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United States v. Velarde-Pavia

United States District Court, D. New Mexico

December 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE VELARDE-PAVIA, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Defendant's Motion to Suppress Illegally Obtained Evidence and its accompanying Memorandum in Support (collectively, Motion to Suppress), filed August 6, 2018. (Doc. 26). The United States responded on August 17, 2018. (Doc. 28). On October 10, 2018, the Court set a hearing on the Motion to Suppress for November 8, 2018. (Doc. 37).

         On October 16, 2018, the United States filed a Motion to Vacate Hearing and Rule on the Pleadings, in which the United States moved to vacate the Motion to Suppress hearing and moved the Court to decide the Motion to Suppress on the briefs. (Doc. 38). Defendant did not respond to that motion. On October 31, 2018, the Court vacated the hearing on the Motion to Suppress, thereby mooting the Motion to Vacate Hearing and Rule on the Pleadings. (Doc. 41).

         Having considered the briefing, the applicable law and the evidence, the Court DENIES the Motion to Vacate Hearing and Rule on the Pleadings as moot and DENIES the Motion to Suppress.

         I. Background

         On June 7, 2018, Roswell Police Department Agent G. Juarez obtained a search warrant for a 2008 white Toyota truck registered to Defendant and to his sister, Arianna Garcia, with a New Mexico license plate number LDN-973. (Doc. 38-1) at 1-2. In his affidavit in support of the search warrant application, Agent Juarez stated that he sought permission to search for “[c]ontrolled substances . . . namely [m]ethamphetamine, ” among other related items of interest. Id. at 2.

         Agent Juarez attested that he had “met with a reliable, credible and confidential informant” (CI) who had assisted him and other law enforcement personnel “by providing information, on more than three separate occasions that has led to the recovery of controlled substances.” Id. at 3. Specifically, Agent Juarez attested that the CI “personally witnessed the sale of controlled substances on more than three separate occasions while working for Agents with the Chaves County Metro Narcotics Task Force” and “personally purchased controlled substances for Agents with the Chaves County Metro Narcotics Task Force on more than three separate occasions.” Id. Agent Juarez continued:

Said informant has provided information which has proven to be truthful. Said informant has never provided false information to the knowledge of Affiant. Said informant has associated with known [m]ethamphetamine sellers and users and is familiar with the appearance of [m]ethamphetamine and how it is packaged and sold.

Id.

         According to Agent Juarez, the CI told him that, within the past 72 hours, the CI saw Defendant selling methamphetamine from his vehicle. Id. Agent Juarez attested that the CI also told him that Defendant has “several residences where he stashes large amounts of narcotics.” Id.

         Furthermore, Agent Juarez attested that, within the last 72 hours, surveillance by Agents revealed that Defendant drove a white Toyota truck with a New Mexico license plate number of LDN-973 from 806 W. 11th Street in Roswell to a residence at 1500 W. Albuquerque Street, also, in Roswell. Id. at 4. Agent Juarez related that Agents observed Defendant outside of his Toyota truck speaking with a female outside the residence at 1500 W. Albuquerque Street. Id. Agent Juarez stated Agents also observed that shortly after arriving at 1500 W. Albuquerque Street, Defendant drove the Toyota truck back to 806 W. 11th Street, where the CI purchased methamphetamine from Defendant. Id. Agent Juarez indicated in the affidavit that the Agents learned from the CI that Defendant “had travelled to an unknown location to pick up methamphetamine.” Id.

         Additionally, Agent Juarez attested in the affidavit that “through prior investigations and surveillance” he knew that Defendant's sister lives at 1500 W. Albuquerque Street and Defendant's brother lives at 806 W. 11th Street. Id. Agent Juarez also attested that the CI told him that “there [were] several firearms in the residence” at 806 W. 11th Street. Id.

         On June 11, 2018, members of the Chaves County Metro Narcotics Task Force stopped Defendant and searched the Toyota truck with New Mexico license plate number LDN-973. (Doc. 26) at 3. Agents found in the truck 136.1 grams of methamphetamine, a Smith and Wesson firearm with ammunition, and a Shooter Arms Manufacturing firearm with ammunition. (Doc. 28) at 1-2. During a search of Defendant, Agents found $80.00 in Defendant's left pocket, and $1, 045.21 and documentation related to the Smith and Wesson firearm in Defendant's right front pocket. Id. at 2.

         Also, on June 11, 2018, Agents executed search warrants for 1500 W. Albuquerque Street, 315 E. Forrest Street, and 806 W. 11th Street. (Doc. 28) at 2. At 1500 W. Albuquerque Street, Agents found five firearms in an outside shed to which only Defendant had access. Id. Agents did not find anything of evidentiary value at either 315 E. Forrest Street or 806 W. 11th Street. Id.

         On July 10, 2018, the United States indicted Defendant in this case for allegedly possessing 50 grams and more of methamphetamine with intent to distribute it, and knowingly carrying a firearm during the commission of that crime. (Doc. 16) at 1-2. This ...


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