United States v. Norton.
No. 24-2059. 3/5/2025. D.N.M. Judge McHugh. DNA Evidence—Motion to Suppress—False Statement in Search Warrant Application—Fourth Amendment.
March 5, 2025
Several members of the Mongols Motorcycle Club, including Norton and his girlfriend Perez, were sitting on the front patio of Byron T’s Saloon. Law enforcement officers from an interagency gang task force arrived there, exited their vehicles with guns drawn, and told the entire group “to put their hands in the air and get on the ground.” Officers then served arrest warrants on two members of the group. Shortly thereafter, New Mexico Highlands University Police Chief Romero, who was off duty at the time and was inside the saloon with his wife Martinez, told the officers he believed that Perez had taken something from Norton. An officer asked Perez if she was armed, and she admitted to having a gun in her purse. After the scene was secured, Chief Romero and Martinez approached Deputy Vigil and gave her statements that when the task force members approached the motorcyclists, they observed Norton stand and put his hands up, and when Perez also stood up, Norton moved in front of her and she lifted his vest. Deputy Vigil asked Chief Romero and Martinez if they saw anything removed or placed under the vest, and they shook their heads no. Perez and Norton were ultimately arrested for carrying a firearm in a liquor establishment in violation of New Mexico law. The local district attorney called FBI Agent Acee and asked him to consider pursuing charges against Norton for firearm possession. Agent Acee determined he would first need a search warrant for Norton’s DNA to match it with DNA on the firearm, so he interviewed Chief Romero the next day. Chief Romero told Agent Acee that when the task force arrived at the saloon, he saw Perez move behind Norton and lift his vest, and he then saw Perez remove an unknown object from Norton, after which she placed the object she had taken in her purse. Agent Acee filed an affidavit in support of a search warrant for Norton’s DNA, including the information provided by Chief Romero in the affidavit. A magistrate judge found the affidavit established probable cause for the search warrant, and DNA samples that were subsequently taken from Norton matched samples taken from the gun. Norton was charged with possession of a firearm and ammunition as a felon under 18 USC § 922(g)(1). He then moved to suppress his DNA evidence, arguing that it was obtained in violation of the Fourth Amendment and Franks v. Delaware, 438 U.S. 154 (1978). The district court found that the statement in the affidavit that Chief Romero observed Perez remove an object from Norton’s back and place it into her black purse was more likely than not false, given the chief’s unequivocal statement to Deputy Vigil that he did not see Perez remove anything; and it was more likely than not that Chief Romero made a false statement to Agent Acee, because the chief had made several inconsistent statements regarding what he had witnessed. Further, the court found that Chief Romero made the false statement “with reckless disregard for the truth,” and the false statement was material to the finding of probable cause for a warrant. The court thus granted the motion to suppress.
On interlocutory appeal, the government argued that Franks is inapplicable to Chief Romero because he was off duty at the relevant time and had no official investigatory role. In Franks, the US Supreme Court held that the Fourth Amendment prohibits an affiant from recklessly or intentionally including a material, false statement of fact in a search warrant affidavit. The Tenth Circuit held that Franks extends to an off-duty police officer who is actually involved in an investigation with the knowledge and acquiescence of the on-duty officers. Here, the district court concluded that Chief Romero was actually involved in the investigation, participating with the knowledge and assent of the on-duty officers, and the government relied on the information he provided. The district court’s conclusion that the task force allowed Chief Romero to be actually involved in the investigation is proper given record facts showing Chief Romero’s close involvement in the investigation, including that the sole factual support in Deputy Vigil’s statement of probable cause for Norton’s arrest was the statement provided by Chief Romero and Martinez, and Agent Acee assented to Chief Romero’s actual involvement. And Agent Acee’s warrant affidavit included Chief Romero’s false statement in the affidavit for a search warrant to obtain Norton’s DNA. Accordingly, the district court properly suppressed the DNA evidence obtained through the unconstitutional search warrant.
The decision to grant the motion to suppress was affirmed.