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

July 29, 2021

ORDER ADOPTING 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" and "all fruits thereof." (Id. at 1.) The Government filed a response in opposition to the Motion on February 22, 2021, and Defendant timely filed a reply in support of it on March 15, 2021. (Docs. 31, 34, 35.)

Pursuant to an Order of Reference (Doc. 36), United States Magistrate Judge Kirtan Khalsa held an evidentiary hearing on the Motion on May 28, 2021 and, on June 3, 2021, issued her Proposed Findings and Recommended Disposition ("PFRD") recommending that the Motion be denied. (Docs. 42, 43, 46.) Defendant timely filed Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition ("Objections") on July 15, 2021. (Docs. 50, 51.) Having considered de novo the parties' submissions, the evidence presented, the PFRD, the record, and the relevant law, and being otherwise fully advised, the Court FINDS that Defendant's Objections should be OVERRULED, the Magistrate Judge's PFRD should be ADOPTED, and Defendant's Motion should be DENIED.

I. Standard of Review

Federal district judges may refer motions to suppress evidence in criminal cases to a magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). "Within 14 days after being served with a copy" of the magistrate judge's proposed findings and recommendations, "any party may serve and file written objections to such proposed findings and recommendations." 28 U.S.C. § 636(b)(1). The district judge

shall make a de novo determination of those portions of the . . . proposed findings or recommendations to which objection is made. [The district judge] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The [district] judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

Id. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Further, "[i]n this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived." United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

Where a party files timely and specific objections to the magistrate judge's recommendation on a "dispositive" motion such as a motion to suppress, "the statute calls for a de novo determination, not a de novo hearing." United States v. Raddatz, 447 U.S. 667, 674 (1980). A de novo determination pursuant to 28 U.S.C. § 636(b) "requires the district court to consider relevant evidence of record and not merely review the magistrate judge's recommendation." In re Griego, 64 F.3d 580, 584 (10th Cir. 1995). Although a district court must make a de novo determination of objections under 28 U.S.C. § 636(b)(1), the district court is not precluded from relying on the magistrate judge's proposed findings and recommendations. See Raddatz, 447 U.S. at 676 ("[I]n providing for a 'de novo determination' rather than de novo hearing, Congressintended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.") (quoting 28 U.S.C. § 636(b)).

II. Factual Findings

On September 9, 2020, Albuquerque Police Department Officer Mario Perez noticed a silver four-door Toyota sedan in the parking lot of the Motel 6 on University Boulevard near Interstate 40 in Albuquerque, New Mexico. (Doc. 46 at 7-8, 59-60, 95.) A man later identified as Defendant Esteban Gallardo got into the sedan and drove out of the parking lot. (Id. at 7-8, 12, 18.) As he did so, Officer Perez "ran" the vehicle's license plate and learned it had been reported stolen. (Id. at 7-8, 18.) Sharing this information with other officers by radio, he learned from Albuquerque Police Department Detective Daniel Yurcisin that the registered owner, Amanda Casaus, had reported Defendant had refused to return the vehicle to her after she loaned it to him. (Id. at 9-10, 18-19, 28-29, 96, 98.) Officer Perez called Ms. Casaus to confirm the vehicle was still stolen. (Id. at 9-11.) She did not answer but called him back "almost immediately" and told him she had gotten the vehicle back. (Id. at 9-11, 17.)

Meanwhile, Defendant drove to "a few different locations," including a gas station, while Officer Perez followed him in an unmarked vehicle. (Id. at 12-13.) At Interstate 40 and University Boulevard, Albuquerque Police Department Detective Rachel Nakamura also started following Defendant, in a marked police unit. (Id. at 59, 72.) Officer Perez was on the phone with Ms. Casaus, and Detective Nakamura was aiming a green laser at the back of the silver Toyota to shoot a tracking device onto it, when Defendant returned to the Motel 6 parking lot. (Id. at 12, 57-61.)

By this time, Officer Perez had learned there was an active felony warrant for Defendant's arrest. (Id. at 12-13, 18-20.) This information and Defendant's photograph were relayed by radioto all of the law enforcement officers involved in investigating the silver Toyota. (Id. at 29-30.) As this point, the officers' "plan moving forward" transitioned from investigating a reported auto theft to conducting surveillance to determine whether the man driving the vehicle was Defendant and, if so, executing the felony warrant for his arrest. (Id. at 13, 19, 30.)

At the Motel 6, Officer Perez saw a woman later identified as Ms. Casaus get into the silver Toyota with Defendant. (Doc. 40, Exs. 1, 4; Doc. 46 at 10-12, 96.) Defendant and Ms. Casaus then left the motel and drove south on University Boulevard before turning into the parking lot of an office building. (Doc. 46 at 13-14.) At the May 28, 2021 evidentiary hearing, Detectives Yurcisin and Nakamura testified that the office building in question was occupied by Camp Fire New Mexico. (Id. at 37, 42-45, 74; Def.'s Exs. B, C.) The Court takes judicial notice that the Camp Fire New Mexico building is located at 1613 University Boulevard, Northeast. See https://www.campfireabq.org/contact-us/ (last visited Jul. 27, 2021). However, on September 9, 2020, Detective Yurcisin called out that the building was located at 1609 University Boulevard, Northeast.¹ (Doc. 40, Ex. 1; Doc. 46 at 42-43.)

Detective Yurcisin saw the silver Toyota pull into Camp Fire New Mexico's parking lot and park on the south side of the building. (Doc. 46 at 40-45; Def.'s Exs. B, C.) There were "some other vehicles" in the parking lot but it was "fairly vacant." (Id. at 31, 46.) In an unmarked vehicle, Detective Yurcisin drove to a parking lot "just south of" the lot in which the silver Toyota had parked. (Id. at 28, 31, 41-42, 45.) From there, nothing blocked him from seeing the vehicle and anyone who exited it. (Id. at 31.) As Detective Yurcisin watched, Defendant and Ms. Casaus got out and "switched seats," so that Ms. Casaus was in the driver's seat and Defendant was in thefront passenger seat. (Id. at 31-32, 46-47.) He then saw Defendant exit the vehicle with a dog, which Defendant walked to a "little dirt area" west of the building. (Id. at 32, 47.) At this point, Detective Yurcisin "was able to clearly observe [Defendant's] build, height, weight, his face, and positively identify that it was going to be [Defendant]," except that he had "a little tattoo above his right eyebrow" that was not present in his latest booking photograph. (Id. at 32; Doc. 40, Ex. 1.) Defendant then returned to the vehicle, let the dog into the back seat, and sat back down in the front passenger seat. (Doc. 46 at 34, 47.)

As Detective Yurcisin continued to watch, Defendant exited the vehicle once more and threw a light gray backpack with black trim "in a bush that was right in front of their car, right next to the building." (Doc. 40, Ex. 2; Doc. 46 at 35, 48, 86.) Asked to describe Defendant's "motion," Detective Yurcisin testified that Defendant "tossed the backpack into like a large green bush. . . . It wasn't like it was placed or carefully put anywhere. It was discarded, like he ditched it. Like I would throw something away."² (Doc. 46 at 37-38.) By radio, Detective Yurcisin relayed that Defendant had "just ditched the backpack into these bushes." (Id. at 35, 48, 65, 77; Doc. 40, Ex. 1.) "[I]mmediately" after Defendant threw the backpack in the bush, he got back into the silver Toyota's passenger seat, and he and Ms. Casaus drove out of the parking lot. (Doc. 46 at 35, 38-39.) From there, they drove to the Circle K at the intersection of University Boulevard and Indian School Road, Northeast.³ (Id. at 15, 23, 68, 74.)

Detective Nakamura arrived at the Camp Fire New Mexico building "pretty quick[ly]" after Defendant and Ms. Casaus had left it. (Id. at 66, 74, 90; Def.'s Exs. B, C.) It was midday on a weekday,⁴ and there was a steady flow of traffic driving by on University Boulevard. (Doc. 40, Ex. 2; Doc. 46 at 86, 88.) Detective Nakamura remembered seeing "some" cars in the parking lot but did not remember seeing any people. (Doc. 46 at 77-79.) Defendant and Ms. Casaus had left the premises and were not in sight. (Id. at 66, 90.) Detective Yurcisin directed her to "which bush in the general area to look at," and she saw the backpack sitting "literally right on top of it."⁵ (Id. at 39, 48, 65-66, 80, 85.) The bush was "a little lower than [her] chest," and the...