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United States v. Cook

United States District Court, D. New Mexico

December 20, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
SANDRA COOK, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO SUPPRESS (DOC. 34)

         THIS MATTER comes before the Court upon Defendant's Motion to Suppress Evidence, filed October 17, 2016 (Doc. 34). Having considered the parties' written and oral arguments, and having considered the applicable law, the Court finds that Defendant's motion is not well-taken and, therefore, is DENIED.

         BACKGROUND

         On June 22, 2015, based on an affidavit submitted by Bernalillo County Sheriffs Office ("BCSO") Detective Gerald Koppman, a search warrant was issued for 2732 Alcazar Street, NE, Albuquerque, NM, 87110. Ex. 1. The warrant was based upon information provided by two confidential sources, law enforcement surveillance and law enforcement databases. The warrant was executed on June 30, 2015, and revealed evidence of methamphetamine and methamphetamine trafficking, including approximately three kilograms of methamphetamine and over $22, 000.

         Defendant contends that the search warrant was void because it lacked probable cause based on the four corners of the supporting warrant affidavit, and all evidence seized from the residence should be suppressed.[1]

         DISCUSSION

         Probable cause is a common-sense standard that requires facts sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. United States v. Mesa-Rincon, 911 F.2d 1433, 1439 (10th Cir. 1990) (internal quotation marks omitted). The particularity requirement of the Fourth Amendment “prevents general searches and strictly limits the discretion of the officer executing the warrant.” Cassady v. Goering, 567 F.3d 628, 635 (10h Cir. 2009). In deciding whether there is probable cause to issue a warrant, the issuing judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). An affidavit supporting a search warrant establishes probable cause for the warrant's issuance “if the totality of the information [in the affidavit] establishes the fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Roach, 582 F.3d 1192, 1200 (10th Cir. 2009), citing United States v. Soderstrand, 412 F.3d 1146 1152 (10th Cir. 2005) (internal quotation marks omitted). Probable cause does not require “hard evidence or personal knowledge of illegal activity [to] link a Defendant's suspected unlawful activity to his home.” United States v. Biglow, 562 F.3d 1272, 1279 (10th Cir. 2009) (internal quotation marks omitted).

         The Court of Appeals for the Tenth Circuit has repeatedly acknowledged that a reviewing court will afford “great deference to the issuing magistrate's probable cause determination unless there is no substantial basis for concluding that probable cause existed.” United States v. Sanchez, 555 F.3d 910, 914 (10th Cir. 2009) (internal quotation marks and citations omitted). The Fourth Amendment's “strong preference for warrants compels us to resolve ‘doubtful or marginal cases' by deferring to a magistrate judge's determination of probable cause. Biglow, 562 F.3d 1272, 1282 (10th Cir. 2009); see also United States v. Pulliam, 748 F.3d 967 (10th Cir. 2014).

         Defendant takes issue with the reliability of the confidential informants who provided information to Det. Koppman, and challenges several parts of the affidavit, set out below separately.

         I. Probable Cause for Warrant

         A. Reliability of CS-1

         According to the affidavit, Defendant had made contact with a confidential source, CS -1 who knew of a female subject “C” selling methamphetamine. CS-1 placed a phone call to “C” and set up a buy. “C” told CS-1 that she had to pick up the drugs from her supplier, and then would meet CS-1 at a predetermined location. Detectives conducted vehicle surveillance on “C” and followed her to 2732 Alcazar NE. “C” emerged from the residence and traveled to the location arranged by CS-1. The affidavit states that Koppman searched CS-1 prior to the meeting with “C” and found no contraband. At the predetermined location, “C” met with CS-1 and made a “hand to hand transaction.” A few minutes later, CS-1 returned to Det. Koppman and provided him with what appeared to be methamphetamine. The affidavit vouches for CS-1's reliability. Doc. 34-1 at 5.

         The affidavit also recounts that surveillance was conducted on May 31, 2015 at 2732 Alcazar NE. Det. Koppman saw “multiple subjects” enter the property, stay for a short time and then leave. The license plate from a vehicle parked in front of the residence was registered to Marti Solano and CS-1 recognized a picture of Solano as being someone named “Marti” who sells large amounts of methamphetamine from her residence.

         Defendant challenges CS-1's reliability, observing that the affidavit gives no information about how CS-1 knows “Marti” or how CS-1 knows that “Marti” sells methamphetamine from her residence. Defendant argues that the warrant was based on a “mere ratification of the bare conclusions of others, ” Gates, 462 U.S. at 239, which is insufficient to show probable cause. However, as the Government notes, there is no requirement that an informant's veracity can be vouched by corroboration, either by law enforcement investigation or surveillance, which occurred here. Also, the affidavit vouches for the veracity of CS-1 with a history of CS-1's prior information given to the police, which turned out to be reliable when independently corroborated. See United States v. Long, 774 F.3d 653, 658 (10th Cir. 2014) (“On its face the affidavit satisfies [the] standard. A trustworthy person knowledgeable about the cocaine trade said that he or she had recently seen cocaine packaged for distribution at the location to be searched.”).

         B. Co ...


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