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United States v. Cruz

United States District Court, D. New Mexico

September 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCISCO YBARRA CRUZ, Defendant.

          MEMORANDUM OPINION AND ORDER.

         THIS MATTER is before the Court on Defendant's Motion to Suppress Evidence and Statements, filed July 19, 2018. (Doc. 16). The United States responded on August 8, 2018. (Doc. 25). On August 16, 2018, the Court held an evidentiary hearing on the Motion. Assistant United States Attorney Mark Saltman appeared for the United States, and Assistant Federal Public Defender Bernadette Sedillo appeared on behalf of Defendant Francisco Ybarra Cruz, who was present. Having considered the briefing, the oral arguments of counsel, the applicable law and the evidence, the Court denies the Motion.

         I. Procedural Background

         This case originated on March 26, 2018, when the United States filed a Criminal Complaint alleging that Cruz violated 21 U.S.C. § 841(a)(1) by knowingly or intentionally possessing with intent to distribute approximately 11.5 pounds of methamphetamine. (Doc. 1). On June 20, 2018, the United States filed an Indictment charging Cruz in Count 1 with distribution of 500 grams or more of methamphetamine in violation of 21 U.S.C. § 846, and in Count 2 with possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. (Docs. 10 and 11).

         The evidence includes that the methamphetamine was seized, and inculpatory statements made, on March 24, 2018. At the August 16, 2018, hearing, Department of Homeland Security Special Agent Fernando Lozoya (“Agent Lozoya”), and New Mexico State Police Department Officer Leo Palomares (“Officer Palomares”) testified. The Court admitted the United States' exhibits without objection. The Court heard oral argument from both parties.

         II. Findings of Fact

         Agent Lozoya is an agent with the Department of Homeland Security. Tr. at 7.[1] He has worked for the Department of Homeland Security for thirteen years, and has been stationed in Las Cruces for the past four years. Id. at 8. Agent Lozoya has worked with a Confidential Source (“CS”) since 2016, finding that he has provided reliable and credible information. Id. at 9. The CS's information related to an investigation surrounding the importation of methamphetamine from Mexico to Phoenix, Arizona. The CS's information resulted in previous seizures of methamphetamine. Id. at 9-10.

         At approximately 4:00 p.m., on Saturday March 24, 2018, Agent Lozoya received a call from the CS who told Agent Lozoya that he ordered about ten pounds of methamphetamine. Id. at 10. The CS informed Agent Lozoya that the methamphetamine would be in a vehicle located in Las Cruces in the area of Interstate 10, exit 139, and Motel Boulevard. Id. Agent Lozoya testified the vehicle was traveling from Arizona. Id. The CS did not provide a description of the vehicle the individual was driving. Id. at 29. When Agent Lozoya arrived near exit 139, he noticed several vehicles with Arizona license plates and, without further information, could not discern which vehicle the CS was talking about. Id. at 10.

         At approximately 5:30 p.m., the CS told Agent Lozoya that the vehicle was in the area of Boutz and El Paseo Rds. in Las Cruces. Id. at 11. The CS also told Agent Lozoya that the individual transporting the methamphetamine mentioned to the CS that he was with his family. Id. Agent Lozoya went to the intersection and started looking for a vehicle with an Arizona tag with a family, driving around the area. He located a white pickup truck with an Arizona license plate at the corner of Montana Ave. and El Paseo Rd., approximately one mile from the Boutz intersection. Id. at 12. He also noticed the white pickup truck had an attached tow dolly, and an Hispanic male working on the vehicle. Id. This male was later identified as Cruz. Id. at 14.

         Agent Lozoya continued to surveil the white pickup truck from his position at a nearby Sonic Drive-In, observing the male work on the front of the pickup truck in an empty parking lot. Id. at 11-13. Around this time, Agent Lozoya noticed a black Ford pickup truck stop where Cruz was located, and Agent Lozoya noticed a female and a young Hispanic male in the black Ford pickup truck. Id. at 13. After talking to Cruz for a few minutes, the female and young Hispanic male traveled in the black Ford pickup truck to the Sonic Drive-In and pulled into the parking space next to Agent Lozoya. Id. According to Agent Lozoya, the black Ford pickup truck remained parked for a few minutes, though it appeared the driver and passenger did not order anything from the restaurant. Agent Lozoya then observed the black Ford pickup truck return to the empty parking lot where Cruz was located. Id. at 13-15. Agent Lozoya also noticed that the black Ford pickup truck had a Kansas license plate. Id. at 14.

         As a result of these observations, Agent Lozoya contacted Officer Palomares, and informed Officer Palomares of the information he had and asked for Officer Palomares' assistance with a traffic stop of Cruz's white pickup truck. Id. at 16. Specifically, Agent Lozoya told Officer Palomares that he had information from a CS of a male delivering methamphetamine, driving a white pickup truck with an Arizona license plate. Id. at 16-17. Agent Lozoya testified that he had worked with Officer Palomares before. Id. at 16.

         After the female and young male returned to the empty parking lot where Cruz was located, they all departed in the two pickup trucks, traveling approximately two miles north to an O'Reilly's Auto Parts (“O'Reilly's”). Id. at 15-16. Agent Lozoya continued his surveillance, parking in an AutoZone store across the street from the O'Reilly's. Id. at 18. Agent Lozoya observed Cruz working on one of the pickup trucks. Id. at 19.

         At this time, Agent Lozoya contacted the CS, instructing the CS to inform his source that the drug transaction could not be completed that day, but that it could be done the next day. Id. at 17. Agent Lozoya also instructed the CS to ask the source where he was located at that time. Id. The CS called Agent Lozoya, stating the source said he was currently at the O'Reilly's parking lot. Id. at 17-18.

         From approximately 6:00 p.m. to approximately 8:00 p.m., Agent Lozoya surveilled the individuals at the O'Reilly's parking lot. Id. at 19. Cruz had attached the black Ford pickup truck to the dolly attached to the white pickup truck, so that the white pickup truck was towing the black Ford pickup truck. Id. at 20. At around 7:30 p.m., the CS told Agent Lozoya that Cruz needed to leave Las Cruces quickly to go to Kansas and pick up a vehicle that he left there the previous week, so Cruz wanted to complete the drug transaction. Id. at 19. The drug transaction was never completed. Id. at 23.

         Agent Lozoya then observed Cruz and his family leave the O'Reilly's parking lot in the white pickup truck, towing the black Ford pickup truck, and pull into a Walmart near Valley Drive. Id. at 20. Agent Lozoya followed Cruz and his family to the Walmart, where Agent Lozoya was then joined by Department of Homeland Security Special Agent Joey Rodriguez (“Agent Rodriguez”). Id. at 20-21. Cruz and his family stayed at the Walmart for about an hour. Id. at 21. At approximately 9:00 p.m., Cruz and his family left the Walmart and headed back to the O'Reilly's parking lot. Id. Cruz and his family were at the O'Reilly's parking lot for about ten to fifteen minutes before heading to the ...


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