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United States v. Velarde-Pavia

United States District Court, D. New Mexico

July 31, 2019

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

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court on Defendant Jose Velarde-Pavia's (Defendant) Second Motion to Suppress Statements and Evidence and Request for a Hearing Pursuant to Franks v. Delaware, filed May 13, 2019, and Defendant's Corrected Second Motion to Suppress Statements and Evidence and Request for a Hearing Pursuant to Franks v. Delaware, filed May 16, 2019 (collectively, “Second Motion to Suppress”). (Docs. 113 and 119). The United States filed its response in opposition on May 30, 2019. (Doc. 130). Having considered the record, the briefing, the applicable law, and the evidence, the Court denies Defendant's Second Motion to Suppress.

         I. Background [1]

         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-793. (Doc. 119-1) at 1-3. In his affidavit in support of the search warrant application, Agent Juarez stated he sought permission to search for “[c]ontrolled substances . . . namely [m]ethamphetamine, ” among other related items of interest. (Id.) at 3.

         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 4. 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 5. Agent Juarez related that Agents observed Defendant outside of his Toyota struck 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 investigation 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.)

         Finally, Agent Juarez states that he knows, through “training and experience, ” that:

[I]llicit drug dealers keep a quantity of controlled substances on premises or their person for sales. That illicit drug dealers often consume, ingest, inhale or by some means introduce the controlled substance into their own bodies for personal use and will maintain a supply of drug paraphernalia. That illicit drug dealers often use scanners, surveillance equipment and cellular phones for the detection of law enforcement personnel. That illicit drug dealers will use firearms for the protection of themselves and their product during drug transactions and from other illicit drug dealers and users. That illicit drug dealers will often times use cellular phones and pagers to set up drug transactions both verbally and by text messaging. That illicit drug dealers commonly keep records (paper, electronic or computerized) relating to their drug trafficking activities. That illicit drug dealers often maintain phone books, address books and other records containing names, telephone numbers and addresses of suppliers and purchases of illicit drugs. That illicit drug dealers will often times maintain these types of records on a computer disk, CD, computer internal memory, cell phone or on some other type of electronic storage device. That illicit drug dealers often times amass large amounts of profits derived from their illegal drug trafficking activities and proceeds of such described herein would constitute evidence of drug trafficking. That illicit drug dealers will protect their product / proceeds by concealing it in cryptic locations, in locked storage containers, on their person or on the person of another in close proximity.

(Id.)

         In a Supplemental Report, that does not appear to have been submitted as part of the warrant application, Agent Juarez detailed the controlled buy:

At approximately [redacted] hours Agents met with the CI at a predetermined undisclosed location and learned the CI had pre-arranged a [redacted] deal of methamphetamine from [Defendant] for the amount of [redacted] at 806 W. 11th. The CI was not in a vehicle. Agent [Lisa] Brackeen searched the person of the CI with no money, drugs or weapons being found. Agents then provided the CI with (HIDTA FUNDS). Agents would provide loose surveillance throughout the entire deal. Agents then followed and observed the CI arrive at 806 W. 11th at [redacted] hours. At around [redacted] hours [Defendant] and [redacted] entered a white Toyota bearing NM-LDN-973 and left 806 W. 11th. I observed [Defendant] driving the truck. I learned from the CI that [Defendant] and [redacted] had went to go get the [redacted] from an unknown location. Agents followed the truck to 1500 W. Albuquerque. Agent Berumen, Agent Arroyo and Agent Salas observed [Defendant] outside the residence. Agents then drove by again and did not observe anyone outside the residence but [Defendant] truck was still parked at the residence. . . . At approximately 1835 hours [Defendant] left the residence of 1500 W. Albuquerque. Agents followed the truck and observed the truck park at [redacted]. Agents then observed the truck leave [redacted] and arrive back at 806 W. 11th at approximately [redacted] hours. At approximately [redacted] hours the CI left 806 W. 11th and met with Agents. Agents then met with the CI at a predetermined undisclosed location and collected the crystalline substance. Agent Brackeen then searched the person of the CI with no drugs, money or weapons being found. Agents learned from the CI that [Defendant] had weighed the meth in the truck. That [Defendant] had travelled to an unknown location to get the meth.
Agent Salas conducted a field test using the Tru-Narc device and the device indicated the crystalline substance was [m]ethamphetamine.

(Doc. 117-9) at 1-3.

         On June 11, 2018, members of the Chaves County Metro Narcotics Task Force stopped Defendant and searched him and the Toyota truck with New Mexico license plate LDN-973. (Doc. 119) at 2. Agents found in the truck “approximately 5 ounces of methamphetamine in a baggie concealed in the truck, two firearms, and one cell phone.” (Id.) at 3-4.

         Also, on June 11, 2018, Agents executed search warrants for 1500 W. Albuquerque Street, 315 E. Forrest Street, and 806 W. 11th Street. (Doc. 42) at 3. While some firearms were found in a shed at one of the residences, these warrants and any items discovered pursuant to these warrants are not at issue in the Second Motion to Suppress. (Doc. 119) at 1-2.

         On July 10, 2018, the United States indicted Defendant in this case for allegedly possessing 50 grams and more of mixture and substance containing a detectable amount of methamphetamine with the intent to distribute it, and knowingly carrying a firearm during the commission of that crime. (Doc. 16) at 1-2. On April 17, 2019, the United States filed a Superseding Indictment against Defendant for allegedly possessing 50 grams and more of methamphetamine with the intent to distribute it, and knowingly possessing a firearm in furtherance of that crime. (Doc. 88) at 1-2.

         The United States filed an unopposed motion to continue trial on April 19, 2019, citing recent developments in the case. (Doc. 91). Specifically, the United States received information on April 18, 2019, that Chaves County detectives were investigating Agent Juarez based on allegations and reports that Agent Juarez was using cocaine and was possibly involved in sexual or otherwise inappropriate relationships with CIs, including the CI in this case. (Id.) at 1-2. Agent Juarez was alleged to have sent flirtatious, sexually explicit, and otherwise inappropriate and unsolicited text messages to CIs, including the CI in this case. (Doc. 109) at 2; (Doc. 119) at 4.

         During the Chaves County investigation, which began in February 2019, Agent Juarez made an unprompted statement that he had been using cocaine for six months. (Doc. 109) at 2. This places Agent ...


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