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United States v. Anaya

United States District Court, D. New Mexico

March 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH ANAYA, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE PURSUANT TO FRANKS V. DELAWARE

         THIS MATTER comes before the Court following a hearing upon Defendant's Motion for Suppression of Evidence Pursuant to Franks v. Delaware, filed December 4, 2017 (Doc. 23). Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion is not well-taken and, therefore, is denied.

         BACKGROUND

         Defendant is charged with felon in possession of a firearm, in violation of 18 U.S.C. §922(g)(1). The evidence against him was seized pursuant to the execution of a search warrant of the Parque De Villa residence on May 26, 2017, based on an affidavit (hereinafter the “Affidavit”) presented by Officer Zebulum Evridge of the Santa Fe Police Department. Defendant contends the Affidavit contains knowingly false statements and omissions of material fact and in the absence of these (allegedly) knowingly false statements, the application for the warrant is insufficient to establish probable cause for its issuance. Defendant contends the warrant is thus invalid and moves for suppression of all evidence seized pursuant to its execution. On February 26, 2018, a hearing was held on the motion, at which Officer Evridge testified.[1]

         The criminal matter arises from a continuing dispute between Defendant and his sister, Ms. Jolene Anaya concerning the care of Defendant's minor child, U.A. At the time of the hearing on this motion, U.A. was placed with Ms. Anaya as guardian under temporary state custody.[2]

         I. May 9 - 25th Incidents as Described in Affidavit

         The series of events described in the Affidavit (Doc. 23-1) started with Officer Evridge and another officer, Officer Apodaca, responding to a call for service from Defendant on May 9, 2017. When the officers arrived, Defendant described to the officers the ongoing custody issue involving his sister. Defendant sought the officers' assistance in retrieving his son from Ms. Anaya's residence, where U.A. was staying at the time. He stated that he would “break [Ms. Anaya's] f ------ g neck” if he didn't get his son back and said he would take matters into his own hands and retrieve his son on his own. Doc. 23-1 at 6.

         The officers then went to Ms. Anaya's residence intending to retrieve Defendant's son. Ms. Anaya asked the officers not to return U.A. to Defendant because he was afraid of Defendant. She also claimed that Defendant threatened her with harm if she didn't give Defendant his son back. Doc. 23-1 at 8. The officers contacted Defendant on the phone who, once he was told of all the appointments the son had the following day, asked Ms. Anaya to keep the son overnight and return him the next day. The officers then went back to Defendant's residence to return the court paperwork. Defendant recorded the officers' presence there on his cell phone, and was described in the Affidavit that was later presented as being aggressive and belligerent. Id. at 7.

         On May 10, 2017 (the next day), Officer Evridge attended a safe house interview regarding the son's situation, and was also asked to attend a district court hearing for the child custody case. Defendant appeared telephonically because his vehicle had been seized for driving on a revoked license. The Affidavit states that Defendant was verbally abusive towards the judge hearing the custody case, and that Ms. Anaya was threatened by Defendant after the court hearing.

         On May 11, 2017, Officer Evridge conducted a victim/witness interview with Ms. Anaya. Ms. Anaya told Officer Evridge that she hoped she never ran into Defendant because he has violent tendencies and that he told her that he will “f-k me up. . . .” She said she was unable to sleep at night because she is in fear for her life and that she did not even feel safe at home without the fear that Defendant would come over and attempt to kill her. Doc. 23-1 at 8. The Affidavit states that in the interview, Ms. Anaya told Officer Evridge that Defendant “has a stolen handgun in his residence” and that he has “bragged to her” that the hand gun was stolen from the State Police with the serial numbers filed off. Id. She said that the handgun was kept in Defendant's closet inside a bag.

         On May 17, 2017, Officer Evridge attended a state court hearing to determine whether Defendant could be held without bond. His sister, Ms. Anaya, testified against Defendant and stated that she saw a .45 caliber handgun in Defendant's residence, that is was a stolen State Police service weapon and that it was kept in Defendant's closet inside a bag.[3]

         The Affidavit continues: On May 25, 2017, following the May 17th detention hearing, Officer Evridge obtained through the proper chain of custody Defendant's recorded phone conversations from the detention facility. In this jail call, Defendant was heard asking the female on the end of the conversation to retrieve that “thing” from his closet and that his sister was trying to get him into some “serious serious shit.” Doc. 23-1 at 9. The female (who turns out to be Defendant's younger sister) said she would call Ms. Anaya (Defendant's older sister), get the “thing” and hold onto it for him. The Affidavit concludes with Officer Evridge's statement that, based on his knowledge of Defendant and Ms. Anaya's statements, he believed that “there is a handgun located” at Defendant's residence.

         The search was executed at the Parque de Villa residence, and a handgun was found hanging from a bag in a closet.

         II. Incidents from May 1-11, 2017 (as described by Ms. Anaya's Written Statement dated May 11, 2017)

         On May 11, the same day Officer Evridge interviewed Ms. Anaya, Ms. Anaya prepared a six-page Voluntary Hand Written Statement. Doc. 23-2. The statement begins by describing an incident that occurred around May 1, 2017, when Defendant took “emergency custody” of his two children who were staying with their mother's home in Pecos, New Mexico at the time. The children were scared and wanted to stay with Ms. Anaya, and so Defendant brought the children to Ms. Anaya's house and left them to stay overnight. The following day, Defendant tried calling and texting Ms. Anaya while she was showering and getting ready for work and school for the children. When she was able to return his call, Defendant told her to get her “f----g kids” to his house or he was going to “f-k [her] up.” Ms. Anaya told him it would take longer to bring the children to his house because she was going to call for a police escort. When Ms. Anaya arrived at his house, Defendant got upset with the officers because they were “taking too long” and began recording the officers. The children were left there with Defendant, who continued to text Ms. Anaya throughout the afternoon and evening.

         On May 3, Defendant called Ms. Anaya and told her to pick up his son. Ms. Anaya described Defendant as “hysterical” and that he was “crying and raising his voice.” Doc. 23-2 at 2. She could hear both children crying in the background. Ms. Anaya went over to Defendant's house to pick up the son, but went with a friend. Defendant was still crying when Ms. Anaya and her friend got there, and Ms. Anaya could see inside to the living room because the front door was open. She was afraid to inside this because Defendant “braggs [sic] about having a gun.” Id. Defendant, while still crying, told his son to “go on” to his “auntie, just go.” The son ran out to Ms. Anaya, who took him to her home.

         On May 4, Defendant called Ms. Anaya and demanded she bring back her son. Ms. Anaya told Defendant that his son was traumatized and didn't want to go back. Defendant reminded her of the court order that gave him custody of his son. Ms. Anaya took the son back to Defendant's house, but when she arrived there, U.A. did not want to stay at his father's house. In the end, Defendant told Ms. Anaya to take the son back to her house. According to Ms. Anaya's written statement, Defendant texted and “harass[ed]” Ms. Anaya all afternoon while she was at work. The chronology of events described in the written statement comes full circle when, on May 10, two officers (including Officer Evridge) showed up at Ms. Anaya's home to pick up the son and return him to Defendant who eventually agreed to let the son stay at Ms. Anaya's home that night because the son had appointments the following day.

         III. Relevant Law

         A. Pr ...


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