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United States v. Romero

United States Court of Appeals, Tenth Circuit

September 5, 2019

UNITED STATES, Plaintiff - Appellee,
v.
MANUEL ROMERO, JR., Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:17-CR-02190-KG-1)

          Daniel Rubin, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, and Jane Greek, Assistant Federal Public Defender, on the briefs), Las Cruces, New Mexico, for Defendant-Appellant.

          Benjamin J. Christenson, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.

          EBEL, CIRCUIT JUDGE.

         Manuel Romero was charged with one count of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and one count of knowingly possessing a stolen firearm under 18 U.S.C. § 922(j). Romero filed a motion to suppress the firearm that a Las Cruces police officer discovered in Romero's backpack during a search incident to his arrest for obstructing an officer in violation of New Mexico Statute § 30-22-1(D). The officer arrested Romero for obstruction because he failed to immediately comply with the officer's request that he submit to a pat-down search. Romero argued in his motion that the firearm must be suppressed because the officer had neither (1) reasonable suspicion to conduct the pat-down search nor (2) probable cause to arrest Romero for obstruction. The district court denied Romero's motion. We reverse, because we agree with Romero's latter argument that there was insufficient probable cause to support an arrest under section 30-22-1(D). Thus, the search of the backpack cannot be supported as a search incident to arrest. Because of this ruling, we do not address Romero's first argument that there was no reasonable suspicion to support the initial pat-down search. We remand this case to the district court for further proceedings.

         I. BACKGROUND

         In reviewing a district court's ruling on a motion to suppress evidence, we view the evidence in the light most favorable to the prevailing party and "accept the district court's findings of fact unless they are clearly erroneous." United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017). The district court found the following facts, none of which are clearly erroneous.

         On Friday, April 29, 2017, Officer Matthew Dollar was on patrol in Las Cruces, New Mexico. At approximately 5:30 p.m., Officer Dollar drove past a church where he observed Romero standing at the front entry, peering into the window. Because he passed by it often on patrol, Officer Dollar knew that the church did not hold services at that time. Additionally, several days earlier, Officer Dollar learned that there had been reports of theft and vandalism occurring at other churches in the area. Given his observations of Romero and knowledge of the vandalism, Officer Dollar drove into the church parking lot to investigate.

         Upon arriving, Officer Dollar observed Romero crouching down to fill up a water bottle from the outdoor hose connected to the church. He also noticed that Romero had a "pocket clip" for a folding pocket knife on his waist band near his right hip and a "linear bulge" on his right bicep that Dollar suspected was another knife. ROA Vol. I at 33-34. Officer Dollar's body-worn camera recorded the following exchange between him and Romero.

Officer Dollar: Police Department. Hey, what's up man? How are you?
Mr. Romero: Pretty good.
Officer Dollar: What's going on?
Mr. Romero: I'm getting some water and charging my phone. [Romero gestures to the cellphone and water bottle that he is holding, one in each hand.][1]
Officer Dollar: What's that?
Mr. Romero: I'm getting some water and trying to charge my phone.
Officer Dollar: You don't have any weapons or anything on you, do you?
Mr. Romero: No, I got a --. [Romero gestures to the pocket clip on his waistband.]
Officer Dollar: Don't reach for it. [Romero immediately lifts both hands up to chest level.]
Mr. Romero: Okay.
Officer Dollar: Set that down. Let me pat you down real quick.
Mr. Romero: Oh, man. Why?
Officer Dollar: Listen to me. This can go smoothly or it can go rough for you. I suggest that you go with what I'm asking you, alright, or I'll charge you with resisting, obstructing. It's your choice.
Mr. Romero: Are you going to give me a ticket or what?
Officer Dollar: I'm going to put you in handcuffs and take you to jail --
Romero: I don't want to go to jail.
[At this point in the encounter, Officer Dollar drew his taser and pointed it at Mr. Romero.]
Officer Dollar: --or we can go this route. Put it down. [Romero sets his cell phone and water bottle on the ground.]
Officer Dollar: Put your hands on the wall.
Mr. Romero: Can I take this off? [Gesturing to drawstring backpack.]
Officer Dollar: No, don't reach for anything.
Mr. Romero: Ah, man. Why do you want to (unintelligible)?
Officer Dollar: Hey, you're at a church. You don't belong here right now. Okay? It can go one of two ways.
Mr. Romero: Why do you want to take me to jail?
Officer Dollar: You can go to the ground or you can comply. [Romero begins slowly lowering his body to the ground.]
Mr. Romero: Please don't tase me.
Officer Dollar: Go to the ground.
Mr. Romero: I don't want to go to get ...

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