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United States v. Sendejo

United States District Court, D. New Mexico

November 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
IRENE SENDEJO, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's Motion to Suppress, filed on September 14, 2017. (Doc. 32.) The Court held a hearing on the Motion on November 7, 2017. (See Doc. 45.) Having considered the parties' written submissions, arguments at the hearing, and the relevant law, the Court will DENY the motion.

         I. Factual Background as Found by the Court

         Based on information he received from a Confidential Informant (CI), Agent Jeremy Shimer with the Lea County Drug Task Force applied for a warrant to search Defendant Irene Sendejo's residence at 1010 South Fifth in Hobbs, Lea County, New Mexico.[1] (Doc. 34-1 at 1-2, 4.) Agent Shimer listed Defendant's name (Irene Sendejo) and the address of the property (1010 South Fifth Hobbs, NM 88240) clearly in the heading of the Affidavit for Search Warrant (“Affidavit”).[2] (Id. at 1.) Agent Shimer referred to “1010 South Fifth” seven times in the Affidavit. (Id. at 2-4.)

         Agent Shimer also made a single reference to another address in the Affidavit, “224 South Ave A in Hobbs New Mexico.” (Id. at 2.) In Attachment A to the Affidavit, entitled the “Description of Property to be Searched, ” Agent Shimer described three vehicles located on the property of 1010 South Fifth. (Id. at 2.) One vehicle was registered to Defendant at the 1010 South Fifth address, one vehicle was covered by tarps (no visible license plate), and one vehicle was described as “[a] purple 2005 Cadillac passenger car . . . registered to Irene Sendejo with an address of 224 South Ave A in Hobbs New Mexico.” (Id.)

         Otherwise, Agent Shimer accurately described the property to be searched, 1010 South Fifth in Hobbs, as follows:

The residence is located at 1010 South Fifth in Hobbs, Lea County, New Mexico. The residence is a tan manufacturer home with white skirting. The residence has white aluminum roofing with a slight pitch downwards. The residence has two doors, one facing north and the second facing south. The numeric 1010 is displayed on a mail box to the west of the residence. There is a detached car port to the south of the residence.

(Id. at 2.)

         Agent Shimer affirmed that he was advised by a reliable CI that Defendant Sendejo “was selling Methamphetamine in Hobbs, ” and the CI “observed Methamphetamine inside the residence of 1010 South Fifth located in the city of Hobbs, County of Lea, State of New Mexico.” (Id. at 4.) The CI further advised Agent Shimer that Defendant Sendejo was in possession of the methamphetamine inside the residence located at 1010 South Fifth. (Id.) Agent Shimer noted that this CI “has provided true and accurate information on at least four occasions leading to the seizure of Methamphetamine.” (Id.)

         Based on this Affidavit, Judge Lee A. Kirksey signed the warrant (see Doc. 34 at 1), and “[o]n March 01, 2017, Agents from the Lea County Drug Task Force executed [the] District Court Search warrant for the person of Irene Sendejo and her residence, located at 1010 South Fifth[, ]” Hobbs, New Mexico. (Doc. 1 at 2 (capitalization omitted).) On this date, agents observed Defendant and her four-year-old son “exit the residence of 1010 South Fifth[, ]” enter her vehicle, and drive north on Fifth Street. (Id.) Agent Shimer made contact with Defendant, “detained [her] without incident[, ]” and “advised [her] of a search warrant for her residence at 1010 South Fifth, the vehicles at the property, and her person.” (Id.) Agents transported Defendant and her son back to her residence, she gave them keys to the south door, and agents entered and secured the residence. (Id.) Agents advised Defendant of her Miranda rights, Defendant requested a lawyer, and agents searched her residence, locating methamphetamine, a digital scale, money, two firearms, and a safe containing additional methamphetamine. (Id. at 2- 3.) “All of the seized methamphetamine was weighed, and the total weight was approximately 840 grams.” (Id. at 3.)

         II. Legal Standard

         “[T]he Fourth Amendment commands that ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.'” United States v. Webster, 809 F.3d 1158, 1164 (10th Cir. 2016) (quoting United States v. Sells, 463 F.3d 1148, 1153 (10th Cir. 2006) (quoting U.S. Const. amend. IV.)) (subsequent citation omitted). “The test for determining the adequacy of the description of the location to be searched is whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.” Harman v. Pollock, 446 F.3d 1069, 1078 (10th Cir. 2006) (citations omitted); see also United States v. Deloera-Escalera, 636 F. App'x 977, 980 (10th Cir. 2016) (describing the “two-prong test to determine whether a warrant adequately describes the location to be searched) (quotations omitted).

         “The proponent of a motion to suppress has the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search.” United States v. Eckhart, 569 F.3d 1263, 1274 (10th Cir. 2009) (quotations omitted). “The controlling burden of proof at a suppression hearing is proof by a preponderance of the evidence.” United States v. Matlock, 415 U.S. 164, 177 n.14 (1974).

         III. ...


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