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United States v. Topete-Madrueno

United States District Court, D. New Mexico

August 23, 2019



         On December 19, 2018, a federal grand jury returned an indictment charging Defendant Fernando Topete-Madrueno[1] with one count of possession with intent to distribute, 50 grams and more of a mixture and substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); one count of possession with intent to distribute a mixture and substance containing heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); one count of possession with intent to distribute a mixture and substance containing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and one count of possession of a firearm in the furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i). (See Indictment, Doc. 14). The charges arise out of a search warrant executed by the Federal Bureau of Investigations (FBI) at 9000 Zuni SE Trailer D-23 in Albuquerque, New Mexico (9000 Zuni) on November 28, 2018. On June 7, 2019, Defendant filed an Opposed Motion to Suppress Evidence (Motion) (Doc. 31), asking the Court to suppress all physical evidence officers seized during the search of the mobile home and vehicles located at 9000 Zuni. The United States opposes the Motion, and it is fully briefed.[2]

         The Court heard evidence and argument from counsel at a hearing on August 1, 2019. Assistant United States Attorney Mark Pfizenmayer appeared on behalf of Plaintiff, United States of America. Defendant was present in the courtroom and represented by Attorney Marshall J. Ray. Having considered the parties' briefs, arguments, evidence, and relevant case law, the Court will deny Defendant's Motion.


         In February 2018, the Federal Bureau of Investigations (FBI) began investigating the Samaniego-Villa Drug Trafficking Organization (SVDTO). The FBI's investigation included surveillance of several individuals and controlled purchases of narcotics using undercover law enforcement officers (UC). During the course of the investigation, the FBI identified Bladimir Angulo (a.k.a. Samuel Rodriguez Velazquez) as an “associate and narcotics transporter” for the SVDTO. The FBI identified 9000 Zuni as Angulo's residence and began conducting visual and electronic surveillance at that location.

         On July 31, 2018, law enforcement utilized a confidential human source to arrange for a UC to purchase narcotics from the SVDTO. Shortly before the scheduled delivery, agents observed Angulo exit the trailer at 9000 Zuni, enter a Ford Fusion parked on the property, and drive to the predetermined delivery location. At that location, Angulo sold the UC what was later field tested to be 79.1 grams of heroin and 28.8 grams of methamphetamine. Agents maintained surveillance on Angulo following the controlled purchase and observed him eventually return to 9000 Zuni in the black Ford Fusion. A black Ford Edge SUV was also parked at 9000 Zuni on that date.

         On August 8, 2018, a second controlled purchase was arranged between the UC and the SVDTO. The UC telephonically confirmed a narcotics order with Sergio Samaniego-Villa who told the UC the order would be ready in one and a half hours. Following that telephone exchange, law enforcement observed Angulo leave 9000 Zuni in a black Ford Fusion. After stopping briefly at an apartment, Angulo ran several errands and then was observed meeting with an individual in a black GMC Denali registered to Jesus Samaniego-Villa. Agents then followed Angulo back to 9000 Zuni. The UC conducted a follow up call regarding the narcotics order and was advised that the delivery would be ready in fifteen minutes. Shortly thereafter, agents observed Angulo leave from 9000 Zuni in the black Ford Fusion. The agents followed Angulo to the predetermined meeting location. Once at the location, Angulo advised the UC that he did not have the narcotics and asked the UC to follow him. The UC and the surveillance units followed Angulo to a car wash down the street where Angulo met with the UC and exchanged the agreed-upon drugs for money. After the sale, Angulo left the area in the black Ford Fusion.

         In August 2018, law enforcement arrested several members of the SVDTO. Following the arrests, Angulo began driving a red Pontiac four-door sedan. On November 15, 2018, law enforcement again established surveillance at 9000 Zuni. The red Pontiac and a black Ford Edge were parked at the property. Agents observed Angulo leave 9000 Zuni in the red Pontiac. He drove to the residence of Robert Meese, an individual with a history of drug trafficking who agents had observed conducting drug transactions with Angulo in the preceding months. Additionally on November 15, 2018, agents surveilled Defendant, also a resident of 9000 Zuni. Agents followed Defendant to a casino and then followed him back to 9000 Zuni. Defendant drove the black Ford Edge seen parked at 9000 Zuni.

         On November 19, 2018, FBI Task Force Officer (TFO) Pelot applied for a search warrant of 9000 Zuni. In the affidavit supporting the warrant, TFO Pelot described his training and experience to include that “individuals involved in illegal trafficking of controlled substances often conceal evidence of their drug trafficking in their residences and areas surrounding their residences such as “garages, ” “carports, ” and “vehicles parked on or near their property.” (See Warrant Affidavit, Doc. 31-1, ¶ 3). TFO Pelot additionally stated that in his experience individuals involved in the distribution of controlled substances hide controlled substances in many places including vehicles. (See Warrant Affidavit, Doc. 31-1, ¶ 6). The affidavit outlined the details of the two controlled buys between the UC and Angulo, as well as observations from surveillance of the property. (See Warrant Affidavit, Doc. 31-1, ¶¶ 15-50). TFO Pelot requested a search warrant “for the residence and premises of 9000 Zuni SE, Trailer D-23, Albuquerque, NM….to include all outbuildings and vehicles parked on the property[.]” (See Warrant Affidavit, Doc. 31-1, ¶ 12). On November 19, 2018, United States Magistrate Judge Ritter approved the warrant application with instructions to execute the warrant on or before December 3, 2018. (See Warrant, Doc. 31-1).

         TFO Pelot testified that on the day the warrant was issued, officers began attempting to locate individual members of the SVDTO to coordinate a collective arrest. However, he stated that agents were not able to immediately execute the warrant due to manpower issues surrounding the Thanksgiving holiday. Two days before agents executed the search warrant at 9000 Zuni, on November 26, 2018, agents began receiving a ping[3] from Angulo's cell phone suggesting that he was frequenting another residence located at 710 Dan Avenue SE, Albuquerque, New Mexico (710 Dan). Agents also observed Angulo at 710 Dan around this date. TFO Pelot testified that he believed agents also observed Angulo at 710 Dan on November 27, 2018, the day before the search warrant was executed at 9000 Zuni. TFO Pelot stated that he believed that last time agents observed Angulo at 9000 Zuni was on November 20, 2018, at which time agents observed Angulo leave from 9000 Zuni to participate in a suspected narcotics transaction with another individual on the west side of Albuquerque.

         On November 28, 2018 at approximately 8:30 a.m., agents executed the search warrant at 9000 Zuni. Agents located Defendant asleep in the front bedroom and took him into custody. TFO Pelot testified that agents recognized a handgun on a makeshift shelf less than a foot away from Defendant, as well as baggies of narcotics. The bedroom at the back of the trailer was empty. After searching the residence, agents searched the black Ford Edge parked in the carport at the property. Agents located three tinfoil balls of heroin as well as documents bearing Defendant's name.

         While agents were executing the search warrant at 9000 Zuni, another team of agents was conducting surveillance of 710 Dan with the goal of attempting to apprehend Angulo outside the residence. Agents eventually took Angulo into custody at 710 Dan. TFO Pelot testified that, following Angulo's arrest, Angulo confirmed that he was living at 710 Dan. On November 28, 2019, TFO Pelot applied for and was granted a search warrant of 710 Dan. (See 710 Dan Warrant Affidavit, Doc. 36-1).


         The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A search implicating the Fourth Amendment occurs when the government invades a person's “legitimate expectation of privacy.” Smith v. Maryland,442 U.S. 735, 740 (1979). “Suppression of evidence is an appropriate remedy only when the search violates a person's constitutional rights.” United States v. Gama-Bastidas,142 F.3d 1233, 1238 (10th Cir. 1998). “The proponent of a motion to suppress has the burden of ...

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