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United States v. Cruz

United States District Court, D. New Mexico

February 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE JESUS CRUZ, Defendant.

          John C. Anderson United States Attorney Jon K. Stanford Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Carey Corlew Bhalla Carey C. Bhalla, LLC Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant Jose Jesus Cruz's Motion to Suppress Evidence and Statements, filed October 22, 2018 (Doc. 25)(“Motion”). The Court held an evidentiary hearing on January 25, 2019. See Clerk's Minutes at 1, filed January 25, 2019 (Doc. 41). The primary issues are: (i) whether Bernalillo County[1] Sheriffs Office (“BCSO”) deputies had probable cause that Defendant Jose Jesus Cruz was engaged in drug trafficking in September, 2017, based on the knowledge that Cruz trafficked drugs while on federal probation in 2016; on the August, 2017, statement of a confidential informant (“CI”) that Cruz was trafficking drugs; on a September, 2017, statement from a confidential source (“CS”) that the CS obtained methamphetamine from Cruz; on a telephone conversation between Cruz and the CS in which they planned a drug transaction outside Cruz' residence; on Cruz' appearance at the drug transaction's location; and on Cruz' running from the BCSO deputies at the transaction's location and into his residence; (ii) whether, based on the same facts, BCSO deputies had probable cause that Cruz possessed drugs; (iii) whether drug trafficking is a “serious crime” for purposes of a warrantless entry into a home for the destruction-of-evidence exception to the warrant requirement; (iv) whether methamphetamine possession is a “serious crime” for purposes of a warrantless entry into a home for the destruction-of-evidence exception to the warrant requirement; (v) whether destruction of evidence was likely when Cruz ran from the BCSO deputies at the transaction's location and into his residence; (vi) whether Cruz' running from the BCSO deputies and into his residence indicated an exigency that the BCSO deputies did not manipulate or abuse; (vii) whether the BCSO deputies were in hot pursuit of Cruz; and (viii) if the BCSO deputies entered Cruz' residence unlawfully, whether the unlawful entry tainted Cruz' consent to the BCSO deputies' search of his home and vehicles. The Court concludes that: (i) based on the facts recited above, the BCSO deputies had probable cause that Cruz was engaged in drug trafficking, or, at least, that Cruz was attempting to traffic drugs; (ii) based on the same facts, the BCSO deputies had probable cause that Cruz possessed drugs, specifically methamphetamine; (iii) drug trafficking is a “serious crime” for the purpose of a warrantless entry into a home under the destruction-of-evidence exception to the warrant requirement; (iv) methamphetamine possession is a “serious crime” for the purpose of a warrantless entry into a home under the destruction-of-evidence exception to the warrant requirement; (v) destruction of evidence was likely when Cruz ran from the BCSO deputies and into his residence; (vi) Cruz' running from the BCSO deputies and into his residence indicated an exigency that the BCSO deputies did not manipulate or abuse; (vii) the BCSO deputies were in hot pursuit of Cruz; and (viii) because the BCSO deputies lawfully entered Cruz' residence, no unlawful entry tainted Cruz' consent to search and the exclusionary rule does not apply. Accordingly, the Court will not suppress the evidence obtained pursuant to the search and denies the Motion.

         FACTUAL BACKGROUND

         Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Lopez-Carillo, 536 Fed.Appx. 762, 768-69 (10th Cir. 2013)(unpublished)[2](“[T]he Supreme Court has made it clear hearsay is admissible in suppression hearings. . . . As a result, the restriction in the Confrontation Clause against admission of testimonial statements . . . is not implicated here. (citing United States v. Matlock, 415 U.S. 164, 172-77 (1974); United States v. Sanchez, 555 F.3d 910, 922 (10th Cir. 2009); United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004)).

         1. Gerald (“Jerry”) Koppman is a BCSO detective and a member of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) Task Force. See Draft Transcript of Hearing at 4:7-9 (taken January 25, 2019)(Koppman)(“Tr.”).[3]

         2. As a member of the ATF Task Force, Koppman investigates serious crimes, including “felons carrying guns, drug traffickers that also use guns[, and] violent subjects, ” and “serve[s] as backup for local authorities when they're handling high level cases.” Tr. at 4:12-19 (Koppman, Stanford).

         3. Around 2016, Koppman learned of a “fairly large scale narcotics trafficker that they called Chino.” Tr. at 4:25-5:1 (Koppman). See Detective Supplemental Report at 2, filed October 22, 2018 (Doc. 25-1).

         4. Koppman later learned that “Chino” was Cruz and that Cruz was on federal probation. See United States' Response to Defendant's Motion to Suppress ¶ 1, at 1, filed November 13, 2018 (Doc. 31)(“Response”); Tr. at 5:1-4 (Koppman).

         5. Through the United States Probation Office, Koppman organized a meeting with Cruz, and, at the meeting, Cruz admitted to trafficking drugs and agreed to cooperate with Koppman's then-ongoing investigation. See Response ¶ 1, at 1-2; Tr. at 5:6-16 (Koppman).

         6. Cruz revealed to Koppman a “violent narcotics trafficker's]” residence. Tr. at 5:24-25 (Koppman). See id at 5:20-6:10 (Stanford, Koppman).

         7. After that investigation, Koppman did not use Cruz as a cooperator again or “sign him up” as “an official informant.” Tr. at 5:18-7:7 (Stanford, Koppman).

         8. “On or around August 4, 2017, ” the CI informed Koppman “that an individual . . . identified as ‘Chino' was distributing considerable amounts of methamphetamine and heroin.” Response ¶ 2, at 2. See Response ¶1, at 1; Tr. at 7:12-15 (Koppman); Detective Supplemental Report at 2.

         9. In Koppman's Detective Supplemental Report, Koppman labeled the CI a “confidential informant, ” because the BCSO recorded the CI as an “informant.” Tr. at 10:1-3 (Koppman).

         10. The CI described Chino's cars and the intersection near Chino's residence, and Koppman recognized the cars and the residence as Cruz' cars and residence, and the CI identified that “Chino” was Cruz in an image that Koppman showed the CI. Response ¶ 2, at 2. See Response ¶1, at 1; Tr. at 7:15-17 (Koppman); Detective Supplemental Report at 2.

         11. The CI also informed Koppman about a subject with “a large amount of methamphetamine, ” Tr. at 7:19-20 (Koppman), who “had recently traded guns for drugs” with “Chino, ” Response ¶ 3, at 3. See Response ¶1, at 1; Detective Supplemental Report at 2.

         12. Koppman obtained a search warrant in relation to this subject, and, on September 5, 2017, Koppman contacted the subject when BCSO deputies executed the search warrant. See Response ¶1, at 1; Tr. at 34:23-35:3 (Bhalla, Koppman); id. at 36:7-11 (Bhalla, Koppman); Detective Supplemental Report at 2.

         13. The subject became the CS. See Response ¶ 3, at 2.

         14. Koppman identified the CS as a “confidential source, ” because the CS began sharing information “immediately” when the BCSO deputies executed the search warrant. Tr. at 10:3-6 (Koppman).

         15. The CS identified a picture of Cruz, and told Koppman that Cruz supplied the CS' narcotics and “regularly sells methamphetamine.” Tr. at 7:18-23 (Koppman). See Response ¶ 4, at 2; Tr. at 10:20-23 (Koppman); Detective Supplemental Report at 2-3.

         16. Koppman verified the CS's knowledge “by quizzing the CS about other known drug traffickers, and other information to which Koppman already knew the answers.” Response ¶ 5, at 2.

         17. The CS divulged to Koppman text messages between Cruz and the CS in which the two individuals discussed recent “drug transactions.” Response ¶ 5, at 2-3. See Tr. at 10:13-20 (Koppman); Detective Supplemental Report at 3.

         18. The CS told Koppman that Cruz and the CS traded drugs at the intersection of Lansing and Airway, which Koppman recognized as the intersection near Cruz' residence. See Tr. at 8:3-7 (Koppman).

         19. The CS informed Koppman that, “at times, ” the CS stored Cruz' methamphetamine, because Cruz “was on federal probation.” Tr. at 8:17-18 (Koppman).

         20. Koppman “concluded the CS was being truthful.” Response ¶ 5, at 3.

         21. “On September 5, 2017, Koppman asked CS to call and request a purchase of methamphetamine from Defendant.” Response ¶ 6, at 3. See Tr. at 20:25-21:6 (Stanford, Koppman); Detective Supplemental Report at 3 22. The CS ordered several ounces of methamphetamine. See Tr. at 13:12-13 (Koppman); id at 17:9-12 (Stanford, Koppman).

         23. Cruz agreed to make the drug sale to the CS after Cruz left work. See Response ¶ 6, at 3; Tr. at 8:13-14 (Koppman); Detective Supplemental Report at 3.

         24. Several ounces of methamphetamine is “a trafficking amount, ” Tr. at 17:15 (Koppman), that is “dangerous to the public, ” Tr. at 17:17-18 (Stanford). See id at 17:17-19 (Stanford, Koppman).

         25. Koppman and other BCSO deputies listened to the call between Cruz and the CS. See Response ¶ 6, at 3; Tr. at 8:12-13 (Koppman); Detective Supplemental Report at 3.

         26. Koppman asked the CS to make the call, because Koppman sought to verify the stories about Cruz' drug trafficking. See Tr. at 20:25-21:6 (Stanford, Koppman).

         27. Koppman did not plan for a drug buy to occur. See Tr. at 21:10-12 (Stanford, Koppman).

         28. Koppman and the other BCSO deputies “then drove to conduct surveillance on Defendant's house” and directed the CS to call them “if/when Defendant called the CS regarding the drug deal.” Response ¶ 7, at 3. See Detective Supplemental Report at 3.

         29. Koppman did not believe that Cruz would be storing narcotics at his house. See Response ¶ 7, at 3; Tr. at 8:19-9:3 (Koppman).

         30. Koppman did not plan to enter Cruz' house. See Tr. at 17:24-18:6 (Stanford, Koppman).

         31. Koppman hoped to surveil Cruz' house to identify from where Cruz would retrieve the drugs or from whom Cruz would receive the drugs before the sale. See Tr. at 9:3-8 (Koppman); id at 13:19-14:2 (Koppman).

         32. Koppman intended to convince Cruz to cooperate with the BCSO deputies in investigating a “higher target.” Tr. at 11:14-12:4 (Koppman). See Response ¶ 7, at 3.

         33. It is “a common investigative tactic” to intercept suspects at drug sales and convince them to cooperate with officers. Tr. at 18:16 (Stanford). See Tr. at 18:16-22 (Stanford, Koppman).

         34. Koppman expected that Cruz would be “respectable” and cooperative. Tr. at 12:17 (Koppman). See id at 12:15-23 (Koppman).

         35. Koppman and the other BCSO deputies did not plan to arrest Cruz, because they did not want to expose him “as a cooperator.” Tr. at 22:1 (Stanford). See id at 21:13-22:2 (Stanford, Koppman).

         36. If Cruz had narcotics on him, Koppman expected to take the narcotics but still obtain Cruz' cooperation. See Tr. at 22:6-9 (Stanford, Koppman).

         37. While the BCSO deputies were surveilling Cruz' residence, the CS conveyed that Cruz had told the CS to meet at the intersection outside the residence in fifteen minutes for the drug transaction. See Response ¶ 8, at 3; Tr. at 13:6-9 (Koppman); id at 15:10-11 (Koppman).

         38. Cruz gave the CS directions to his house, and told the CS to “park outside of the residence and he would come out.” Detective Supplemental Report at 3.

         39. Around fifteen minutes later, Koppman and the other BCSO deputies observed Cruz leave his home and walk to the intersection while looking around for someone. See Response ¶ 8, at 3; Tr. at 15:14-17 (Koppman).

         40. Koppman expected such behavior from someone about to engage in a drug transaction. See Response ¶ 9, at 3-4; Tr. at 15:22-25 (Stanford, Koppman).

         41. Cruz was carrying nothing at the time. See Tr. at 29:2-17 (Bhalla, Koppman); Detective Supplemental Report at 3.

         42. Koppman believed that Cruz might have drugs on him. See Tr. at 37:22-38:1 (Stanford, Koppman).

         43. Koppman and the other BCSO deputies, who all wore official BCSO clothing, approached Cruz and “announced their presence, ” identifying themselves as police. Response ¶ 10, at 4. See Detective Supplemental Report at 3.

         44. Cruz ran from Koppman and the other BCSO deputies, and ran into his residence. See Response ¶ 10, at 4; Tr. at 16:20 (Koppman); Detective Supplemental Report at 3-4.

         45. Koppman's plans to communicate with Cruz “in a low-key” manner changed when Cruz ran from him and the other BCSO deputies. Tr. at 38:18-19 (Koppman).

         46. Koppman and the other BCSO deputies yelled at Cruz to stop. See Tr. at 37:10-16 (Bhalla, Koppman); Detective Supplemental Report at 4.

         47. Cruz ignored Koppman's and the other BCSO deputies' orders. See Response ¶ 10, at 4.

         48. When Cruz ran from the BCSO deputies at the location for the drug sale, the BCSO deputies had probable cause that Cruz was engaged in drug trafficking, or, at least, that Cruz was attempting to traffic drugs.

         49. The BCSO deputies also had probable cause that Cruz possessed drugs, specifically methamphetamine.

         50. Koppman and the other BCSO deputies assumed that Cruz ran to destroy evidence. See Response ¶ 10, at 4; Tr. at 16:25-17:8 (Stanford, Koppman).

         51. Cruz was likely to destroy evidence when he ran from the BCSO deputies and into his residence.

         52. Koppman and the other BCSO deputies followed Cruz and entered Cruz' residence close behind him. See Response ¶ 10, at 4; Tr. at 22:25-23-1 (Koppman); id at 27:8-10 (Koppman).

         53. The BCSO deputies were in hot pursuit of Cruz.

         54. Drug trafficking is a “serious crime” for the purposes of a warrantless entry into a home under the destruction-of-evidence exception to the warrant requirement.

         55. Methamphetamine possession is also a “serious crime” for the purposes of a warrantless entry into a home under the destruction-of-evidence exception to the warrant requirement.

         56. Cruz' running from the BCSO deputies and into his residence indicated that an exigency existed.

         57. The BCSO deputies did not manipulate or abuse the exigency.

         58. On the BCSO deputies' entering the house, Cruz was exiting the bathroom with his “arms wet up to the elbows.” Tr. at 23:2-4 (Koppman). See Response ¶ 10, at 4; Detective Supplemental Report at 3-4.

         59. The BCSO deputies took Cruz into custody. See Tr. at 23:3 (Koppman).

         60. Cruz was wearing a handgun holster and informed Koppman that he “normally carried a firearm in the holster.” Response ¶ 10, at 4.

         61. Koppman asked Cruz if he had narcotics on his person, and Cruz stated that he had them in his pants. See Detective Supplemental Report at 4.

         62. Cruz had “a plastic bag containing approximately 16 grams of methamphetamine and approximately 8 grams of heroin in [his] front pants pocket.” Response ¶ 10, at 4. See Detective Supplemental Report at 3.

         63. As the CS agreed to purchase methamphetamine from Cruz, see Tr. at 13:12-13 (Koppman); id at 17:9-12 (Stanford, Koppman), and Koppman and the other BCSO deputies knew about only that agreement when approaching Cruz, see Response ¶ 6, at 3; Tr. at 8:12-13 (Koppman); Detective Supplemental Report at 3, the BCSO deputies had no reason to think that Cruz would have heroin on him.

         64. Cruz flushed a maximum of three ounces of methamphetamine “down the toilet as deputies were entering the house.” Response ¶ 10, at 4. See Detective Supplemental Report at 4.

         65. “A bag of . . . methamphetamine” was in the toilet. Tr. at 23:6-7 (Koppman).

         66. The BCSO deputies did not enter any other parts of the house without consent or do more than look in the toilet to locate the methamphetamine. See Tr. at 24:18-25 (Stanford, Koppman).

         67. Cruz “gave signed consent” to the BCSO deputies to search his home and vehicles. Response ¶ 10, at 4. See Tr. at 25:2-6 (Koppman); Detective Supplemental Report at 4.

         68. Cruz had a Derringer .22 caliber handgun and a Taurus .22 caliber handgun in the living room; a SCCY 9 millimeter handgun in the bedroom; a 9 millimeter handgun in a Honda vehicle; fifteen ounces of methamphetamine in a vehicle's trunk; twenty grams of methamphetamine, which belonged to another individual, in a black purse; and, also in the black purse, twenty grams of heroin and a Kimber 9 millimeter handgun, both of which belonged to Cruz. See Response ¶ 11, at 5; Tr. at 25:14-22 (Koppman).

         69. All the firearms that the BCSO deputies recovered functioned. See Response ¶ 12, at 5; Detective Supplemental Report at 5.

         70. Cruz “often trades narcotics to individuals in exchange for firearms.” Response ¶ 11, at 5.

         71. Because the BCSO deputies lawfully entered Cruz' residence, no unlawful entry tainted the BCSO deputies' search and the exclusionary rule does not apply to exclude the evidence obtained pursuant to the entry.

         PROCEDURAL BACKGROUND

         On April 10, 2018, a federal Grand Jury indicted Cruz on four counts: (i) being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1); (ii) possessing with the intent to distribute more than fifty grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (iii) possessing with the intent to distribute heroin in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(C); and (iv) carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c). See Indictment at 1-2, filed April 10, 2018 (Doc. 1). Cruz filed the Motion on October 22, 2018. See Motion at 14. In his Motion, Cruz asks that the Court “suppress all evidence recovered during the search of Mr. Cruz's vehicle and residence and all statements made by Mr. Cruz.” Motion at 1.

         1. The Motion.

         According to Cruz, the United States cannot use evidence obtained in violation of an individual's constitutional rights or “evidence that was obtained as a but-for result of the illegal search unless the evidence is so far removed from the constitutional violation that the ‘taint' of the violation no longer clings to it.” Motion at 5 (quoting Wong Sun v. United States, 371 U.S. 471, 484 (1963), and citing United States v. Calandra, 414 U.S. 338, 347 (1974); United States v. Romero, 743 F.Supp.2d 1281, 1313 (D.N.M. 2010)(Browning, J), affd 749 F.3d 900 (10th Cir. 2014)). Cruz contends that, because the BCSO deputies unlawfully entered his home, evidence obtained pursuant to the subsequent search is inadmissible. See Motion at 13.

         First, according to Cruz, warrantless entries into homes are prohibited without “probable cause and exigent circumstances, ” Response at 4 (citing Payton v. New York, 445 U.S. 573, 583-590 (1980)), and Plaintiff United States of America “bears the burden of establishing that exigent circumstances made the warrantless entry necessary, ” Motion at 4 (citing United States v. Cuaron, 700 F.2d 582, 586 (10th Cir. 1983)). Cruz explains that “destruction of evidence can qualify as an exigent circumstance in some cases, ” and, in those cases, the United States Court of Appeals for the Tenth Circuit applies a four-factor test; the search must be:

1. Pursuant to clear evidence of probable cause. [sic]
2. Available only for serious crimes and in circumstances where destruction of evidence is likely 3. Limited in scope to the minimum intrusion necessary to prevent the destruction of evidence; [sic]
4. Supported by clearly defined indicators of exigency that are not the subject to police manipulation or abuse.

         Motion at 5 (citing United States v. Rey, 663 F.Supp.2d 1086, 1109 (D.N.M. 2009)(Browning, J.)).

         According to Cruz, the BCSO deputies did not have probable cause to arrest him when they “arrived on scene.” Motion at 7. Cruz argues that, “when the controlled buy[4] is not completed in suspected drug trafficking cases, and no other criminal activity is observed, probable cause cannot exist absent some other independent corroboration of illegal activity.” Motion at 8 (citing United States v. Aquino, 836 F.2d 1268 (10th Cir. 1988)). Cruz describes that, in United States v. Aquino, the Tenth Circuit “emphasized” that law enforcement did not have probable cause “to believe that illegal drugs were within the defendant's dwelling” before a controlled buy occurred. Motion at 8 (citing United States v. Aquino, 836 F.2d at 1272-73). Cruz contends that, similarly, in his case, “no controlled buy ever occurred, ” and that law enforcement had no probable cause to arrest him or to enter his home. Motion at 9. Cruz anticipates that the United States might rely on the CI's and the CS' testimony to bolster its argument for probable cause, and argues that the CI's and the CS' information is not reliable. See Motion at 9 (citing United States v. Mathis, 357 F.3d 1200, 1205 (10th Cir. 2004)). Cruz avers that the CI made “only vague references” to Cruz' drug-dealing, and provided “no dates, amounts or other indications the [sic] demonstrated that Cruz was engaged in ongoing illegal drug activity, ” and that these statements alone could not establish probably cause. Motion at 9-10 (citing United States v. Brown, 828 F.3d 375, 383 (6th Cir. 2016)). Further, according to Cruz, the CI spoke to Koppman “almost one month” before Cruz' arrest, and so such information was stale. Motion at 10 (United States v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986)). Cruz then contends that the CS “had a motive to implicate someone else, ” because the BCSO deputies had just discovered the CS with “a large amount of methamphetamine.” Motion at 10. Cruz notes that Koppman did not record any specifics that the CS provided about Cruz or the amount of methamphetamine that the CS alleged Cruz to have. See Motion at 10.

         Cruz next argues that the United States cannot show that “any exigent circumstances justified [the BCSO deputies'] warrantless entry” into Cruz' home. Motion at 11. Cruz avers that “[t]here was no indication of loss or destruction of evidence when Cruz exited his home or stood outside, ” and that “nothing at all happened when Cruz stepped outside his home.” Motion at 11-12. Cruz contends that, if any exigency existed, the BCSO deputies created it. See Motion at 13. According to Cruz, unlawful law enforcement conduct includes participating in controlled drug buys in individual's residences, “with the intent of making an arrest, ” and without “a warrant.” Motion at 12 (citing United States v. Cresta, 825 F.2d 538, 553 (1st Cir. 1987); United States v. Scheffer, 463 F.2d 567, 575 (5th Cir. 1972)). Cruz cites a New Hampshire case, in which the New Hampshire Supreme Court “held that where police officers chose to pursue a course of actions which they knew would require an emergency entrances [sic] into a persona's [sic] home, without first obtaining a warrant, the government could not rely on” the exigency. Motion at 12 (citing State v. Santana, 586 A.2d 77, 83 (1991)). According to Cruz, the BCSO deputies had the CS arrange the drug transaction with Cruz “knowing that the buy would occur at Cruz's house” but did not get a warrant. Motion at 13.

         2. The Response.

         The United States responds. See Response. The United States briefly indicates that, because the BCSO deputies engaged in no illegality, Wong Sun v. United States and its line do not apply. Response at 12. The United States contends first that the BCSO deputies had probable cause. See Response at 6-8. The United States depicts probable cause as a “totality of the circumstances” analysis. Response at 6 (quoting United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 2007)). The United States disputes that United States v. Aquino controls here, because, according to the United States, in United States v. Aquino, no facts suggested that Aquino might have drugs in his home. See Response at 7. The United States lists that, unlike in United States v. Aquino, in this case, the BCSO deputies knew that Cruz had previously trafficked drugs; had heard from the CI and the CS that Cruz was trafficking drugs; saw text messages confirming the CS' accounts; and heard Cruz confirm with the CS that he would engage in a drug transaction. See Response at 7. The United States explains that law enforcement “did not know whether Defendant kept his drugs at his house or somewhere else, ” but, according to the United States, Cruz told the CS to meet at Cruz' residence. Response at 7-8. The United States argues that the BCSO deputies saw Cruz leave his residence around the time specified for the transaction and run away after the BCSO deputies identified themselves. See Response at 8. The United States explains that the BCSO deputies then reasonably believed that Cruz “had drugs in his possession.” Response at 8.

         The United States further contends that exigent circumstances existed. See Response at 8-12. According to the United States, Cruz created an exigency when he fled the BCSO deputies. See Response at 6. The United States first opines that this case resembles United States v. Santana, 427 U.S. 38 (1976), wherein the Supreme Court upheld “hot pursuit” as an exigency. Response at 8-9. The United States contends that, as in United States v. Santana, here, Cruz ran into his home after the BCSO deputies identified themselves. See Response at 9.

         Further, the United States contends that Cruz' possible destruction of evidence created an exigency. See Response at 10. The United States avers that the BCSO deputies had probable cause; believed Cruz to possess drugs and a gun, “which are serious crimes”; and limited their entry into Cruz' residence to the area near the bathroom where they detained Cruz, and to the area to which he subsequently consented to have searched. Response at 10. The United States denies that the BCSO deputies created an exigency. See Response at 11. The United States quotes the Supreme Court's holding from Kentucky v. King, 563 U.S. 452 (2011): “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment [to the Constitution of the United States], warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” Response at 11 (quoting Kentucky v. King, 563 U.S. at 462). The United States asserts that law enforcement officers do not unlawfully create exigencies when they announce their presence and “cause a drug suspect to destroy evidence, ” which is what the United States avers occurred here. Response at 11. The United States also cites Kentucky v. King for the proposition that police need not “seek a warrant after probable cause is established before entering a dwelling to prevent destruction of evidence.” Response at 11. The United States contends that, prior to Cruz' running, the BCSO deputies knew neither that Cruz “possessed drugs” nor that “he would run, ” until Cruz ran. Response at 12.

         3. The Reply.

         Cruz replies in Defendant Jose Cruz's Reply to the Government's Response (Doc. 31) to His Motion to Suppress Evidence (Doc. 25), filed December 27, 2018 (Doc. 39)(“Reply”). Cruz first argues that warrantless entries into homes deserve special scrutiny. See Reply at 1-2 (citing United States v. Martinez, 696 F.Supp.2d 1216 (D.N.M. 2010)(Browning, J.)). Cruz also contends that, if the BCSO deputies had probable cause, they could have obtained a warrant to search Cruz' residence. See Reply at 2. Cruz complains that the BCSO deputies obtained a warrant in their investigation of the CS, but, although the BCSO deputies knew of Cruz' drug trafficking, the BCSO deputies obtained no warrant against him. See Reply at 3-4. Cruz argues that the BCSO deputies' “ultimate goal” is irrelevant. Reply at 4 (quoting Response ¶ 7, at 3). Cruz avers that the BCSO deputies' motivation was to “set up a bust, ” at which the officers would arrest Cruz or force him to cooperate. See Reply at 4. Cruz distinguishes United States v. Santana, by noting that, in that case, unlike here, the officers observed a drug buy before following the defendant into the home. See Reply at 4-5. Cruz also differentiates Kentucky v. King from these facts and argues that, in Kentucky v. King, again unlike here, the law enforcement smelled marijuana and heard “noises consistent with destruction of evidence” before entering the home. Reply at 5.

         4. The Hearing.

         The Court and Cruz began the hearing by discussing if and when the Tenth Circuit requires probable cause for warrantless entry in exigent circumstances. See Tr. at 39:20-41:25 (Court, Bhalla). Cruz clarified that the Tenth Circuit does not require probable cause when someone's safety or life are in danger; according to Cruz, at those times, law enforcement needs only reasonable grounds to enter a home. See Tr. at 40:7-24. Cruz explained that the first element for the test for the destruction-of-evidence exception, which Cruz recites in the Motion, requires probable cause. See Tr. at 40:25-41:25 (Bhalla).

         Accordingly, Cruz argued first that the BCSO deputies had no probable cause, because, according to Cruz, they had no evidence that Cruz stored drugs in his home, Cruz carried nothing when he left his home, and they observed no drug transaction. See Tr. at 42:1-22 (Bhalla). The Court stated that it understood that the BCSO deputies obtained probable cause when Cruz ran from the BCSO deputies. See Tr. at 42:23-43:4 (Court). Cruz argued that cases clarify that, alone, fleeing the police does not establish probable cause. See Tr. at 43:5-11 (Bhalla). The Court responded that the BCSO deputies had more than Cruz' fleeing, because the BCSO deputies had Cruz' previous drug trafficking, and the CI's and the CS' statements. See Tr. at 43:12-20 (Court). Cruz emphasized that such evidence does not establish probable cause to enter an individual's home. See Tr. at 43:21-24 (Bhalla). The Court returned the conversation to Cruz' running and asserted that it did not see the issue as probable cause to enter Cruz' home. See Tr. at 43:25-44:4 (Court). Cruz cited several cases about probable cause, beginning with United States v. Mongold, 528 Fed.Appx. 944');">528 Fed.Appx. 944, 949 (10th Cir. 2013)(unpublished), wherein the Tenth Circuit stated that a drug trafficking tip should be corroborated with evidence such as a controlled buy, or surveillance revealing many people going to and leaving from a residence. See Tr. at 44:13-45:1 (Bhalla). Cruz stated that, in United States v. Cook, No. CR 15-3224 WJ, 2016 WL 9488763 (D.N.M. 2016)(Johnson, J), the Honorable William P. Johnson, Chief United States District Judge for the District of New Mexico, concluded that probable cause existed after law enforcement observed a controlled buy and that, in United States v. Aranda-Diaz, No. CR 12-2686 JB, 2013 WL 4446801 (D.N.M. 2012)(Browning, J.), the Court stated that a controlled buy corroborated a tip to establish probable cause. See Tr. at 45:2-12 (Bhalla). Cruz also repeated that, in United States v. Aquino, the Tenth Circuit emphasized that law enforcement had no probable cause before a controlled drug buy occurred, but Cruz conceded that no confidential informant provided information in that case. See Tr. at 45:12-23 (Bhalla). Cruz reiterated that establishing probable cause requires a controlled buy, surveillance, or other investigative action. See Tr. at 45:25-46:5 (Bhalla). Cruz argued that the United States cannot “bootstrap” the 2016 conversation with Cruz into a probable cause argument, because, in 2017, the BCSO deputies did not know that Cruz was engaged in drug trafficking. See Tr. at 46:5-9 (Bhalla). The Court returned to the CI's and the CS' roles, and asserted that, if law enforcement receives a tip, the Court must consider the source's veracity and reliability. See Tr. at 54:23-55:6 (Court). Cruz stated that Koppman did not verify the CS' information. See Tr. at 55:7-20 (Bhalla).

         Cruz continued, arguing that the second element of the test for the destruction-of-evidence exception -- that the crime be a serious crime “in circumstances where destruction is likely” - is not satisfied. Tr. at 46:19 (Bhalla). According to Cruz, United States v. Mongold discusses that drug possession alone -- without evidence of drug trafficking -- does not qualify as a serious crime. See Tr. at 46:20-47:9 (Bhalla). Cruz contends that, here, the BCSO deputies had “no evidence that Mr. Cruz was actually trafficking . . . . All they had at most is some belief that Mr. Cruz had drugs on his person.” Tr. at 47:10-13 (Bhalla).

         Cruz transitioned to discussing whether he was likely to destroy evidence. See Tr. at 47:22-23 (Bhalla). Cruz cited Thomas v. Vaughn, No. 2:93-CV-925 PGC, 2006 WL 2375657 (D. Utah Aug. 11, 2016)(Cassell, J.), in which “the Court held [that] the mere possibility that . . . evidence could be destroyed is insufficient to create an [exigency.] You've got to have evidence that the destruction is really happening.” Tr. at 48:5-8 (Bhalla). Cruz also cites Ludlow v. State, 314 N.E.2d 750 (Ind. 1974), in which the Indiana Supreme Court discusses that the destruction-of-evidence exception applies when law enforcement must act quickly to prevent actual destruction. See Tr. at 48:9-15 (Bhalla). Cruz summarizes that, in destruction-of-evidence cases, law enforcement officers usually hear or see signs that individuals are destroying evidence, and that the BCSO deputies did not make such observations at his residence. See Tr. at 48:15-22 (Bhalla).

         Cruz conceded that he did not need to discuss the third element in the test -- whether the intrusion was limited. See Tr. at 48:22-49:3 (Bhalla). Cruz turned to the fourth factor -- whether the exception was “supported by clearly defined indicators of exigency that are not subject to police manipulation or abuse, ” United States v. Aquino, 836 F.2d at 1272 -- and argued that, in State v. Santana, 586 A.2d 77 (N.H. 1991), the New Hampshire Supreme Court concluded that, where police have probable cause and time to obtain a warrant, law enforcement should obtain a warrant, see Tr. at 49:17-50:5 (Bhalla). Cruz argues that Koppman and the other BCSO deputies took the non-warrant route, although Koppman knew that the drug transaction would occur outside Cruz' residence. See Tr. at 49:17-50:13 (Bhalla). The Court questioned whether the exigency was not that Cruz had drugs on his body and ran into his home to dispose of the drugs. See Tr. at 50:14-22 (Court). Cruz responded that, in situations like his, when law enforcement officers know that a drug transaction will occur outside a suspect's residence, the law enforcement officers should know that the suspect might run into the residence, as he did. See Tr. at 50:23-51:3 (Bhalla). Cruz emphasized that courts should oversee law enforcement in such scenarios, because the Fourth Amendment promises respect for the home. See Tr. at 51:3-9 (Bhalla). The Court pressed that, in controlled drug buys, law enforcement officers rarely get warrants, see Tr. at 51:23-52:1 (Court), and Cruz responded that, “no, they go get the warrant after. Because watching the controlled buy gives them . . . probable cause to then go apply for a warrant, ” Tr. at 52:2-5 (Bhalla). Cruz argued that, even with his running, the BCSO deputies did not have probable cause. See Tr. at 53:9-18 (Court, Bhalla). Cruz asserted that the Fourth Amendment so protects homes that, if law enforcement officers do not have probable cause, they should wait for a crime to occur if they cannot get a warrant before the crime occurs. See Tr. at 53:16-54:2 (Court, Bhalla). Cruz cited United States v. Radka, 904 F.2d 357 (6th Cir. 1990); United States v. Richards, 994 F.2d 244 (5th Cir. 1993); United States v. Scheffer, 463 F.2d 567 (5th Cir. 1972), Buchanan ex re. Estate of Buchanan v. Maine, 417 F.Supp.2d 45 (D. Me. 2006)(Woodcock, J.), in which the courts stated that, where officers have time and/or control a drug buy, the officers should obtain warrants. See Tr. at 55:20-56:24 (Bhalla). Cruz argues that the United States relies on Kentucky v. King, but, in that case, unlike here, the detectives observed a controlled buy outside a home and heard sounds indicating the destruction of evidence within the home. See Tr. at 57:6-58:5 (Bhalla). Cruz also emphasized the protection that the Supreme Court has guaranteed for the home. See Tr. at 58:9-61:18 (Bhalla)(citing United States v. Jones, 565 U.S. 400 (2012); Florida v. Jardines, 569 U.S. 1 (2013)).

         First, the United States responded that caselaw does not require a controlled buy or a crime to have occurred to establish probable cause. See Tr. at 61:25-62:6 (Stanford). The Court clarified that the United States argued that the BCSO deputies did not have probable cause immediately when Cruz left his home. See Tr. at 62:7-11 (Court). The United States agreed that the running established probable cause. See Tr. at 62:18-20 (Stanford). The United States argued that, here, where Koppman knew that Cruz had previously trafficked drugs; the CI and the CS informed Koppman that Cruz was selling drugs again; Koppman checked the CI's and the CS' information; the CS set up a drug deal with Cruz; and Koppman observed Cruz walking toward the drug deal in a manner similar to the manner of people engaged in drug transactions, Koppman could “conduct an investigative detention.” Tr. at 62:24-63:19 (Stanford). The Court clarified that the parties were not debating an investigative detention. See Tr. at 63:23-24 (Court). The United States confirmed the Court's assessment and agreed that probable cause developed when Cruz ran from the BCSO deputies. See Tr. at 64:2-17 (Court, Stanford). The Court suggested, and the United States concurred, that Cruz' running indicated that Cruz had drugs on his body, which he intended to destroy, and that this action established probable cause. See Tr. at 64:22-65:7 (Court, Stanford).

         The United States next argued, regarding the exigency test's second element, that Kentucky v. King gives “guidance” and contended that, because the CS ordered methamphetamine in an amount dangerous for the streets, a serious crime occurred. See Tr. at 65:12-66:2 (Stanford). Turning to the third factor, the United States then explained that the BCSO deputies followed Cruz to the bathroom and minimally intruded into Cruz' residence without his consent. See Tr. at 66:13-19 (Stanford). Last, the United States contended, regarding the fourth prong -- that the police not have created the exigency -- that the Supreme Court stated in Kentucky v. King that police do not create an exigency if they do not engage in or threaten conduct violating the Fourth Amendment. See Tr. at 66:19-67:12 (Stanford). The United States contended that Koppman explained that the BCSO deputies did nothing to violate the Fourth Amendment and that Cruz ran when the BCSO deputies identified themselves. See Tr. at 67:14-68:13 (Stanford). The United States emphasized that Koppman verified the CS' information and that the BCSO deputies did not need to know whether the destruction of evidence was extremely imminent. See Tr. at 68:14-69:2 (Stanford).

         Cruz reiterated again that the BCSO deputies did not have probable cause, and that the BCSO deputies admitted that the CI's and the CS' information did not establish probable cause. See Tr. at 49:25-70:10 (Bhalla). According to Cruz, if the BCSO deputies had probable cause, they would have obtained a warrant. See Tr. at 70:11-15 (Bhalla). Cruz also repeated that, although the parties focused on probable cause, the United States still must satisfy the other factors and that the exigency analysis fails. See Tr. at 70:15-25 (Bhalla). The Court asked Cruz what additional evidence he believed was required to establish that an exigency existed, because the Court understood the situation as someone running into a residence to destroy drugs. See Tr. at 71:1-7 (Court). Cruz asserted that, in other cases, law enforcement officers observed or heard signs of doors and people running around to destroy evidence. See Tr. at 11-16 (Bhalla). The Court asked whether the BCSO deputies had to wait until they heard the flushing, which would mean that Cruz had destroyed the evidence. See Tr. at 72:3-5 (Court). Cruz argued that sometimes the law enforcement officers observed signs of destruction, but in all the cases, the law enforcement officers knew that the defendant had evidence to destroy, because they had witnessed a drug transaction. See Tr. at 72:7-10 (Bhalla). Cruz also emphasized that the Court needed to consider whether possessing drugs -- rather than trafficking drugs -- is a “serious crime.” Tr. at 73:15 (Bhalla). See id at 73:10-15 (Bhalla). Cruz argued that the law-enforcement-abuse question is objective and that, in a situation like the one in which the BCSO deputies arrested him, law enforcement officers do not act reasonably if they do not have a warrant. See Tr. at 73:15-74:9 (Bhalla).

         The Court indicated its inclination to deny the motion. See Tr. at 74:19-20 (Court). The Court summarized that Koppman and the other BCSO deputies had information to establish probable cause and that running into the house seemed to satisfy the test for an exigency based on the destruction of evidence. See Tr. at 74:19-75:4 (Court). The Court indicated that once an individual flushes evidence down the toilet, the evidence is gone. See Tr. at 75:3-5 (Court). The Court indicated that it would need to consider the seriousness of the crime ...


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