United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE DERIVED AS A RESULT OF INVALID
MATTER comes before the Court upon Defendant's Motion to
Suppress Evidence Derived as a Result of an Invalid Arrest
Warrant, filed September 24, 2018 (Doc. 75).
Defendant contends that his arrest by Santa Fe, New Mexico,
law enforcement was in violation of his Fourth Amendment
right to protection from unreasonable search and seizure,
because the arrest warrant lacked probable cause and
therefore any evidence derived as a result of the unlawful
arrest, including jailhouse phone calls, must be suppressed
under the “fruit of the poisonous tree” doctrine.
Having reviewed the parties' briefs and applicable law,
the Court finds that Defendant's motion is not well-taken
and, therefore, is denied.
is charged with felon in possession of a firearm, in
violation of 18 U.S.C. §922(g)(1).
11, 2017, Defendant was arrested on state charges of (1)
intimidation of a witness contrary to NMSA 1978 §
30-24-3(A)(2); (2) use of a telephone to terrify, intimidate,
threaten, harass, annoy or offend contrary to NMSA 1978
§30-20-12; and (3) harassment contrary to NMSA 1978
§30-3A-2. The victim of all three charges was
Defendant's older sister, Jolene Anaya (“Ms.
Anaya”), with whom Defendant was involved in a
continuing dispute concerning the care of Defendant's
was arraigned on May 12. On May 17, 2017, a detention hearing
was held, in which Ms. Anaya testified, and the state
district court ordered that Defendant be detained. Based on
Ms. Anaya's testimony, on May 25, 2017, Santa Fe Police
Department (“SFPD”) Officer Evridge obtained
jailhouse phone calls made by Mr. Anaya from the jail, from
which a warrant was issued to search 4245 Parque De Villa in
Santa Fe, New Mexico, a residence where Defendant had been
living prior to his arrest by SFPD. A search was executed the
following day, and SFPD officers found a handgun hanging in a
bag in Defendant's closet.
30, 2017, a Criminal Complaint was filed in the United States
District Court for the District of New Mexico, charging Mr.
Anaya with one count in violation of 18 USC § 922(g)(1)
(Doc. 1). Mr. Anaya was arrested by federal authorities on
August 28, 2017, and appeared before United States Magistrate
Judge Karen B. Molzen on the same day (Doc. 4).
has previously challenged the veracity of the search warrant,
seeking to suppress the handgun found in the Parque de Villa
residence. The Court denied that motion. See Doc. 39
(Mem. Opin. & Order denying motion to suppress).
Defendant argued that the affidavit supporting the search
warrant was based on false information because it omitted the
fact that Ms. Anaya saw the handgun in 2016 at
Defendant's previous residence, rather than in 2017 at
the Parque de Villa residence. However, the Court found that
the affidavit supported probable cause for the search warrant
“even with the omitted information”:
These circumstances include information that Officer Evridge
had gathered over time. First, Officer Evridge had reason to
believe that Defendant has violent tendencies, based on his
own interaction with Defendant as well as from Ms.
Anaya's statements. Doc. 23-1 at 8. Second, Defendant is
a convicted felon and it has not been more than 10 years
since his probation ended. Doc. 23-1 at 10. Third, Defendant
has bragged that he has a handgun stolen from the State
Police with the serial numbers filed off, and has made
threats and continues to make threats, against his sister,
Ms. Anaya. Doc. 23-1 at 8. Fourth, Ms. Anaya was in fear for
her life and for her family's life and as of May 2017 was
still afraid to enter Defendant's home (the Parque de
Villa residence). Doc. 23-1 at 8. Fifth, during a May 20,
2017 telephone call from jail, Defendant asked the female on
the other end of the conversation to retrieve that
“thing” from a bag in his closet and hold onto
it, telling her that his sister was trying to get him in
“serious sh*t.” Doc. 23 at 9.
Doc. 39 at 13-14.
has now filed a second motion to suppress. This motion to
suppress challenges the adequacy (rather than the veracity)
of the affidavit in support of the arrest warrant, claiming
that Officer Evridge's affidavit did not include enough
information to support a finding of probable cause as to any
of the crimes with which he was charged. Defendant claims his
phone calls made from jail were seized as a result of his
illegal arrest and contends the all evidence found as a
result of his unlawful arrest, including the phone calls,
should be suppressed as “fruit of the poisonous
tree” under the Fourth Amendment's exclusionary
rule. His argument goes like this: if he had not been
illegally arrested, he would not have been in jail to make
the phone calls, no search warrant would have been issued,
and no handgun would have been discovered hanging in the
closet of the Parque de Villa apartment. The inquiry here is
therefore the sufficiency of the affidavit supporting the
Fourth Amendment of the United States Constitution protects
individuals from unreasonable searches and seizures and
requires that “no Warrants shall issue, but upon
probable cause.” U.S. Const. amend. IV. Katz v.
United States, 389 U.S. 347 (1967). Probable cause for
an arrest warrant is established “by demonstrating a
substantial probability that a crime has been committed and
that a specific individual has committed the crime.”
Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir.
1996), cert denied 519 U.S. 871 (1996); Wolford v.
Lasater, 78 F.3d 484, 489 (10th Cir. 1996). Generally
speaking, probable cause exists when facts and circumstances
are within an officer's knowledge, received through
reasonable trustworthy information, that sufficiently warrant
a person of reasonable caution to believe a crime has been or
is being committed by the person to be arrested. United
States v. Morgan, 936 F.2d 1561, 1568 (10th Cir. 1991).
Tenth Circuit determines whether there was probable cause for
a warrant based on the totality of circumstances. United
States v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2005)
(internal citation omitted). The same probable cause
standards are applicable to federal and state warrants under
the Fourth and Fourteenth Amendments. Whiteley v. Warden,
Wyo. State Penitentiary, 401 U.S. 560, 565 n.6 (1971).
Only the probability, and not a prima facie showing, of
criminal activity is the standard of probable cause.
United States v. Nolan, 199 F.3d 1180, 1182-83 (10th
Information Contained in Affidavit for Arrest
affidavit for the arrest warrant, May 11, 2017 contains the
• On May 9, 2017, Officer Evridge received a call for
service from Defendant, who stated that he had court custody
paperwork from his son; . During this call,
Defendant was verbally abusive and initially non-compliant;
• After speaking with Defendant, Officer Evridge felt
that it would be best from a safety standpoint to go with
another officer to Defendant's home to retrieve the court
• When Officers Evridge and Apodaca arrived at
Defendant's home, Defendant was verbally aggressive with
them, and made comments about his sister to the effect that
he would go break her f**king neck if he didn't get his
• Defendant also stated that he would kidnap his son if
Ms. Anaya did not return him;
• Defendant insinuated a number of times that if the
officers did not help him, he would take the matter into his
own hands and retrieve his son on his own;
• The officers went to Ms. Anaya's home to retrieve
Defendant's son, but Ms. Anaya asked them not to return
Defendant's son to Defendant because the son feared
Defendant. Defendant agreed to have his son stay with Ms.
Anaya for the night;
• After the officers left Ms. Anaya's home, they
went back to Defendant's home to return the court
paperwork. Defendant argued with and was belligerent towards
• On May 10, 2017, Officer Evridge attended a safe house
interview for Defendant's son. Following that interview,
Officer Evridge was asked to attend a hearing in District
Court for the custody case; . During the
court hearing, Defendant, appearing by telephone, was
verbally abusive towards the judge and called her a
• On May 11, 2017, Officer Evridge conducted a
victim/witness interview with Ms. Anaya regarding Defendant.
Ms. Anaya stated that Defendant had called her work and was
making additional threats towards her, including threats to
“break her f**king neck, ” kidnap his son from
Ms. Anaya, and that Ms. Anaya ...