United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION FOR SUPPRESSION OF EVIDENCE PURSUANT TO FRANKS V.
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
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
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.
May 9 - 25th Incidents as Described in Affidavit
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.
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.
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.
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.
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
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.
search was executed at the Parque de Villa residence, and a
handgun was found hanging from a bag in a closet.
Incidents from May 1-11, 2017 (as described by Ms.
Anaya's Written Statement dated May 11,
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.
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.
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.