United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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.”
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.)
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.”
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.)
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
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
(Doc. 117-9) at 1-3.
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.
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.
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.
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.
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 ...