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United States v. Maynes

United States District Court, D. New Mexico

November 5, 2019



         This matter comes before the Court upon Defendant's Motion to Suppress, filed August 13, 2019. (Doc. 26). Defendant seeks to suppress all evidence obtained as a result of the search of his residence and truck on November 2, 2016. Id. at 1. The United States filed its response on September 10, 2019, (Doc. 30), and the Court held an evidentiary hearing on October 17, 2019, (Doc. 50) (Clerk's Minutes). On October 25, 2019, Defendant filed a supplemental brief, and on October 31, 2019, the United States filed a response to the supplemental brief. (Docs. 51 and 52). Having considered the Motion to Suppress, the accompanying briefing, the evidence, and the argument of counsel at the evidentiary hearing, the Court denies the Motion to Suppress.

         I. Findings of Fact

         On November 2, 2016, Children, Youth and Families Department (CYFD) case worker Ashley Crotts contacted Lieutenant Detective Matthew Rudiger regarding possible child abuse or neglect of Defendant's three children. Transcript of October 17, 2019, evidentiary hearing (Tr.) at 8.[1] After arriving at CYFD offices, Lieutenant Rudiger spoke to Ms. Crotts and reviewed her handwritten notes. Tr. at 8, 171. Her notes indicated that the day before, Defendant's four-year-old son, who is non-verbal and has Down syndrome, had what looked like an open burn on his inner thigh. (Doc. 26-1) at 4. The school nurse questioned Defendant about the boy's injury, and Defendant said the boy had fallen off a rocking horse, but the nurse did not think the injury was consistent with a fall.[2] (Doc. 26-1) at 4. Ms. Crotts was further informed that the child is behind on immunizations, attends school with dirty clothes, is often tardy or absent, and is very aggressive when he returns to school. Id.

         Ms. Crotts' notes state that she interviewed Defendant's six-year-old daughter, who said that her dad has guns in the house and sometimes does not put them away, and that she knows to aim the guns down when she hands them to someone. Id. at 5. She further stated her dad smokes weed and puts a lot of weed in the attic, and she is not sure if he does other drugs. Id. She said she sometimes has to wake her mom up to make food, her mom does drugs with her dad, she cracked her head at the family's new house, and she is not supposed to talk about what happens at home. Id. Ms. Crotts also interviewed Defendant's eight-year-old son, who stated he has to wake his mom up to get food, he is not supposed to say what happens at home, and he had fallen and hurt his leg the night before. Id. Additionally, he stated his dad has guns, his mom and dad go to the attic and tell the children to lock the doors, and he denied knowing of any drug use. Id.

         After discussing the information with Ms. Crotts and reviewing her notes, Lieutenant Rudiger signed a statement of reasonable grounds which resulted in the children being placed in CYFD custody until the investigation was completed or safer conditions were obtained. Tr. at 22, 171; (Doc. 26-1) at 5. The children were transported to the CYFD office where Lieutenant Rudiger took pictures of them to document their injuries. Tr. at 10; (Doc. 26-1) at 5. Lieutenant Rudiger ran a background check on Defendant and the children's mother, Ashley Means, and found that Ms. Means had a warrant for her arrest and Defendant had a history of felony arrests and one felony conviction. Tr. at 22-24.

         Lieutenant Rudiger then prepared an application for a search warrant to investigate the crimes of child abuse and narcotics. Tr. at 24, 45. He asked Ms. Crotts to type up her handwritten notes and email them to him, and he cut and pasted the emailed notes into his affidavit. Tr. at 88-91, 171. Lieutenant Rudiger learned from Ms. Crotts that the family had recently moved to Deming and he received the family's current address from CYFD. Tr. at 47, 107. He showed the search warrant application to Chief Deputy District Attorney Janice Schryer for review, and then presented it to Luna County Magistrate Judge Ray Baese who reviewed and signed the search warrant allowing officers to search 415 E. Hemlock Street, Deming, New Mexico, and its curtilage, for firearms and accessories, ammunition, illegal narcotics, and illegal narcotics paraphernalia. Tr. at 24-25; (Doc. 26-1) at 1-6.

         That afternoon, Defendant and Ms. Means were told their children were taken from school and placed with CYFD, and they were instructed to meet Ms. Crotts at their residence. (Doc. 26) at 3. At approximately 3:30 p.m., Defendant and Ms. Means arrived at 415 East Hemlock Street in Defendant's truck. Id. Lieutenant Rudiger testified that when he arrived at the residence, Defendant and Ms. Means were already there, as well as Detective James Fetrow, Detective Lara, and Officer Butler. Tr. at 25. Detective Fetrow testified that he, Detective Lara, and Officer Butler were armed, and that Officer Butler was in uniform. Tr. at 130. Defendant and Ms. Means were separated and asked not to stand next to each other. Tr. at 36, 83. Contradictory testimony was presented on whether Defendant was placed in handcuffs. Compare Tr. at 26, 34, 42, 87, 122-23, 126 (Lieutenant Rudiger and Detective Fetrow's testimony that Defendant was not in handcuffs), with Tr. at 148-49, 152, 164 (the testimony of Defendant's neighbor, Luis Samaniego, that he saw Defendant in handcuffs). Both Lieutenant Rudiger and Detective Fetrow denied taking Defendant's identification from him at any time. Tr. at 86-87, 129.

         Upon approaching Defendant, Lieutenant Rudiger attested that he told Defendant he had a search warrant for the house based on allegations of narcotics and weapons and to investigate possible child abuse or neglect. Tr. at 29. Lieutenant Rudiger stated that he asked Defendant if there were any weapons present for officer safety purposes, and Defendant told him there were weapons inside his truck and he would provide them to the detectives. Tr. at 31. Lieutenant Rudiger understood this to be verbal consent to retrieve the weapons from Defendant's truck, and he instructed Detective Fetrow to do so. Tr. at 31-33. Detective Fetrow searched the truck and Lieutenant Rudiger and Detective Lara executed the search warrant on the residence. Tr. at 34. From the truck, Detective Fetrow seized two .22 caliber long rifles, three magazines, three boxes of ammunition, three glass pipes, a .22 caliber handgun, and a .357 revolver. (Doc. 26) at 4; (Doc. 26-1) at 8; Tr. at 125, 134. From the house, Lieutenant Rudiger and Detective Lara seized several bullets, a glass pipe, unknown pills, a small caliber handgun, and a box of ammunition. (Doc. 26) at 4; (Doc. 26-1) at 8.

         After the search, Ms. Means was taken into custody pursuant to a warrant for her arrest and was transported to the police station for questioning. Tr. at 35-36. At the police station, and after being read her Miranda rights, Ms. Means stated there were guns and drugs in the home and that she and Defendant sold drugs. Tr. at 40. Defendant was not taken into custody on November 2, 2016. Instead, Lieutenant Rudiger told Defendant to come to his office at 8:30 a.m. the next day. Tr. at 41. Defendant arrived at Lieutenant Rudiger's office on November 3, 2016, shortly after 9:00 a.m., was advised of his Miranda rights, and told Lieutenant Rudiger there were guns and drugs in the house, that he sold drugs, and that he was a convicted felon. Id. On June 19, 2019, Defendant was charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). (Doc. 3) (Indictment).

         The following witnesses testified at the October 17, 2019, suppression hearing: Lieutenant Rudiger, Detective Fetrow, and Mr. Samaniego. In addition, the Court admitted the following exhibits: Exhibits 1, 2, and 3 (photos of the residence and Defendant taken on November 2, 2016); and Exhibits 4, 5, 6, 7, 8 (photos of the children taken on November 2, 2016).

         II. Standard of Review

         “The proponent of a motion to suppress bears the burden of proof.” United States v. Clarkson, 551 F.3d 1196, 1200 (10th Cir. 2009). However, the burden shifts to the United States to show, by a preponderance of the evidence, that the defendant's Fourth Amendment rights were not violated. United States v. Matlock, 415 U.S. 164, 177 (1974) (concluding the United States “sustained its burden of proving by the preponderance of the evidence that” search did not violate Fourth Amendment). In ruling on a motion to suppress, the Court views the facts in the light most favorable to the United States. United States v. Matthews, 458 Fed.Appx. 717, 722 (10th Cir. 2012).

         “Judging the credibility of the witnesses, determining the weight to be given to evidence, and drawing reasonable inferences and conclusions from the evidence are within the province of the district court.” United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). Factors beyond a witness's demeanor and tone of voice may weigh in a judge's decision to find that witness's testimony credible, including “[d]ocuments or objective evidence [that] may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 575 (1985).

         III. Discussion

         A. Search of Residence To comply with the Fourth Amendment, a search warrant must meet the following three conditions:

First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense. Finally, warrants must particularly describe the things to be seized, as well as the place to be searched.

Mink v. Knox, 613 F.3d 995, 1003 (10th Cir. 2010) (quoting Dalia v. United States, 441 U.S. 238, 255 (1979)). “Although the reviewing court should afford a magistrate's probable cause decision great deference, it should not defer if there is no substantial basis for concluding that probable cause existed.” United States v. Beck, 139 Fed.Appx. 950, 954 (10th Cir. 2005) (citation omitted). “Probable cause exists if facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Mink, 613 F.3d at 1003 (citation omitted).

         In ruling on a motion to suppress evidence obtained pursuant to a search warrant, “where the police do not present oral testimony to the reviewing magistrate, the … court must ascertain the existence of probable cause to support a warrant exclusively from the [search warrant] affidavit's four corners.” Beck, 139 Fed.Appx. at 954. Moreover, a search warrant must “ensure[] that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.” Mink, 613 F.3d at 1010 (citation omitted). “A warrant is overly broad if it does not contain sufficiently particularized language that creates a nexus between the suspected crime and the items to be seized.” Id. (citation omitted).

         1. The Search Warrant

         Defendant first argues the search warrant is not supported by probable cause because the affidavit “relies solely on alleged information from a 6-year-old girl and an 8-year-old boy who were answering leading questions with absolutely no independent corroboration of the information, ” and because the information obtained from the children was conflicting. (Doc. 26) at 5. Defendant further argues the affiant did not establish that the injury to the four-year-old was intentional or the result of abuse or neglect. Id. at 5-6.

         Contrary to Defendant's assertion, the affidavit for the search warrant is based on more than just the children's statements. For example, it includes information from school personnel that the four-year-old is behind on immunizations, attends school with dirty clothes, is often tardy or absent, and is very aggressive when he returns to school, and it refers to photos documenting the children's injuries. (Doc. 26-1) at 4-5. In addition, many of the statements by the six-year-old and eight-year-old are consistent, such as regarding the presence of and access to guns in the home, having to wake their mom up for dinner, the parents going to the attic, and that they are not supposed to talk about what happens at home. Id. at 5. Therefore, the Court finds no error in the affiant's reliance on the children's statements. The Court also finds the affiant was not required to establish that the four-year-old's injury was the result of child abuse or neglect, just that there were “facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (citation omitted) (explaining probable cause requires “more than mere suspicion but less evidence than is necessary to convict”).

         Defendant next argues there was not sufficient probable cause to search the house because the warrant did not establish when or in which house the children had seen the guns and drugs, and it did not identify exactly where the guns were kept. (Doc. 26) at 5-6. The search warrant allowed law enforcement officers to search 415 East Hemlock Street and its curtilage for firearms, ammunition, and illegal narcotics and paraphernalia. (Doc. 26-1) at 3. However, Lieutenant Rudiger was aware that Defendant had moved to Deming, New Mexico, the week before and the children's statements about the guns and drugs did not refer to their new house. See Tr. at 47, 107; (Doc. 26-1) at 5. Nevertheless, the Tenth Circuit has explained that “an affiant officer need not draw an explicit connection between a suspect's activities and his residence for a Fourth Amendment nexus to exist.” United States v. Biglow, 562 F.3d 1272, 1280 (10th Cir. 2009). Instead, magistrate judges may make inferences and “draw their own reasonable conclusions, based on the Government's affidavit and the practical considerations of everyday life as to the likelihood that certain evidence will be found at a particular place.” Id. (citation omitted).

         Here, the affidavit contains information linking several of the children's statements to their current residence. For example, the six-year-old told Ms. Crotts she “cracked her head at the new house” and the four-year-old gets in trouble “a lot” for getting the guns, and the eight-year-old said that he hurt his leg “last night.” (Doc. 26-1) at 5. In addition, the children refer to what happens at home-such as who lives in the house, how they are fed, what rooms their parents use, and their neighbors. See Id. (“Lives with mom, dad and brothers, ” “Mom makes dinner but sometimes have to wake her up to make food, ” “Doesn't like that mom and dad go [to] the room and they lock the door behind them, ” “[Dad] gets a lot of weed, wraps in a paper and puts in the attic, ” “Doesn't feel safe at home, ” “Not supposed to talk about what happens at home”). Therefore, applying a common sense interpretation of the affidavit and showing deference to the magistrate judge's finding of probable cause, the Court finds a substantial basis for a probable cause finding that the items sought in the search warrant would be at the family's current address. See Biglow, 562 F.3d at 1282-83 (finding sufficient nexus between defendant's suspected drug trafficking and his residence based on “common sense” observation that “drug dealers often keep evidence related to their illegal activities at their homes”).

         Finally, Defendant states there was no information in the affidavit establishing that Defendant was a felon who was prohibited from possessing firearms. (Doc. 26) at 2, 6-7. This raises the Fourth Amendment's requirement that an officer seeking a warrant must show the “evidence sought will aid in a particular apprehension or conviction for a particular offense.” Mink, 613 F.3d at 1003. In this case, the search warrant does not state which crime is being investigated and it is not clear whether the search warrant relates to the crimes of child abuse or neglect, illegal narcotics, or unlawful possession of a weapon. To illustrate, the affidavit states:

After listening to the conflicting reports from the children and the lack of supervision and seeing that more investigation is needed to into [sic] the injuries and the weapons and narcotics in the house. I felt the house is unsafe for the children, therefore, I signed a protective statement of reasonable grounds, placing the children into CYFD custody ...

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