STEVEN C. YARBROUGH, Magistrate Judge.
THIS MATTER comes before the Court on Defendant Eric Salazar's Motion to Suppress Evidence as a Result of Fourth Amendment Violation. Doc. 20. On October 26, 2017, the Honorable M. Christina Armijo, Chief United States District Judge, referred this matter to me to recommend an ultimate disposition of this Motion. Pursuant to the Order of Reference, I held a hearing in this matter on December 21, 2017. Doc. 30. Given the current trial setting, I informed the parties at the hearing that I would be entering oral findings and my recommended disposition from the bench in order to give them sufficient time to file objections to my report and recommendation and for Chief Judge Armijo to then consider any objections that are filed. Tr. at 124-25. I further informed the parties that the objection period would run from the entry of the transcript of the proceedings on the docket as it would constitute my written decision for purposes of 28 U.S.C. § 636(b)(1)(B) and (C). Id. The parties did not object to this procedure. Id.
Attached to this Order is the transcript of the proceedings in this case. My report and recommendation is contained on pages 126 to 163 and pages 166 to 170 of the attached transcript. This report and recommendation, however, is modified as follows: 1) Page 137, lines 8-11. The test to determine whether a warrantless entry or search is justified by exigent circumstances has been updated. The second prong of the current test is whether "the manner and scope of the search is reasonable." United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006); Cortez v. McCauley, 478 F.3d 1108, 1123-24 (10th Cir. 2007); United States v. Gordon, 741 F.3d 64, 70 (10th Cir. 2014).
2) Page 139, line 15. The word "in" is changed to the word "to". This change more accurately reflects the testimony on page 10, line 19 through page 11, line 10 and on page 15, line 19 through page 16, line 2.
3) Page 142, line 9. As stated elsewhere in my findings, additional factors in support of exigent circumstances that justify the entry include Deputy Armijo's hearing of footsteps retreating farther into the interior of the apartment in response to his announcing the presence of law enforcement and the fact that police were responding to a priority two 911 call from a nonanonymous person who appeared to have credible information.
4) Page 145, lines 19-21. This section of the transcript is modified to acknowledge that police talked to Defendant while he was in the bathroom, but that such conversation primarily involved police officers' attempt to convince Defendant to come out of the bathroom. Police were not able to confirm or dispel their reasonable suspicion that Defendant was involved in criminal activity until they were able to address him outside of the bathroom.
5) Page 147, line 18. The phrase "for ID" is replaced with the phrase "for concealing ID".
6) Page 150, lines 10-13. Although I conclude that the primary reason Detective Cornell went into the bathroom was to look for a weapon, I find his testimony that he also went into the bathroom to check for the presence of other people to be credible.
7) Page 151, lines 24-25. The citation to United States v. Gordon is corrected to United States v. Walker, 474 F.3d 1249, 1254 (10th Cir. 2007).
8) Page 152, lines 4-7. Here, and at other places, I sometimes use the term "protective sweep" to describe a search permitted by the existence of exigent circumstances even in the absence of an arrest. See Walker, 474 F.3d at 1254 (stating that although a "protective sweep" permitted pursuant to Maryland v. Buie, 494 U.S. 325, 327 (1990), may only take place incident to arrest, a sweep may nevertheless be permitted in the absence of an arrest under the exigentcircumstances doctrine set out in Najar). This general use of the term "protective sweep" excludes protective sweeps in the first situation identified in Buie where incident to arrest and without any articulable suspicion "authorities can look in `closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." United States v. Bagley, No. 16-3305, 2017 WL 6419027 at *2 (10th Cir. December 18, 2017) (slip op.) (quoting Buie, 494 U.S. at 334). It includes, however, "sweeps" justified, even in the absence of an arrest, by exigent circumstances. Such exigent circumstance searches are similar to protective sweeps justified pursuant to arrest in Buie's second-identified situation where "authorities can look elsewhere in the house upon specific, articulable facts supporting a reasonable belief that someone dangerous remains in the house." Bagley, 2017 WL 6419027 at *2.
9) Page 156, line 13. The number "133" is replaced with the number "71".
10) Page 158, lines 12-24 and page 159, line 20 through page 160, line 4. I retract my initial conclusion that, assuming the search of the bathroom was legal, the extended seizure of the gun and NCIC check to determine whether the gun was stolen was, nonetheless, illegal. As I set forth on page 25 of my analysis, police would be justified in seizing the gun if they saw the gun in plain view somewhere they were legally authorized to be during the time they were investigating a domestic violence 911 call. This is because, as I noted on page 156 of the transcript, if an officer is lawfully positioned in a place from which an object can be plainly viewed, the officer is permitted to notice whatever is put on display and the observation of the article is generally not considered a search. Gordon, 741 F.3d at 71. "If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy." Id. Accordingly, if law enforcement lawfully seized the gun, law enforcement could lawfully observe the serial number in plain view on the gun and run an NCIC check to determine if the gun was stolen. The record is not sufficiently developed to determine whether police held the gun longer than allowed by law before they checked to see if the gun was stolen. In other words, the record does not indicate whether police ran an NCIC check before or after they were able to speak with Defendant and determine that no domestic violence had taken place and that Defendant did not pose a threat. If the Court accepts my findings that Deputy Cornell unconstitutionally entered the bathroom where he then saw the gun in plain view and seized the gun, however, the Court does not have to resolve this issue. If Deputy Cornell could not legally enter the bathroom and seize the gun, he could not legally run an NCIC check on the gun.
11) Page 161, line 19. The word "entry" is substituted for the word "search".
12) Page 162, lines 16-20. I recognize the following language from Walker:
United States v. Walker, 474 F.3d 1249, 1254 (10th Cir. 2007). One can argue that this language indicates that, even in the presence of exigent-circumstances, officers who seize but do not arrest someone cannot conduct a sweep for purposes of officer safety. In Najar, however, the Tenth Circuit stated that the test to determine whether exigent circumstances justified a search is "whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable. . . ." Najar, 451 F.3d at 718 (emphasis added). The Tenth Circuit has since repeatedly reaffirmed this test. See Cortez v. McCauley, 478 F.3d 1108, 1123-24 (10th Cir. 2007); United States v. Gordon, 741 F.3d 64, 70 (10th Cir. 2014).
Further, it seems unlikely that Walker would prohibit police from protecting themselves against a deadly threat that arises when they seize, but do not arrest, someone. For instance, the Tenth Circuit in Walker determined that exigent circumstances existed to justify law enforcement's entry into the defendant's home after he responded to law enforcement's announcement of their presence with the statement, "Yeah, and I got a goddamn gun." Walker, 474 F.3d at 1253. Specifically, the Tenth Circuit determined that although police could have retreated "it was also reasonable for [police] to take control of the situation by entering to disarm Mr. Walker, who could otherwise continue to pose a danger to the officers and others. Because the officers could reasonably believe that they needed to enter Mr. Walker's home to protect their own safety, and because they acted reasonably in entering and restraining Mr. Walker, we hold that the officers committed no Fourth Amendment violation in those actions." Id. Assume, after police seized (but did not arrest) the defendant, an individual in another room of the house yelled, "I have a goddam gun too." Allowing police to enter the home based on the first comment, but not another room in the home based on the second comment, would be an anomalous result. Thus, I do not recommend concluding that police can never justify a sweep based on exigent circumstances related to officer safety. Instead, I read Tenth Circuit case law as saying that, absent an arrest, police are not automatically allowed to search areas adjacent to someone they have seized for purpose of officer safety (the first situation recognized in Buie). This does not preclude police from protecting themselves against a known and exigent danger that arises in the course of the detention. Thus, I continue to recommend that exigent circumstances must have existed to justify Deputy Cornell's entry into the bathroom and that such exigent circumstances did not exist.
Except for the above modifications, the attached transcript of my findings and recommended disposition entered orally on the record constitute my report and recommendation. Based on the transcript of my recommended findings and the above modifications, I recommend that Defendant's Motion to Suppress Evidence as a Result of Fourth Amendment Violation be
Proceedings recorded by mechanical stenography; transcript produced by computer.
(In Open Court at 9:04 A.M.)
THE COURT: we are on the record in United States vs. Eric Salazar, 17-cr-831. Counsel can go ahead and enter their appearances.
MR. WALSH: Good morning, Your Honor. Dave Walsh on behalf of the United States. Also present at counsel table is Special Agent Lisa Gaul of ATF, and Mr. Daniel Salazar, litigation support specialist.
THE COURT: Thank you. Good morning.
MS. BAIZ: Good morning, Your Honor. Sylvia Baiz on behalf of Mr. Salazar, who is present in the court, and Eric Hansen is my case investigator.
THE COURT: Good morning.
All right. So, we're here today for a suppression hearing. Judge Armijo referred this to me for findings for a report and recommendation. Let me just tell you, first of all, I appreciated your being here on such short notice. I know that — I'm sorry, Ms. Baiz, did you have something else, as well?
MS. BAIZ: No, Your Honor.
THE COURT: I know that we're being driven by a trial on February 5th, and so that's why I had to set this up so early. Obviously there's going to be a two-week objection period in between now and February 5th. I have to hear the evidence. I have to make my decision. I have to make sure that you have that in writing. And then you've got a two-week objection period, and then Judge Armijo has to have some time to turn that around. So we're in a little bit of a time crunch, and that's why we needed to have this today.
My thought going forward was to start with the defense. The Tenth Circuit has made it clear that the defense has to establish a reasonable expectation of privacy. So it essentially lets you put on whatever you would like to put on to establish that there was an expectation of privacy in the place to be searched. And then once we get past that issue, then I can go ahead and turn it over to the Government.
I'm not going to be able to make a ruling that's definitive on that, because obviously it will go to Judge Armijo. So regardless of what you put on, we'll go ahead and go forward with the Government's case.
MS. BAIZ: All right, Your Honor. Thank you.
THE COURT: So let's go ahead and start with the defense.
MS. BAIZ: Mr. Salazar's wife is out in the hallway. I'm just going to invite her to come in, Your Honor. And then Mr. Hansen will testify.
THE COURT: That's fine.
MS. BAIZ: Thank you.
MR. WALSH: Quick correction, Your Honor. I called Mr. Kingery, Mr. Salazar. So, just wanted to correct that.
THE COURT: No, I knew who he was. That's fine. I didn't want to correct you, though.
MS. BAIZ: And Your Honor, I would like to invoke at the time, or when the Government is going to present their witnesses, the Rule 615, that witnesses should be excluded.
THE COURT: Now, of course, the Rules of Evidence don't apply, but nonetheless, I think the same principle that drives that rule, if it was a trial, would drive the issue in a suppression hearing. You've just — I don't know if Ms. Salazar is going to be a witness or not. I know you just invited her in.
MS. BAIZ: No, she is not.
THE COURT: That's fine. Then you can go ahead and call your first witness.
MS. BAIZ: The defense would call Eric Hansen to the stand, Your Honor.
(ERIC HANSEN, DEFENSE WITNESS, SWORN)
MS. DAPSON: Please be seated.
MS. BAIZ: And Your Honor, this is just to establish his right to privacy in the location, but Mr. Hansen also took pictures of the location in the house and all that. We can call him back if you find that —
THE COURT: All right.
MS. BAIZ: — at a later time, or do you want him to testify about everything right now?
THE COURT: Is that going to be a long testimony, or is he basically just going to be admitting the pictures about the house?
MS. BAIZ: It's going to be not long testimony, no.
THE COURT: Okay. It might be more efficient just to go ahead and go straight into that while he's on the stand, and then that's not going to preclude your ability to call him back. We'll just try to do it as efficiently as we can.
MS. BAIZ: Okay, thank you.
BY MS. BAIZ:
Q. Mr. Hansen, where are you employed?
A. I'm employed at the Federal Public Defender in Albuquerque.
Q. How long have you been there?
A. Three years.
Q. And you were assigned to work on Mr. Salazar's case?
A. Yes.
Q. Okay. In this case, you talked to several witnesses, including a woman named Stephanie Garcia?
A. Yes.
Q. And can you explain who Stephanie Garcia is?
A. Stephanie Garcia was the tenant on the lease at the address involved in this case, 907 Nashville. 907-B, I think, at the time of the incident.
Q. Was it 409?
A. I don't have my paperwork with me. Is it — I don't know. I thought it was 907.
Q. It was — Stephanie Garcia was the tenant, you said —
A. Yes.
Q. — that lived there at the time?
A. Yes.
Q. And Stephanie Garcia, do you know — so you spoke to her on the phone or in person?
A. I've spoken with her on the phone.
Q. And what did she tell you about who lived with her? Or, what did she tell you about Eric Salazar?
A. That Mr. Salazar was a friend of hers that she's known since school, in 6th or 7th grade, and that he and his wife, Monique, are friends of hers. They stay with her occasionally, and that they had been there a week prior to this incident.
Q. Okay. And did she say that they had — so she said that they lived with her?
A. Yes.
Q. Okay. Did she say anything about whether she was moving, or how long she had lived there, or anything like that?
A. She said that on — she was in the process of moving. On this particular evening, Eric and Monique were there watching her daughter so that she could move, you know, without having to watch the child.
Q. Okay. And this was the house where Mr. Salazar was arrested?
A. Yes.
MS. BAIZ: I'm going to — Your Honor, can I show Mr. Hansen a document to refresh his recollection?
THE COURT: That's fine.
BY MS. BAIZ:
Q. Mr. Hansen, I'm showing you a discovery packet in this case that you have reviewed before; right?
A. I have.
Q. Can you tell me what the exact address was?
A. You know, will you please get me my glasses? I left them at the table. Sorry. Thank you.
709 Nashville is the correct address.
Q. 709. we were both wrong. 709 Nashville. And is there an apartment number or a unit number?
A. It was B. It was 709-B Nashville.
Q. Okay. And so this person that you talked to on the phone, she said her name was Stephanie Garcia; right?
A. That's right.
Q. And she gave you an address where she lives; right?
A. Yes.
Q. And were you able to corroborate that with any computer programs or anything like that, that that is where she lives?
A. Yes. I had used the Lexus/Nexus or Accurint program to locate her, and then when I was speaking with her, I said, what's your — do you have a new address? And she gave me the same address as listed in that.
Q. Okay. Do you know whether or not Mr. Salazar kept his personal belongings at Stephanie Garcia's house at that time?
A. According to Ms. Garcia, yes, he had been there about a week, and that he and Monique both kept personal belongings there at the apartment.
Q. Did you try to find — did you try to speak with Ms. Garcia personally?
A. I did, yes.
Q. And did you do it?
A. No.
Q. why not?
A. I went to the address she had given me, and initially I knocked on the door and got no answer. I left and went back about 20 minutes later, and there was a subject in the front who said that she was not there. He said that he knew who she was, but that she was not there at the residence, and didn't know her current address.
Q. And that was the address that she gave you and the address that you saw in the Accurint?
A. It is.
Q. The same address where you went to look for her?
A. Yes.
Q. Did you try to serve her with a Subpoena?
A. I did, yes.
Q. But you couldn't find her?
A. I couldn't find her, and I wasn't sure enough that she was there that I would leave it on the door. You know, the individual with whom I spoke insisted she didn't live there, so I didn't see any reason to give him the Subpoena. But I had been in contact with Ms. Garcia maybe two days prior via phone conversation and a text.
Q. Okay. And did you speak to Lydia Sanchez in this case, as well?
A. Yes.
Q. And who is she?
A. That is Monique Salazar's mother.
Q. Okay. Did you — do you know whether or not she's the one that made the 911 call?
A. I believe she is, yes.
Q. Did she tell you whether or not she knew that Eric Salazar and Monique Salazar stayed there at Stephanie Garcia's home?
A. She stated that she was familiar with that being the place where they stayed, yes.
Q. And that was the 709 address?
A. Yes, 709 Nashville.
Q. 709 Nashville, Apartment B?
A. Yes.
Q. Okay. And did she say that she picked up Stephanie there — I mean, she picked Eric or Monique up there? Did she go and retrieve them to transport them to other places at that apartment?
A. I believe what she said was that she had transported them there, taken them there from another place in the past.
Q. Right, but did she say that she sometimes picked up Monique there in the mornings?
A. Yes.
Q. All right. I'm going to show you some photographs.
MS. BAIZ: They're Defense Exhibits A through N, Your Honor, and I'm going to — I did give the Government copies.
THE COURT: Okay.
BY MS. BAIZ:
Q. Do you recognize those photographs?
A. I do.
Q. What are they?
A. These are photographs from the bathroom that is off of the kitchen area at the apartment, 709-B Nashville.
Q. when did you take those pictures?
A. Last Friday.
Q. Is there a completely new tenant living there?
A. There is.
Q. And is it your understanding that this is the bathroom in question in this case where Mr. Salazar was found?
A. Yes.
Q. And this bathroom is off the kitchen, you said?
A. Yes.
MS. BAIZ: Your Honor, I don't have any other questions at this time.
THE COURT: Okay. Thank you. Cross-examination?
BY MR. WALSH:
Q. So, Mr. Hansen, you were asked to look into what the Defendant's relationship was to the residence you've been testifying about; correct?
A. Yes, sir.
Q. And I got a little confused there, but you mentioned a Stephanie Garcia.
A. Yes.
Q. And who is that, again, please?
A. She was — she's a friend of Mr. Salazar's and Mrs. Salazar's, and she was the tenant at that apartment at the time of this event.
Q. But she was not present during the night in question; correct?
A. That's correct.
Q. And there was a Mr. — or excuse me, a Ms. Anna Garcia that was there at the scene when BCSO responded to a 911 call; correct?
A. Yes, sir.
Q. And did you — as part of your investigation, did you ascertain who the landlord was?
A. I did. I don't have his name. But I spoke to him, in fact, last week.
Q. Do you recall — you don't have his name?
A. No, sir.
Q. Now, with respect to Stephanie Garcia, were you able to get ahold of her lease, or any documentation with respect to her being a tenant?
A. No, sir.
Q. As a matter of fact, if I understood this correctly, you did not eventually speak to Stephanie Garcia? You tried to, but you didn't talk to her, or did you?
A. I have spoken with her on the phone, I believe twice. I've exchanged texts with her. I've never spoken with her in person.
Q. Okay. Did you collect any utility bills or correspondence from Ms. Garcia related to the Nashville apartment?
A. No.
Q. Now, do you have any photos of the Defendant's possessions tying him to the apartment?
A. No.
Q. How about any utility bills or any type of mail that cross-references the Nashville apartment?
A. No.
Q. And as far as personal belongings, you don't have any detail as to supposedly what he had at that particular apartment?
A. Ms. Garcia made reference to clothing, that both of them kept clothing there.
Q. Do you know what kind of clothing?
A. No.
Q. Is there any further detail in terms of possessions?
A. No.
Q. Do you know exactly where the Defendant supposedly stayed within that residence?
A. No, I don't.
Q. Do you know where Monique Salazar stayed within that particular residence?
A. No.
Q. Now, you probably did some investigation into this case. Is that correct?
A. Yes.
Q. Did you listen to the 911 call?
A. Yes.
Q. Okay. And isn't it correct that it was Monique Salazar's mom that called 911 asking for BCSO attention?
A. Yes.
Q. Now, per your understanding of the 911 call, mom was dropping the Defendant and Monique Salazar off at the Nashville apartment?
MS. BAIZ: Objection, Your Honor. Beyond the scope.
THE COURT: Well, I know we went a little bit beyond establishing what the standing was on this, so I'm going to let him go ahead and ask a few of these questions, and then you can come up and clear it up. But I think that we did get into a little bit of not just whether there was a reasonable expectation of privacy, but into some of the substantive issues, so let me let him go a little bit further with this.
Go ahead, Mr. Walsh.
MR. WALSH: And the purpose of the questions is to establish the Defendant's relationship to the premises.
THE COURT: That's fine.
MR. WALSH: I'll save that other information for later.
BY MR. WALSH:
Q. But, mom dropped off the Defendant and Monique Salazar at the Nashville apartment on the night in question; correct?
A. I believe that's correct, but I don't recall specifically the 911 call referencing that. Does that make sense? I haven't listened to the 911 call in quite a while, and I don't remember very specific details about it.
Q. But that's your understanding from the investigation, is that mom dropped those two off at the Nashville apartment; correct?
A. Yes, sir.
Q. And it's also your understanding from the investigation that the Defendant told the deputies that he did not live there; correct?
A. I don't recall that, either.
Q. You don't recall hearing that on the 911?
A. That wouldn't have been on the 911, I don't think.
Q. Excuse me; on the belt tape.
A. I don't believe I've listened to that.
Q. Okay, fair enough.
And a final question. Were you aware that the Defendant, when he was arrested on the indictment, that's as opposed to being arrested on the night in question, that he was arrested at a different residence?
A. I'm not aware of that, no, sir.
MR. WALSH: No further questions.
THE COURT: Thank you. Redirect?
BY MS. BAIZ:
Q. Mr. Hansen, you did talk to the landlord of this place; right?
A. Yes, I did.
Q. And he did acknowledge that Stephanie lived there; right?
A. Yes, he did.
Q. And he said that she lived there and that he had to put her out?
A. Those were his words, yes.
MS. BAIZ: I don't have any other questions, Your Honor.
THE COURT: Okay. Any other witnesses in order to establish standing or reasonable expectation of privacy?
MS. BAIZ: No, Your Honor.
THE COURT: Okay. Thank you. You can go ahead and step down.
Let's go ahead and start with the Government's case, then, and you can call your first witness whenever you're ready.
MR. WALSH: Are we just going to hold off, Your Honor, on the issue of standing, or what is the Court's plan?
THE COURT: We can argue it now. As a lowly Magistrate Judge, all I can do is make a recommendation to Judge Armijo. So I'm not able to make a definitive finding on it as it is. But I will tell you what my inclination is. My inclination is that I would find that there is a reasonable expectation of privacy based on the evidence that I have thus far. of course, you can call witnesses if you want at this point to contest it, so we don't have to move onto the Government's case. I should have asked you if you had other witnesses.
But 1 haven't heard anything at this point to contradict the evidence that the Defendant was an overnight guest, and even if he wasn't an overnight guest, 1 certainly don't have anything to contradict that the Defendant wasn't a social guest. And since Minnesota vs. Olson has been out, the Tenth Circuit has said that it's not just limited to overnight guests where there is a reasonable expectation of privacy. They came out with a decision by the name of Poe where they've said that it's actually people that have an ongoing relationship as a social guest, and 1 think you're aware of that because it's the standard that you cited in your brief.
But let me let you put on evidence, if you want. We don't have to get past this issue if you have witnesses that you're going to call related to the reasonable expectation of privacy.
MR. WALSH: That's fine, Your Honor. why don't we just press on with the Government's case, and there'll be evidence intertwined with the standing issue, and that being the Defendant's detachment or express denial of having lived there.
THE COURT: That's fine. You can incorporate it and I'll just take the issue under advisement for now. And then as you're presenting evidence related to that issue throughout your case, I'll consider that and 1 won't make a final decision on this issue until I've heard everything.
MR. WALSH: Thank you, sir. That being said, the United States calls Deputy Cornell.
MS. DAPSON: Raise your right hand.
(DEPUTY CHRISTON CORNELL, GOVERNMENT WITNESS, SWORN)
MS. DAPSON: Please be seated.
BY MR. WALSH:
Q. Sir, please state your name for the record.
A. Deputy Christon Cornell.
Q. And what is your occupation, Mr. Cornell?
A. I'm a full-time commissioned deputy with the Bernalillo County Sheriff's Department.
Q. How long have you been a deputy with BCSO?
A. Five-and-a-half years.
Q. And briefly describe your duties for the Court.
A. I'm a patrol deputy, so I respond to calls for service, conduct patrols in the area for suspicious activity, traffic, law enforcement.
Q. Do you drive a marked vehicle?
A. Yes, I do.
Q. And are you a uniformed deputy?
A. Yes, I am.
Q. what part of the county do you work in?
A. I work in the South valley.
Q. Let me direct your attention, Deputy Cornell, to December 8, 2016, at approximately 1:15 in the morning. Or, let's fast forward it a couple of minutes to, let's say, 1:20 in the morning. Were you on duty during that time frame?
A. Yes, I was.
Q. And do you work graveyard shifts?
A. Yes, I do.
Q. And were you working the grave that night, then?
A. Yes, I was.
Q. Did you receive any type of calls from dispatch right around that timeframe?
A. I was dispatched to a call of a possible domestic violence where the male subject had a firearm with him.
Q. And was there any description of the firearm in that call?
A. The calling party described it as a German-looking firearm, and that he had it in his waistband on his right side.
Q. Now, we'll get into it a little bit more, but what kind of priority call was it?
A. It was a Priority 2.
Q. And please explain that. What is that?
A. The way I understand the way the priorities are set is Priority 1 is where somebody is or is highly likely to be injured or killed. Priority 2 is where there is a possibility of somebody being injured. And then a Priority 3 is just a routine call.
Q. what did you do in response to this call? where did you go?
A. I headed to the call.
Q. And what was the location?
A. It was — the original call came out at La Vega and Nashville.
Q. And where is that located?
A. It's in the South valley. It's south of Bridge and Arno.
Q. And just for the record, that's in Bernalillo County in the District of New Mexico?
A. Yes, it is.
Q. So what was your location when you received the call?
A. I don't recall exactly where I was. I know I was a distance away from it. And due to, basically, the subject being armed, other deputies also answered up for the call and headed en route to it.
Q. So what did you do once you arrived at the location?
A. Once I arrived, deputies were already inside the residence and making contact with a male subject that was in the bathroom, and then two female subjects that were in the living room. I went in and basically assisted the initial deputies that entered with the male in the bathroom.
Q. Let me hand you what's been marked Government's Exhibit 1. Please identify that for the Court. A copy has been provided to the defense.
A. This is the 911 — the disc with the 911 call on it.
Q. Is that the call that you responded to on December 8th?
A. Yes, it is.
MR. WALSH: Your Honor, I move for the admission of Government's Exhibit 1.
THE COURT: Any objection?
MS. BAIZ: I haven't heard the actual CD here. I haven't heard this actual CD to see if this is the 911 call. But if it's just the 911 call, and Mr. Walsh is representing that it's just the 911 call, I won't object.
THE COURT: Is it just the 911 call?
MR. WALSH: It is. It's just the 911 call, and I was going to play it here. I have a copy on my desktop.
THE COURT: There's no jury that's going to be prejudiced. why don't we let him play it, and then we'll ask you after it's played whether you have an objection to its admissibility.
MS. BAIZ: Okay, sure.
(whereupon audio recording of 911 call played.)
BY MR. WALSH:
Q. Let me just ask you, Deputy Cornell, do you recognize that recording?
A. Yes, I do.
Q. And what is it?
A. That's the initial 911 call into dispatch.
Q. And is that the same call that is Government's Exhibit 1?
A. Yes.
Q. And you actually listened to this disc yesterday; right?
A. Yes, I did.
Q. Please proceed.
(whereupon audio recording of 911 call played.)
BY MR. WALSH:
Q. I actually should have shown you, Deputy, Government's Exhibit 1-A prior to playing the call, but at this time, let me show it to you. Please identify that for the Court. A copy has been provided to the defense.
A. This is a transcript of the 911 call we just listened to.
MR. WALSH: Your Honor, at this time I'd like to move for the admission of Government's Exhibit 1, the disc, and Government's Exhibit 1-A, the transcript.
THE COURT: Any objection?
MS. BAIZ: Your Honor, I would object to the transcript. I haven't had an opportunity to read it and compare it to the 911. But I don't have any objection to the 911, and it speaks for itself.
THE COURT: Okay. So we'll admit the 911. With regard to the transcript, when did you provide that to the defense?
MR. WALSH: A while back. It was a part of the initial batch of discovery. I mean, I think the parties and the Court are aware that the real evidence is Government's Exhibit 1. I just think it's a helpful tool.
THE COURT: What I'll do is I'll accept it as a demonstrative exhibit. I'll do the same thing that would generally happen in a trial, which is that the actual evidence is going to be the call, and then oftentimes the Government submits to the jury the exhibit which is the transcript so they can follow along. So I'll accept it as an exhibit for the Court's aid.
MR. WALSH: Thank you.
(Government's Exhibit No. 1 admitted.)
MS. BAIZ: I don't remember seeing this in discovery, or that it was provided to me. I'm looking at the certification. There's no date on here, either. But you're just going to admit it as demonstrative evidence?
THE COURT: It won't be admitted, at all. It will essentially be demonstrative evidence. What will be admitted is the actual CD. So, the CD will be the evidence. The transcript will basically just be used as an aid, but it won't control over what's actually on the CD.
And obviously after this hearing, whatever decision I end up making, you're going to have an objection period, so you'd always be allowed to present any alternative transcript that you would have at any point prior to my decision, or as a part of the objection period that you have. So it's not the last word on the transcript. So it's not admitted as evidence, per se. The CD is the evidence. It's just an aid to help as the Court is listening to the CD.
MS. BAIZ: Okay, thank you.
MR. WALSH: And that's my memory, that the transcripts have been provided to the defense. If I'm somehow mistaken, I apologize to counsel. I have more transcripts, but we'll address that in a minute.
BY MR. WALSH:
Q. Deputy, so you're inside the house. Tell us what's happening and what you do.
A. So, I go in and I assist the deputy that's talking to the male subject that's in the bathroom sitting on the toilet, talking to the deputy from behind a door. I let him talk for a little while, and then since the call came in that the male subject possibly had a gun, or had a gun with him, I basically tell him that he needs to get done. He needs to pinch it off and we need to get going.
So while he's still talking about him having intestinal issues, they ask him for his name, date of birth, and he provided the name of, it was Isaac Moya and Donald — or Ronald Moya. And then the date of birth, I don't remember exactly what the date was.
Q. Let me just slow you down there a little bit, Deputy. So the Defendant, he's on the toilet?
A. Yes.
Q. Did it seem like for an extraordinary period of time? Or what's happening there?
A. Since other deputies had arrived at the residence prior to my arrival and going in, and him still sitting on the toilet, to me it's a safety concern. If he does have a gun, I don't want to be standing directly in front of him. And for him to be sitting there, talking to us for as long as he had, like I told him that night, if the cops come to my house and I'm on the toilet, I'm going to be getting off the toilet and trying to figure out why the cops are at my house.
Q. Could you estimate how long he was on the toilet and why that seemed too long to you?
A. I would say it was probably three, four minutes after my arrival before I was basically telling him he had to get off.
Q. Could you see him on the toilet? You mentioned the door was open.
A. He was talking to us from behind the door. So the door was ajar. I could see most of him, but I couldn't see all the way into the bathroom. I didn't know if anybody else was in there or what was going on.
Q. Could you see his hands?
A. For most of the time.
Q. Now, who else is inside this residence?
A. So, there was two other females, and then I was told that there was also a child in there.
Q. Did you see the child?
A. I did not see the child. She was sleeping.
Q. Did you see the two females?
A. Yes, I did.
Q. So what happens next from your vantage point?
A. So, we tell him, or I tell him, he needs to pinch it off. He says that he's wiping. Gets off — well, he kind of closes the door, so I can't see him, says he's wiping, flushing the toilet. we ask him if he's flushing any drugs or anything.
He comes out. Deputies basically stop him to do a pat frisk for weapons. While they do that, I go into the bathroom just to see if anybody else is in there, if there's a weapon in there. Right next to the toilet is a sink and a cabinet. As you're looking at the cabinet, the left cabinet door is ajar. So I shine my flashlight down in the opening, and there's like a beanie cap, skull cap, on the bottom, and I can see hand the hand grip of a firearm under there.
Q. So what did you do next?
A. So since it is a firearm, I'm going to make it safe and secure while we're doing our investigation. So I get it out from under the cabinet, remove a loaded magazine, and then discharge a loaded round from the chamber.
Q. Let me show the defense what has been marked Government's Exhibit 9. Deputy, I'm showing you Government's Exhibit 9. Can you identify that for the Court?
A. That was the gun that was recovered from under the sink.
Q. And to you, does that look like any type of German gun?
A. It does.
Q. And why do you say that?
A. From watching Hogan's Heros growing up, from watching war movies that have Germans and Nazis in them, they all have kind of this gun that kind of tapers down.
Q. Describe the barrel that's depicted there in
Government's Exhibit 9, on the firearm.
A. It's a longer barrel that tapers down to more of like a point at the end.
Q. Let me take back Government's Exhibit 9.
MR. WALSH: I move Government's Exhibit 9 into evidence, Your Honor.
THE COURT: Okay. Any objection?
MS. BAIZ: No, Your Honor.
THE COURT: It will be admitted.
(Government's Exhibit No. 9 admitted.)
BY MR. WALSH:
Q. So Deputy Cornell, after you retrieve the firearm, what did you do next.
A. So I asked him about the firearm, and he said he didn't know it was in there. It wasn't his.
Or, I took it out, made it safe, and we had asked him about it. 1 believe prior to that, Deputy Armijo had read him Miranda rights and had started questioning him already about the incident. 1 asked him about it, and he stated that it wasn't his, he didn't know the gun was in there. Even after deputies asked him if there were any weapons in there, and he told them no, he was confronted about lying to us. He said he didn't lie, he didn't know, it wasn't his house, it was his friend's house.
Q. Now, this individual that you're referring to, have you identified him yet?
A. No. At this point, it's still, 1 believe, Ronald Moya.
Q. But it ends up turning out to be the Defendant, who is in the courtroom today; correct?
A. Correct.
Q. Tell us what happens next. Now, after — when you go into the bathroom, tell us what the Defendant does. What did the deputies do with respect to him after he exits the bathroom?
A. They patted him down for weapons and checked him for anything that could harm them.
Q. Did they place him in handcuffs at this time?
A. I believe they did.
Q. Okay. So back to — after you find the firearm, tell us about your investigation from there.
A. So then 1 take the firearm and 1 contact NCIC to have them do a check on the firearm, and they let me know that it's returning as a stolen firearm, and was stolen with ten other firearms.
Q. Now, is that something you normally do as far as running NCIC checks on firearms?
A. Yes.
Q. Any particular reason? Is that protocol?
A. we always run them to recover stolen firearms.
Q. And what did you do after you found out that it was stolen, what did you do?
A. I went and confronted, at that time it was still Mr. Moya, about the stolen firearm. He said it still wasn't his, that he didn't know it was in there. And, basically, I believed that he was lying to us, that it was his. It was described in the call. He was the only male subject in the house. So he was taken into custody and arrested for possession of a stolen fi rearm.
Q. we'll get to that in a bit.
Did you have occasion to speak to the landlord of the property?
A. I didn't speak to the landlord. I spoke to who I was told was the tenant of the property.
Q. Okay.
A. And —
Q. why did you do that? why did you call her?
A. Since he was saying that it wasn't his, I wanted to talk to the tenant of the property and see if it was actually theirs. One of the females that was there, I believe her name was Anna Garcia, was on the phone with somebody. I asked her who it was, and she said it was her sister, who was the tenant. I then spoke with her, and that was Stephanie Garcia on the phone.
Q. what did the Defendant say about whether he lived there or not?
A. He said he did not live there, that he was just there visiting, it wasn't his house.
Q. Did you have occasion to talk to Ms. Anna Garcia that you mentioned?
A. Anna Garcia?
Q. Yes.
A. Yes.
Q. what did you ask her, and why?
A. Well, I asked her what was happening there that night, or who all was supposed to be there. She said it was just her and her niece. And then she was on the phone with Stephanie, so then I started asking Stephanie who was supposed to be in her house, and she stated that it was supposed to be her sister and her niece. And then I asked her if she has any firearms or narcotics in the house. She didn't understand it. The phone was on speaker. So Anna repeated it to her, and she said, no, she does not have any firearms or narcotics in the house.
Q. I have what is marked Government's Exhibit 8. I'll show it to the defense.
Deputy, let me show you Government's Exhibit 8, I believe. Do I have that correct?
A. Yes.
Q. Please identify that exhibit.
A. This is a witness statement that Anna Garcia completed at the scene.
Q. And was that statement taken in the presence of deputies?
A. Yes, it was.
MR. WALSH: I move for the admission of Government's Exhibit 8, Your Honor.
MS. BAIZ: Your Honor, may I cross the agent on that exhibit before it's admitted?
THE COURT: That's fine. Why don't you go ahead and do that now. Did you want to basically voir dire the agent with respect to the admissibility of that exhibit? Is that what you're saying?
MS. BAIZ: Yes.
THE COURT: Okay, let's let her go ahead and if she wants to do that, she can do that.
BY MS. BAIZ:
Q. Did you take this statement from Anna Garcia?
A. I did not take this.
Q. Who did?
A. It was one of the deputies that stayed behind after I transported Ms. Salazar to the South valley command center.
Q. Okay. This was way after the arrest, then, that this statement was taken?
A. It would have been right after, shortly after.
MS. BAIZ: I don't have any other questions, Your Honor.
THE COURT: Okay. What's your position with regard to admitting it?
MS. BAIZ: I don't have any objection.
THE COURT: It will be admitted.
(Government's Exhibit No. 8 admitted.)
THE COURT: Go ahead, Mr. Walsh.
MR. WALSH: Thank you.
BY MR. WALSH:
Q. Let me take that exhibit back from you and place it up before the Court.
So Deputy, after you ascertain that the firearm is stolen, you proceed to arrest the Defendant?
A. Yes.
Q. And why did you do that?
A. Because I believed it was him that had the firearm that was in the house, and since it did return stolen, then he was in possession of stolen property.
Q. And to be clear, there was no one else in the bathroom?
A. Correct.
Q. Okay. So, how did you proceed with your arrest of the Defendant at that time, then?
A. I took him out to the patrol vehicles. I was going to secure him in one of the units. Prior to putting him into a unit, I did a full search. In his pocket, I found a Tic Tac canister. When I removed the canister, it was filled with .22 caliber grounds of ammunition.
Q. Was it all .22 caliber ammunition?
A. Yes, it was.
Q. Does that match up with the firearm that was seized?
A. Yes, it did.
Q. Explain, if you know, kind of the make and model of the firearm that's depicted in Government's Exhibit 9.
A. It's a Ruger handgun. I don't remember exactly what the model number was on it. But it is a .22 caliber.
Q. So, what did you do once you found the ammunition in the Defendant's pocket?
A. Since he had told me numerous times, and he had looked me straight in the face, that he was not lying to me, I confronted Mr. — who I was told was Mr. Moya at the time, I confronted him with it and said, okay, what is this? And he's like, what? I then said, you've got a Tic Tac canister full of .22 rounds. And he's like, so? And I was like, it just happens to be the same caliber as the gun that we recovered out of the bathroom that you said was not yours, but you have rounds for. And then he says, well, he just didn't want to get in trouble.
Q. Now, he previously had been Mirandized; correct?
A. Yes.
Q. And who did that, to your knowledge?
A. I believe it was Deputy Armijo.
Q. So did you transport the Defendant?
A. I transported his wife.
Q. Now, earlier had you spoken to his wife?
A. I believe after he was detained, I went back in to talk to her to find out what the whole story was and to positively identify him.
Q. why was she arrested?
A. Because he was saying he was Ronald Moya. She was saying he was Isaac Moya. And the two were not lining up.
Q. what did you find out once you transported the Defendant to your substation?
A. I found out that he was actually Isaac — or sorry; Eric Salazar, and that he had been convicted of felonies.
Q. I'm going to show you what has been marked as Government's Exhibit 2. Copies have been provided to the defense. Please identify this for the Court.
A. This would be the CD of all my belt recordings from my belt tape — or belt recorder.
Q. So you were wearing a belt recorder that night?
A. Yes, I was.
Q. And what does Government's Exhibit 2 capture in terms of the incident?
A. It captures us talking to him while he's on the toilet, once he comes out, once I find the firearm, the conversations between myself and him, myself and Anna Garcia, which you can hear also my conversations with Stephanie Garcia, and then when I go back in and talk to Monique Salazar. And then after I transport him to the substation, when I have contact with him at the substation, our conversations there.
Q. Let me hand you Government's Exhibits 3, 4, 5 and 6. Can you identify those for the Court? Those are transcripts that have been provided to the defense.
A. So, Exhibit 3 is the initial contact, which was my first belt recording. Exhibit 4 is my belt recording of the conversation with Anna Garcia and Stephanie Garcia on the phone. Exhibit 5 is continued conversations with Anna Garcia.
Exhibit 6 is where I'm talking to who I later identified as Mr. Salazar, trying to identify him. So I'm having him restate his name, date of birth, and then when he identifies that he is Eric Salazar.
Q. Do we have an exhibit there, Deputy, that pertains to the exchange, or pertains to your pat down and discovery of the ammunition that you testified about?
A. I believe that would be — I believe Exhibit 4 also has that.
Q. Perhaps it's Government's Exhibit 5?
A. I'm just looking at that. I believe it is.
MS. BAIZ: I'm sorry, I forgot the question. It was such a long time ago. Can you repeat that question? Can he repeat the question, Your Honor?
MR. WALSH: Sure. I just wanted to make sure that what he testified to was covered in one of those exhibits, as to his discovery of the ammunition.
A. Yes, it's on Page 11 of Exhibit 5.
MR. WALSH: All right. At this time, Your Honor, if I could move for the admission of Government's Exhibit 2, and Government's Exhibits 3, 4, 5 and 6. If the Court wants to accept Government's Exhibits 3, 4, 5 and 6 as demonstrative evidence, that's fine.
THE COURT: My inclination would be to just accept the transcripts as demonstrative, the same way as the 911 call, that the actual belt tape, itself, would be the evidence.
Go ahead, Ms. Baiz.
MS. BAIZ: Your Honor, we object for a couple of reasons. One is, a lot of that took place after the arrest, which is not the subject of this suppression hearing. It's more of the questions that he asked, more of the investigation, and it took place well after this particular incident.
THE COURT: Isn't part of what you're trying to suppress the statements related to the ammunition in the pocket?
MS. BAIZ: Yes. I'm trying to suppress everything that was obtained from him, and there is one, I believe it's the first CD, that deals with that subject matter. But none of the rest of them do.
THE COURT: The later — the CD that is much after the time in the apartment is when the witness has testified that he was putting your client in his car and that's the time when he had conducted the search and found the .22 caliber ammunition, and then they had the conversation about why he had.22 caliber ammunition in his pocket, and then your client made a statement that you're trying to suppress. So I would think that if that's the statement that's at issue as a part of this hearing, then the recording that relates to that statement should be introduced as evidence, that that would be relevant, wouldn't it?
MS. BAIZ: Yes, Your Honor, that's fine. But 4, 5 and 6 don't have anything to do with that.
THE COURT: So 5 he testified related to the finding of the ammunition. 4, remind me again which one 4 is and which one 6 is, Mr. Walsh.
MR. WALSH: Just one second, please.
THE COURT: So I'll overrule the objection with respect to 5 based on the testimony that 5 contains the conversation. Of course, the transcripts will just be demonstrative, but to the extent that there's a belt tape that contains the statement that's at issue in this case, I would allow that to be admitted into evidence.
MR. WALSH: Your Honor, they're in sequence. So Government's Exhibit 3 is going to cover the encounter inside the residence as well as the Defendant being on the toilet, as will Government's Exhibit 4. Government's Exhibit 5 covers the arrest.
I have other transcripts pertaining to the post arrest, when he's taken to the substation. I agree with counsel that I didn't think they were relevant, so I'm not submitting those.
Government's Exhibit 6 may have some information that pertains to post arrest, but I just figured that the Court could just ignore it if it wasn't germane. It pertains to —it looks like it pertains to an interview that's taken at the substation. So we can withdraw Government's Exhibit 6, I don't care.
THE COURT: Let me ask you, are there statements that were taken at the substation that you're attempting to suppress, as well?
MS. BAIZ: I guess, yes, all of them.
THE COURT: So I'm going to go ahead and accept all of the exhibits, because they all — 3 and 4, based on what Mr. Walsh is telling me, relate to the actual encounter that's at issue, so those are relevant. 5 relates to the ammunition that was found that you're seeking to suppress, as well as the statement about the ammunition that you're seeking to suppress. And if there are statements contained in 6 that you're also seeking to suppress, that's also relevant. So I'll overrule the objection.
Go ahead, you may make your record.
MS. BAIZ: Well, Your Honor, the way they were provided in discovery is Audio 1, 2, 3, 4, 5 and 6, and I'm not sure if that's what the Government is doing. If they're doing it in the sequence of the whole belt tape, or if it's a different makeup of what they provided in discovery.
So I'm trying to see what they are, because according to my interpretation of it, 5 didn't have anything to do with what happened at the house. It did have to do with statements.
THE COURT: So if it related to statements, and you're seeking to suppress those statements, to me that's relevant and I would admit it.
MS. BAIZ: Okay.
(Government's Exhibit No. 3, 4, 5 and 6 admitted.)
THE COURT: Go ahead, Mr. Walsh.
BY MR. WALSH:
Q. Okay, Deputy, I believe this will be the last exhibit for now. I have what has been marked Government's Exhibit 7. Copies have been provided to the defense. Let me show it to you, sir. Please identify Government's Exhibit 7 for the Court.
A. It's the CAD printout of basically the computer-generated comments and statuses of deputies.
Q. And tell us what a CAD printout is.
A. It's basically the recording of everything that's communicated to us through our computers in our patrol vehicles. It records any comments that the dispatcher, the call-taker, adds that they get from the calling party. It records what times deputies are dispatched, when they change. So like if they're in the area, they change our status. When we arrive on scene, they change our status. It records, if we take somebody in custody and we're going to transport them, what time we are transporting them. When we clear the call, and if we did a report or not.
MR. WALSH: I'd move for the admission of Government's Exhibit 7, Your Honor.
THE COURT: Ms. Baiz?
MS. BAIZ: Your Honor, I object. He hasn't testified that this is what occurred, or this is what — there is no foundation.
THE COURT: Give me just a moment. Mr. Walsh, do you want to respond while I'm reviewing this again?
MR. WALSH: I think he did indicate what it was, but I can try to clean that up and further that foundation.
THE COURT: Do that.
BY MR. WALSH:
Q. So, regarding Government's Exhibit 7, what is it a CAD printout for, for what event?
A. It's a printout of the call that we took on December 8, 2016, at 709 Nashville. It basically has the initial comments in it that the calling party gave to our call-taker, where it was taking place, the people involved, that there was a handgun that looked like a German handgun involved, and then it records when deputies were dispatched, what deputies were dispatched, when deputies arrived and when they cleared the call.
MR. WALSH: I would move for the admission of Government's Exhibit 7. I think that provides some relevance for the Court.
THE COURT: Ms. Baiz?
MS. BAIZ: I don't have any objection, Your Honor.
THE COURT: We'll admit that.
MR. WALSH: And I'll put Government's Exhibit 7 up here.
(Government's Exhibit No. 7 admitted.)
BY MR. WALSH:
Q. And if you could just explain, Deputy — you were telling me that the more recent information starts on Page 12. If you can, look at your Government's Exhibit 7.
A. So the initial information starts on Page 12. So it kind of reads backwards from, like, a normal book. You basically go to the last page, which is the initial call where they're creating the call, and then as you work your way forward, it would be all the statuses and comments that are added as the call is progressing.
Q. Now, can you tell us when the call was made to dispatch?
A. The initial call was created at 1:20 A.M. on December 8, 2016.
Q. And when were deputies dispatched, if that's the correct word, to the scene?
A. The initial dispatch occurred at 1:23 A.M. on December 8th.
Q. when did you arrive at the scene?
A. There was a status update for me. It originally shows that I arrived on scene at 1:28 A.M. However, that was when all — like, the initial deputies got on scene. And then it shows that at 1:30, 1 update dispatch that I'm in the area, and then that I actually arrived — I actually arrived at 1:38 A.M.
Q. 1:38, did I hear that?
A. Yes.
Q. Okay. And when do you determine that a Ruger .22 was a stolen firearm?
A. I got a return from NCIC that it was stolen at 2:07 A.M.
Q. So, then, the Defendant was arrested shortly thereafter?
A. Yes.
Q. Thanks. You can shift away from Government's Exhibit 7. One last thing. I meant to play this before. But, Government's Exhibit 2, as you testified to, Deputy, covers the pat down of the Defendant; correct?
A. Yes.
Q. I just want to play a portion of that exchange from my desktop. And I'm just going to play a couple of minutes of this.
(whereupon audio recording played.)
BY MR. WALSH:
Q. Do you recognize that?
A. Yes, I do.
Q. Is that an excerpt from Government's Exhibit 2, which is your belt tape?
A. I would have to see which exhibit this is. This is where I'm talking to him out at the patrol car getting ready to put him inside — or I'm sorry, Exhibit 2 is the CD.
Q. Yes, sorry. So that part, that portion, comes from Government's Exhibit 2?
A. Yes.
Q. Okay.
MR. WALSH: Please play it.
(whereupon audio recording played).
BY MR. WALSH:
Q. There was some testimony — or, excuse me, there was mention on the recording about needles.
A. Yes.
Q. where were they recovered?
A. I don't recall exactly. I know that —
Q. were they on his person?
A. I believe that there were some on him. I also talked to Stephanie on the phone about needles being under the sink, so I believe there were some under there, also.
Q. Just trying to clarify.
MR. WALSH: I'll pass the witness at this time.
THE COURT: All right. Cross-examination?
BY MS. BAIZ:
Q. Officer Cornell, so you arrived at the scene like maybe three minutes after the other officers arrived, according to you?
A. I believe it was more than that.
Q. Did you say 1:38 or 1:30?
A. 1:38.
Q. 1:38, okay. You so weren't there when the initial entry was made?
A. No, I wasn't.
Q. Do you know how many officers were there when you entered?
A. I believe there was four or five officers there prior to my arrival.
Q. Okay. In the CADS, which is Government's Exhibit 7, which you testified to about the hours and all the times, you indicated that this is what you hear on your car radio?
A. No. This is the comments that are added to the computer. So there's more communication over the radio, and then hopefully dispatch adds those comments. But not all comments over the radio go into the CAD.
Q. But for sure, if they're in there, the comments were heard by the officers?
A. No. These are the computer updates. So the dispatch can be adding comments that they don't actually air, because deputies might be talking on the radio, stuff like that.
Q. Okay. So what is it that you hear on your car radio?
A. The communications between us and dispatch, in between deputies, themselves.
Q. Okay. But at least this information is what you've heard?
A. This information on here was either partially aired to us, or we had it to be able to read.
Q. So before you got there, you had it to be able to read?
A. As much as I could, yes.
Q. All right. And at 1:20, when the 911 call came in, they stated that the person they suspected was Eric Salazar; right?
A. Yes.
Q. Right when the caller called in?
A. Yes.
Q. You indicated in your report that when he gave the name Isaac Moya, it didn't match the name that you had already heard; right?
A. Correct.
Q. And the name you had heard was Eric Salazar?
A. Correct.
Q. Did you do a check, an NCIC check, on the name Eric Salazar?
A. I don't believe I did an NCIC check on it. I believe I ran it through my CAD system.
Q. Before you got there?
A. No. I believe it was back at the substation when we were sorting the name game out.
Q. So in addition to the 911 call and having the name Eric Salazar, you also called Lydia, the caller, to double-check the name?
A. No, I did not.
Q. It wasn't you that called her?
A. No.
Q. Do you know if the officers — the officers obviously didn't have a warrant to go in the house; right?
A. No, we did not.
Q. So obviously there were other officers there before you got there?
A. Yes.
Q. Do you know if they went in with their guns drawn?
A. No, I do not.
Q. Do you know if that's policy, police policy, for them to go in with their guns drawn?
A. It's not policy. It depends on the call.
Q. Okay. In this situation, would they have gone in with their guns drawn?
A. I can't speak to what those deputies did. If there's an armed subject barricaded, there's a high likelihood that they would have their weapons out.
Q. They didn't know that he was barricaded, though, when they entered; right?
A. I wasn't there. I can't say.
Q. Okay. when you got there, the bathroom door was open part of the way?
A. Partially, yes.
Q. And you could see Mr. Salazar sitting on the toilet?
A. Yes.
Q. Did you keep your eyes on him the whole time?
A. Since there was another deputy there, I would go between mostly watching him and then also seeing that the other deputies in the residence were fine.
Q. were fine?
A. They were fine. They weren't encountering anything else.
Q. Okay. So if the door was partially open while you were seeing him there sitting on the toilet, you didn't see him move anywhere else, did you?
A. No, I did not.
Q. Who else was watching him while he was sitting on the toilet?
A. Deputy Otero.
Q. How much time do you think that you watched him sitting on the toilet, of the time that he was in there?
A. Like I said, I believe it was probably four or five minutes.
Q. Do you know how much time he was in the bathroom, in total?
A. No, I do not.
Q. when you were there, did you see — you saw the two women that were there; right?
A. Yes.
Q. Anna and Monique Salazar?
A. Yes.
Q. And you checked to see that they didn't have any injuries on them?
A. I don't believe I did.
Q. Did you see any injuries on them?
A. No, I did not.
Q. Did they ask for help?
THE COURT: Let me just interrupt. Did you say Monique Salazar was there?
THE WITNESS: Yes.
THE COURT: Okay.
BY MS. BAIZ:
Q. Monique Salazar was there and Anna Garcia was there; right?
A. Yes.
Q. And they didn't — neither one of them asked for medical assistance?
A. Not to myself, no.
Q. And they apparently didn't have any injuries when you saw them; right?
A. No.
THE COURT: I'm just wondering, Anna was the sister, not the tenant? The tenant's name is Stephanie?
MS. BAIZ: Stephanie.
THE COURT: All right. I just wanted to be clear with names. Thank you.
BY MS. BAIZ:
Q. And actually, Anna Garcia did not say she was a sister, she said she was an auntie; right?
A. I believe, yes.
Q. Right?
A. I believe it was auntie.
Q. when you asked Mr. Salazar to come out of the bathroom, you were getting really impatient with him, weren't you?
A. Yes, I was.
Q. And you told him, come out now; right?
A. I told him — I believe the words I used was, he needs to pinch it off and get out.
Q. How long were you there up until that? How long did you wait, since you got there?
A. Like I said, it was like four or five minutes.
Q. Okay. And he came out of the bathroom, and you immediately patted him down?
A. So, he closed the door so that he could wipe and get ready to come out, so I could not see him, and then he did come out. And that's when we patted him down, yes.
Q. How long would you estimate the door was shut when he needed to wipe?
A. I'd say 45 seconds to a minute.
Q. Then he came out and you patted him down?
A. I believe I assisted with the pat down, yes.
Q. And you didn't find anything on him?
A. I did not find any weapons on him, no.
Q. And you didn't find the Tic Tac box on him, either?
A. No, because it wasn't — it wouldn't have been felt as a weapon.
Q. So you didn't find that on him?
A. No.
Q. Okay. who else had an audio belt on — what do you call it? Belt tape?
A. Belt tape.
Q. who else had a belt tape on?
A. I'm not sure.
Q. Did other people have belt tapes on?
A. I believe that they should have.
MS. BAIZ: Your Honor, I'm going to request that the Government provide defense with anybody else's belt tapes, because there's only one belt tape that we received, and that was Officer Cornell's.
THE COURT: So you want those belt tapes in connection with the suppression hearing?
MS. BAIZ: Yes.
THE COURT: Had you requested them prior to today?
MS. BAIZ: Yes, and videos. And I was told there was no video cam, and that I had everything.
THE COURT: Okay. Mr. Walsh?
MR. WALSH: well, I don't think it's germane for the suppression hearing. There's certainly not going to be anything exculpatory. As a matter of fact, Deputy Cornell's belt tape covers everything that needs to be covered. Any type of discovery issues is a whole different matter that should be taken up in a separate situation, whether it be a filing or conferring with counsel.
There was no other belt tape that was checked into evidence. Deputy Cornell checked that yesterday. I also checked with Deputy Armijo yesterday, who will be testifying here in short order, and he no longer has a belt tape.
THE COURT: So you're not aware of any?
MR. WALSH: I'm not aware of any. We can, subsequent to this, we can make individual contact with the other deputies and see if there is. I'm happy to go that extra length. But there were no additional belt tapes checked into evidence, and so I think for the purposes of this hearing, we have what we need.
THE COURT: All right. Although what we don't have is any belt tape that covers the actual entrance; right? The manner of the entrance at the time when Deputy Cornell wasn't there. And so presumedly another deputy —
MR. WALSH: That's correct.
THE COURT: — if they had a belt tape, that would capture the time from the entrance until Deputy Cornell arrived?
MR. WALSH: That's correct, Your Honor, yes.
MS. BAIZ: Could I just ask the Government to look for it and preserve it, and give it to me if they find it?
THE COURT: Yes, Mr. Walsh has said he will look for it, and it looks like they have.
MR. WALSH: Yes, and we will individually check with each and every deputy subsequent to today. Thank you.
THE COURT: All right.
BY MS. BAIZ:
Q. I'm going to show you what's been marked as Defense Exhibit A, Officer Cornell.
MS. BAIZ: Your Honor, may I approach the witness?
THE COURT: Yes.
BY MS. BAIZ:
Q. Officer Cornell, do you recognize that picture?
A. I recognize the setup of the toilet and the cabinet, but the placement of the door does not appear to be correct.
Q. The placement of the door to the bathroom?
A. Correct.
Q. Okay. So this was the setup as you remember it with the sink and the toilet?
A. Correct.
MS. BAIZ: Your Honor, I would move to admit Defense Exhibit A.
THE COURT: Any objection?
MR. WALSH: No objection.
THE COURT: That's fine. Do you have a copy of any of your exhibits for me?
MS. BAIZ: I do, Your Honor, but they got all mixed up. I'll get that for you.
THE COURT: Okay.
MS. BAIZ: Here you go.
THE COURT: Thank you.
(Defense Exhibit No. A admitted.)
BY MS. BAIZ:
Q. Okay. You said when he came out of the bathroom, you went in to do a sweep. You didn't see anybody else in the bathroom, did you?
A. No, I did not.
Q. Either while you were looking through the door while he was sitting on the toilet, or when he came out, you didn't see any other people in there?
A. No, I did not.
Q. And then you said that the left door was ajar in that sink there?
A. Yes.
Q. How far would you say that it was open, or ajar? when you say ajar, what do you mean? How wide was it open?
A. I would estimate that — so, it would have been the left door. At the far right side of the door, it was probably about two to three inches.
Q. I'm going to show you Defense Exhibit K. Is that about how far the door was open when you saw it, or was it less than that?
A. It was less than that.
Q. Okay. So it was —
MS. BAIZ: Your Honor, I would move Defense Exhibit K into evidence.
THE COURT: Any objection?
MR. WALSH: No objection to any of the proposed defense exhibits.
THE COURT: Okay. Are you offering all of these, then, doing it all at once?
MS. BAIZ: Yes, Your Honor.
THE COURT: I'll admit Defendant's Exhibits A through N into evidence.
(Defense Exhibits No. B through N admitted.)
BY MS. BAIZ:
Q. And you said when he came out, you decided to look under the sink; right?
A. Yes.
Q. when it was only open two or three inches; right?
A. Yes.
Q. And in the sink, did you see some cosmetics in there?
A. I don't remember. I wasn't looking for cosmetics.
Q. But did you see anything else in there besides the gun?
A. That was what I — I was looking for weapons, and so that's what I focused on.
Q. So you don't know whether or not there was anything else in there?
A. Not that I recall. Not that I noted.
Q. Okay. And you said you used a flashlight when you looked in there?
A. Yes.
Q. But you don't remember if there were any other items under there, like toilet paper or cosmetics?
A. Not that I recall.
Q. Grocery bags, anything like that?
A. No, ma'am.
Q. Okay. when you got there, you were under the impression that you were investigating a domestic situation with a gun; right?
A. Yes, ma'am.
Q. And when you got there, you saw that nothing was going on; right?
A. There was nothing going on at the time that I arrived. Everybody was separated.
Q. Everybody was separated, nobody seemed to have been fighting?
A. I wasn't sure. I hadn't talked to anybody, other than going in and basically assisting Deputy Otero, who was talking to Mr. Salazar, who was sitting on the toilet.
Q. But you didn't see anybody injured, nobody was asking for medical assistance; right?
A. No, not that I was aware of.
Q. You transported Monique Salazar to the jail; right?
A. Yes.
Q. And you said you were going to charge her with obstruction?
A. Yes.
Q. And you told her that you were going to stack as many charges as you could on her; right?
A. Yes.
Q. And you actually filed the complaint with the state court; right?
A. Yes.
MS. BAIZ: Your Honor, I'm going to show what's been marked as Defense Exhibit 0. This is after all the pictures, Defense Exhibit 0, which is the complaint. I'm going to show him this complaint and ask him if he prepared this.
You have it; right?
MR. WALSH: Yes.
BY MS. BAIZ:
Q. That is the complaint that was filed against Monique Salazar; right?
A. Yes.
Q. And you swore under penalty of perjury that the facts above were true and to the best of your knowledge; right?
A. Yes.
Q. And that is your signature?
A. Yes.
Q. Can you please read to me right in the middle of that paragraph where it's highlighted in blue?
A. It says: "I could hear a" — oh, continue?
Q. Read the whole sentence.
A. Okay. "I could hear a male voice inside the residence, but when I made contact, the female later verbally identified as" — redacted — "stated the male was not there."
Q. Okay. And prior to that, it says: "upon my arrival to the residence," you were identified as to where the offender and the victim were; right? It says: "I made contact with the male in the restroom." But it says: "Prior to my entry, I could hear the male voice and the female voices." Right?
A. Yes.
Q. But you weren't at the scene when the police officers entered; right?
A. No.
Q. So you did not hear any voices or male voices inside?
A. Correct.
Q. Right?
A. Correct.
MS. BAIZ: Your Honor, I would move Defense Exhibit 0 into the record.
THE COURT: Any objection?
MR. WALSH: I would object to that, Your Honor, on the grounds of relevance. This pertains to Monique Salazar.
MS. BAIZ: It goes to impeachment, Your Honor. She was at the scene. He misstated that he was there and he could hear voices from outside the door, and he wasn't there.
THE COURT: Generally, impeachment — when you impeach someone, that's not admitted as evidence. So you can use it to impeach the person, as you've done, so it's a demonstrative exhibit and we can keep it as a demonstrative exhibit.
I mean, I understand the Rules of Evidence don't apply, but usually something that you're impeaching somebody with isn't used as substantive evidence. And you're not trying to use it as substantive evidence, anyway, you're trying to use it as impeachment. So I think you've been able to use it for impeachment, and the Court will accept it as a demonstrative exhibit, but not as evidence.
MS. BAIZ: All right. Your Honor, I don't think I have any other questions for this witness.
THE COURT: All right. Redirect?
BY MR. WALSH:
Q. Just on the criminal complaint, did you cut and paste from other officers' reports?
A. It's a combination of all of the reports.
Q. Did you write that in the early morning hours?
A. Yes.
Q. About what time?
A. That would have been probably about 4:00 in the morning.
Q. Now, going back to Government's Exhibit 7, which do you have that still in front of you —
A. Yes, I do.
Q. — which were the CADs? Is there any way we can tell, and maybe we can't, as to when entry into the residence was made by the other deputies?
A. I don't believe it has the actual entry.
Q. Do we have the time as to when the first set of deputies arrived?
A. They arrived with the calling party at 1:25 A.M.
MR. WALSH: I have no further questions, Your Honor. Thank you.
THE COURT: Thank you. Any more questions for this witness?
MS. BAIZ: I just wanted to — he said combination of reports. I'm just wondering what reports he's talking about.
THE COURT: Since that was brought up for the first time on redirect, I'll go ahead and let her follow up on that. Go ahead.
BY MS. BAIZ:
Q. The Government said you cut and pasted this complaint?
A. It wasn't a cut and paste. We're only able to do one complaint, so it's taking the totality of the incident and putting it together.
Q. So you didn't use anybody else's reports, you just put it together?
A. Yes.
MS. BAIZ: No other questions, Your Honor.
THE COURT: All right. May this witness be excused?
MR. WALSH: He may.
THE COURT: Ms. Baiz?
MS. BAIZ: Yes, Your Honor.
THE COURT: Okay, you can go ahead and step down. Thank you, Deputy.
THE WITNESS: Thank you, Your Honor.
MR. WALSH: I'll call Deputy Armijo, Your Honor.
THE COURT: Let me ask, before you do that, does anyone need a break?
MS. BAIZ: I do, Your Honor. Can I get a five-minute break?
THE COURT: Let's go ahead and take a five-minute break, and then we'll continue with the deputy. We'll be in a short recess.
(Recess was held at 10:43 A.M.)
(In Open Court at 10:55 A.M.)
THE COURT: we're back on the record in 17-cr-831. Mr. Walsh, you said you had the next witness?
MR. WALSH: I do, Your Honor. The United States calls Deputy Judge Armijo.
Please remain standing and raise your right hand.
(DEPUTY JOSEPH ARMIJO, GOVERNMENT WITNESS, SWORN)
BY MR. WALSH:
Q. Please state your name for the record.
A. Deputy Judge Armijo.
THE COURT: Let me interrupt. Before we begin, is there any chance that you're going to be calling the previous witness in rebuttal? Because I know he's still here in the courtroom. Deputy Cornell is still here. I just don't want to run into an issue later if you're going to be doing that.
MR. WALSH: I wasn't planning on doing that, but we can err on the side of caution and excuse Deputy Cornell.
THE COURT: It's up to you.
MR. WALSH: Yes, Deputy Cornell, if you would step out, please. Thank you.
THE COURT: Go ahead.
BY MR. WALSH:
Q. Mr. Armijo, you stated you're a deputy. Tell us who you're a deputy with.
A. The Bernalillo County Sheriff's Department.
Q. How long have you been a deputy with BCSO?
A. Four-and-a-half years now.
Q. Briefly describe what you do as a deputy for the Court.
A. Calls for service of all types. Traffic stops. Usual things.
Q. You're a uniformed deputy that drives a marked vehicle; is that correct?
A. Yes, sir.
Q. What shift do you normally work?
A. Graveyard.
Q. And generally, what areas of the county does Bernalillo County Sheriff's Department cover?
A. We have the North valley, the South valley, and the East Mountain area.
Q. Where do you work?
A. Right now, I'm in the East Mountain area.
Q. Directing your attention to 2016 in December, where were you working at in that time frame?
A. I was working in the South valley area.
Q. Let me direct your attention specifically to December 8, 2016, at approximately 1:20 A.M. were you on duty at that time?
A. Yes, I was.
Q. Did you receive a 911 call about a domestic violence incident?
A. Yes, I did.
Q. And generally, what kind of a call did you receive?
A. General domestic violence, possible domestic violence call, with a firearm.
Q. And what was your location when you received this call?
A. I don't recall where I was at when I received the call.
Q. To what location did you go to in response to this call?
A. The intersection of La vega and Nashville.
Q. Is that located in the South valley?
A. Yes, it is.
Q. Okay. what did you do once you arrived at that location?
A. I arrived, and I saw a vehicle parked there. The call was from a third party caller, I believe. So I went to the vehicle, met up with Lydia Sanchez, who turned out to be the correct person, and she stated that her daughter was at that point in a domestic violence situation with a firearm.
Q. Did she indicate where this domestic violence situation was taking place?
A. I asked her the address, and she said that she did not know. A short time later she pointed at the house.
Q. And where was the house in relation to your location?
A. It was east, not too far. walking distance east. We could see it clearly from where she pointed.
Q. were there other deputies with you while you were speaking with the caller?
A. There were, but I don't know who it was at that time.
Q. So what did you do? Actually, before getting into that, were there any phone calls made in your presence from Ms. Sanchez?
A. Yes.
Q. Tell us about that.
A. I assumed at the time she was talking to her daughter, Monica. when I asked her if she knew what the address was, she said, no. Then she was — then she got on the phone and she told her daughter, "I know nothing happened between you," and then pointed at the house.
Q. So what did you do next?
A. we approached the house — or I should say apartment. It was kind of a smaller apartment. Went to the front door. But I could hear talking from — there's a driveway that goes from Nashville into the parking lot. I could hear talking from when I entered the parking lot.
went up to the front door. I just heard two females and a male. They were conversing normally. No one was arguing, no voices were raised, they just seemed to be talking normally. Mid conversation, I knocked on the door and announced, Sheriff's Department. All talking immediately ceased. I heard footsteps leaving. The talking was directly on the other side of the door, it sounded like to me, and it sounded like the footsteps ran away from that spot, away from me.
A short time later, the door opened. I saw the two females that I heard talking right there, but the male was nowhere in sight. So I asked them to sit on the couch for a second, and I went to go look for the male. I went and kind of glanced in a bedroom, he wasn't there. Then I heard other deputies found him in the bathroom.
Q. And I might have just missed that, my apologies, but you knocked on the door and announced your presence?
A. Yes. I announced, "Sheriff's Department."
Q. Do you recall specifically with whom you were with in terms of other deputies?
A. I don't. I don't.
Q. Okay. Maybe two or three others?
A. Yes, definitely. At least one other, for sure.
Q. Do you have your side arms drawn?
A. Drawn, no.
Q. Okay. And who answers the door?
A. Monica answers the door.
Q. And does she let you in the residence?
A. Yes. She opens the door, and I say: "Is everything all right in here?" She opens the door and lets us in. But when I didn't see the male, that's what worried me. when I heard the footsteps running away and I didn't see the male in there, that's kind of what worried me. So I really just kind of walked past her to try and find where he was.
Q. what did you do next?
A. I asked her what happened on this evening. She said that her mother dislikes her boyfriend. They had had a slight argument earlier in the night about a lost sweater. I asked if there was any hitting, any threats, anything like that, and she said, no. So I went and tried to make contact with Mr. Salazar, but the bathroom door was still closed.
Q. Now, you had mentioned that you heard footsteps going away from the door area.
A. Yes.
Q. Did that concern you?
A. It did, it did.
Q. Why is that?
A. It's not normal behavior. That's happened very few times to me. Usually people open the door and they're right there to be seen. But if I knock on the door immediately and announce, Sheriff's Department, and somebody runs, especially with a call of domestic violence with a firearm, that's worrisome. That's unknown behavior for me.
Q. So what happens next in terms of what you do inside this apartment?
A. I attempted to speak with him. He was in the bathroom at the time. Short time later, he asked if he could turn the shower on. I told him, "No, come out and speak with us, we need to talk with you."
He came out a short time later. I asked him what his name was. He said, Isaac Moya. After that, I asked him what had happened earlier that night, and he said that there was an argument over a sweater, and he also said that there was no hitting, no violence, nothing like that.
Q. Let me back you up. were you present, then, when Deputy Cornell arrives?
A. Yes, I was present.
Q. were you there — were you present when the Defendant exited the bathroom?
A. Yes.
Q. And what did you see, if anything, when Deputy Cornell went into the bathroom? Did you go into the bathroom?
A. I didn't. I could see in the bathroom from the living room, but I didn't go in the bathroom, myself.
Q. Did you have eyes on somebody else?
A. Yes. I was speaking with Monica at the time.
Q. what did you do in relation to the Defendant after Deputy Cornell goes into the bathroom?
A. I was speaking with him at the time, I believe, about what had happened earlier that night, and then 1 heard a short time later that deputies had found a firearm in the bathroom.
Q. Do you recall whether the Defendant was handcuffed at this time or not?
A. I don't recall if he was handcuffed, no.
Q. So what happens next?
A. After they said they found a firearm in the bathroom, 1 Mirandized him, because there was a firearm. They had established that there was some sort of argument earlier. So 1 read him his Miranda rights. He said that he agreed — he understood them, and he agreed to speak about what happened earlier that night.
I asked him again to walk me through everything. He said the same exact thing, that they had had an argument over a sweater, and 1 asked him about the firearm, if the firearm was used or anything like that, and he said, no, that it's not his gun, it doesn't belong to him.
Q. Just backing you up, Deputy, when you made contact with Ms. Sanchez, what did she say, if anything, about a firearm?
A. She said nothing about a firearm.
Q. what did you know about whether there was a firearm or not?
A. I knew — other than the call, 1 knew nothing at that point. 1 had no reason to believe that there was a firearm. I hadn't seen a firearm.
Q. But you had received some information about that?
A. Yes, yes.
Q. And from the call?
A. Yes. And Lydia Sanchez said that there was an argument with a firearm at that time, when I was speaking to Lydia.
Q. So after you Mirandized the Defendant, what did you do?
A. Just asked him about what had happened earlier that night. He said the same exact thing that he said earlier, there was an argument about a sweater, and there was no violence at all, and that was it.
Q. And eventually he was arrested; right?
A. Yes. Deputy Cornell, then, as I went to go speak to Monica and kind of see what was going on in the entire household there, Deputy Cornell took over the investigation with him, and I don't know what was said between them.
Q. what was happening in terms of the identification of the Defendant, referring to himself as Mr. Moya?
A. When he came out of the bathroom, I asked him his name, and he said his name was Isaac Moya. And later on, I heard Deputy Cornell say that his name was not, in fact, Isaac Moya.
Q. And that was inside the apartment?
A. Yes, yes.
Q. Now, you haven't had a chance to look at this, but this is Government's Exhibit 7. Actually, you have a copy of Government's Exhibit 7 in front of you.
A. Yes.
Q. If you can, go towards the back. Can you determine when you received the call? was it like 1:20?
A. Yes, yes. Give me one second. I believe I received it at 1:23.
Q. Approximately how long did it take you before you were allowed into the apartment?
A. Let's see.
Q. Let me ask you this. Strike that.
Is there any indication here on Government's Exhibit 7 as to when you made contact with Ms. Sanchez?
A. A little after 1:30.
Q. Approximately?
A. Yeah. So at 1:33, I said that the target 20 is 709 Nashville. That's when she pointed out the house. So it took approximately, I don't know, two minutes to get to the house, listen to what was going on, and knock on the door. My best estimation.
Q. Sure.
MR. WALSH: No further questions.
THE COURT: Let me ask a couple of questions, because I want to clear a couple of things up. Then you can follow-up, and I want to do it before cross-examination.
Deputy, there's been information about a 911 call, and that there was information from Lydia Sanchez to the 911 dispatcher. what, if any, of that information was relayed to you at the time?
THE WITNESS: I'm sorry; I don't understand the question.
THE COURT: In other words, you weren't a part of that call with the 911 dispatcher; right?
THE WITNESS: I was dispatched, is what you mean, Judge?
THE COURT: No. Ms. Sanchez called 911; right?
THE WITNESS: Yes, sir.
THE COURT: And then she had a conversation with the 911 operator, and you weren't a part of that conversation; right?
THE WITNESS: No, Judge.
THE COURT: So what I'm wondering is, what, if anything, was reported to the 911 operator that was then transmitted to you?
THE WITNESS: From what I recall, it was a domestic violence — a third party call about a domestic violence concerning a weapon. That's what I went in with at that time. And that the calling party was in the area, and I had to meet with the calling party. That's what I had at that time, that I remember.
THE COURT: Okay. And that calling party was Ms. Sanchez; right?
THE WITNESS: Yes. Lydia Sanchez, Your Honor.
THE COURT: And what, if anything, did she tell you beyond that there was a domestic violence and it involved a gun? Did she give you any other details?
THE WITNESS: She said that her daughter is in a relationship with a bad guy. No other details directly from her to me. But like I said, she said on the phone, "I know that nothing happened between you," and I assumed she was talking to her daughter. That's all the information she gave me at the time.
THE COURT: Go ahead if you have follow-up questions.
BY MR. WALSH:
Q. Just to clarify, Ms. Sanchez, who's talking on the cellphone, she's talking to presumedly her daughter. Is that your understanding?
A. Yes, I assumed that at the time, yes.
Q. And she's not having a separate conversation with dispatch; right?
A. No, no.
MR. WALSH: Okay.
THE COURT: And from where did you understand
Ms. Sanchez to have gotten her information about there being a domestic violence situation?
THE WITNESS: I don't know, Judge. I don't know where she got it from.
THE COURT: All right, thank you. Go ahead.
MR. WALSH: I have nothing further.
BY MS. BAIZ:
Q. Hello again, Officer Armijo.
A. Hello, ma'am.
Q. I'm not going to go too much over what you said, but you didn't hear anybody yelling through the door or anything like that?
A. No, ma'am, not at all. They were conversing normally.
Q. You said you didn't remember how many officers were with you that night when you went into the apartment?
A. I don't, ma'am, but I know there was at least one more.
Q. Okay. Would there be any reason for five other officers to have written a report if they weren't there?
A. If they were not there? No, they shouldn't have written a report.
Q. So if they wrote a report, they were there; right?
A. Yes, yes.
Q. Okay. So that would include Paul Montoya; right? Do you remember seeing him?
A. Yes, I believe he was there.
Q. And Connor Otero; right?
A. Yes, ma'am.
Q. And then, of course, Officer Cornell; right?
A. Yes, ma'am.
Q. And you wrote a report in this case, too; right?
A. Yes, I did, ma'am.
Q. So that would be at least four officers there?
A. Yes, ma'am.
Q. Okay. Did you have a belt tape on you?
A. I did.
Q. Did you turn it over to the prosecutor?
A. I did not. I have all my belt tape recordings from when I started on my computer. My hard drive crashed earlier this year and I lost a lot of them. But I was recording on this night.
Q. Do you know if you lost this one?
A. Yes. I looked in my entire computer, and I don't have it.
Q. would anybody else have had a copy of your belt tape?
A. One of the other deputies that was on scene maybe would have their own, you know.
Q. Okay. So it could be any one of those other officers that may have a belt tape?
A. Yes, ma'am.
Q. Is it your policy to put on your belt tape when you're out there on a call?
A. Yes, ma'am.
Q. And is it the policy of all the other officers to do that, as well?
A. Yes, for domestic violences.
Q. Okay. And when you talked to Lydia Sanchez, then you learned that she was — per the 911 operator, you were to meet her there so you could tell you where the house was; right?
A. Yes, ma'am. She didn't know the exact address at the time of the call, from what 1 recall.
Q. And she told her daughter that she knew that nothing had happened between them?
A. Yes. Yes, she did.
Q. So that kind of put you a little more at ease; right?
A. It did.
Q. And you were kind of like questioning, why did we get a call?
A. well, yeah, 1 was questioning. It made me question the whole call, yeah.
Q. You noted that Mr. Salazar was in the bathroom; right?
A. Yes, ma'am.
Q. when you got there, somebody said, he's in the bathroom?
A. No — yeah. So, 1 knocked, the footsteps ran away. 1 met with the two females that 1 heard talking. 1 heard three different voices. And 1 looked through the room for him, because 1 knew there was a male there, and 1 didn't find him. But other deputies had said that he was in the bathroom.
Q. Okay. was the door partially open to the bathroom?
A. I don't recall. I remember passing by it, and it looked closed to me.
Q. You couldn't see anybody through the door, then?
A. I didn't.
Q. Did you have occasion to, while he was still in the bathroom, to walk back there again and talk to Officer Cornell?
A. Not that I recall. The way the house layout was, we were all almost within arms distance of each other, because of just where the living room and the kitchen were, and then the bathroom. I was speaking with Monica, and so we were all pretty close. So I never — other than looking in the room for him when I initially went in, I never went through the rest of the house.
Q. So the bathroom was right by the kitchen?
A. Yes, ma'am.
Q. I think you have some pictures of the bathroom there.
A. Yes, ma'am.
Q. Does that look like the bathroom to you?
A. I don't know about the inside of the bathroom, but this layout looks different to me.
Q. All right.
A. I glanced — when he opened the door, I seen behind him was the bathroom, as he walked out, because I was in the living room and I could see perfectly in there. But I don't know exactly what the sink looks like and stuff, but this doesn't look like the correct layout.
Q. when he walked out of the bathroom, you could see into the bathroom, and you didn't see anybody else in there, did you?
A. I didn't, no.
Q. How soon after he walked out did you hear that they found a gun in there?
A. It was soon. It was pretty quick.
Q. And it was Officer Cornell who said that he found the gun?
A. I don't recall who. Somebody did, though.
Q. were you watching when he came out of the bathroom?
A. I wasn't. Or, I'm sorry?
Q. when Mr. Salazar came out of the bathroom.
A. Yes, I was watching when he came out of the bathroom, yes.
Q. And did you see Officer Cornell go into the bathroom?
A. I didn't — I didn't pay attention to them walking into the bathroom, because as soon as he came out, I started talking with him.
Q. And as soon as he came out, you secured him and patted him down?
A. I don't recall. That's my general practice, yes.
Q. You didn't find anything on him when you patted him down?
A. No, ma'am.
Q. when you patted him down, did you handcuff him?
A. I'm sorry, I don't remember if he was handcuffed at all that night. I mean, before he was arrested and taken to Deputy Cornell's vehicle.
Q. Okay. And you Mirandized him as soon as you heard they found a gun?
A. Yes, ma'am.
Q. when you walked in there, did you ask, or did you notice whether or not the women had any injuries on them?
A. No. I looked and I didn't see any injuries on anybody, no.
Q. Nobody took any pictures of where they found the gun or anything at the scene of the apartment; right?
A. I don't recall, ma'am. I wasn't inside at that time.
Q. You were inside the house; right?
A. Yes.
Q. was anybody taking any pictures while you were inside the house?
A. Not that I noticed. They could have. They very well could have, but I don't remember.
Q. But you didn't take any?
A. No, I didn't.
Q. And you haven't seen any photos of the inside of the house —
A. No, I haven't.
Q. — other than what I just showed you?
A. Yeah, other than these pictures, I haven't.
Q. when you walked into the apartment — or, you said Monique opened the door, Monique Salazar opened the door?
A. Yes, ma'am.
Q. And she invited you in?
A. Yes. She opened the door, I don't remember if she said, come on in, or not, but she opened the door.
Q. And you came in enough to see what was going on?
A. Yes. She opened the door more than a distance to speak to us. She opened it all the way. That's when I — because I heard the footsteps run off, and all I had known is that there was possibly a gun used. So, yes, I went in at that point.
Q. And did the other officers go in with you?
A. Yes, ma'am.
Q. Did you have your guns drawn?
A. No, ma'am.
Q. If you were afraid, how come you didn't have your guns drawn?
A. I had suspicion, because of the call, obviously, but when I heard them conversing normally, and her — obviously I had taken into account the fact that she said, I know nothing happened between you, and they were conversing normally when I went to the door. But when the footsteps ran off, and it was called in as domestic violence, I felt the need to go inside. But not enough that I needed my gun out and pointed at people.
Q. All right. Do you know how long Mr. Salazar was in the bathroom?
A. I don't know exactly, ma'am.
Q. Okay. when the Government was asking you about Government's Exhibit 7, which is — I guess they call it a CADs report.
A. Yes, ma'am.
Q. But it's actually entitled, Incident Detail Report; right?
A. Yes, ma'am.
Q. Is that a CADS report?
A. Is that a what?
Q. Is that what they refer to as a CADS report?
A. Yes, ma'am.
Q. Okay. So what is it that you hear over the radio when somebody calls 911?
A. Just what our respective air, the dispatcher tells us. For this call, it was — what I recall was that it was third-party information, which means that someone else called it in other than somebody in the house, and that there was a domestic violence with a weapon. That's all the information that I recall, ma'am.
Q. But they could have given you the name of Eric Salazar as a person they suspected?
A. They could have, yes.
Q. You don't remember?
A. I don't remember if they actually gave that name or not. The issue is that I'm trying to get to the house because of the call, obviously, but I can't be looking at my computer, you know, too much.
Q. So, then, you do have all the 911 information on your computer —
A. Yes, ma'am.
Q. — in your car?
A. Yes, ma'am.
THE COURT: Let me follow up on that question. Before you went, had you looked at that 911 information that was on the computer in your car?
THE WITNESS: I had looked at some of it, Judge, yes.
THE COURT: Do you remember what information you received when you looked at that computer before you went in?
THE WITNESS: What I recall is that it was a domestic violence with weapons — or I'm sorry, with a firearm. That's it, Your Honor.
THE COURT: Okay. Thank you.
MS. BAIZ: If I could have just a moment, Your Honor, to consult my client's notes.
THE COURT: Sure.
BY MS. BAIZ:
Q. So when you have information about a gun and you have a name — well, never mind. I'm getting myself all wrapped up here. I better not.
MS. BAIZ: I just have one more consultation, Your Honor.
BY MS. BAIZ:
Q. Just another thing. You didn't know who found the gun?
A. I don't know exactly, ma'am.
Q. Do you remember seeing Officer Cornell there that night?
A. Yes, ma'am.
Q. And you did talk to him about what was going on?
A. Yes, ma'am.
Q. He took the lead in the investigation there?
A. with him, yes, ma'am.
Q. Was he wearing a gun?
A. Deputy Cornell?
Q. Yes.
A. Yes, ma'am.
Q. He was wearing a gun? He was getting pretty impatient with Mr. Salazar about getting out of the bathroom, wasn't he?
A. I don't recall, but I was. I don't know if he was or not, but I definitely was, especially when he asked me if he could turn on the shower.
Q. Did you see any officers with flashlights that night?
A. we all had flashlights.
MS. BAIZ: Okay. No other questions, Your Honor.
THE COURT: Before you sit down, in case you want to ask any follow-up questions, tell me the best you can recall what conversation you had with Ms. Salazar when she first answered the door before you came in, and anything else you can remember about that interaction.
THE WITNESS: I don't recall, Your Honor. I know she opened the door. I don't recall what was said exactly. But I walked in and asked them to have a seat on the couch, and looked for the male at that point.
THE COURT: Do you remember explaining to her why you were there at all, whether you did or did not?
THE WITNESS: It's common practice, yes. I just don't remember exactly what was said.
THE COURT: Do you remember whether you asked whether you could come in or not?
THE WITNESS: I don't remember.
THE COURT: Do you remember whether she said you could come in or not?
THE WITNESS: I don't recall, Your Honor.
THE COURT: That's fine. Thank you.
BY MS. BAIZ:
Q. Did Ms. Salazar tell you immediately that there was nothing going on, that there was no arguing or anything?
A. She may have, yes. I know when I asked her what had happened earlier that night, she basically was just saying that, really, nothing happened.
MS. BAIZ: I don't have any other questions, Your Honor.
THE COURT: Okay, thank you. Redirect?
BY MR. WALSH:
Q. So Deputy, when you received the 911 call from dispatch, you got information about the possibility of a firearm; right?
A. Yes, sir.
Q. Now, when you spoke to Ms. Sanchez, did you get that same information?
A. No.
Q. what information did you get from her?
A. She said that there had just been a firearm used in the house, or that had been used in an argument. I don't remember any specifics, I'm sorry.
Q. But there was mention of a firearm?
A. Yes, definitely, in the call and her telling me directly. But I don't remember the words.
Q. And that's what you put in your report?
A. Yes, sir.
Q. Now, when you were there when Ms. Sanchez speaks on her cellphone, you thought she was speaking with whom?
A. I assumed she was speaking with her daughter, who I later identified as Monica Salazar. But I assumed at that point, because she said, "I know nothing happened between you," and then she pointed at the house. So I thought she was probably talking to her daughter.
Q. But you didn't know for sure?
A. No, I didn't know for sure.
Q. But you still felt like you had a duty to investigate; right?
A. Yes, yes. Even though she said that, I felt I still had to.
Q. And why is that? Explain that.
A. Because she could be consoling her daughter over the phone. They could have argued that she had called the police. There's a lot of things that could have happened there.
Q. Domestic violence?
A. Yes. It's my duty to investigate that and make sure everything's okay.
MR. WALSH: I have no further questions.
THE COURT: Thank you. May this witness go ahead and be excused?
MR. WALSH: He may.
MS. BAIZ: Yes, he may.
THE COURT: You may be excused. Thank you.
THE WITNESS: Thank you, Your Honor.
THE COURT: Any further witnesses?
MR. WALSH: No further witnesses.
THE COURT: Okay, let's go ahead and do this. Let me let Ms. Baiz make her argument first with regard to whether there's a reasonable expectation of privacy, and then I'll let you make your arguments to justify, assuming that there was a reasonable expectation of privacy. We'll address those separately.
So, you get to go first and last on this issue, since it's your burden of proof, and then Mr. Walsh can go first and last when we get to the issue of whether the search was justified.
MS. BAIZ: Well, Your Honor, just briefly, regarding the expectation of privacy, I believe that there's two ways to look at this. One is that the person actually had — the Government says that he didn't have standing to argue the motion to suppress, but I think that's kind of a misnomer, and the fact that he was living there temporarily and that he had off and on stayed there, I think that that provided enough privacy, enough of the expectation of privacy that he had. But in addition to that, his own person, he had the right in his own person not to have his Fourth Amendment rights violated.
There were a couple of cases that I cited with respect to the house. One was Quaempts and the other one was Storey. In both of those cases, the courts found that the defendant was immediately seized when he was ordered to come out of his house. I think you can analogize it to this situation, as well. I think that when he was seized, there was no probable cause to find that he had committed a crime. They didn't know he had a felony. They didn't know anything about it. At that time, they hadn't found the gun. And in addition to that, Your Honor — so I believe that his own personal rights to privacy were violated in addition to the privacy in the house. Mr. Hansen testified that he spoke to a couple of different people regarding the fact that they had stayed there before, and I believe that. There is another case, I think it's called United States vs. Garcia, and a Tenth Circuit case called united States vs. Miramonted, 365 F.3d 902, Tenth Circuit, which says that hearsay is admissible at a hearing on a motion to suppress and should be considered by the District Court. So that's all that I have on the privacy, Your Honor.
THE COURT: Thank you. Mr. Walsh.
MR. WALSH: Just to make a few comments as to whether he has a reasonable expectation of privacy in the house where he was found at, one, in terms of the evidence, I agree, hearsay, as we know, as the Court knows, as Ms. Baiz pointed out, is acceptable when it comes to suppression hearings. However, the Court still has to look at weight, what weight should the Court give to particular hearsay evidence, testimony, what have you.
I think it's very attenuated. We didn't hear from Stephanie Garcia. Reading from the case, there has to be an ongoing and meaningful connection to the home. We don't have evidence, really, that's very weighty that he was staying there, nothing that ties him to the residence.
And, in fact, the Government's evidence indicates from him, the Defendant, he's disavowing any connection to the place, and that was kind of his M.O. in terms of trying to distance himself from his firearm by arguing, look, we were just visiting, it's not my house, not my house. It was to the point where Deputy Cornell even tried to talk to the person that was actually renting the apartment.
I mean, they certainly weren't trespassers. We're not contending that. I think that they were allowed into the home. So I think the evidence is pretty weak when it comes to standing, and as the Court pointed out, it's their burden to show. And I agree with my colleague, Ms. Baiz, that it goes to the search of the residence, and there's some other Fourth Amendment issues that are kind of separate and apart from the reasonable expectation as to the home.
THE COURT: Let me ask you, the Tenth Circuit came out with a case in 2009 entitled united States vs. Poe, which is 556 F.3d 1113, and there it recognized that the Supreme Court in Minnesota vs. Olson had said that an overnight guest has an expectation of privacy. And then the Tenth Circuit extended that further to say that if someone has an ongoing and meaningful connection to the home, and a degree of acceptance in the household, they don't even have to have been an overnight guest. So they distinguished, of course, a situation where someone was there for commercial purposes as opposed to whether or not someone was there as a guest.
But if the evidence is that he had been a guest there on numerous occasions and was a guest there on that particular occasion, does Poe require me to find that there was a reasonable expectation of privacy?
MR. WALSH: It seems like that would add up. I think here, what causes me to hesitate, and I don't have all the particulars of Poe, so I don't want to speak out of turn, but there was no indication that they were staying at this apartment that night. I think the evidence seems to point in the other direction, that they were there just visiting. There were no belongings that we heard of, no mention of that. I don't think — I'm not sure if there was evidence before the Court in the cross-examination, but he was eventually arrested on our indictment at another house. The caller, Ms. Sanchez, didn't say anything that that was their home, but more or less indicated that's where they were at.
I'll defer to the Court as to reasonable expectation of privacy. I just wanted to point out that if they met that threshold, it's just barely, because the evidence is pretty weak and it has to come from them.
THE COURT: Before you sit down, do you have any reply that you want to make to that argument, Ms. Baiz? If not, Mr. Walsh can just stand up and go into his argument.
MS. BAIZ: Well, he said that they don't have any evidence that they were spending the night, but it was 1:30 in the morning. So they had either — 1:30 in the morning, that's when people go to sleep, usually. I just want to point that out, Your Honor.
THE COURT: All right, thank you.
Go ahead, Mr. Walsh.
MR. WALSH: As to the other Fourth Amendment issues at play, we submit to the Court that not only were there no Fourth Amendment violations, but the deputies were actually very professional in their response to a 911 call and did everything properly. And if they did not take the steps that they did, they would have been remiss in their duties.
The touchstone of the Fourth Amendment, as we know, is reasonableness. When we look at the timeframe, that's where I think the CAD sheets really help, Government's Exhibit 7. It's not a situation where the Defendant is in detention for a very long period of time, it's very quick, it's very prompt.
And backing up a little bit, in terms of looking at the reasonable suspicion calculus, we start first with the 911 call, and information pertaining to a call amounts to a degree of reasonable suspicion on a general level. Here, this particular call is very specific. It ultimately is not anonymous. The caller is eventually identified by Deputy Armijo. The caller identifies, even if she doesn't give her name to dispatch, how she knows what she knows. She talks of a family relationship. She gives specifics as to the gun, as to the relationship between the suspect and the victim. So it's a very detailed call.
There is a case that I've had to deal with in response to motions to suppress that has no bearing here, but it is a case called J.L., and J.L. dealt with an anonymous tip. Here, this is not an anonymous tip, even though she didn't give her name.
Moreover, what you look at when it comes to 911 calls, you look at corroboration, and we have immediate corroboration before entering into the household when Deputy Armijo makes contact with Ms. Sanchez. And then even though we heard that there was a phone call made, they would have been remiss in their duties if they just would have walked away. We all know that domestic violence situations are very fluid. We have information pertaining to a firearm that first comes from the call, and second comes from Ms. Sanchez.
It seems like the evidence shows that the entry into the household was consensual in nature, that they were allowed into the premises. Even if it weren't, in light of the facts, given the nature of the call, I think the deputies would have been well within their rights under exigent circumstances to make entry into the household.
THE COURT: Let me just back you up there, because those are two different issues. What is your evidence to support that there was consent to enter?
MR. WALSH: I thought we just heard it from Deputy Armijo, that Ms. Salazar — that they were let into the household as opposed to any type of entry that was forcibly made.
THE COURT: What I remember —
MR. WALSH: I might have missed it; I'm sorry.
THE COURT: What I remember him testifying to is she opened the door fairly wide, but that he doesn't recall whether he asked permission to enter, he doesn't recall whether she gave him permission to enter, he doesn't recall that there was any conversation regarding, may I enter. So given that he doesn't have any recollection of that one way or another, and I didn't see anything in your brief that you were arguing that there were exigent circumstances — this is the first I've heard where the Government is asserting that it might have been consensual.
So since I haven't seen anything in the brief, and I wasn't aware — I didn't hear any evidence of an actual consent, I'm wondering if you could just lay out everything that you have that would support your argument that there was consent.
MR. WALSH: Sure. I was a bit distracted, so I will defer to the Court as to Deputy Armijo's testimony.
I don't think it's ultimately of crucial significance, referring to our brief, that we argued exigent circumstances. I mean, it's kind of a typical domestic violence situation involving a firearm where deputies, officers, they're basically obligated to make entry. So I'll just defer to the Court there on the consensual aspect of things. But irrespective of all of that, the timeframe —everything is going to rise and fall on a case by case basis in terms of what is reasonable when we're talking about an applicable timeframe.
But going back to Government's Exhibit 7, it's very limited. There's a call right around 1:20, might have been 1:23. Deputy Cornell indicated that he arrived at 1:38. So we're looking at 1:30, I believe Deputy Armijo makes contact with Ms. Sanchez, and then we know like 20, 30 minutes —actually, maybe 20 minutes later, subsequent to 1:38, and that's all reflected in Government's Exhibit 7, that there's a stolen firearm that is run, and then the Defendant is arrested shortly thereafter.
There's also the reasonable suspicion as to one point, an additional point I'd like to make for the Court's consideration. It's axiomatic that innocent conduct can still be suspicious conduct. You have a guy that's taking his time on the toilet, he's not coming out, he's trying to put on the shower. And backing up a little bit, we hear a male voice and then we hear steps fleeing away from the situation, which caught the attention and suspicion of Deputy Armijo, and then he's in the bathroom for kind of an abnormal period of time.
Deputies have a right to protect their own safety as well as investigate the domestic violence call, so they're certainly going to go in and see if there are any firearms. That's all legitimate conduct. We see a loaded firearm that is lawfully seized from underneath the sink, that was in plain view that Deputy Cornell saw. They certainly have a right to investigate the gun and check into that.
And then we also have some suspicious — I don't think it was really played out in the testimony, but I believe that the transcripts from the belt tape will shed further light onto it. we have a call about an Eric Salazar, but then the Defendant is identifying himself as either Roland Moya, and then at another time it's either the Defendant or his wife, Monique, is identifying him as Isaac Salazar. So we have some further suspicion there.
So I think all together, the evidence is very cut-and-dried. we have a 911 situation involving a threat, involving a firearm, and the deputies did everything properly. And then as to reasonable suspicion, all the different factors accrued. Eventually it mushroomed into probable cause leading to the Defendant's arrest, and lo and behold when he's taken back into the substation, they find out he's not Moya, but he's, in fact, Salazar.
The pat down for the ammunition was all on the up-and-up, as well. It's a typical pat down search incident to an arrest. So I think everything was done properly, and we'd ask the Court to deny Defendant's motion.
THE COURT: Let me just ask a couple of follow-up questions, because I want to break down some of the Fourth Amendment issues I was looking at.
First of all, on your brief, you state a lot of things that you're saying occurred on the 911 tape. Some of this I could hear, some of it I'm going to have to go back and listen to the 911 tape again, because when it was played here in open court, I couldn't hear everything that was on it.
But in your brief, starting on Page 2, you talk about the following information that the 911 gave to the operator, and it includes things like the caller said that he's hurting her, that he's roughing her up, that he was beating the daughter, that he was on the run, that he's armed with a German gun, that he did heroin and methamphetamine, that he had recently stabbed his uncle, and none of this is information that I'm hearing that was relayed to — or very little of it. Certainly, the fact that there was a gun.
But what I'm hearing was relayed to the agents, or I'm sorry, the deputies, was just that there was a domestic violence situation, that it was a Code 3, and it involved a firearm. But I didn't hear that the officers who made entry had any knowledge about evidence either from the 911 call or from speaking to Ms. Sanchez directly that he was roughing her up, that he was roughing up Ms. Salazar, that he was beating her up, that he had recently stabbed someone, that he had threatened to hurt the caller if the caller didn't leave, which would have been Ms. Salazar. So if that wasn't relayed to the officers who made the entrance, can I consider that as a part of the 911 call?
MR. WALSH: You may, and I appreciate the question, Your Honor. This may have been our oversight in not specifically referring to this in the brief, but there is the collective police concept which I think applies in this situation where not every deputy is kind of liable, if you will, to have all of the information, but that it could be kind of shared knowledge that pieces of which can amount to reasonable suspicion as a whole. I just paraphrased that collective police team concept, so don't quote me verbatim. But I think I got it right pretty well.
The 911 call can be viewed in isolation, as well. There was a case, and I can't recall if this is cited in the brief or not, but it's United States vs. Frank Brown, a Tenth Circuit opinion. It involved a 911 call, and the issue was whether the call, itself, contributed to reasonable suspicion. And ultimately the Court determined that there was reasonable suspicion in that case in part because of the 911 call.
Here we actually don't just have the 911 call, we have corroboration, and then additional suspicious activity that 1 mentioned. So it's different than Brown. It's better for the Government in terms of having more evidence than the case of U.S. vs. Frank David Brown.
But going back to Your Honor's question, yes, the Court should consider the 911 call, as well.
THE COURT: Okay. And getting past the 911 call, let's say 1 recommend and Judge Armijo were to find that the search, or actually, the entrance into the apartment was fine, then you have the issue, and the defense raised this in their brief, whether any exigency had dissipated. So, the police go in, they find that no one is hurt, it doesn't look like anyone needs medical attention, it doesn't look like — at least 1 didn't hear, and you can correct me if you look at it differently, that there's any evidence that anyone's in immediate danger at the time that they come in.
So when they hear Ms. Salazar say on the phone that there's not — that she understood that there wasn't anything that happened between them, and when they get to the apartment and they don't find any evidence that there had been any sort of physical violence, and the Defendant is in the bathroom with the door ajar and not in a threatening type of situation, sitting on the toilet, does that dissipate any exigency that would have justified, up to that point, the entry?
MR. WALSH: No. Very legitimate question and issue, obviously, but it doesn't because, number one, it's a domestic violence situation. So even though as we heard from Deputy Armijo that he hears this call, in terms of Ms. Sanchez presumedly talking to her daughter, that doesn't diminish the value of the first call, itself. It certainly is a factor, but Deputy Armijo indicates, yeah, they've still got to look into it. You don't just say, oh, they're okay, and turn around and go back to accepting whatever call comes next. They absolutely have got to look into it, especially when you have a Priority 2 phone call involving a domestic violence and a firearm.
Obviously when you're dealing with a domestic violence situation, you can have recantation on the part of the victim, you can have potential hostage taking. So even though it was a factor, it wasn't any type of factor in terms of that phone call on the cellphone. It wasn't any type of factor that dissipated any type of exigency.
And I think — I mean, at some point it becomes dissipated when you go in and you check out and there's no problem, but then the deputies run into further suspicious activity. It's supposed to be an Eric Salazar, and at some point the Defendant is identifying himself as Moya. we have the bathroom activity. We have the male voice running towards the back. And it's all within a very reasonable period of time.
So that's why I want to focus a little bit on Government's Exhibit 7. If it's something like two hours, three hours, yeah, of course, then you have some dissipation. But I think when you're talking a short timeframe, nothing was dissipated and there was still exigency, and they still had to look into the initial call and the threat of the firearm and potential domestic violence assault.
THE COURT: Now, when the Defendant comes out of the bathroom and they seize him outside the bathroom, what, then, is the justification once he's seized and under control and not a threat to go into the bathroom at that point?
MR. WALSH: well, first thing is officer safety. It certainly makes sense to make sure that there's not a weapon there so that someone else can't get back there while the deputies are there on scene and still looking into the matter.
Secondly, they're still looking into the nature of the offense, as well, especially when it's on the heels of suspicious activity where he's taking a little bit too long to do it, as far as using the facilities. And so I don't see any violations there, especially when it was done real quick. Then they find the firearm, and then that becomes additional suspicion corroborating the initial call on top of everything else that's happening during this very short timeframe. I thought that was proper, as well.
THE COURT: Okay. So when he's detained outside the bathroom, my understanding from listening to testimony was that he wasn't arrested at that point, he was simply detained. He wasn't arrested later until they found evidence that the firearm had been stolen. Is that correct?
MR. WALSH: That's my understanding, as well, that he was detained. We heard, I think, some conflicting testimony. Deputy Armijo couldn't recall whether he was placed in handcuffs. I think Deputy Cornell indicated that he was. But I would offer this up to the Court, that it's well established, Tenth Circuit authority, that during an investigative detention, that officers can use reasonable force during any type of investigation, which includes the use of handcuffs.
And another fact that comes to mind, too, is we have one male in there, so it's not a situation where we have four or five males and they're just kind of randomly and recklessly focusing in on one out of five. There was a report of one male and a woman, so it made sense that they turned their investigative focus towards Mr. Salazar.
One other point that comes to mind in terms of Fourth Amendment analysis is that subjective expectations as we know, in terms of what officers are thinking, that's not what really governs Fourth Amendment situations. It's kind of an objective analysis in terms of objective reasonableness. So I think the seizure of the gun and kind of the investigation that took place was objectively reasonable for the reasons that have been stated.
THE COURT: The reason I was asking about the arrest, that when the arrest happened has significance, is that there is a Tenth Circuit published case, United States vs. Walker, it's at 474 F.3d 1249, and you'll have all this on the transcript eventually, but it's a case that Judge Brack handled that was appealed to the Tenth Circuit. In that case, the police were called out because there was an indication that there were two people in the home with a gun, there might be some violence, and when the door was ajar, the front door was ajar, and the police officer knocked on the door, the Defendant responded, "Yeah, and I got a goddamn gun." So as a result of that remark, the police went in and they did what they termed as a protective sweep, and they found evidence that was then used to prosecute Mr. walker, including stolen firearms.
And what the Tenth Circuit said there is that — I'll just read it. It says: "This Court" — and it's at Page 1254 of the opinion. "This Court has stated that a protective sweep of a residence to ensure officer safety may take place only incident to an arrest."
And then it says: "But Mr. walker had not yet been arrested when the officers conducted the sweep, and the Government has not argued that the sweep was incident to an arrest. Therefore, Buie cannot support the sweep." It rejected the Government's argument in this case that the sweep was permitted for reasons of officer safety and it said, look, to the extent that there's a sweep, what we're constrained by are precedents in previous decisions to walker, and it doesn't allow a sweep pursuant to Buie for officer safety if there's not an arrest. It would allow a sweep to see if there was a third person that was in danger, but it wouldn't allow it to be done for reasons of officer safety. So that is where the significance of whether there was an arrest or not becomes particularly relevant in the research that I had done.
And then you get into the issue — in fact, I think it was two or three days ago the Tenth Circuit came out with a case called United States vs. Bagley, and it cited a case, a previous decision, that also came out in 2017 by the name of united States vs. Nelson, which was at 868 F.3d 885. In that case, the Government was arguing — well, in both cases, the Government argued that the extent of the protective sweep —or, that there was a protective sweep and it was justified by uncertainty as to whether there could be anyone else. And the court in the Bagley case, and I only have the westlaw page and cite, but westlaw is 2017 WL 6419027. what the Court there in Bagley says is that the argument of the Government was uncertain.
It said: "The Deputy Marshal had no way of knowing one way or the other whether anyone besides Mr. Bagley was still in the house. This uncertainty, according to the Government, would have concerned the officers because they might have been subject to attack if someone else remained inside. we recently rejected an identical argument in Nelson. There, too, the Government relied on the officer's inability to know whether someone else was inside. But we held that lack of knowledge cannot constitute the specific articulable facts required by Buie. For this holding, we reasoned that if officers lack any information about whether someone remains inside a house, they do not have the specific articulable facts required for a protective sweep beyond the adjacent areas." And, of course, that, when you combine with walker, only allows the protective sweep of adjacent areas if there's an actual arrest.
So these were some cases that I was looking at in preparation for this hearing that raised some issues that I think are salient to some of the arguments that you've raised, so I wanted to give you a chance to address them.
MR. WALSH: I appreciate that. Walker is Tenth Circuit, as well?
THE COURT: walker is Tenth Circuit. It's a 2007 case. It arose — it was a Judge Hartz opinion that arose from a case in front of Judge Brack down in Las Cruces.
And then Bagley is a Tenth Circuit case that arose out of the District of Kansas, and it cited to Nelson, and Nelson was filed on August 17th of 2017, and it also arose out of the District of Kansas.
MR. WALSH: I appreciate that. A couple of things. One is, it gets us back to whether he has reasonable expectation of privacy. So that's obviously issue number one. I don't know the facts pertaining to that.
But number two, we also — he denied anything as to the firearm initially, so we made an argument as to abandoned property. That is in the Government's response brief. And I don't know that there was such a theory, because I don't know the particulars of walker and Bagley and Nelson. But there may be a distinction there.
THE COURT: Okay — go ahead. I'm sorry, I didn't mean to interrupt you.
MR. WALSH: Another thought that comes to mind is that without knowing all of the nuances of the case law that the Court just cited, here it wasn't just a seizure, it wasn't a seizure immediately, what it was is that the firearm was essentially detained, and I believe the standard is kind of the same for property as detaining a person. So we submit that an officer has a right in a domestic violence situation, if there's a firearm, they have a right to detain that gun and protect themselves and the other parties also, under the community caretaking theory, while they're investigating the domestic violence complaint.
So here what took place is that the firearm was detained for objective reasons to look into — you've got evidence of a domestic violence incident, and then we have Deputy Cornell, who runs the gun, and then things begin anew when he finds out it's stolen property.
I would refer the Court to the case of the United States vs. Torres-Castro. It was before Judge Browning at the District Court level, and then became a Tenth Circuit opinion. Torres-Castro, it was a situation about a protective sweep, and I think it was the same case law. This was maybe ten years ago. But there was an intervening circumstance that the Court found, and ultimately the evidence was not suppressed in Torres-Castro. The intervening circumstance in this case that comes into play is the running of the weapon and finding out that it was a hot gun, it was a stolen firearm.
So I would argue for the Court that the distinctions, without knowing the nuances, but I'd ask the Court to look into, is one, standing. A reasonable expectation of privacy. Two, abandoned property. Three, that the deputy a reasonable grounds to detain that firearm during the investigation of a domestic violence incident and run it, and then, also, once it was found that it was stolen, it became an intervening circumstance.
THE COURT: Let me just follow up on each of those. So with regard to the abandoned property first, generally you see an abandoned property type of defense, let's say you've got a train or a bus and there's a bag, and the DEA agent says, is that your bag? And they say, it's not mine, and no one else in area claims that's their bag. So the agent says, well, I looked at it because it was abandoned, and the case law supports that you're allowed to say that it's abandoned.
Here, though, the evidence is that the Defendant didn't say the gun wasn't his until after the gun was already found. So it seems to me like it would be the same type of case.
Let's say if the DEA goes in and they search a house, and it's without a warrant, and let's just say it's plainly an illegal search, and they find a bag of drugs, and the owner of the house says, hey, those aren't mine, I don't think the DEA gets to say, after we found the drugs, the suspect said the drugs weren't his, so that justified our illegal entry into the house, because most of the time when you find something illegal, the suspect is going to deny ownership of that. And I'm not aware of any case law that says, even if the search was illegal, if the suspect thereafter denies ownership, then that goes back to cure any illegality in the initial search.
MR. WALSH: I can understand the Court's thinking, and I don't have a good command on the case law pertaining to abandoned property, as compared to some of the other arguments, so I don't want to talk forth, if you will.
But 1 would like to say that once Deputy Cornell sees the firearm and picks it up, he has a right to look at it and then to investigate it. This goes back to kind of the reasonable suspicion to investigate the incident, the domestic violence. He has a right to make sure it's not a stolen gun. And then he's taking steps to figure out, well, okay — it happens very quickly, because then right away he's denying it.
So 1 would have to think that this is a different situation than the case law, the walker case law and the Nelson case law. 1 can't think that the law would be that an officer in those circumstances does not have a right to pick up that gun for his own safety, and for the safety of everyone else that's there, and at least find out whose gun it is.
I mean, perhaps at some point, based on different facts, he may have to return the gun to the lawful owner. If it turned out to be Ms. Garcia's gun and there was no domestic violence, then, okay, exit stage left. But Defendant says, not my gun. Okay, if it's not your gun, that's a little weird. whose gun is it? Call up the owner. No gun there. So kind of dovetails back into the reasonable suspicion.
That's my response for the Court there.
THE COURT: Let me follow up on that one, as well. with respect to detaining the gun, there was a case, it's a 2014 case out of the Tenth Circuit by the name of united States vs. Gordon, which is 741 F.3d 64, and in that case, the Tenth Circuit said exactly what you're saying. In that case, the police went in in response to a 911 call about a domestic violence situation, the police officer went down into the basement and was walking with the alleged victim, and as he was walking with the alleged victim downstairs, he saw a loaded shotgun. The Tenth Circuit said that it was fine for the deputy to take that firearm and secure it, even though the defendant, the suspect, was upstairs with two other deputies. And so I think that does lend some support to what you're saying.
Now, there are a couple of issues with that. One, they held onto the gun too long. So in other words, the Tenth Circuit said that they should have returned the gun to its resting place where they had initially found it once the defendant was out of the house. What happened there was, when the defendant was in the car, they did a search and they found out he was a felon, and so then they charged him with felon in possession.
In that case, the Tenth Circuit said that the violation of the property was de minimus. Now, that was before the Supreme Court came out, and I think the name of the case is Strieff, if I'm remembering correctly, a year later where Justice Ginsburg wrote an opinion saying that there is no such thing as a de minimus detention. That if someone is detained, then that's too long. That creates the issue of — that published Tenth Circuit case in Gordon hasn't been explicitly overruled, but it looks like Strieff came out differently. Is it still good law or not.
But whether it is or not, one of the distinguishing factors in Gordon is that the gun there was found because the police were with the victim, and it was just leaning up against the wall. In other words, they didn't do a search in which they found the gun. So they didn't go into a different room.
What it appears from the facts might have happened in this case is that the Defendant came out of the bathroom, and then the search was conducted into the bathroom. In other words, Deputy Cornell didn't find the gun until he went into the bathroom. So the question isn't — obviously if the gun was in the entryway or something like that when the police came in, I think there wouldn't be any issue about, can the police secure it. But the question is, once the police have already detained the Defendant and it's not an arrest, so there's no rationale for a protective sweep, can the police go through different parts of the house to try to find any guns that might be in the house in order to secure those guns.
Lots of people in New Mexico own guns, so the logical extension of your argument would be even once you've secured the suspect, police are allowed to go around the house looking for guns that could be in the house and to secure those guns.
MR. WALSH: well, I think what is different here, going back to the Torres-Castro case, trying to kind of reach into the mental archives there, but that was a different situation, and I don't know if walker, Bagley, Nelson and such have facts that are closer to Torres-Castro. But there, the gun ultimately — actually, it was a box of ammunition that was found in a closet, and then we had an intervening circumstance, which I won't get into, but then the firearm was found under the bed.
I appreciate the Court's thinking. At some point, correct, it wouldn't be reasonable to, let's say you've got a big estate or a big house, to go through every nook and cranny to look for a firearm. But I think the big distinction here is that the Defendant was in the bathroom, and so we had behavior that led the deputies to the bathroom. And we had behavior in the bathroom that made it reasonable for the deputies to make sure that there wasn't a firearm in the bathroom.
I think just because there's a detention, especially when you have fluid domestic violence situations — and then, also, officers, especially in the South valley, they also have to be concerned about when they exit from a scene. So it's not over with until the deputies have completely left the area.
They need to be safe in their departure from domestic violence calls, as well. You know, for all they know, they could have had a domestic violence situation where the firearm was being handled by someone other than the initial suspect, that being the male individual. So I think that in this case, it's still reasonable.
THE COURT: Okay. And then to follow up on the last point you made a moment ago, with regard to checking a gun to see if it was stolen or not, what allows the police to hang onto that gun? So if we accept your argument and we say the police, because of danger issues, they're able to seize the gun and secure it and make sure everything's safe, what allows the police to then continue to hang onto that gun and actually look its serial number or identifiers and run a check on the gun to gain some evidence that doesn't relate to securing the gun for safety reasons?
MR. WALSH: I don't have an immediate case to justify it off the top of my head, but I would make the argument that it would be akin to running someone's identification. And I don't know if they did that here when he was giving the ID of Roland Moya or Isaac Moya. I think Government's Exhibit 3 through 6, or 2 through — yes, 3, 4, 5 and 6, the transcripts of the belt tape, may shed some additional light.
But I would draw an analogy to that, that when you're investigating a domestic violence call, or when you're checking someone's ID, that to run an NCIC check on a gun is within reasonable purview, as well.
THE COURT: All right, thank you. Anything else?
MR. WALSH: Nothing further. Thank you.
THE COURT: All right. Ms. Baiz?
MS. BAIZ: Your Honor, this whole thing started when the police officers went into the home without a warrant. And I understand that they needed to check out whether or not there was a domestic violence situation, but as we heard Deputy Armijo testify, when he met with the mother right before he went in to investigate the 911 situation, you know, he felt more — he didn't say he felt more at ease, he didn't use those words, but I think he said, well, then I realized that maybe this wasn't such an urgent situation, because the mother was saying that she understood that the daughter was saying — that she acknowledged that she was okay and that there was no fight between them, no argument between them.
So I think that that set the tone for them going in to knock on the door and investigate, but then they just took it upon themselves to go into the room. And he said he didn't remember if she said there's nothing going on, there's no fighting going on at that time. He said he didn't remember whether she said that at the front door, and so then he said he just walked in.
After walking in and — well, he did hear those footsteps. That shouldn't have raised reasonable suspicion to hear footsteps. Maybe you're curious about it. Maybe you want to find out why that person went where they went. Then they found out he was in the bathroom.
But during all that time, during those few minutes, he learned that nobody hit anybody, nobody was hurt, nobody was seeking medical assistance. So at that time, it scaled down the whole investigation to, okay, we're checking this out, it doesn't look like there's anything going on, we're waiting for this guy to come out of the bathroom. He comes out of the bathroom, they don't see anybody else, and I think that that should have ended the whole thing. They should have just walked out. They didn't have a right to go into the bathroom, continue to search. They didn't have any other information about anybody else being in the house. They knew it was just the auntie, Ms. Salazar, and a sleeping baby, or a sleeping child.
Then after that, they continued to search. He looks under the bathroom sink and finds a gun. It wasn't until 2:07 on the CADS report, which was like 35 minutes after they got there, when they ran the stolen gun — or when they ran the serial number on the gun, and it was stolen. Then they decided at that point to arrest Mr. Salazar for possession of a stolen gun.
They didn't think to do a check on his name, because they had the name. They had it on their printout. They had it when they were all waiting around and talking and gossipping.
They never checked his name. And so the whole thing about him saying that his name was Isaac Moya and all of that is a red herring, because they knew what his name was from the very beginning.
In terms of him abandoning property —
THE COURT: If they knew what his name was from the very beginning, and that he provided a false name, would that allow them to justify an arrest, even if there wasn't probable cause for any other reason, based on providing a false name?
MS. BAIZ: I don't think so, Your Honor, because even if you did provide a false name, if it was because they're violating your Fourth Amendment rights, it goes along with the same thing of abandoning your property. You can't really abandon property if it's violation of your Fourth Amendment rights.
THE COURT: But let's assume that the police, just for argument's sake, that everything was legal up to the time that the police were outside that bathroom door, and then they asked the Defendant what his name was. what you're saying is, it wasn't in question as to what his name was, the police knew that he lied about his name. And if that's true, wouldn't the police at that point have probable cause to arrest him?
MS. BAIZ: For what?
THE COURT: For providing a false name.
MS. BAIZ: No, because they knew what his name was.
THE COURT: They knew that it wasn't Isaac Moya or something with a last name of Moya; right? And what you're saying is that when he was in the bathroom, he provided the name of Moya even though he knew that his name was not Moya?
MS. BAIZ: I don't know that that's a crime, to give a different name.
THE COURT: The Government did raise that in their response brief, that they would have had justification to arrest him for providing a false name. I don't remember exactly where it is, but I thought I remember seeing that. I'm not sure if they cited a statute or not.
Do you remember offhand, Mr. Walsh?
MR. WALSH: I have that information. Concealing identity. It's a violation of New Mexico Statute 30-22-3. I'm reading from Deputy Cornell's report.
THE COURT: So they did bring it up, it looks like on Page 13 of the Government's brief. They did say that the Defendant gave a different name than that given by the caller, which suggests the Defendant was concealing his true identity. Maybe that's what I'm thinking. It doesn't say that they would have had grounds to arrest him there, but I thought that I'd remembered in their brief it saying that that would have been a justification for arresting him.
Maybe it's in the section that begins on Page 16. Yes, on Page 17, the Government said: "Here the deputies had information that indicated that Defendant had possibly committed the crime of assault under New Mexico law." Then they talk about assault, and then it says there was subjective intentions. I'm just looking through this to see — okay. And then on the top of Page 18, they say: "Deputy Cornell arrested him for receiving a firearm." And then towards the bottom of the paragraph, they talk about a different statute.
So, maybe what I was looking at was just the reference to not using that. But I thought that the Government somewhere — I'll have to look at the brief a little more closely to see whether they said that that would justify a reason for an arrest. If Mr. Walsh finds it, he can tell us here in just a moment.
So, go ahead.
MS. BAIZ: what I was saying about all that is that since they knew what the name of the person was at the very beginning, and they ran the gun, they could have just run the name, as well. They had a year of birth. They had that information. And they weren't looking to arrest him for giving a false name.
THE COURT: But doesn't the fact that he's lying about his name raise some sort of suspicion that he's trying to hide something and then help contribute to law enforcement's justification that there's something afoot? So if you're looking at Terry vs. Ohio and its progeny, and the police are allowed to detain someone if they have reasonable suspicion that there's criminal activity afoot, and you've got someone who is providing them false information, doesn't that help contribute to reasonable suspicion?
MS. BAIZ: well, if you stop to listen to the tapes, they didn't know that he was giving false information. They didn't know. They were going on the fact that his name was Moya.
THE COURT: But you just said that they knew that he had provided a false name.
MS. BAIZ: well, the Government is always talking about the global intelligence of the agents, and that everybody should know what everybody else is doing, that people are imputed to the knowledge of the other officers, and that's what I'm saying, is that they knew the name was out there, Eric Salazar.
But they didn't even question him about that name. They questioned what his name was, and he gave them a name, but they didn't do any investigation on the name. They just did it on the gun, and the gun wasn't found until 35 minutes later. I mean, when they ran the stolen inquiry, they didn't get it until 35 minutes later, and then that's when they decided they were going to arrest him.
THE COURT: Okay.
MS. BAIZ: I think that the Court's questioning of the Government regarding walker and the fact that they couldn't do a protective sweep unless the person was under arrest, I
MS. BAIZ: Do you have any more questions, Your Honor?
THE COURT: Any other big factual disputes that you can think of offhand that are material factual disputes that you think I need to resolve, as opposed to legal issues?
MS. BAIZ: I believe that he was — I don't think so, Your Honor. I don't think there's anything else that stands out in my mind.
THE COURT: Okay, thank you. Mr. Walsh?
MR. WALSH: Just a few more points. I just wanted to — as the Court was making mention of the Government's response brief, Page 17, there's the U.S. vs. Santana-Garcia case that is cited there for the proposition that the fact that officers did not believe there was probable cause to arrest did not preclude the Government from justifying the suspect's detention by establishing probable cause. So even though we heard from Deputy Cornell that it was the information as to the stolen firearm that precipitated the arrest, I would ask the Court to consider whether there was probable cause even prior to that to effectuate an arrest, since it's an objective standard.
Also, back as to — I think the Government's evidence will play it out, or rather, shed some more illumination as to the ID, but concealing identity is a crime. I can't recall from the evidence when they first had suspicion that the Defendant was not giving his correct ID, but obviously they have to investigate who that person is. So even though a name was given, Eric Salazar, they don't necessarily have a photo. They don't know for sure whether it's Eric Salazar. That's part and parcel of the reasonable investigation that they should undertake in situations like this.
As to the 911 information, hopefully Government's Exhibit 1-A, in terms of the transcript, corresponds with the statement of facts, but there is information given, as we've heard, about their relationship, a gun, etc. So hopefully some of the exhibits can answer some of those questions.
And I just want to circle back to the gun, itself, and kind of the picking up of the gun and clearing the round that was in the chamber, and doing further investigation. I gave it my best shot. I won't belabor the distinctions I tried to draw from this case to walker and Nelson and the other case that the Court mentioned. And I'm not up to speed on all the nuances in that case, so I'm not entirely sure, but I think this is more akin to a situation where there's a domestic violence call about one suspect, or one spouse having a firearm or a weapon, law enforcement shows up, and it's in plain view. The weapon is in plain view, let's say on a kitchen table or in a common area.
Now, here we've got a bathroom. But like I said, they were led to that bathroom. I think the distinction from these other cases relates to protective sweeps involving officers going into these other areas, downstairs, basements, what have you, to look for other people or to look for weapons, as opposed to being in the immediate area like they were in this case, and finding something that was in plain view. So, I just wanted to speak that piece for the Court.
THE COURT: Okay, thank you.
So, this is what I'd like to do. I know that, as I said, you all have this imminent trial date approaching, so let's —
MS. BAIZ: Your Honor, I'm going to ask for a continuance on that, on the trial date, if the Government doesn't oppose.
MR. WALSH: We won't oppose.
MS. BAIZ: And I can file it today or tomorrow.
THE COURT: Okay. Of course, you asking for it doesn't mean Judge Armijo will grant it. I don't know whether or not she will grant it.
So, what I'd like to do is come back at 2:00, have you all come back at 2:00, and then at 2:00, what I'll do is go ahead and announce my findings. I'll basically do my report and recommendation at 2:00.
And then what I'm going to do is ask the court reporter to provide a transcript, and probably that would be —and I certainly wouldn't file it any earlier than Thursday of next week. But then I'll file that transcript, and that will be my written report and recommendation. So your time to object won't start until — your two week period won't start until next Thursday.
And, of course, if you do get that trial continuance and you-all want to give yourselves more time to object, agree to a continuance of that, that probably wouldn't be a problem as long as the trial date is continued. So you might even have longer than that.
But just because I don't know for sure if the trial is going to be continued or not, I think what makes sense to do is to have me go ahead and do the report and recommendation as soon as I can. If I don't do it here on the record, then I'm going to run into problems, because obviously Christmas is coming up. That's Monday. It's going to be hard to get that done in time. It's going to be hard for me to get that done in time for you, if the trial is not moved, to have your two-week objection period and then for Judge Armijo to be able to look at it.
So, I think what makes sense for me to do is just to make my rulings at 2:00. That gives you a whole week to absorb whatever I've said without it counting against the clock, for you to file objections, because that clock won't start until I file that written transcript, which would serve as the report and recommendation document.
Any issue with doing it that way, Mr. Walsh?
MR. WALSH: No, Your Honor.
THE COURT: Ms. Baiz, does that sound fine with you?
MS. BAIZ: That's fine, Your Honor.
THE COURT: All right. Let's go ahead and do that. Before I recess, what I'm going to do is leave the exhibits that I have here, and then if you could just get together with Ms. Dapson to make sure that I have all of the exhibits. And, then, I'll have a chance to look at those during the next hour and a half, and then you-all can come back and I'll make my ruling. And hopefully we can have some of the day left and I won't keep you all here. I'll try not to talk too long this afternoon.
So, let's go ahead and do that, and we'll be in recess until 2:00. Thank you.
(Recess was held at 12:35 P.M.)
(In Open Court at 2:06 P.M.)
THE COURT: we are back on the record in united States vs. Salazar, 17-cr-831. Counsel, can you enter your appearances again, just so we know who is here.
MR. WALSH: Dave Walsh on behalf of the united States.
MS. BAIZ: Good afternoon, Your Honor. Sylvia Baiz on behalf of Mr. Salazar.
THE COURT: Good afternoon.
Let me tell you what I was thinking about doing. Rather than just going through and listing all of the undisputed facts, there's really not a lot of material facts that are in dispute, my thought is to go ahead and get into the analysis, and then I'll go over the facts as I go through the analysis.
I will say, though, to start, that I have found all the witnesses that have testified today to be credible. So I've found the Federal Public Defender Investigator, Eric Hansen, to be credible, and I've found Deputy Cornell and Deputy Armijo also to be credible.
Also, I've listened — I have the CAD report and the 911 call and the belt tape. Those documents speak for themselves. So rather than just repeating for the record everything that is in all of those sources, I'll just take judicial notice that those have been provided, and they say what they say. There are undisputed facts that are contained within those, as well.
So to get started, I'm just going to take the issues as they came. The first issue relates to whether or not Mr. Salazar has a reasonable expectation of privacy in the apartment. The law on that case is that the defense has the burden. That is set forth in United States vs. Johnson, 584 F.3d 995, and that's on Page 998. It's a Tenth Circuit case from 2009.
It's also in United States vs. Poe, which is 556 F.3d 1113 and 1121, Tenth Circuit 2009. Poe said there that: "Therefore, a defendant raising a Fourth Amendment challenge must first demonstrate that he has standing to object to the search." And they cite Rubio-Rivera for that proposition. And then they say: "Standing requires the defendant to show that he had a subjective expectation of privacy in the premises searched and that society is prepared to recognize that expectation as reasonable." And there's also a Tenth Circuit case by the name of Rhiger, 315 F.3d at 1285 that stands for that proposition.
So it is the Defendant's burden, as the defense has pointed out. Even though it's their burden, the Court at a suppression hearing is allowed to consider hearsay evidence. Much of the evidence that was presented, that the defense presented, was hearsay evidence in this case. On the other hand, I understand it's difficult for the Government to prove a negative, but the Government didn't present information in the opposite.
with regard to what the law is, as far as what the defense has to prove, back in 1990 the Supreme Court decided the case of Minnesota vs. Olson, which is at 495 u.S. 91, at 96 through 97. In that opinion, the Supreme Court indicated that an individual does not have to be settled at a location to have a reasonable expectation of privacy. In that case, they found that a simple overnight guest has Fourth Amendment standing.
Subsequent to Minnesota vs. Olson, the Tenth Circuit took up the issue of whether someone who didn't spend the night there would nonetheless have standing, and in that case — and this is united States vs. Poe, 556 F.3d 1113 and 1122, Tenth Circuit 2009. On Page 1122, the Tenth Circuit said: "Yet, not every individual legitimately on the premises has such a reasonable expectation. In Rhiger, this Court considered the middle ground between Olson and Carter and held that a social guest who does not stay overnight has a reasonable expectation of privacy. Unlike the defendant in Carter, who was present for purely commercial reasons, a social guest has a degree of acceptance into the household."
In this case, there was evidence that Mr. Salazar had spent nights at that apartment, and that was the only evidence presented. I know that the Government is not accepting that as fact, but it's uncontradicted. I don't need to resolve that factual dispute, however.
I will note that the defense makes a good point that the contention that he was an overnight guest, at least on that particular occasion, is somewhat corroborated by the fact that he was there at 1:30 in the morning. That's typically around the time people go to bed. There's no evidence that there was a party type of situation going on in the house, so it wasn't like he was there in connection with a late night party. He was there with his wife. There was a child there. There weren't that many people in that apartment. There was an Anna Garcia, as well. And so that does corroborate that he was spending the night there.
But at a minimum, it appeared that he was a social guest who had had an ongoing relationship. The fact that he had had an ongoing relationship there was corroborated by information that Lydia Sanchez provided that she had picked her daughter, who is married to the Defendant, up at that house. And in addition, the fact that the tenant wasn't there at 1:30 in the morning and felt comfortable enough to leave Mr. Salazar there with his wife in the apartment when she wasn't there indicates some level of trust and an ongoing relationship.
So under the Tenth Circuit standard, what I have to look at is whether Mr. Salazar was a social guest who had an ongoing and meaningful connection to the home, and based on the uncontradicted evidence that's presented in this case, it does seem that that is the case. And I'm looking specifically at Investigator Hansen's testimony. He said he specifically had spoken to the tenant, and the tenant corroborated the information that the Defendant was a social guest there. And there's no evidence about the situation at the time that would indicate he was simply there for some sort of a commercial transaction, or that he was there for any reason other than a social guest.
So, I am going to find, or recommend that Judge Armijo find that the defense has established that there is a reasonable expectation of privacy.
With regard to the entry into the apartment, I think it's a close call. There are some Tenth Circuit cases that could indicate either direction.
I'm first going to go ahead and address the issue of the collective knowledge, because there were a number of allegations that were made on the 911 tape, and the issue is whether or not those allegations automatically transmit to the officers as part of the collective knowledge.
So I'm looking at a case from the Tenth Circuit entitled united States vs. Chavez. It's 534 F.3d 1338. It's a 2008 case. That case talks about collective knowledge and identifies two types of collective knowledge, horizontal and vertical. In our situation, we'd just be concerned with horizontal knowledge. That's where essentially — well, let me just read what the Tenth Circuit says.
It says: "This first category subsumes situations where a number of individual law enforcement officers have pieces of the probable cause puzzle, but no single officer possesses information sufficient for probable cause. In such situations, the Court must consider whether the individual officers have communicated the information they possess individually, thereby pooling their collective knowledge to meet the probable cause threshold."
So specifically what I'm looking at is the question, the issue identified by the Tenth Circuit, whether the individual officers have communicated the information they possess individually. And the way I understand Chavez to be looking at this collective knowledge doctrine is that if the officers have communicated things, one of them doesn't have to have all the knowledge himself or herself. Instead, that officer can rely on information that other officers are providing.
So in this case, the question was, what information was provided, and I asked Deputy Armijo what information was provided to him from the 911 call and what he looked at. The information he had was limited to the fact that it was a Type 2 call, and Deputy Cornell testified that that's a call where someone could be seriously injured or killed in a case, and so it's more serious than a routine type of call, but not as serious as a Type 1 type of call, and that it involved a firearm and a domestic violence dispute.
So, a number of things were on the 911 tape, and the united States has set forth in its brief, in its response brief on Page 2, a number of those factors that were on the 911 tape, and I am finding that most of those factors that the united States set forth on No. 2 are not in dispute.
The defense is disputing that the 911 call indicates that the Defendant had recently stabbed his uncle. I'm not going to find at this time that that's on the tape, because during the lunch I didn't have the opportunity to listen to the tape carefully enough to determine whether or not that was, in fact, on there. But there was a great deal of the other information that the Government laid out that was on the 911 call.
But if that wasn't communicated to the officer, I'm not aware, at least at this point, of any cases that indicate that that information can be imputed to the officers conducting the entry without such communication. So that limits the basis that they would have to justify the exigency in this case, or the warrantless entry.
But I'm going to then analyze what information there was that related to the warrantless entry. I'll begin by noting that searches and seizures inside a home without a warrant are presumptively unreasonable. So then we run into the situation of what is the justification for entering into the home.
I'm finding that there was not evidence of a consensual entry. I'm basing that on Deputy Armijo's testimony. I asked him specifically to provide the information that he could remember. He couldn't remember specifically asking if he could come inside, or receiving permission to come inside. What he remembered was that he knocked on the door and that the Defendant's wife opened the door, but there wasn't any testimony that he asked if he could come in, or that he was allowed to come in. Of course, consent is something that the Government would have to prove, and they haven't provided any evidence that would meet their burden of proof to establish there was knowing and voluntary consent and clear consent to enter the apartment.
So the justification, and this is the justification that the Government relied on primarily in its argument, and entirely in its brief — its brief didn't contain an argument there was consent. And so, really, the issue is whether there were exigent circumstances.
There have been a number of cases from the Tenth Circuit that deal with exigent circumstances in connection with a domestic violence type of situation. One case, united States vs. Davis, which is 290 F.3d 1239, which is a 2002 case, makes clear that a domestic violence situation alone doesn't allow the officers to come into a house or to an apartment. That case also had a fact that was similar to the situation we have here, and I'll go ahead and read from the case at 1242.
It says: "In this case, the Government claims Officer Parsons and Deputy Fletcher's warrantless entry was justified by the officers' reasonable concern. Mr. Davis' rapid retreat posed a significant and immediate risk to the officers' safety." So in that case, which is a 2002 case, the Tenth Circuit ultimately rejected that added factor as creating a justification. So the evidence that there was a retreat into the rear of the house by the person that answered the door didn't justify it.
Now, that is a little bit different, in whether that case would hold up or not if that issue was presented again to the Tenth Circuit, in light of a more recent United States Supreme Court case by the name of Ryburn vs. Huff, 565 U.S. 469, that also involved a situation where someone retreated into the house. In Ryburn, the police had received information that a student in a school had threatened to shoot up the school, and so the police went to investigate. When they knocked on the door and the mother answered, they asked some questions, and she responded that she couldn't believe that the police were there for that. Inexplicably, she went back into the house. The police didn't know why when they identified themselves and they asked these types of questions, that she would have then retreated back into the house. The police followed her into the house, and the Supreme Court considered that a significant factor in determining that the police were justified in going into that house, even though when they answered the door, there wasn't any obvious threat or type of situation related.
So, I do think that in this case, Detective Armijo's testimony that when he knocked on the door, he heard voices, and then when he announced himself as being a law enforcement officer, he heard steps that appeared to him to be moving away from the door in reaction to his announcement of being a law enforcement officer provides some justification and some concern that would raise the level of the suspicion of these officers that would help support the existence of an exigency. That alone, of course, wouldn't be enough.
And standing in contrast to the Tenth Circuit's case in Davis is a case that the Tenth Circuit decided by the name of Najar. It's u.S. vs. Najar, which is 451 F.3d 710. In that case, the police officers at issue had received a 911 call, and when the police arrived, the occupant, the defendant in the case, hadn't answered the door. The police didn't know that —they didn't have any sort of evidence of violence or an injury at the time. Nonetheless, they were suspicious about what was going on.
They didn't immediately go in through the door. Instead, they stayed outside and they could see through the window that there was a silhouette of a person moving behind a window. They knocked several times prior to making contact with the resident. No one answered the door. The 911 called back to the number where the 911 call originated, and there wasn't any response. So eventually, when the occupant of the residence opened the door and denied police the consent, the police went in any way and found a female lying down on the floor motionless. She said that she was okay.
As part of the entry, the police found evidence of a crime that they used. The police argued that exigent circumstances justified the entry in that case and argued that there was a significant risk of safety to police officers, a third party, based on the 911 call and the bizarre circumstances of not answering the phone, or not answering the door when police were there.
In that case, the Tenth Circuit, and several Circuit Court cases after Najar, have verified this as a standard, that there is a two-part test, which used to be a three-part test, but now has become a two-part test, to determine whether the risk of personal danger creates exigent circumstances.
The first prong is that the officers must have reasonable grounds to believe that there is an immediate need to protect the lives or safety of themselves or others. The police must also establish that there must be some reasonable basis approaching probable cause to associate the emergency with a place to be searched.
In this case, the Tenth Circuit found it significant that the factors that I was saying — I'll read a paragraph from that decision. The defendant in that case is Najar. It says: "Najar insists the facts of this case are even more benign than they were in Davis. He describes a tranquil midnight scenario, a lone light in a quiet residence casting the shadow of a sleepless occupant. But that is the world of the poet, not the police. The officers arrived in response to a 911 call where the occupant repeatedly refused to answer the telephone or the door. As other courts have recognized, 911 calls are the predominant means of communicating emergency situations." And then it cites a case by the name of Holloway to say that a 911 call is one of the most common and universally recognized means through which police and other emergency personnel learn that there is someone in a dangerous situation or urgently needs help. Such calls are distinctive in that they concern contemporaneous emergency events, not general criminal behavior.
In a footnote, the Court does note that a response to a 911 call does not always justify a warrantless entry, but the Najar opinion makes clear that that is a significant circumstance.
So in this case, we have a 911 call. Even if you don't consider all the information that is relayed to the 911 operator, certainly the entry, the officers entering, and this is consistent with Deputy Armijo's testimony, knew that there was a 911 call. He also had information relaid to him that there was a domestic violence situation. So, in other words, that there was violence going on in the apartment at the time, and that the alleged assailant had a firearm. So that is another distinguishing factor in our case from the Davis case that did not involve reports that the alleged assailant had a fi rearm.
I know that one of the issues that the defense has brought up is that the 911 caller was anonymous. Again, I'm not looking at all the information that the caller, who is the mother of the Defendant's wife, made in this case, because that wasn't communicated. Nonetheless, Deputy Armijo had a conversation with the 911 caller. She wasn't anonymous when she called. She identified herself as being the mother of the alleged victim in this case, so she would easily be identified once the victim was identified even though she didn't give her name immediately. Rather than anonymously calling from some place, she told police where she was, she waited for police to show up to that place, and then she provided the police information that was later corroborated and information about herself at the time.
So, unlike the type of situation where someone anonymously calls in with information and their identity can never be corroborated, and so their motives for calling might be in question, we don't have that type of a situation here. It's clear who the caller was and what her relationship to the alleged victim was. And she had indicated that she had knowledge because she had recently been in that apartment. And so I am not considering the 911 caller in this case to be an anonymous caller.
So, in looking at all the cases that I need to look at, the circumstances of the gun, the fact that there was a 911 call, I do think that there was enough evidence to justify going into the house.
This justification is also supported by Supreme Court cases that the Supreme Court has issued since the Tenth Circuit's decision in Davis came out. I'd already mentioned the case of Ryburn vs. Huff at 565 u.S. 469. That case came out in 2012, and it involved — one of the main factors in that case that allowed police entry without a warrant is the mother at the front door retreated, or actually ran back into the house when the police asked her if there were any guns in the house, and the Court found that this retreating from the police was significant.
The Court also indicated, and this is at 477 of the opinion: "Reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, and that the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding chain of events that culminated with Mrs. Huff turning and running into the house after refusing to answer a question about guns, petitioners' belief that entry was necessary to avoid injury to themselves or others was imminently reasonable." And I omitted the internal citations and quotations.
In addition, the Supreme Court decided a case in 2006, Brigham City vs. Stuart, which is at 547 U.S. 398. In that case, there was evidence that the defendant was physically harming his wife, or had done so, and in that case — I'm sorry. Again, this is Ryburn vs. Huff that's citing to Brigham City.
It said in Brigham City vs. Stuart: "we held that officers may enter a residence without a warrant when they have an objectively reasonable basis for believing that an occupant is imminently threatened with serious injury. We explained that the need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Ryburn vs. Huff, 565 U.S. 469 and 474, 2012.
The Court in Ryburn vs. Huff also said that — and I quote from Georgia vs. Randolph, 547 U.S. 103, a 2006 case: "It would be silly to suggest that the police would commit a tort," because that case involved a lawsuit rather than a criminal case, but "that the police would commit a tort by entering a residence to determine whether violence is about to or soon will occur."
So they're having cases from the Supreme Court, since Davis, that indicate that the exigency existed, and I'm finding persuasive the Court's decision in Najar, specifically on Page 719 of Najar, united States vs. Najar, which is 451 F.3d 710. The Court stated: "Looking at the unique facts in Davis, we determined that the officers did not face exigent circumstances because the officers had spoken with the defendant's wife, the possible victim, outside the home, they knew the defendant had children, and there was no history of violence." And then the Court continues with the quote that I read earlier in Najar.
So based on looking at Supreme Court and Tenth Circuit precedent, although I think it's a close call, I think that the fact that this was a domestic violence situation, a 911 call involving violence with a potential gun at least allowed the police to go into the apartment to see what was going on.
That then creates the issue of whether the police were allowed to stay in the apartment. The evidence in this case — Deputies Armijo and Cornell both testified that when they entered the apartment, they didn't see any signs of violence. They didn't see any signs of injury or medical need. And the people they first encountered, which was not the Defendant, who had gone into the bathroom, but his wife and Ms. Anna Garcia, did not indicate that there had been any sort of domestic violence. Instead, the only evidence they had was that there was an argument, I believe, over a sweater.
So we then have to consider whether the evidence was dissipated. Again, Najar is instructive on this issue. Certainly at some point, once the police check things out, then they have to leave. The question here is whether while the Defendant was — until they were able to bring the Defendant out of the bathroom, the police were able to adequately check the situation out. In united States vs. Najar, there was the issue — because as I said, the police observed the outside of the residence for 30 minutes before they actually went into the residence. There, the Tenth Circuit said that Najar, later in the sentence, "claims the 30 minute delay between the time the officers arrived and the time they entered his home belies any claim of urgency. We disagree. A delay caused by a reasonable investigation into the situation facing the officers does not obviate the existence of an emergency."
And they cite Rhiger, which is at 315 F.3d at 1290 n. 3 in which a half-hour gap between the detection of the methamphetamine smell and the entry of the home did not preclude arrest. The Court then said: "Here, the delay was due to the officers' repeated and increasingly vigorous attempts to make contact with the person they could see inside. To their credit, they did not simply batter down the door. We applaud their restraint and circumspection." And this is at 451 F.3d 710, specifically at 719 of the Najar opinion.
This case presents a similar type of situation where the Defendant was in the bathroom. You know, the police didn't just bolt into the bathroom or break into the bathroom. Instead, they tried to get the Defendant to come out of the bathroom on his own. And the fact that he didn't immediately do that, and if he was using the restroom, there might be justification for that, but it also doesn't necessarily obviate the exigency that existed under that rationale in Najar.
Also, I consider the facts in this case, that Detective — I'm sorry; Deputy Armijo indicated that he had heard a male voice, and then when he entered the apartment, he didn't see a male, and so it stands to reason that the person that was retreating as soon as he had announced himself as a police officer was the male identified as being in that apartment, and also being the perpetrator of the domestic violence, who is the Defendant in this case. Immediately when — it wasn't just random that he heard the footsteps walking away. It was right after he had announced himself as a police officer.
Also significant to some degree is the fact that the police had information that the Defendant's name was Eric Salazar, and the woman they encountered was Monique Salazar, but the person in the bathroom, who did turn out to be Eric Salazar, lied about his name, even though I don't think there's evidence, and this is consistent with Deputy Cornell's testimony, that he considered the person in the bathroom to be named Moya, that was his testimony here today, until later at the police station. They certainly had enough suspicion that the person in the bathroom was providing false information about his name to help support their decision to determine if there was some sort of a criminal activity afoot, or if there was something going on.
In addition, much of the information from the 911 caller had been corroborated about who was there. Again, however, Deputy Armijo didn't have all of that information. At least some of the information he obtained directly from Lydia Salazar was corroborated.
And then he also testified that the Defendant was engaged in some bizarre behavior. For instance, he had asked if he could turn the shower on while he was in the bathroom, which does seem unusual, an unusual request for somebody when there's a number of police officers there, and those police officers are asking him to come outside. That being said, if he was using the bathroom, he might have wanted to turn the water on in order to create some sort of a white noise. There could be an innocent explanation, as well. But as the Government pointed out in its argument, even events that may have an innocent explanation can also help support reasonable suspicion or probable cause.
So I think given all of these circumstances and the fact that once the police entered the apartment and hadn't had the opportunity to talk to, personally talk to the Defendant in this case, that they were justified in staying in the apartment until they could confirm or dispel their suspicions.
So, they ordered the Defendant out of the bathroom. At that point, they seized the Defendant. The testimony is clear that the Defendant, at this point, was not placed under arrest, that he was just seized. Deputy Cornell said that he, the Defendant, was not arrested until after the firearm was checked and he confirmed that the firearm had been stolen. But he was seized at this point.
The Defendant argues on Page 10 of their brief that the seizure was unlawful. For all the reasons that I've discussed, and the need to check things out and make sure that they were safe, the Terry type of frisk and stop when he came out of the bathroom was justified by reasonable suspicion and not violative of the Constitution.
It's also not clear whether the Defendant was handcuffed or not when he came out, but I don't think that becomes a material fact, because it's clear he wasn't arrested, but that he was seized at that point.
To the extent that the Government relies on a community caretaking justification to justify their entry into the apartment and their stay in the apartment, I will note that most cases that deal with a community caretaking justification out of the Tenth Circuit deal with a situation where the police might take somebody into custody because they're inebriated and can't take care of themself, or that type of thing.
That being said, both Najar and Brigham City that I've already cited do indicate that when there's exigent circumstances, the police may enter into a residence, and I've already cited what the standard is for that. But to the extent that the police rely on a community caretaking justification to detain the Defendant, I don't think that it's justified under that theory, because he wasn't someone that needed to be taken care of under the types of cases that deal with inebriation.
That being said, to the extent that it's a Brigham City type of community caretaking function or justification, I do think that for the reasons that I just said, the police were justified in conducting a Terry type of seizure in connection with that.
with regard to whether or not there was probable cause to arrest the Defendant for concealing his identification, we talked about that. The testimony from Deputy Cornell in this case, again, as I said, indicated that the information that he had was that the person in the bathroom was named Moya, and he didn't find out until later the true identity. I didn't hear sufficient evidence to me to indicate that there was probable cause to justify an arrest at that point for ID.
But whether there was or there wasn't ends up being immaterial, because the clear evidence in this case from Deputy Cornell is that the arrest did not occur until later, that at the time the Defendant came out of the bathroom, he was simply seized rather than arrested, and that the arrest came after that firearm that Deputy Cornell located turned out to be stolen.
with regard to — well, there's the issue of if that seizure was illegal, which I found to be legal, but let's say assuming it were not legal, I still don't think it would require the suppression of the firearm, because the firearm was not found on his person. Instead, it was found in the bathroom. And there needs to be some sort of a nexus between the evidence found and the illegal conduct of the police officers. So if the police didn't have justification for seizing the Defendant at that time, that doesn't necessarily require the exclusion of a gun that wasn't found on his person, that was found somewhere else in the apartment. So even if the seizure was illegal, I wouldn't find or recommend that Judge Armijo find that it supports the suppression of the firearm.
Give me a moment. I'm going to grab some other cases that I need to look at here in a second.
So, the real issue in this case is one that relates to whether or not there was a protective sweep in this case, or whether or not there was justification to go into the bathroom. I asked the Government a number of questions during their argument related to this, so I've already gone over some of these cases, but I'm going to go over them, again.
In its brief, the Government has said that the reason Detective Cornell had gone into the bathroom was because he had information about the description of the gun, and that he had gone in to look for the gun. So there's the question of, why were the police going into the bathroom? was it to look for a gun, or was it to look for other people?
Deputy Cornell indicated on his direct examination that he went in to see if there was anyone else or if a weapon was in there, but then on cross-examination he clarified that the reason that he went in seemed to do more with looking for the gun than looking for a person. That makes sense given the evidence, because the door was ajar for a great deal of time, except for the time that the Defendant had closed the door for the 45 or 60 seconds in which he said he needed to wipe himself. So except for that time, the door was ajar, the deputies were there, they were able to look inside, and they didn't see any indication that there was anyone else in that bathroom.
Also, Detective Cornell, if you listen to the belt tape, while the Defendant was in the bathroom, had asked about a child. He said: "whose daughter is that?" And the unidentified female, who turned out to have been Anna Garcia, said: "That's my niece." That's who that would be. And Detective Cornell also testified that the daughter was sleeping. So there doesn't appear to be any grounds to indicate that the detective thought that the child could be in harm, or the child that was supposedly in the apartment would be in the bathroom. There's certainly no other indication, or the witnesses didn't articulate any reason to believe that they had any idea that someone else would have been in that bathroom that could have caused them harm.
On cross-examination, around the time that the defense was going over Defendant's Exhibit K, Detective Cornell testified that he was looking for a weapon, and so that was what he focused on, and that was in response to the Defendant's questions about whether or not there were any cosmetics in the sink. In addition, Detective Cornell testified during his cross-examination earlier than that that he went in to see if there were any weapons in there. And so it appears that the primary reason, which is supported by all the circumstances, that Detective Cornell went into the bathroom is to see if there was a weapon in the bathroom.
with regard to whether it would be justified to seize a weapon, I agree with the united States that it would be if the weapon was found in plain view somewhere where they were legally authorized to be. So, for instance, if the police entered the house because of exigent circumstances were found to exist, and right there in the entryway was a loaded gun, the police would certainly be able to take custody and secure that firearm. That is supported by the Tenth Circuit's decision in the united States vs. Gordon, 741 F.3d 64 at 70 through 71, Tenth Circuit 2014.
But in this case, the gun was not found in plain view until the bathroom was searched. So the real question is whether or not Deputy Cornell had justification to go into the bathroom. In its brief, the United States indicated that it was justified pursuant to a protective sweep.
Looking at United States vs. walker, 474 F.3d 1249, a 2007 case, and again, to go over the facts that I discussed during argument, that case involved a situation where the police had information that there were two people in a house and that they had firearms, and that there was some sort of threat of violence erupting. When the police officers arrived, the door was ajar, and the person inside — I'm looking for the exact quote of what the person inside said. It's what I quoted earlier. Something about he's got a goddamn gun, or whatever it was that allowed the justification for the police officers to go inside. As soon as they went inside, they immediately took custody of the Defendant in that case, and then the issue on appeal was whether or not a gun that was found after they took custody of him and conducted what the Government referred to as a protective sweep was justified.
Judge Brack found that it was justified. On appeal, the Tenth Circuit made clear that a protective sweep under Buie can only be conducted if there's an arrest. It's clear at the time that Detective Cornell, or Deputy Cornell went into the bathroom, that the Defendant wasn't under arrest. So under the binding Tenth Circuit precedent of United States vs. Gordon, 741 F.3d 64, the search can't be justified as a protective sweep.
As Gordon makes clear, however, if there was a threat — and so it can't be justified as a protective sweep to secure or to ensure the safety of the police officers. It could be justified, possibly, as a protective sweep if there was a danger that there was some other third person that would be hurt.
I'm sorry, I was looking at united States vs. Gordon. The case is United States vs. walker, which is why I couldn't find that quote. But the facts that I'm going over are correct, that what happened — well, give me a second. I'm going to find the case.
Okay, so in that case, the quote that allowed the police to come in is, when the police announced themselves, Mr. walker responded, "Yeah, and I've got a goddamn gun."
The Tenth Circuit, in rejecting the justification of a protective sweep, said: "A protective sweep of a residence to ensure officer safety may take place only incident to an arrest." And that's on Page 1254 of walker, which is United States vs. walker, 474 F.3d 1249 at 2007. It found that because Mr. walker had not been arrested when the officers conducted the sweep, and the Government had not argued that the sweep was incident to an arrest, that Buie could not support the sweep. It remanded the case to the District Court, however, to determine whether the sweep could be justified under the exigent circumstances doctrine, and specifically cited to the case of Najar and Brigham City. So, again, we get back to the question of whether exigent circumstances, such as those identified in Najar and Brigham City, would have justified the search of the bathroom.
I'll note that the facts in this case were that at the time that officer Cornell, or Deputy Cornell went into the bathroom, the Defendant had already been detained. There were at least four officers in the house. Deputy Cornell himself was involved in the pat down of the Defendant when he came out of the bathroom. So it wasn't as if the search was simultaneous even to taking the Defendant into custody. They had seized and controlled the situation at the time the Defendant came out, and there wasn't any specific information that there would be anyone else in the bathroom, or that there was some sort of a bomb or anything like that.
There was an indication that maybe there was a gun in that bathroom, but again, the Tenth Circuit cases do not indicate that without more, the police were allowed to go into that bathroom. And specifically, some of the cases I'm looking at are the ones that were cited in 2017. Just a couple of days ago, the Tenth Circuit decided the case of — maybe it was three days ago — United States vs. Bagley, which is 2017 WL 6419027. That's the westlaw site. And it talked about protective sweeps. Again, we don't actually have a protective sweep in this case, because there wasn't an arrest.
Nonetheless, Bagley is instructive because in that case, in considering whether the second type of protective sweep was allowed in Buie, that type is similar to the exigent circumstance type of sweep that was at issue in Brigham City and in Najar. And in that case, the Tenth Circuit explicitly rejected the Government's argument that there was uncertainty as to whether anyone would be in the house, and specifically they said, when the Deputy Marshals entered the southeast bedroom, Mr. Bagley, his girlfriend and her children had already left the house. The Deputy Marshals had no way of knowing one way or another whether anyone besides Mr. Bagley was still in the house. This uncertainty, according to the Government, would have concerned the officers because they might have been subjected to an attack if someone else had remained inside. So the argument made in Bagley is very similar to the argument that the Government is now making in this case.
The Tenth Circuit responded to the argument as follows. And this is all on westlaw Page 4. "we recently rejected an identical argument in Nelson. There, too, the Government relied on the officers' inability to know whether someone else was inside. But we held that lack of knowledge cannot constitute the specific articulable facts required by Buie. For this holding, we reasoned that if officers lack any information about whether someone remains inside a house, they do not have the specific, articulable facts required for a protective sweep beyond the adjacent areas. This lack of specific, articulable facts required invalidation of the search in Nelson, and the same is true here." And I've omitted internal citations and parentheticals.
So looking at Bagley and Nelson, even though those involved a protective sweep, they are still persuasive because they deal with the Government's same argument, and whether it's a protective sweep or an exigent type circumstance that Brigham City and Najar dealt with, the standard is very similar and there has to be some sort of specific articulable facts that there might be a danger, that that additional search is needed to secure an area or to protect a third person, and we simply don't have it in this case. So, that is a concern.
I do note that in Document 26 at 4, that's the Government's brief, in Paragraph 13, the Government indicates that the bathroom was searched as part of a protective sweep, "because LS had stated there was a gun and given a clear description of it." So the stated reason in the brief for the protective sweep is not justified by the case law that I've just gone over.
I also earlier spoke of a case, and I miscited it a moment ago, but it's United States vs. Gordon, 741 F.3d 64 at 70 through 71. It's a Tenth Circuit case from 2014. That case, as 1 said, would justify the Government taking a firearm that was in the entryway or something that was in plain view at the time that the Government came in, but there's nothing in that case that indicates that the Government would be allowed to conduct a search for a firearm after the area is secure
And just to be clear, the law on a plain view doctrine is that if an officer is lawfully positioned in a place from which an object can be plainly viewed, the officer is permitted to notice whatever is put on display, and the observation of the article is generally not considered a search. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. And that's from the Gordon case at Page 133.
And, again, Gordon says: "Temporary seizures of persons or objects may be permissible when reasonably connected to the safety of the officers or the protection of others." Looking at the law, the question is whether the officer, in this case Officer Cornell, was lawfully positioned in a place when he saw the firearm. That place, as he's testified, was after he had gone into the bathroom. So the case law that I've cited does not indicate that he was allowed to conduct a search after the Defendant was seized and there wasn't a dangerous situation.
Although not directly on point, because it dealt with an automobile search, the rationale that the Supreme Court set forth in Arizona vs. Gant, which is at 556 U.S. 332, it's a 2009 case — in that case, the United states supreme Court reversed longstanding precedent and said that once the defendants that were in a car are handcuffed, then officers are no longer justified in conducting a search of the automobile, because there's really not a danger. In this case, again, it wasn't clear whether the Defendant was handcuffed or not, but the facts indicate that he was at least secure and that safety wasn't an issue.
In addition, the facts indicate that safety wasn't an issue because everything that the police discovered upon going into the apartment indicated that there wasn't some sort of a volatile situation. The victim, the alleged victim in the case, said that there was just a simple argument over a sweater. Both Deputy Armijo and Deputy Cornell testified that there wasn't any evidence of any sort of violence. No one needed any medical attention. And there's been nothing provided that indicates that there was any sort of domestic violence at all. There was no shouting. Deputy Armijo said that the voices he heard were speaking at a conversational level when he came to the door, before they went inside. And so there just really aren't facts that would support an ongoing volatile or domestic violence type of situation at the time that Deputy Cornell went into the bathroom. So, there's not a justification for him to have done that after the Defendant was seized in this case.
with regard to checking the gun, again looking at the Gordon case, and I brought this up with the Government, again, on argument, but Gordon makes clear — in that case, the police officer did lawfully possess the firearm at issue, and then the question arose as to how long the police officer could lawfully possess that firearm once he took it. what the Tenth Circuit said is that he could seize it long enough to secure the situation. The quote is: "The police officers cannot keep beyond the time necessary to stabilize the situation and eliminate the risk of immediate harm." And that's from Gordon at Page 71. And here it seems to me that at the time the search of the bathroom is conducted, the situation had been stabilized and there wasn't any risk of immediate harm.
Furthermore, there's the issue of what the police did with the gun. The police went beyond just securing the gun. They ran it to see if it was stolen. And so then there's the question of, would they be allowed to go beyond just seizing it and actually running a search on the serial number of the gun. The Government hasn't provided me any authority, and I'm not aware of any, that would allow that, with the possible exception of Gordon. That indicates that if the gun is seized longer than necessary, that the intrusion is de minimis and does not constitute a Fourth Amendment violation.
In Gordon, however, which is a 2014 case, the Court cited a number of cases talking about a de minimis violation, and the following year, the Supreme Court came out with Rodriguez vs. united States, which is 135 Supreme Court 1609. It's a 2015 case in which the Supreme Court rejected that de minimis line of reasoning in a case authored by Justice Ginsburg. And I think I had said that that might have been the Strieff case. I was mixing it up with a case dealing with attenuation that Justice Thomas had issued.
This case, though, has rejected the type of de minimis argument that the Tenth Circuit relied on in Gordon. Again, it didn't explicitly reject Gordon. when I did a check on westLaw, I didn't see a red flag connected to Gordon. So it may be that Gordon is still good law, until it's repudiated more clearly by the Tenth Circuit. But I think its reasoning is at least in question given Rodriguez. And I haven't given that issue a great deal of analysis, because regardless of whether the police can take it for a longer period of time, in this case I don't think the police were allowed to seize it at all.
But to the extent that the police ran a search on the gun to determine that it was stolen, that does constitute a Fourth Amendment violation, and Gordon supports that, because the gun was kept longer than necessary to secure the situation, and there's no indication that the rationale for taking the gun that the Government asserts, which is to secure the gun, would also then lead for the Government to run a search on the gun to determine whether or not it was stolen. So what happened with the gun in this case goes even beyond what happened with the gun in Gordon.
The Government also indicated in its brief in an argument here that the property could be considered abandoned. Again, for the reasons I stated in the Government's argument, I'm rejecting that abandoned argument, because there's no evidence that the Defendant indicated that he was abandoning any interest in the firearm at the time of the search that I'm finding to be illegal. The Government's argument, to its logical extension, would allow police to conduct an illegal search for drugs with the hope that the person, after they found the drugs, the person that owned the house, the car, the bag, would then say, well, those drugs aren't mine, I don't know anything about it, that bag wasn't even mine, that type of thing. The abandonment type of cases that the Government relies on are when the Defendant indicates that they have no interest prior to the search, rather than after the search. And so I think those abandonment line of cases are not relevant here.
Give me a moment. I'm going to go through my notes and make sure that I'm not missing any issues that I need to cover.
Getting back, in case I didn't cover this, with regard to the reasonable expectation of privacy, I do find — I credit the Government's evidence that the Defendant did say that he didn't live in the house, that he was just visiting. But, again, going through the case law, that's not the test. Someone doesn't have to live in the house. It's okay if they're just visiting. If they're a social guest and they have an ongoing relationship or ongoing interest in that property, and they have the type of social interaction with the tenant that society would recognize, it provides them with a reasonable expectation of privacy. I think that's the case here.
All right, I think that covers everything that I had to go over. So what I'm going to do in this case is have this transcript, as I said, transcribed, and probably file it maybe next Thursday or Friday, and then you'll have two weeks from that in order to file objections.
But to summarize, I'm finding that the Defendant did have a reasonable expectation of privacy in the house, and so has standing, that the search was allowed because there were exigent circumstances that allowed the police to come into the house and to stay in the house through the time that the Defendant was seized, and so there's not a problem with that, but that once Defendant was seized, there wasn't any immediate threat or exigency that would justify a further search, that there wasn't an arrest, so the officers weren't allowed to do a protective sweep of the first type recognized in Buie that the Tenth Circuit also recognized in Bagley.
So for the record, I will find that the bathroom was adjacent to the place where the Defendant was searched, because the Defendant was arrested — or not arrested, but detained as soon as he came out of the bathroom. Had it been an arrest, I think that Buie would have applied, but the clear testimony is that he was not arrested at that time, and it does not appear to me that at that time there would have been probable cause to arrest him. And so that first type of protective sweep identified in Buie and recognized in Bagley could not justify the search of the bathroom. The search of the bathroom can only be justified if there were exigent circumstances. And looking at Brigham City, Najar, Nelson and Bagley, that all talk about justification for searching, and particularly looking at walker, that talks about justification being some sort of a danger to a third person, I just didn't have evidence that there would be some sort of a danger to a third person that would allow police to go in and retrieve the gun from that bathroom.
So based on that, the entry into the bathroom, I'm finding an illegal search, and my recommendation is going to be to Judge Armijo that the evidence of the gun be suppressed. If the evidence of the gun is suppressed, then that leads to the suppression of any — well, if the evidence of the gun is suppressed, then the information about the gun being stolen is also not going to come in. And so if you talk about the fruit of the poisonous tree, the finding of the gun led to the Defendant's eventual arrest and all the statements that were made after the time that he was arrested, as well as the evidence that was found, and so I am also going to be recommending to Judge Armijo that the fruit of the poisonous tree doctrine under Wong Sun would require the suppression of not only the evidence related to the gun, but evidence of all the incriminating statements that the Defendant might have made after the time of the search that I'm finding to be an illegal search. And so my recommendation to Judge Armijo will be that the evidence challenged in this case should be suppressed.
Let me make sure that I've covered everything that you-all want to cover here today. And if you want to make a record about anything, you can go ahead and do that, as well.
Let me start first with the united States. Anything else that you want to go over?
MR. WALSH: I would, Your Honor. And if I may remain seated here so I can look at my notes.
THE COURT: That's fine.
MR. WALSH: I'm not sure of the next step. I know we have a chance to make objections. I'm not sure if Your Honor rules on those objections or those go to Judge Armijo.
But for the purposes of that, I would just like to make a few points. I believe that the record, and perhaps it wasn't clear, but I believe in terms of the sequence of the search of the bathroom, in relation to the detention, that it was contemporaneous in nature. That the Defendant comes out of the bathroom, and Deputy Cornell immediately goes into the bathroom, which makes sense, because therein lies the potential threat, as opposed to a situation where he comes in and then there's a detention, and then subsequently the search of the bathroom takes place. I'm not saying that that changes the analysis, but I believe it's relevant.
I also think that it was at both ends. Obviously Deputy Cornell was focused on a firearm. There's no question about that. But every police officer is trained when they go into a space to look for other people, to make sure that they're not going to be ambushed. So I think when he talked about other people, that was also a concern. So it wasn't one versus the other, the gun versus other people. It was both firearm and people.
I also think that there was PC to arrest, even though it wasn't stated by the deputies, for domestic violence upon seeing the firearm, because it substantiates the call.
And as to the firearm being taken and ran, in terms of the NCIC, I think it's irrelevant that at that point the Defendant had disavowed and denied any type of possessory interest. So, that was all part of the investigation into the firearm and into the domestic violence.
And I think at the end of the day, there was exigent circumstances to search that bathroom, because the Defendant was just in there, as opposed to a situation where they're going into adjacent rooms or a basement where none of the occupants were there, or kind of loitering or hanging out. So I think it's relevant that the Defendant had led the deputies to that particular bathroom, and that the bathroom door was open, and it was right next to the hallway where the deputies were conducting some type of questioning of the Defendant.
I think there was a danger to a third person, that being Ms. Salazar. She had just been threatened with a firearm. And then, too, if you're not going to seize it for officer safety purposes, which the Tenth Circuit, I understand we've got this case law, but that's not good case law. I mean, they should be entitled to protect themselves and to secure weapons while they're conducting domestic violence investigations.
So, I know we're stuck with the Tenth Circuit case law, but I think there was a viable concern in terms of danger to a third person, that being Ms. Salazar. So this is a situation where the Defendant is detained, patted down, and then there's concern about the Defendant having access back to the bathroom where there was a loaded firearm.
So those are just my comments for the Court. Nothing further.
THE COURT: Okay. Let me just address some of those, because I think you bring up some relevant points. But before I do that, let me look at something here real quick. Give me a moment.
Let me ask you, which exhibit was the belt tape of Deputy Cornell that captures the time when the Defendant was in the bathroom?
MR. WALSH: I believe it's Government's Exhibit 2.
THE COURT: Okay.
MR. WALSH: That's going to be the disc.
THE COURT: It might be Government's Exhibit 3, it looks like.
So let me just address some of the points for the record here. I know that the transcript isn't the evidence, but it's certainly easier to refer to the transcript than it is to refer to the call.
So when you were talking about the search of the bathroom being contemporaneous in nature, if you look at the transcript, which is Government's Exhibit 3, and that begins —the part that I'm looking at is on Page 13. In there, you have a male officer, and from the testimony it's clear that that's Detective Cornell. He's telling the Defendant to hurry up and come out.
And on Page 14, it looks like he comes out, because he asks him: "Do you have any weapons on you? Is anything going to poke me, stick me, cut me?" And he talks about syringes, and then he talks about where they have caps, markers, and Detective Cornell himself said that he was involved in the pat down of the Defendant. Then he says, "Stand right there." You can't tell how much time passes from just the transcript, but then that same person that's identified as a male officer says: "why did you lie to me? why did you lie to me? About what, sir? The gun." So it's clear that after the Defendant came out of the bathroom, Detective Cornell was involved in a pat down search and some questioning of the Defendant, and that was prior to him going into the bathroom and looking at the gun.
So I was relying in part on that evidence, as well as the testimony from Detective Cornell, that indicates that he didn't immediately or contemporaneously go into the bathroom. Instead, the Defendant came out, they secured him, they patted him down, and then after that, the detective — and I keep saying detective, but every time I say detective, I mean deputy — that Deputy Cornell went into the bathroom and found the gun.
So anyway, those are the facts that I'm relying on, and I agree that there wasn't a great deal of time in between those, but to me, looking at the record, it indicates that those are consecutive events rather than contemporaneous events.
with regard to whether or not the Defendant led deputies into the bathroom, again, I think that works if the Defendant actually did lead the detective into the bathroom. I think when there was the victim in Gordon and the police officer was staying with the victim in that case and they saw the firearm, the Court said that it was reasonable for the officer to stick with the victim, so the officer was legally in the place where the officer observed the firearm to be in plain view. That was fine, because that's where at least the victim in that case, who probably had an interest in that house, led the police officer.
In this case, again, relying on the evidence that I've just gone through, at the time of the search, there wasn't any indication that there was anyone else in the bathroom, and he had been in there for a while. The detectives could see through the door. The other person was a child that they knew was asleep in the other room. They didn't have any indication that there was anyone in the house, or that there would be anyone else in the bathroom.
You had indicated that there was danger to a third person because Monique Salazar had just been threatened by a firearm. I haven't heard any evidence of that, certainly. I haven't heard the Government present any evidence that anyone has admitted to threatening anyone with a firearm. There was a 911 call where the mother indicated that someone had a firearm and there was some of that, but I haven't heard any evidence that the mother actually saw any sort of domestic violence or any threat with a firearm.
And so the only evidence that I've heard with respect to danger and exigency is that there was a 911 call, and everything after that were the conversational types of voices that weren't loud or shouting or indicating any sort of violence when Deputy Armijo arrived at the door. When he went in, the alleged victim indicated that there was just a simple argument, that there wasn't any violence. There wasn't any sign of injury or anything that would indicate any type of violence. when the Defendant came out of the bathroom, he wasn't armed at that time. There, again, wasn't any sort of indication from him that there was any injuries to him or any type of violence.
And so everything after the — I'm not aware of anything, and if you have something, put it on the record now, if you'd like to I'll give you the opportunity to, that indicates after the 911 call there was an indication of violence. Even the call from the mother to the daughter that's on the record that indicates, I know there wasn't anything between you, or that type of thing, also provides an indication that there wasn't violence.
So looking at all the cases in which a warrantless search has to be justified through some sort of an exigency, I just don't see at the time of the search, after the police learned everything that they learned, and the Defendant was secured and not placed under arrest, and so it couldn't be a Buie first type of protective search, so it could only be exigent circumstances, and it couldn't be to protect the police officers under the walker case, it could only be to protect some third person. And Nelson and Bagley both say that uncertainty isn't enough, that it actually has to be some sort of articulable specific knowledge, and I haven't heard any type of articulable specific knowledge. So that's why I'm coming out with the recommendation that I'm coming out with.
But, let me go ahead and let you respond to any of that.
MR. WALSH: I stand corrected as to the sequence, and I appreciate the reading of the transcripts there.
My limited point on that is, it's not like there's a whole lot of delay between detention and then search. It's bang-bang to the point where you could basically say it's contemporaneous, even though it's not at the same time as when Deputy Cornell participated in the pat down. So assuming that's — I would have to look at the transcript, but that makes sense, if Deputy Cornell participated. If that's the way the transcript reads, then so be it.
I think the danger to the third person goes back to the 911 call and the information that's contained therein, the domestic violence nature of the firearm, and I think it's fair to infer from that 911 call that it's a threat to another person. That's why it was a Priority 2. And then you don't have any additional threatening behavior, but you have additional suspicious behavior that corroborates the substance and content of the 911 call.
So, that's my argument.
THE COURT: Right. And for what it's worth, I don't think Judge Hartz liked the walker decision that he authored, either, but he felt constrained by Tenth Circuit cases that said officer safety isn't a reason unless there's an arrest. And in this case, there clearly wasn't an arrest. So you're left with having to show exigency.
Ms. Baiz?
MS. BAIZ: No, Your Honor, I have no further comment.
THE COURT: Okay. Anything else from the Government, then, before we recess?
MR. WALSH: Nothing further.
THE COURT: Okay. Just because you asked what the process is and where we go from here, I'm probably more familiar with it than you are having gone through it.
Judge Armijo asked to review everything de novo, and so she's going to either listen to the whole tape of this proceeding, or look at the transcript, and then conduct a de novo review. So you're going to have a chance, after this transcript comes out that's going to contain what I've just stated as my findings, you'll have a chance to object to that. As I said, I'm not going to, even if the court reporter is somehow able to get that before Thursday, I won't file that before Thursday, at the earliest. So that will give you a sense.
And I know Ms. Baiz, you filed notice on unavailability, so I'm assuming that helps you, because you wouldn't be able to work on it next week, anyway, because you probably have some sort of annual leave or something that you're going to be taking.
MS. BAIZ: I thought I would ask you if it would be appropriate, since some of the circumstances have sort of changed, if I could make a motion to release Mr. Salazar to the halfway house.
THE COURT: The Government's response?
MR. WALSH: we would oppose. I mean, I think we're still at a stage in the proceedings where 18 U.S.C. 3142 governs. So I don't think anything's changed.
THE COURT: I'll deny that motion, at least for now, because that question is one of flight risk and danger to the community. And frankly, I think under Cisneros, in order for me to consider that, I'd have to be the judge that did the initial detention, and I don't think I was. Or at least if I was, I don't remember it.
It was Judge Lynch, and he's not back, so I think the only way you'd be able to do it is if both parties agreed to have me or some other judge look at the issue, or if you were able to bring it to the District Court judge under 18 U.S.C. Section 3145. But for me, anyway, to the extent that Judge Lynch found that the Defendant was a flight risk or a danger to the community, whether or not the evidence is suppressed doesn't bear on those considerations.
So although I understand that if there isn't evidence against somebody, that they shouldn't be kept in custody, at this point it's just a recommendation to Judge Armijo and it doesn't affect that flight risk or danger analysis.
MS. BAiz: All right, Judge.
THE COURT: That's all we have, then. I appreciate the time. And I know it probably wasn't the ideal time for any of you to have a hearing today, but I appreciate you coming in. And we'll be in recess. Thank you.
(Proceedings adjourned at 3:31 P.M.)
I, Mary K. Loughran, CRR, RPR, New Mexico CCR #65, Federal Official Realtime Court Reporter, in and for the United States District Court for the District of New Mexico, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter on Thursday, December 21, 2017, and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. Dated this 29th day of December, 2017.
