United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
AMENDED MOTION TO SUPPRESS EVIDENCE
MATTER is before the Court on Defendant's
Amended Motion to Suppress Evidence [Doc. 37]. The Court held
a hearing on the motion on March 13, 2018. The Court, having
considered the motion, briefs, evidence, arguments, and being
otherwise fully advised, believes that the motion should be
support of his application for a search warrant, Bernalillo
County Sheriff's Office (“BCSO”) Detective
Joseph Garcia's affidavit contained the following
April and May 2016 a confidential informant
(“CI”) contacted Detective Garcia, and told him
that it had first-hand knowledge that Defendant trafficked
narcotics out of a home located at 10009 Range Road SW
(“Range Road”) in Albuquerque. Def.'s Ex. A.
The CI told Garcia that Defendant owned a Cadillac, Range
Rover and Mercedes, and that Defendant used these cars to
conduct drug deals. Id. Garcia's affidavit
provided background information about the CI, explaining that
the CI had worked with law enforcement before, that it had
provided accurate information in the past, and that law
enforcement had been able to corroborate minute details of
the CI's information. Id. Garcia explained that
the CI had never given him false information before and so he
considered the CI's information accurate and true.
Id. Garcia also noted that the CI was paid to
provide information, and that the CI knew this arrangement
would be jeopardized if the CI misled or lied to officers.
Id. The CI could recognize drugs and was familiar
with drug related activity. Id.
the CI's information, Garcia surveilled Range Road over
two periods that were conducted within a two week time-frame,
between May 3 through 17, and that were accomplished in
essentially the same manner. Id. In the first
surveillance, Garcia surveilled Range Road at least six times
for an hour at a time. Id. In the span of an hour,
he observed at least five vehicles arrive at Defendant's
house. Id. The visitors would stay for about three
to five minutes and then leave, carrying neither packages nor
children with them. Id. Garcia noted that his
experience and training led him to believe that this conduct
was consistent with drug trafficking. Id. In the
second period of surveillance of Range Road, conducted three
days before Garcia sought the warrant at issue, Garcia
observed Range Road for one hour and witnessed at least three
vehicles arrive, and then leave within three to five minutes
without packages or children. Id. In his affidavit
Garcia described Range Road's appearance, location, and
that the house's number “10009” was clearly
marked. Id. Garcia also noted that he observed the
three vehicles the CI described parked at Defendant's
this same period BCSO arranged for the CI to make a
“controlled purchase” of heroin from Defendant.
Id. As Garcia described in his affidavit, he
listened in on a phone call between the CI and Defendant
where they discussed an amount and price of heroin.
Id. Before the controlled buy, Garcia searched the
CI for contraband, and then covertly followed the CI to a
predetermined location where the drug deal happened. Garcia
watched as Defendant arrived in a black Mercedes and complete
a “hand to hand drug transaction” with the CI in
less than five minutes. Id. The CI and Garcia then
met at a separate location where the CI gave Garcia the
suspected heroin. Id.
Garcia stated in his affidavit that he used every effort to
personally corroborate the details of Defendant's
trafficking operations, using “specific observations
such as controlled purchase(s) of narcotics” to
corroborate the details of the investigation. Id.
Garcia ended his affidavit by noting that Defendant had a
criminal history and arrests for drug offenses. Id.
On May 17, 2016 Garcia applied for and a state judge approved
a warrant to search the Range Road house for heroin and other
drugs, drug paraphernalia, money, records, and firearms.
Id. The affidavit described the objects of the
search at Range Road as follows:
Heroin and other controlled substances, in any form, in an
unknown quantity, including but not limited to Heroin;
paraphernalia used for the packaging, distribution, weighing,
smoking, cooking, possession, use, and/or sale of Heroin and
other controlled substances. Records, which reflect the
identities of persons found at the above-described premises,
in possession of the above Heroin and/or other controlled
substances. United States currency, and/or firearms, weapons,
and/or other protective devices used or intended for use in
the trafficking, sale, possession and/or manufacturing of any
controlled substance and records which reflect the purchase
of any of the above listed items or as they pertain to the
above listed items, including, but not limited to: Receipts,
invoices, work orders, and purchase orders.
review, the judge approved the warrant. Two days later, on
May 19, Detective Garcia and other deputies executed the
search warrant on the Range Road property. Detective Garcia
recounted the search warrant's execution in a
Supplemental Report Form. Govt.'s Exh. 7. According to
that report, detectives found Defendant in a downstairs
bedroom, standing at the foot of a bed. Id. After
arresting Defendant and moving him to the kitchen, officers
searched the bedroom and found two loaded handguns.
Id. One handgun lay on the ground next to the bed,
appearing as if it had been thrown. Id. The other
was tucked under a blanket on the bed close to where
Defendant was found standing. Id. Officers also
found a fully automatic rifle located in a top dresser drawer
mixed together with Defendant's wallet and other personal
jury returned an indictment against Defendant charging him
with one count of distribution of heroin in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count I) and
being a felon in possession of a firearm and ammunition under
18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count II).
See Doc. 2. The Government moved to dismiss Count I,
explaining in its motion that the substance Defendant sold to
an undercover Drug Enforcement Agency agent tested negative
for controlled substances. See Doc. 15. The Court
granted the motion, dismissing without prejudice Count I.
See Doc. 16.
Fourth Amendment provides: “The right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable
cause ….” U.S. Const., amend. IV. A search
warrant must be based upon probable cause, which a reviewing
court determines by examining the affidavit supporting the
warrant. See United States v. Cooper, 654 F.3d 1104,
1124 (10th Cir. 2011). The court determines the
“sufficiency of the affidavit upon which a warrant is
issued by looking at the totality of the circumstances and
simply ensuring that the magistrate had a substantial basis
for concluding that probable cause existed.”
Id. (quoting Illinois v. Gates, 462 U.S.
213, 238-39 (1983)). Probable cause to search or seizes
exists when, under the totality of the circumstances,
“there is a fair probability that the contraband or
evidence of a crime will be found in a particular
place.” Illinois, 462 U.S. at 238.
will uphold a warrant if the issuing judge had a substantial
basis for concluding that officers would find contraband
during the search. See Poolaw v. Marcantel, 565 F.3d
721, 728-29 (10th Cir. 2009). “[P]robable cause
requires a nexus between the place to be searched and the
items to be seized.” United States v. Nolan,
199 F.3d 1180, 1183 (10th Cir. 1999). The “affidavit
supporting the search warrant need not contain direct
evidence or personal knowledge that the items sought are
located at the place to be searched;” instead, the
magistrate judge may draw reasonable inferences from the
information in the affidavit supporting the warrant.
Id. accord United States v. Biglow, 562
F.3d 1272, 1279-80 (10th Cir. 2009) (explaining that nexus
requirement may be met by magistrate judge's reasonable
inferences drawn from evidence where drug suspect is likely
to store contraband or on opinion of officers as to where
contraband may be kept); United States v. Sanchez,
555 F.3d 910, 912, 914 (10th Cir. 2009) (indicating that once
probable cause exists that a person is a supplier of illegal
drugs, probable cause also exists to search that person's
home for contraband and other evidence).
addressing the sufficiency of the search warrant affidavit,
the Court first addresses Garcia's surveillance of Range
Road, since much of Defendant's briefing and arguments at
the motion to suppress hearing were devoted to whether Garcia
falsified his observations of short-term traffic at Range
Road. Defendant's wife leased Range Road and had the
utilities in her name. She was not present when officers
executed the warrant, but went into the home shortly after.
She stated that the guns were not strewn about the bedroom as
Garcia described, but instead were located in gun cases.
Def.'s Exh. L. p. 6, lines 21-24. She also stated that
Range Road did not experience the short-term traffic Garcia
described. When asked whether visitors were in and out of the
house, she replied that “nobody goes to my home.
It's me and my children and the person I'm dating and
that's it … We don't get visitors. Friends
aren't allowed over.” Id. p. 5, lines
12-17. Defendant also points out that neighbors did not
observe short-term traffic at Range Road in the manner Garcia
described, nor did earlier Drug Enforcement Agency
(“DEA”) surveillance of Range Road indicate such
activity occurred there. At the hearing, Defendant stated
that, based on this and other evidence, he had carried his
burden of proof to show that Detective Garcia's affidavit
contained false ...