos Police Department Towing Policy at 4 (emphasis added). See also United States v. Jacquez, 409 F.Supp.2d at 1297. Although Reyes-Vencomo asserted that he asked an officer to permit S. Reyes or Gutierrez to take the vehicle, see Tr. at 69:17-20 (Juarez, Reyes-Vencomo), the Court determined that his testimony on this point was not credible. Reyes-Vencomo did not indicate: (i) which officer he informed of his desire to have S. Reyes or Gutierrez to take his vehicle; (ii) what the officer's response was; or (iii) when, in the sequence of events, he made his request. Holfelder credibly testified that only law enforcement officers were on the scene when he arrived and began the inventory search. See Tr. at 63:2-14 (Juarez, Holfelder). He asserted that he saw Gutierrez arrive at the scene after he did and after he began his inventory. See Tr. at 63:17-18 (Juarez, Holfelder); Tr. at 65:25-66:11 (Torrez, Holfelder). Accordingly, at the time he began the search, no one was available to take charge of the vehicle. Furthermore, Holfelder testified that the traffic stop began "quite awhile" before he arrived at the scene. Tr. at 62:22-63:10 (Juarez, Holfelder). The New Oxford American Dictionary defines "immediately" as "at once; instantly," or "without any intervening time or space." New Oxford American Dictionary, 869. Whether the Court looks at the time during Reyes-Vencomo's arrest when Vigil suggested that the vehicle be towed, or at the time of Holfelder's arrival and the
Reyes-Vencomo asserts that after the search was completed the officers were required to note the decision to tow in their reports, and that, because the officers failed to do so, the Court should suppress the evidence. See Tr. at 119:24-120:6 (Juarez). Holfelder conceded that Vigil and Ortega did not note the decision to tow in their narrative reports. See Tr. at 64:22-65:4 (Juarez, Holfelder); Vigil Report at 1; Probable Cause at 1; Ortega Report at 1. The Court, however, construes the phrase "this decision" to refer to the driver's decision to allow someone else to take possession of his vehicle, because the police officer has no decision to make; the policy provides that if no one is immediately available the vehicle "will be towed." Taos Police Department Towing Policy at 4 (emphasis added). Accordingly, the decision to "be noted" is the defendant's decision to permit another individual to take charge of the vehicle. Noting the defendant's decision relieves the officer of liability if something then happens to the car and/or its contents. This construction is sound because it protects the police department from liability in the event that something happens to the car that the defendant has decided to let someone else driver away. Furthermore, whether Vigil and Ortega noted the decision to tow in the narrative of their police reports has no bearing on the reason for the requirement of standardization. A standardized policy is needed to ensure that inventory searches do not become "a ruse for general rummaging in order to discover incriminating
The officers initiated the search in compliance with standardized police procedures and the requirement that the officers make a post-search notation regarding the decision to search adds little to the protections that the Fourth Amendment and Supreme Court precedent seeks to impose. The Fourth Amendment is satisfied so long as an officer conducts an inventory search in good faith. See United States v. Battle, 370 Fed.Appx. at 430 (citing Colorado v. Bertine, 479 U.S. at 374, 107 S.Ct. 738). Holfelder and Ortega conducted an orderly inventory search, documenting and photographing the items in the vehicle as they went, and were not "general[ly] rummaging in order to discover incriminating evidence." United States v. Martinez, 512 F.3d at 1274. Holfelder explained that he understood the policy's purpose to be to protect the department and the driver's property, and nothing indicates that he was acting in bad faith. See United States v. Moraga, 76 Fed. Appx. at 228 ("An impoundment must either
The Court concludes that no one was "immediately available" to take charge of the vehicle when the inventory search began and that the minor notation deviation from policy does not undermine the good-faith basis for the search. Accordingly, the Court finds that the inventory search was reasonable, undertaken pursuant to a standardized policy, and does not violate the Fourth Amendment.
