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United States v. Wiggins

United States District Court, D. New Mexico

April 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
NICHOLAS WIGGINS, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S AMENDED MOTION TO SUPPRESS EVIDENCE

         THIS 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 denied.

         I. FACTUAL BACKGROUND

         In support of his application for a search warrant, Bernalillo County Sheriff's Office (“BCSO”) Detective Joseph Garcia's affidavit contained the following information.

         In 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.

         Following 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 house. Id.

         During 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.

         Detective 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.

Id.

         Upon 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 belongings. Id.

         A grand 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.

         II. LEGAL STANDARD

         The 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.

         Courts 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).

         III. ANALYSIS

         Before 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 ...


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