from the United States District Court for the District of New
Mexico (D.C. No. 2:17-CR-02190-KG-1)
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
Benjamin J. Christenson, Assistant United States Attorney
(John C. Anderson, United States Attorney, with him on the
brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
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
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.
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.
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.]
Officer Dollar: What's that?
Mr. Romero: I'm getting some water and trying to charge
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
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
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 ...