United States v. Aispuro-Haros
| Decision Date | 24 October 2012 |
| Docket Number | Cr. No. 11-2293JH |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. AGUSTIN AISPURO-HAROS, Defendant. |
| Court | U.S. District Court — District of New Mexico |
This matter is before the Court on Defendant Agustin Aispuro-Haros' Motion to Suppress [Doc. No. 28]. The motion has been briefed extensively, with the Defendant filing two supplemental memoranda in support of his motion and the United States filing responses to those supplements. See Doc. Nos. 31, 49, 54, 55, 56, 66, 68 and 69. On January 18, 2012, the Court held an evidentiary hearing on Defendant's motion to suppress. Elaine Ramirez represented the government, and Erlinda Johnson represented the defendant, who was present. After the hearing, the Court permitted counsel to file written closing arguments. See Doc. Nos. 74 and 75. After considering all of the foregoing materials and evidence, the Court concludes that the motion to suppress should be granted.
In the fall of 2010, agents with the Drug Enforcement Administration (DEA) investigated a heroin trafficking organization. Ex. 1; Tr. at 138. The charges against Defendant stem from a search conducted at a home located at 325 Camino Cinco SW in Albuquerque, New Mexico, on August 3, 2011. The search was conducted pursuant to a warrant that was supported by an affidavitwritten and signed by Drug Enforcement Administration (DEA) Special Agent Christopher Godier. According to that affidavit, during an investigation conducted in the autumn of 2010, agents identified an individual suspected of being a heroin supplier, "CHINO Last Name Unknown" ("LNU").1 Ex. 1 at ¶ 7. As a result, they executed search warrants at four locations in Albuquerque resulting in the seizure of large amounts of heroin and currency. Id. Chino was not present and has never been arrested. Id. Godier avers that a confidential source (CS) informed him that Chino and his first cousin, "CHOLO LNU," were both involved in heroin trafficking and that Chino had returned to Mexico, leaving Cholo in charge of distributing drugs. Ex. 1 at ¶ 8. The warrant affidavit contains no information regarding the reliability of the CS. According to the affidavit, the CS said that Chino and Cholo are co-owners of the Nuevo Mexican American restaurant at 504 Old Coors Boulevard in Albuquerque and that Cholo's wife—described as a thin Hispanic woman named Adriana who has dyed blonde hair—works at the restaurant.2 Id.
When agents entered the home at 325 Camino Cinco on August 3, 2011, they found three persons—the Defendant, Diana Garcia, and Armando Nunez-Hernandez—asleep in separate bedrooms. In Defendant's bedroom, agents found a lock blade knife, a large sum of U.S. currency, a Mexican driver's license issued to Agustin Aispuro-Haros, a Sam's Club card issued to Defendant, several rolls of black electrical tape, a roll of vacuum seal plastic bags, a box of ziplock bags, a bag of rubber bands, a vacuum sealer, and 445.7 grams of suspected methamphetamine.
Based on the evidence presented at the hearing, as well as the Court's assessment of the credibility of the witnesses, the Court makes the following factual findings with regard to the Defendant's motion to suppress.
According to Godier's warrant affidavit, in January of 2011 agents conducted surveillance of the restaurant located at 504 Coors Boulevard SW in Albuquerque. Ex. 1 at ¶ 8. During their surveillance operations, they saw a female matching the confidential informant's description of Adriana, who was driving a gold Suzuki Grand Vitara. Id. Agents followed her to a house at 10301 Solitude S.W in Albuquerque. Parked in the driveway of that home, agents observed not only the gold Grand Vitara, but also a silver Lincoln Navigator bearing license plate LBC-905 and a white Nissan Maxima bearing license plate LDD-408. Id. The Lincoln Navigator belonged to Defendant but was registered to Diana Garcia at 325 Camino Cinco SW, Albuquerque. Tr. at 12-13; Ex. 11. There was a security camera in the second story window of the home overlooking the driveway and front yard. Ex. 1 at ¶ 8. On January 18, 2011, DEA Agent Gabriel Trujillo observed suspected drug packaging in the trash can in front of the Solitude home. Ex. 1 at ¶ 9. He did not remove it because he feared discovery by the occupants of the house, which would compromise the investigation. Id. As a result, the trash was not confirmed to be drug packaging material. On January 19, 2011, at around 4:00 a.m., an agent placed a global positioning system ("GPS") tracking device on yet another vehicle, a maroon Nissan Maxima, parked in the Solitude home's driveway. Ex. 1 at ¶ 10. Agents were unsuccessful in placing a GPS tracking device on the silver Lincoln Navigator. Id. They observed a male walk out of the Solitude home, approach the maroon Nissan Maxima and then return inside the house. Id. They continued surveillance until 8:00 a.m., when they observed three unidentified Hispanic men walk out of the Solitude home and look under the Lincoln Navigator.Id. One of the men was holding the GPS tracking device that had been placed on the Nissan Maxima earlier in the morning. Id. This unidentified man threw the device on the ground, and then he and one of the other men drove away in the Nissan Maxima at a high rate of speed. Id. The third man returned to the Solitude home. After January 19, 2011, agents continued surveillance on the Solitude home. Ex. 1 at ¶ 11. They saw the silver Lincoln Navigator and the white Nissan Maxima being driven by two Hispanic males, as well as the Hispanic female driving the gold Grand Vitara. Id.
On February 1, 2011, Godier saw the Lincoln Navigator described above parked in front of the Westside Café. Tr. at 151. He saw a man get out of the car and go inside the restaurant, and then later exit the building and walk to a white Nissan Maxima parked in the same lot. Tr. at 152. The man conversed with a second man who was in the Nissan Maxima. Id. The driver of the Lincoln Navigator eventually returned to his vehicle and drove away, followed by law enforcement. Id. Officers from the Bernalillo County Sheriff's Department conducted a traffic stop of the Lincoln Navigator shortly after it left the Westside Café and identified Defendant as the driver. Id. They also deployed a narcotics canine to sniff the Navigator, and the dog did alert to the vehicle's center console. Tr. at 153; Ex. 183 . However, a manual search of the Navigator revealed no drugs. Tr. at 176-177. Agent Godier's affidavit in support of the search warrant did not mention this incident. Tr. 156; Ex. 1.
On February 24, 2011, agents went to the 10301 Solitude home and attempted to conduct a "knock and talk," hoping to obtain consent to search. Tr. at 84. One of the agents, SergeantWayne Shelton of the New Mexico State Police, looked inside a trash can that was located in the driveway and observed what appeared to be drug packaging materials, including vacuum seal bags and cut plastic and tape in the shape of a shoe sole, which is a common packaging technique for smuggling heroin. Tr. at 85, 87; Ex. 1. The material was not confirmed to be drug packaging, and it was not seized. That same day, Godier and Trujillo went to the "Nuevo Mexican American restaurant" and made contact with Adrianna Castillo, who stated that she was the owner of the Grand Vitara. Ex. 1 at ¶ 12. She also said that she had spent the night on several occasions at the Solitude home, her boyfriend's residence. Id. Adrianna also said that she did not have keys to the Solitude house, could not grant permission to search it, and that she did not wish to speak to the agents any further. Id. After the conversation with Ms. Castillo, agents identified her residence as 1632 Bridge S.W., Albuquerque. Id. at ¶ 13-14. They also learned that on April 14, 2010, she had purchased a money counter from Sam's Club in Albuquerque. Id. at ¶ 13.
On March 17, 2011, Godier followed Adriana Castillo from the restaurant to 1632 Bridge S.W. and observed her go into apartment 31. Ex. 1 at ¶ 14. By contacting the apartment manager, agents learned that the apartment was rented to "Adrian Castillo" and that the previous address that Adriana listed in the rental documents matched that of the vehicle registration for the Grand Vitara. Id.
Agents continued periodic surveillance of the Solitude home. Eventually, agents determined the home on Solitude was vacant. Ex. 1 at ¶ 15. Between March and July 2011, agents conducted a few surveillance operations at the 1632 Bridge S.W. apartment. Id. Two Hispanic males frequented the apartment, and on several occasions, agents observed the same silver Lincoln Navigator with license plate LBC-905 parked in the apartment complex parking lot in the early morning hours. Id. Sgt. Shelton observed a Hispanic male leave apartment 31, remove a black bagfrom the Lincoln Navigator, and then return to the apartment. Agent Godier also saw a Hispanic male arrive in the Navigator and go into apartment 31. Id.
On July 19, 2011, after seeing the silver Lincoln Navigator parked in front of the Bridge apartment, Sgt. Shelton placed a GPS tracking device on it; he did not have a warrant to do so. Tr. at 88, 178. Sgt. Shelton observed the silver Lincoln Navigator going to 325 Camino Cinco on approximately four occasions between July 20 and 27, 2011. Tr. at 88-89; Ex. 1. He knew that the Navigator was registered to Diana Garcia, but he did not know who was driving it or who lived at 325 Camino Cinco. Tr. at 89, 98. At about 8:45 p.m. on the evening of July 27 and again at about 4:00 a.m. on July 28, 2011, Sergeant Shelton saw a dark grey Nissan Titan truck parked behind the Camino Cinco address. Tr. 68-69, 71, 92. While he was there on the evening of July 27, Shelton saw a man later identified as Armando Nunez walk from the residence pushing a trash can and placing it near the road outside of the gate. Tr. at 69, 92. Also parked at 326 Camino Cinco...
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