United States District Court, D. New Mexico
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
DENYING DEFENDANT'S SECOND MOTION TO SUPPRESS
C. BRACK UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant's Second Motion
to Suppress. Doc. 127. The Second Superseding Indictment
charges Defendant with: (Count 1) Possession of an
Unregistered Firearm - Short Barreled Rifle, in violation of
26 U.S.C. §§ 5841(a), 5845(a)(3), 5861(d), and
5871; (Counts 2 and 3) Possession of an Unregistered Firearm
- Silencer, in violation of 26 U.S.C. §§ 5841(a),
5845(a)(7), 5861(d) and 5871; (Count 4) Making of an
Unregistered Firearm - Silencer, in violation of 26 U.S.C.
§§ 5841(a), 5822, 5845(a)(7), 5861(f) and 5871;
(Count 5) Manufacturing Marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(D); (Count 6) Possession
of Firearms in Furtherance of a Drug Trafficking Crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(i); and (Count 7)
Maintaining Drug-Involved Premises, in violation of 21 U.S.C.
§ 856(a)(1). Doc. 138.
contends that all evidence seized pursuant to the search
warrant issued by United States Magistrate Judge William P.
Lynch on August 13, 2012 should be suppressed on the basis
that the affidavit in support of the warrant contained
intentional material omissions. (Doc. 127). Specifically,
Defendant alleges that Special Agent Ryan Mirabal should have
included the fact that the Defendant had pending a renewal of
his Marijuana Medical License from the State of New Mexico.
(Id. at 2). Defendant argues that, had these
omissions been included, the affidavit would not have
established the probable cause necessary for the issuance of
said warrant. (Id.).
Government responds that the motion should be denied because
this Court has already found that (a) Special Agent Mirabal
was told that Defendant did not have a pending renewal of his
license and (b) the evidence presented by Defendant as to the
renewal of his license only shows that the search warrant was
obtained and executed during the four-month gap between the
expiration and renewal of Defendant's license. (Doc.
131.) The Government also posits that even if the Court
determined that Special Agent Mirabal knew of and omitted the
fact that Defendant was in the process of renewing his
license, there was still sufficient probable cause to search
Defendant's residence. (Id.).
Court held a hearing on March 14, 2017. Having carefully
considered the submissions and arguments of counsel and the
evidence adduced at the suppression hearing, and being
otherwise fully advised, the Court DENIES Defendant's
12(d) of the Federal Rules of Criminal Procedure provides
that when factual issues are involved in deciding a motion,
the Court must state its essential findings on the record.
See Fed. R. Crim. P 12(d). The Court makes the
following factual findings based on the evidence in the
record and evidence adduced at the suppression hearing. At
the hearing, the Court heard testimony from: former DEA
Special Agent Ryan Mirabal, New Mexico Department of Public
Safety Sergeant Christopher Alvarez, and Defendant Trevor Lee
Defendant Trevor Lee Thayer, a New Mexico resident, initially
submitted a request to the New Mexico Department of Health
for a medical cannabis card and a personal production license
on March 9, 2010. Doc. 161 (Partial Transcript of Hearing
4:4-9); Def.'s Exs. A, C. The Department of Health
approved Mr. Thayer's request on April 1, 2010.
Thayer's production license and medical cannabis card
expired on April 26, 2012. Doc. 161 (Partial Transcript of
Hearing 5:5). Mr. Thayer testified that, on July 16, 2012, he
re-applied for recertification with the New Mexico Medical
Cannabis Program. Doc. 161 (Partial Transcript of Hearing
6:15- 7:2); Def.'s Ex. A. This process included mailing
his written application and a renewal check for the
registration fee. Doc. 161 (Partial Transcript of Hearing
6:15- 7:8); Def.'s Exs. A, B. The basis for the delay
between the expiration of his card and reapplication was that
Mr. Thayer had to obtain a new primary care physician after
his previous physician retired. Doc. 161 (Partial Transcript
of Hearing 5:8- 6:14). Thereafter, he received a letter from
Ms. Angela Sundberg, a representative of the New Mexico
Medical Cannabis Program, indicating that the Department had
received his application on July 20, 2012. Doc. 161 (Partial
Transcript of Hearing 3:14-4:2;7:13-8:8) Def.'s Ex. C.
August 6, 2012, agents with the Drug Enforcement
Administration (DEA) received an “urgent” U.S.
Postal envelope that contained several photographs of a
marijuana grow and a letter detailing information about
Defendant from a confidential source of information (SOI).
Doc. 89 at 2; Doc. 127-1 at 8. Specifically, the photographs
depicted an indoor marijuana grow in Defendant's house
located at 1003 Rita Street in Silver City, New Mexico, and
included pictures of marijuana growing inside the residence,
in the back yard, and inside a greenhouse. Id. The
SOI indicated that Defendant had a State of New Mexico
growing license that was expired. Id. Between August
6 and 13, 2012, DEA agents continued to receive information
from the SOI, who sent additional photographs of
Defendant's grow house and marijuana that was located
inside the residence. Doc. 127-1 at 8-9.
August 7, 2012, Ryan Mirabal, then employed as a DEA Special
Agent, contacted the State of New Mexico Department of Health
Medical Cannabis Program and spoke to William Catanach.
Transcript of Hearing 19:13- 20:19; 23:12-18. Mr. Catanach
indicated that Defendant's license had in fact expired on
April 26, 2012, and stated that Defendant had not begun the
process to renew his license as of that date. Id.
Special Agent Mirabal wrote an affidavit in support of the
search warrant for Defendant's residence. See
Doc. 127-1; Doc. 89 at 5-6. The affidavit included both a
detailed description of the marijuana on the premises and
information about a variety of firearms on the premises.
Id. The affidavit disclosed that the SOI sent
additional photos from her phone “of THAYERS house and
marijuana contained within the household.” Id.
With regard to Defendant's state medical license, the
affidavit stated that “[o]n August 07, 2012, SA Ryan
Mirabal called the State of New Mexico Department of Health
Medical Tempest Program and spoke with Mr. William Catanach
concerning the legitimacy of the license. Mr. Catanach
indicated that THAYER's license had expired on 04/26/2012
and was inactive in the license renewal program for the
state.” Doc. 127-1 at 8.
August 13, 2012, a search warrant was obtained by Special
Agent Mirabal. Doc. 88 at 10; Doc. 89 at 5. On August 21,
2012, agents from the DEA, ATF and New Mexico Motor Traffic
Division (MTD) served a search warrant on Defendant's
residence. Transcript of Hearing 72:23-25; Doc. 88 at 11.
State of New Mexico Medical Cannabis Program approved renewal
of Defendant's medical card and personal production
license on August 30, 2012. Doc. 60-3 at 1; Transcript of