Memorandum Opinion and Order — No. 1:19-cr-00930 (Dkt. 31, D.N.M.)

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A Memorandum Opinion and Order, Dkt. 31, in United States v. Albert Vallejos, No. 1:19-cr-930 JCH, in the U.S. District Court for the District of New Mexico, signed by Judith C. Herrera, Senior U.S. District Judge. The defendant moved to suppress a gun and other evidence found in a vehicle he was driving, arguing that officers conducted a pretextual inventory search in violation of the Fourth Amendment. After a hearing on October 22, 2019, the court denies the Motion to Suppress Tangible Evidence [ECF No. 19], and also upholds the search under the automobile exception to the warrant requirement.

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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

v. No. 1:19-cr-930 JCH

ALBERT VALLEJOS,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant moves to suppress gun and other evidence law enforcement officers found in

the vehicle he was driving, arguing that officers conducted a pretextual inventory search in

violation of the Fourth Amendment. The Court held a hearing on the motion on October 22, 2019.

After carefully considering the motion, briefs, evidence and relevant law, the Court denies the

motion.

I. FACTUAL BACKGROUND

On February 13, 2019, officers had a warrant in hand for Defendant’s arrest for a January

2019 shooting during which Defendant allegedly shot four rounds at a person named “F.C.”

Suppression Hearing Motion Transcript, 12:20-22; 14:1-8; 25:11-13 (Mot. Hr.’g Tr.). Officers

stopped Defendant as he was driving a car registered to his mother. 1 Id. 3:24-25; 49:12-25.

Defendant pulled the vehicle over next to the entrance of the UNM Cancer Center in Albuquerque

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In its response brief, the Government initially questioned whether Defendant had standing to
challenge the search of the vehicle given that he was not its registered owner. But at the
suppression hearing the Government stipulated that Defendant’s mother gave him permission to
drive her vehicle on the day in question and withdrew its standing argument. Pursuant to the
parties’ stipulation, the Court proceeds on the assumption that Defendant has standing to
challenge the search of the vehicle he drove.
and in front of the fire lane and main entrance. Id. 49:22-25; 50:1-7. He was arrested on the spot

without incident. Id. 50:11-12.

As Defendant stood handcuffed outside of the vehicle he drove, officers peered into the

vehicle’s driver’s side window. Def.’s Ex. A. At some point, Detective Koury Church began an

on-the-scene inventory search of the vehicle. Def.’s Ex. B. He opened the driver’s door, looked

under the driver’s seat, and saw a gun. Id.; Mot. Hr’g. Tr. 57:11-19. Church then stopped the

inventory and asked his colleague, Detective Donald Piatt, for guidance on how to proceed. Id.

58:7-12. Following Piatt’s recommendation, Church sealed the vehicle and towed it in preparation

of a warrant to later search the car. Id. 58:12-14. Officers did not remove any items from the car

at that time, except possibly the keys. Id. 58:25 – 59:1. Nor did they produce an inventory list. Id.

58:17-19.

The next day, on February 14, 2019, Detective Piatt obtained a warrant to search the car

for any firearms, ammunition, and related equipment. Govt.’s Ex. 3. Detective Piatt executed the

search warrant that same day, leading to the discovery of the handgun at issue, two handgun

magazines, .45 caliber bullets, and a firearm holster. Id.; Mot. Hr’g. Tr. 24:1-25. Piatt listed these

items on the search warrant return and inventory, which the Government introduced into the

evidentiary record. Govt.’s Ex. 3.

Defendant challenges the seizure of the gun and gun-related evidence, saying that the first

search of his mother’s car did not qualify as an inventory search because officers: (1) undertook

the search without following standardized criteria; (2) did not produce an inventory; and (3)

decided to impound the truck only after seeing the gun, suggesting that they were motivated to

find criminal evidence. At the suppression hearing, Defendant argued for the first time that a tow

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of the vehicle could have been avoided, but that police officers purposely arrested Defendant in a

public place, knowing that they impound and inventory the vehicle without a warrant.

II. FOURTH AMENDMENT OVERVIEW

The Fourth Amendment provides in relevant part: “The right of the people to be secure …

against unreasonable searches and seizures.” U.S. Const. amend. IV. In general, law enforcement

officers must obtain a warrant supported by probable cause before conducting a search or seizure.

See Kentucky v. King, 563 U.S. 452, 459 (2011). One exception to the warrant requirement is for

inventory searches of lawfully seized automobiles. See Illinois v. Lafayette, 462 U.S. 640, 643

(1983). An inventory search of a lawfully impounded automobile is reasonable even if it is

conducted without a warrant and in the absence of probable cause to believe that criminal evidence

will be discovered. See South Dakota v. Opperman, 428 U.S. 364 (1976); United States v. Tueller,

349 F.3d 1239, 1243 (10th Cir. 2003) (“inventory searches need not be supported by a warrant or

probable cause.”). “It is common practice for the police to conduct an inventory of the contents of

vehicles they have taken into their custody or are about to impound.” Id. (citation and quotation

marks omitted).

However, if the administrative search is merely a pretext for a criminal investigation then

evidence found during an inventory may be inadmissible. There are two criteria for inventory

searches to be reasonable under the Fourth Amendment. See Tueller, 349 F.3d at 1243. First, such

searches “are reasonable only if conducted according to standardized procedures.” Id. Second

“[t]he policy or practice governing inventory searches should be designed to produce an inventory,

[] in other words, an inventory search must be justified by the administrative purposes of such

searches.” Id. (citations and quotation marks omitted). “[A]n inventory search must not be a ruse

for a general rummaging in order to discover incriminating evidence.” Id. (quoting Florida v.

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Wells, 495 U.S. 1, 4 (1990)). The government carries the burden of demonstrating reasonableness.

See United States v. Taylor, 592 F.3d 1104, 1107 (10th Cir. 2010); see also United States v.

Sanders, 796 F.3d 1241, 1244 (10th Cir. 2015) (“The government bears the burden of proving that

its impoundment of a vehicle satisfies the Fourth Amendment.”). If “searching agents act in bad

faith or solely for the purpose of investigation … [t]he fruit of the evidence, however, will be

suppressed.” United States v. Haro-Salcedo, 107 F.3d 769, 772 (10th Cir. 1997).

III. DISCUSSION

A. Lawfulness of the Inventory Search

Officers acted according to the Albuquerque Police Department’s towing and

impoundment policy, which the Government introduced into the evidentiary record. That policy

required the impoundment of Defendant’s mother’s vehicle because a vehicle “will” be towed

when “[t]he driver has been … arrested.” Albuquerque Police Department Procedural Orders,

Towing and Wrecker Services, § 2-48-2(B)(1), ECF No. 23-2 (“SOP”). It is undisputed that

Defendant was lawfully arrested on a warrant when officers peered through the car window and

later looked under the driver’s seat. Second, under Supreme Court precedent, officers could

impound the vehicle because it was located in a public lot, in front of a fire lane and near the

entrance and exit to a medical center. See Opperman, 428 U.S. at 369 (the “authority of police to

seize and remove from the streets vehicles impeding traffic or threatening public safety and

convenience is beyond challenge.”)

At the suppression hearing, Defendant argued for the first time that officers purposely

waited to arrest Defendant in public to skirt APD’s policy prohibiting tows of vehicles at the

driver’s residence or registered address. See SOP § 2-48-2(B)(1) (“[o]fficers will not tow if the

vehicle is parked at the driver’s place of residence, or his/her registered address.”) Officers could

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have arrested Defendant in an apartment complex where they began their surveillance of him,

Defendant says. Instead, they covertly followed him to yet another apartment complex where they

also could have arrested him. Despite these two clear opportunities, officers waited to arrest him

in public to avoid complying with the SOP described above. This, Defendant says, is evidence of

pretext.

The problem with Defendant’s argument is that he advanced no legal authority that the

Fourth Amendment requires police to execute an arrest warrant on a suspect in a way that avoids

impoundment and inventory.

Next, to the extent that Defendant argues that the decision to tow the car was unreasonable

because officers did not contact a third-person to take custody of it, this too is not required under

the Fourth Amendment. See United States v. Andras-Gallardo, 3 Fed. Appx. 959, 963 (10th Cir.

2001) (“the fact that alternatives to impoundment may have existed does not mean impoundment

was per se unreasonable.”) (citing Colorado v. Bertine, 479 U.S. at 374) (holding that the police

need not give a motorist “an opportunity to make alternative arrangements” that avoid

impoundment and inventory)). In summary, officers impounded and searched the car according to

police standardized criteria and permissibly moved it from a public lot.

The second reasonableness factor looks at whether the APD’s policies accomplished an

inventory. The SOPs required officers to inventory search the vehicle “at or near the time the

vehicle was lawfully placed within police custody,” SOP § 2-71-3(d)(1)(d). Defendant argues that

officers’ on-the-scene search was a general rummaging because Detective Church supposedly

zeroed-in on the gun and then did not list it on an evidence form. Detective Piatt then relied on the

illegally discovered gun, Defendant says, in his later search warrant affidavit in support of the

second search of the vehicle.

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These arguments do not carry the day. The inventory was not pretextual just because

Detective Church did not immediately list the gun evidence. The relevant SOP directed Detective

Church to search the car “at or near the time the vehicle” came into his custody. SOP § 2-71-

3(d)(1)(d). Following that directive, Detective Church located the gun under the driver’s seat. He

could have lawfully continued on with his search since SOP § 2-71-3(d)(1)(d) required the search

of the entire passenger compartment. But he chose instead to stop the inventory and get a search

warrant. Detective Piatt then inventoried the items the next day. The Court cannot say that

Detective Church’s deviation from APD’s written policy by not listing the gun (if this even was a

deviation), rendered the inventory search unconstitutional, especially since the SOP allowed police

to inventory the vehicle “at or near the time” it was taken into custody and Detective Piatt produced

an inventory the next day. See Taylor, 592 F.3d at 1108 (inventory search was not pretextual where

the original inventorying officer did not complete the inventory, but instead handed over the

investigation to the FBI, and the FBI completed the inventory).

This case therefore resembles United States v. Mayfield, 161 F.3d 1143 (8th Cir. 1998),

where troopers arrested the defendant and then inventoried the vehicle he was driving in

preparation of its towing, leading to drugs, currency and gun evidence. Id. at 1144. The officer

conducting the inventory did not complete the inventory form, but a few days after the car was

towed, an officer prepared an inventory of the items that had been seized from the car. Id. In

rejecting the defendant’s challenge to the validity of the search, the Eighth Circuit observed that

“[c]ompliance with procedures merely tends to ensure the intrusion is limited to carrying out the

government’s caretaking function,” and that “[t]his does not mean that inventory searches are

always unreasonable when standard procedures are not followed, however.” Id. at 1145. (citations

and quotation marks omitted). As relevant here, the Eight Circuit held that the inventory search

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was reasonable where the search was conducted pursuant to established procedure, the seized items

were listed on a later completed evidence form, and the inventory search was not a pretext for a

general search for incriminating evidence. Id. In summary, the circumstances do not suggest that

officers were conducting a pretextual inventory search and officers lawfully impounded and

inventoried the vehicle.

B. Inevitable Discovery

In its response brief, the Government argues that all of the incriminating evidence against

Defendant would have been inevitably discovered. “The inevitable discovery doctrine provides an

exception to the exclusionary rule, and permits evidence to be admitted if an independent, lawful

police investigation inevitably would have discovered it.” United States v. Cunningham, 413 F.3d

1199, 1203 (10th Cir. 2005). “Those lawful means include an inventory search.” Tueller, 349 F.3d

at 1243. “The government has the burden of proving by a preponderance of the evidence that the

evidence in question would have been discovered in the absence of the Fourth Amendment

violation.” United States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000).

The Tenth Circuit has “repeatedly applied the inevitable discovery doctrine to evidence

produced by an improper inventory search where the search was preceded by a lawful

impoundment.” United States v. Andas-Gallardo, 3 Fed. App’x 959, 964 (10th Cir. 2001) (citing

Haro-Salcedo, 107 F.3d at 773-74 and United States v. Horn, 970 F.2d 728, 732 (10th Cir. 1992)).

Thus, in Haro-Salcedo, the Tenth Circuit held that notwithstanding the officer’s illegal inventory

search of a vehicle, cocaine evidence would have been inevitably discovered following the

defendant’s arrest and impoundment because city police department policy mandated an inventory

search. See also Horn, 970 F.2d at 732 (“Even assuming arguendo that the post-arrest search beside

the highway was improper and should have been conducted in a different manner, … it was

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inevitable that the weapons would have been discovered and that defendant would have been

charged with their possession.”); see also United States v. Sitlington, 527 Fed. App’x 788, 792

(10th Cir. 2013). As noted earlier, APD policy mandated the impoundment of a vehicle when its

driver had been arrested. The same policy required an inventory of the impounded vehicle. Officers

inevitably would have discovered the gun and other gun-related evidence, and Defendant would

have been charged with their possession. See Horn, 970 F.2d at 732.

C. Automobile Exception to the Warrant Requirement

In its response brief, the Government additionally argues that the so-called “automobile

exception” justified the first search during which the firearm was discovered. Pursuant to that

exception, a vehicle may be searched without a warrant if there is probable cause. See Carroll v.

United States, 267 U.S. 132, 158-59 (1925) (creating the exception); United States v. Beckstead,

500 F.3d 1154, 1165 (10th Cir. 2007). “If probable cause justifies the search of a lawfully stopped

vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the

object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982). “[W]hen police officers

have probable cause to believe there is contraband inside an automobile that has been stopped on

the road, the officers may conduct a warrantless search of the vehicle, even after it has been

impounded and is in police custody.” Michigan v. Thomas, 458 U.S. 259, 261 (1982) (per curiam).

“In determining whether probable cause exists, an officer ‘may draw inferences based on his own

experience.’” United States v. Mercado, 307 F.3d 1226, 1230 (10th Cir. 2002) (quoting Ornelas

v. United States, 517 U.S. 690, 700 (1996)).

At the time officers encountered Defendant, they had a warrant for his arrest but not to

search the car that he drove. But officers had probable cause to believe that the vehicle contained

a gun and were permitted to warrantlessly search the car for such contraband. Officers were

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arresting Defendant because F.C. claimed that Defendant shot at him as Defendant sat in the

passenger side of a car. Mot. Hr’g Tr. 14:5-8. Bullet casings and gun-shot marks discovered on the

scene corroborated F.C.’s side of the story, and F.C. told Detective Piatt that Defendant might have

had a history involving guns. Id. 14:14-22; 16:18-22. Detective Piatt’s search of Defendant’s

criminal history showed felony convictions, all involving guns, and Detective Piatt told Detective

Church that Defendant was involved in a shooting. Id. 20:1-7; 42:12-17. These facts were

sufficient to give Detective Church probable cause to believe that a gun was in the vehicle

Defendant drove. Therefore, the Court upholds the search on the additional ground of the

automobile exception to the Fourth Amendment’s warrant requirement.

IT IS THEREFORE ORDERED that Defendant’s Motion to Suppress Tangible

Evidence [ECF No. 19] is DENIED.

IT IS SO ORDERED.

_______________________________________
JUDITH C. HERRERA
SENIOR. U.S. DISTRICT JUDGE

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