United States v. Gallardo

UNITED STATES OF AMERICA, Plaintiff, v. ESTEBAN GALLARDO, Defendant.

Cr. No. 20-1848 KWR/KK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

June 3, 2021

MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Defendant Esteban Gallardo's Motion to Suppress (Doc. 29) ("Motion"), filed February 8, 2021. In his Motion, Defendant asks the Court to suppress "all evidence seized from his backpack on September 9, 2020," as well as "all fruits thereof." (Id. at 1.) The Government responded in opposition to the Motion on February 22, 2021, and Defendant timely replied in support of it on March 15, 2021. (Docs. 31, 34, 35.) By an Order of Reference filed May 4, 2021, this matter was referred to the undersigned to conduct hearings as warranted, and to perform any legal analysis required to recommend an ultimate disposition of the Motion. (Doc. 36.) The Court held an evidentiary hearing on the Motion on May 28, 2021. Having considered the evidence presented, the parties' submissions, the record, and the relevant law, and being otherwise fully advised, the Court proposes to FIND that Defendant's Motion is not well taken and should be DENIED.

I. Proposed Factual Findings

On Wednesday, September 9, 2020, Albuquerque Police Department Officer Mario Perez observed a silver four-door Toyota sedan in the parking lot of the Motel 6 at 1701 University Boulevard, Northeast, Albuquerque, New Mexico. A male later identified as Defendant Esteban Gallardo got into the vehicle and drove out of the parking lot. As he did so, Officer Perez ran the vehicle's license plate and determined that the vehicle had been reported stolen. He relayed this information to other officers by radio and learned from Albuquerque Police Department Detective Daniel Yurcisin of registered owner Amanda Casaus' report that Defendant had refused to return the vehicle to her after she loaned it to him. Officer Perez called Ms. Casaus to confirm that the vehicle was still stolen. She did not answer but called him back almost immediately and told him that she had recovered the vehicle.

Meanwhile, Defendant had driven to a few different locations, including a gas station, while Officer Perez followed him in an undercover vehicle. At I-40 and University, Albuquerque Police Department Detective Rachel Nakamura also began following Defendant, but in a marked police unit. Officer Perez was speaking with Ms. Casaus, and Detective Nakamura was pointing a green laser at the back of the subject vehicle in order to shoot a tracking device onto it, when Defendant pulled back into the Motel 6 parking lot.

By this time Officer Perez had learned from another officer that there was an outstanding felony warrant for Defendant's arrest. This information and a photograph of Defendant were relayed by radio to all law enforcement officers involved in the investigation. At that point, the object of the investigation shifted from the reported auto theft to the possible execution of the arrest warrant.

At the Motel 6, Officer Perez observed a woman later identified as Ms. Casaus get into the silver Toyota with Defendant. Together they left the motel and proceeded south on University Boulevard before turning into the parking lot of an office building. At the evidentiary hearing, Detectives Nakamura and Yurcisin confirmed that the building in question was occupied by Camp Fire New Mexico, which is located at 1613 University Boulevard, Northeast. Seehttps://www.campfireabq.org/contact-us/ (last visited Jun. 3, 2021). At the time of the incident, however, officers believed they were at 1609 University Boulevard, Northeast, which is actually located directly behind the building at issue and is occupied by New Mexico Donor Services. See https://donatelifenm.org/home/contact-us/ (last visited Jun. 3, 2021).

Detective Yurcisin observed the silver Toyota pull into Camp Fire New Mexico's driveway and park on the south side of the building. There were not many other vehicles parked in the lot at that time. Detective Yurcisin, who was driving an unmarked vehicle, pulled into a parking lot just south of the lot in which the subject vehicle had parked. From where Detective Yurcisin parked, he had an unobstructed view of the subject vehicle and anyone who exited it. He saw Defendant and Ms. Casaus get out and change places in the vehicle, so that Ms. Casaus was in the driver's seat and Defendant was in the front passenger seat. He then saw Defendant exit the vehicle with a dog, which he walked to a dirt area west of the building. As Defendant did so, Detective Yurcisin was able to clearly observe Defendant's build, height, weight, and face and to confirm that Defendant matched his latest booking photograph except that he had "a little tattoo above his right eyebrow" that was not present in the photograph. (Doc. 40, Ex. 1.) Defendant then walked back to the vehicle, returned the dog to the back seat, and got back into the passenger seat.

Less than a minute later, as Detective Yurcisin continued to watch, Defendant got out of the vehicle once more and threw a light gray backpack with black trim into a row of evergreen bushes planted between the parking lot and the sidewalk next to the building. Officer Yurcisin radioed to the other officers that Defendant had just "ditched" the backpack. (Id.) Immediately after Defendant threw the backpack into the bushes, he got back into the silver Toyota and Ms.Casaus drove it out of the parking lot and onto University Boulevard. The vehicle then proceeded south to the Circle K at the intersection of University Boulevard and Odelia Road, Northeast.¹

Detective Nakamura drove to 1613 University Boulevard just after Defendant and Ms. Casaus left. Detective Yurcisin directed her to the bushes where Defendant had left the backpack, and she saw it sitting "literally right on top of" them. The bushes were a little lower than her chest, and the backpack was visible from where she was standing in the parking lot. It was midday on a weekday; there were other vehicles besides Detective Nakamura's in the parking lot; and, there was traffic driving by on University Boulevard. Defendant and Ms. Casaus had left the premises and were not in sight, and nothing and no one restricted Detective Nakamura's access to the backpack.

Detective Nakamura grabbed the backpack, set it on the pavement, and opened it. It was neither locked nor zipped closed, and she opened it because she had heard Detective Yurcisin relay that Defendant had ditched it so she treated it as abandoned property. She did not speak to Defendant before she opened it. Detective Nakamura carried the backpack back to her vehicle, opened it again, and reached into it briefly. Observing a gun inside, she radioed to other officers to be careful. She then proceeded to the Circle K with the backpack.

At the Circle K, a male law enforcement officer² approached the silver Toyota while it was parked by a gas pump and made contact with Defendant and Ms. Casaus. Defendant identified himself by name. Ms. Casaus provided her driver's license and told the officer she was the vehicle's registered owner, she had tried to report it was no longer stolen, and a police officer had"just called" her about it. (Doc. 40, Ex. 1.) The officer returned to his vehicle to confirm that Ms. Casaus owned the vehicle, reporting to other officers his observation that the tattoo above Defendant's eyebrow was "fresh." (Id.) As he did so, Detective Nakamura arrived at the Circle K and searched the backpack, finding two loaded guns inside. The male officer determined that one of the guns had been reported stolen.

Officers arrested Defendant on his outstanding warrant and found what appeared to be controlled substances on his person. After Defendant was arrested, Detective Nakamura searched the backpack more thoroughly and located a gallon-sized bag of a crystal-like substance she believed to be methamphetamine, as well as other items that appeared to be controlled substances and drug paraphernalia. The Government has alleged that when officers later documented the backpack's contents, it was found to contain 113 gross grams of a white crystal substance that field tested positive for methamphetamine, 31 blue pills that resembled counterfeit oxycodone pills containing fentanyl, and two functional handguns.³ (Doc. 31 at 7.) At no time on September 9, 2020 did any law enforcement officer obtain a warrant to search or seize the backpack.

New Mexico State Police Officer Jerry Santana interviewed Ms. Casaus and Defendant while they were stopped at the Circle K. After Officer Santana admonished her to be honest, Ms. Casaus admitted that Defendant had thrown his backpack in a bush. Asked if Defendant had known that officers were following him, Ms. Casaus responded that Defendant went to get coffee and when he came back she saw an officer "go through" the Motel 6 and got worried for Defendant because he had warrants. (Doc. 40, Ex. 4.) After telling Officer Santana about how she had reported her car stolen and then recovered it, she added, "he thought maybe because of the car or whateverthat they were following him and then that cop called me so I was honest about it, like he did call me and ask me something so something's going on." (Id.)

Before interviewing Defendant, Officer Santana read him his Miranda rights from a card and asked if he understood them. Defendant indicated that he did. Officer Santana asked Defendant why he dumped the backpack, and Defendant responded, "[j]ust to get rid of it." (Doc. 40, Ex. 5.) Defendant admitted that there were two loaded guns in the backpack, that he sold methamphetamine, that he was a convicted felon not allowed to possess firearms or ammunition, and that he knew there was an active warrant for his arrest.

II. Procedural History

On September 25, 2020, Defendant was charged by criminal complaint with possession of a firearm in furtherance of a drug trafficking crime,...