United States v. Gilmore

945 F. Supp. 2d 1211, 2013 WL 2138906, 2013 U.S. Dist. LEXIS 71178
CourtDistrict Court, D. Colorado
DecidedMay 14, 2013
DocketCriminal Action No. 13-cr-0034-WJM
StatusPublished

This text of 945 F. Supp. 2d 1211 (United States v. Gilmore) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gilmore, 945 F. Supp. 2d 1211, 2013 WL 2138906, 2013 U.S. Dist. LEXIS 71178 (D. Colo. 2013).

Opinion

ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS

WILLIAM J. MARTÍNEZ, District Judge.

In this action, Defendant Andre Gilmore (“Defendant”) is charged in Count 1 of the Indictment with unlawful possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). (ECF No. 9.) This matter is before the Court on Defendant’s [1214]*1214Motion to Suppress (“Motion”). (ECF No. 13.) Defendant’s Motion seeks suppression of the evidence obtained and statements resulting from the stop, pat-down search, and arrest of Defendant. (Id.) The Government filed a Response to the Motion. (ECF No. 17.) No Reply was permitted. (ECF No. 18.)

On April 29, 2013, the Court held an evidentiary hearing on the Motion. (ECF Nos. 19-20.) Both parties were represented at the hearing by counsel, and were given a full opportunity to present witness testimony. Six witnesses testified for the Government at the hearing, including two parking attendants and a security guard stationed in the parking lot where Defendant was initially detained, two police officers involved in the stop and frisk, and an officer who interviewed Defendant. Defendant did not testify. The Court permitted brief closing statements after receipt of all of the evidence.

After carefully considering the evidence presented, counsel’s arguments in their briefs and at the hearing, and the applicable law, the Court DENIES the Motion to Suppress in its entirety.

I. BACKGROUND

The testimony provided by the witnesses at the evidentiary hearing was largely consistent regarding the material facts. The Court finds credible the testimony of all of the witnesses, both because of their demeanor and because of the lack of inconsistencies in their testimony. See United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.2009) (at a suppression hearing, “[t]he credibility of witnesses, the weight accorded to evidence, and the reasonable inferences drawn therefrom fall within the province of the district court”). Based upon the parties’ submissions and the evidence introduced at the evidentiary hearing, the Court finds the relevant facts as follows:

On January 13, 2013, Jason Morris and Richard Gomez were working as parking lot attendants in Parking Lot C at the National Western Stock Show in Denver, Colorado. Parking Lot C was located adjacent to the “cattle tie out” area, an area where livestock exhibitors held their cattle. The cattle tie out area was not open to the public. Lot C was a pass-only lot generally used by the exhibitors associated with the cattle and was not designated for the public. Lot C and the cattle tie out area were both bordered by fences, but the entrances and exits stood open for exhibitors to come and go. Exhibitors parking in Lot C were generally dressed in “rancher” style clothing and possessed exhibitor badges.

At approximately 11:00 a.m., Morris and Gomez noticed a man later identified as Defendant entering Lot C on foot through the exit driveway in the southeast corner of the parking lot. Morris verbally greeted Defendant, but Defendant did not respond, instead continuing to walk past Morris toward the cattle tie out area. Morris noted that Defendant was swaggering or swaying and appeared to be intoxicated. Gomez noted that Defendant was not dressed like a rancher, and that he had not seen Defendant in Lot C before. He also noticed that Defendant was walking in a swerving manner and appeared to be talking to himself. Gomez began following behind Defendant, monitoring his route as Defendant walked into the cattle tie out area. Gomez then verbally reported Defendant’s presence to Vincent Garcia, who was a Stock Show security guard stationed in Lot C.

Garcia used a radio transceiver to communicate Defendant’s presence to his supervisor, who in turn informed a police dispatcher. Via radio, the dispatcher re[1215]*1215ported a brief description of Defendant, stated where he was located, and indicated that he was a suspicious party who was disoriented. Two officers of the Denver Police Department, Lieutenant Vincent Gavito (“Lt. Gavito”) and Sergeant Dino Gavito (“Sgt. Gavito”) (collectively “the Officers”), were working at the Stock Show and responded to the dispatcher’s call. The Officers were aware that several thefts from vehicles had occurred in Stock Show parking lots in the days prior, although none had occurred in Lot C. The Officers drove into Lot C, and Gomez directed them to the area where Defendant was located. The Officers spoke briefly with Garcia, the security guard, who pointed out Defendant and stated that he appeared very disoriented or intoxicated.

By the time the Officers arrived, Defendant had walked to the north end of the cattle tie out area, which was closed off by a fence, and stood there for a moment before turning back toward the entrance to the cattle tie out area. The Officers drove through the entrance and parked their vehicle facing Defendant, as Defendant continued walking toward the entrance where the Officers were waiting.

The Officers noted that Defendant was wearing a maroon or burgundy overcoat over a second dark coat, dark jeans, and tennis shoes, and was carrying a cloth briefcase over his shoulder, with a small plastic bag and a large white jawbreaker candy in his hands. As the temperature was approximately six degrees Fahrenheit, two coats were not inappropriate for the weather. Defendant was staring blankly into the air, was walking in a meandering, unsteady fashion, and did not appear to notice the Officers’ presence.

The Officers, who were both wearing police uniforms, exited their vehicle and approached Defendant. Lt. Gavito greeted Defendant, asking him if he was all right and what he was doing in the area. Defendant did not respond, but did turn to look at Lt. Gavito, appearing to acknowledge his presence for the first time. Lt. Gavito told Defendant to drop the items in his hands, which he did. Lt. Gavito identified himself as a police officer and asked Defendant again what he was doing in the area. Defendant responded by mumbling incoherently. Lt. Gavito asked Defendant if he had any weapons, and not receiving an answer, proceeded to conduct a pat-down search of Defendant’s outer clothing. Lt. Gavito felt what he believed to be the butt of a handgun under Defendant’s coat, and upon lifting the coat, Lt. Gavito saw and seized a pistol from Defendant’s right front waistband. The Officers then handcuffed Defendant, placed him in their vehicle, and drove him to the Stock Show security office. While in the vehicle, Lt. Gavito asked Defendant for his name, which Defendant provided.

Once in the security office, the Officers asked Defendant for his birthdate and used Defendant’s identifying information to access the records of his criminal history, at which point they discovered that Defendant had a prior felony conviction that prohibited him from possessing a firearm. During the time Defendant was detained in the security office, while the Officers were processing paperwork for Defendant’s arrest, Defendant made statements requesting that the Officers return his gun to him. Defendant was subsequently transported to the Denver Detention Center, but was not immediately interviewed due to his apparent intoxication.

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Cite This Page — Counsel Stack

Bluebook (online)
945 F. Supp. 2d 1211, 2013 WL 2138906, 2013 U.S. Dist. LEXIS 71178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gilmore-cod-2013.