United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER.
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.
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
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.
Findings of Fact
Lozoya is an agent with the Department of Homeland Security.
Tr. at 7. 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.
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.
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.
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.
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.
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.
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.
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.
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 ...