United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART DENVER POLICE DEPARTMENT’S MOTION TO QUASH
William J. Martínez United States District Judge
Before the Court is a Motion to Quash Subpoena Duces Tecum, or in the Alternative, Motion for In Camera Review and Protective Order (“Motion to Quash”) filed by the Denver Police Department (“DPD”). (ECF No. 34.) For the reasons explained below, the Motion to Quash is granted in part and denied in part.
The Government has indicted Defendant Ronald Newsom (“Newsom”) for possession of a firearm by a prohibited person. (ECF No. 1.) Newsom filed a Motion to Suppress, claiming that the evidence of his possession of a firearm was obtained in violation of the Fourth Amendment. (ECF No. 20.) That Motion, the Government’s Response (ECF No. 22), and Newsom’s Reply (ECF No. 24), have revealed a stark factual dispute, as described below.
A. Newsom’s Story
Newsom says he was in the parking lot of the Airway Motel on West Colfax in Denver at about 5:30 p.m. on May 5, 2015. (ECF No. 20 ¶¶ 1-2, 6.) A small group of people had gathered in the Motel parking lot and were engaged in a nonphysical confrontation, but began to disperse when two DPD officers, Damon Bowser (“Bowser”) and Joseph Portillo (“Portillo”), approached. (Id. ¶¶ 2, 4; ECF No. 24 at 2.) The officers spoke with the Motel manager, Ms. Jeon Keum, who informed them “that an unknown female (hereinafter ‘unknown female’) was trespassing and pointed the unknown female out to the officers.” (ECF No. 20 ¶ 5.)
Bowser and Portillo then “observed the unknown female being escorted away from the motel by Mr. Newsom, a hotel guest who was assisting the manager in removing the unknown female from the premises. The unknown female was yelling obscenities as she was being escorted away.” (Id. ¶ 6.) Newsom was not pushing this female but was “walking with her and guiding her away” from the Motel. (ECF No. 24 at 4.) Bowser and Portillo approached Newsom and the unknown female and ordered both to put their hands behind their backs. (ECF No. 20 ¶¶ 7-8.) “Mr. Newsom responded that he had done nothing wrong and he did not want to have any contact with the officers. Mr. Newsom attempted to walk away.” (Id. ¶ 9.) The officers, however, “surrounded Mr. Newsom, continuing to order him to put his hands behind his back, ” which Newsom did. (Id. ¶¶ 10-11.)
Bowser and Portillo then “grabbed” Newsom, searched his pants pocket, and discovered and removed a gun. (Id. ¶¶ 12-13.) Bowser and Portillo next “took Mr. Newsom to the ground, ” “placed him in handcuffs, ” and continued to search his person, “result[ing] in the recovery of additional contraband.” (Id. ¶¶ 13-14.) “Shortly after his detention and seizure/arrest, Mr. Newsom was transported to the Denver Detention Center where he made incriminating statements.” (Id. ¶ 15.)
B. The Government’s Story
Relying on Bowser’s and Portillo’s accounts, the Government tells a different story. Bowser and Portillo say that they were on routine patrol when they “saw a large group of individuals in a physical altercation” in the parking lot of the Airway Motel. (ECF No. 22 ¶ 3.) The officers exited their patrol vehicles in order to intervene in the physical altercation and stop the fighting. The officers observed a black male, later identified as [Newsom], wearing a gray long sleeve shirt and black jeans pushing an unidentified black female west along the sidewalk. The female was yelling obscenities as [Newsom] was pushing her. Due to [Newsom’s] aggressive physical actions with the female, Officer Portillo focused his attention on him.
(Id. ¶ 4.)
Bowser and Portillo “approached [Newsom] and gave him commands to stop pushing the female.” (Id.) At this point, Newsom “directed his belligerence toward the officers and walked toward [them], becoming verbally hostile toward them.” (Id. ¶ 5.) In addition, “[a]s [Newsom] approached the officers in this manner, he kept putting his hands in his front pockets. Given [his] volatile behavior, the officers feared for their safety and believed that he was attempting to hide a weapon or narcotics.” (Id.) Portillo therefore “ordered [Newsom] to take his hand out of his pockets.” (Id.)
Newsom “continued to ignore the officers’ lawful commands and began to walk away from the officers.” (Id. ¶ 6.) “At this time, the officers wanted to conduct a Terry frisk of [Newsom] because they feared that he had weapons on his person.” (Id.) Newsom “continued to ignore the officers’ commands, but did briefly put his hands behind his back, ” upon which Portillo
was able to get control of [Newsom] and conduct a Terry frisk for weapons. As Officer Portillo had control of [Newsom’s] arms, he noticed that [Newsom] began to scan the area as if looking for a possible escape route. In [Newsom’s] rear pant pocket was an item which Officer Portillo immediately recognized as a firearm due to its weight and outline. Officer Portillo removed the firearm from [Newsom’s] pocket. Once the firearm was secured by Officer Portillo, [Newsom] lunged forward with all of his body weight in an attempt to escape Officer ...