United States v. Cruz

• Decision Date: 27 February 2019
• Docket Number: No. CR 18-1105 JB,CR 18-1105 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JOSE JESUS CRUZ, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. JOSE JESUS CRUZ, Defendant.

No. CR 18-1105 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

February 27, 2019

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the DefendantJose Jesus Cruz's Motion to Suppress Evidence and Statements, filed October 22, 2018(Doc. 25)("Motion").The Court held an evidentiary hearing on January 25, 2019.SeeClerk's Minutesat 1, filedJanuary 25, 2019(Doc. 41).The primary issues are: (i) whether Bernalillo County¹ Sheriff's Office("BCSO") deputies had probable cause that DefendantJose Jesus Cruz was engaged in drug trafficking in September, 2017, based on the knowledge that Cruz trafficked drugs while on federal probation in 2016; on the August, 2017, statement of a confidential informant ("CI") that Cruz was trafficking drugs; on a September, 2017, statement from a confidential source ("CS") that the CS obtained methamphetamine from Cruz; on a telephone conversation between Cruz and the CS in which they planned a drug transaction outside Cruz' residence; on Cruz' appearance at the drug transaction's location; and on Cruz' running from the BCSO deputies at the transaction's location and into his residence; (ii) whether, based on the same facts, BCSO deputies had probable cause that Cruz possessed drugs; (iii) whether drug trafficking is a "serious crime" for purposes of a warrantlessentry into a home for the destruction-of-evidence exception to the warrant requirement; (iv) whether methamphetamine possession is a "serious crime" for purposes of a warrantless entry into a home for the destruction-of-evidence exception to the warrant requirement; (v) whether destruction of evidence was likely when Cruz ran from the BCSO deputies at the transaction's location and into his residence; (vi) whether Cruz' running from the BCSO deputies and into his residence indicated an exigency that the BCSO deputies did not manipulate or abuse; (vii) whether the BCSO deputies were in hot pursuit of Cruz; and (viii) if the BCSO deputies entered Cruz' residence unlawfully, whether the unlawful entry tainted Cruz' consent to the BCSO deputies' search of his home and vehicles.The Court concludes that: (i) based on the facts recited above, the BCSO deputies had probable cause that Cruz was engaged in drug trafficking, or, at least, that Cruz was attempting to traffic drugs; (ii) based on the same facts, the BCSO deputies had probable cause that Cruz possessed drugs, specifically methamphetamine; (iii) drug trafficking is a "serious crime" for the purpose of a warrantless entry into a home under the destruction-of-evidence exception to the warrant requirement; (iv) methamphetamine possession is a "serious crime" for the purpose of a warrantless entry into a home under the destruction-of-evidence exception to the warrant requirement; (v) destruction of evidence was likely when Cruz ran from the BCSO deputies and into his residence; (vi) Cruz' running from the BCSO deputies and into his residence indicated an exigency that the BCSO deputies did not manipulate or abuse; (vii) the BCSO deputies were in hot pursuit of Cruz; and (viii) because the BCSO deputies lawfully entered Cruz' residence, no unlawful entry tainted Cruz' consent to search and the exclusionary rule does not apply.Accordingly, the Court will not suppress the evidence obtained pursuant to the search and denies the Motion.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues.SeeFed. R. Crim. P. 12(d)("When factual issues are involved in deciding a motion, the court must state its essential findings on the record.").The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes.The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure.SeeUnited States v. Merritt, 695 F.2d 1263, 1269-70(10th Cir.1982).In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court.SeeFed. R. Evid. 104(a)("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.In so doing, the court is not bound by evidence rules, except those on privilege.").Thus, the Court may consider hearsay in ruling on a motion to suppress.SeeUnited States v. Lopez-Carillo, 536 F. App'x 762, 768-69(10th Cir.2013)(unpublished)²("[T]he Supreme Courthas made it clear hearsay is admissible in suppression hearings. . . .As a result, the restriction in the Confrontation Clause against admission of testimonial statements . . . is not implicated here.(citingUnited States v. Matlock, 415 U.S. 164, 172-77(1974);United States v. Sanchez, 555 F.3d 910, 922(10th Cir.2009);United States v. Miramonted, 365 F.3d 902, 904(10th Cir.2004)).

1.Gerald ("Jerry") Koppman is a BCSO detective and a member of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") Task Force.SeeDraft Transcript of Hearingat 4:7-9(taken January 25, 2019)(Koppman)("Tr.").³

2.As a member of the ATF Task Force, Koppman investigates serious crimes, including "felons carrying guns, drug traffickers that also use guns[, and] violent subjects," and "serve[s] as backup for local authorities when they're handling high level cases."Tr. at 4:12-19(Koppman, Stanford).

3.Around 2016, Koppman learned of a "fairly large scale narcotics trafficker that they called Chino."Tr. at 4:25-5:1(Koppman).SeeDetective Supplemental Reportat 2, filedOctober 22, 2018(Doc. 25-1).

4.Koppman later learned that "Chino" was Cruz and that Cruz was on federal probation.SeeUnited States' Response to Defendant's Motion to Suppress¶ 1, at 1, filedNovember 13, 2018(Doc. 31)("Response");Tr. at 5:1-4(Koppman).

5.Through the United States Probation Office, Koppman organized a meeting with Cruz, and, at the meeting, Cruz admitted to trafficking drugs and agreed to cooperate with Koppman's then-ongoing investigation.SeeResponse¶ 1, at 1-2;Tr. at 5:6-16(Koppman).

6.Cruz revealed to Koppman a "violent narcotics trafficker['s]" residence.Tr. at 5:24-25(Koppman).Seeid. at 5:20-6:10 (Stanford, Koppman).

7.After that investigation, Koppman did not use Cruz as a cooperator again or "sign him up" as "an official informant."Tr. at 5:18-7:7(Stanford, Koppman).

8."On or around August 4, 2017," the CI informed Koppman "that an individual . . . identified as 'Chino' was distributing considerable amounts of methamphetamine and heroin."Response¶ 2, at 2.SeeResponse¶1, at 1;Tr. at 7:12-15(Koppman);Detective Supplemental Reportat 2.

9.In Koppman's Detective Supplemental Report, Koppman labeled the CI a "confidential informant," because the BCSO recorded the CI as an "informant."Tr. at 10:1-3(Koppman).

10.The CI described Chino's cars and the intersection near Chino's residence, and Koppman recognized the cars and the residence as Cruz' cars and residence, and the CI identified that "Chino" was Cruz in an image that Koppman showed the CI.Response¶ 2, at 2.SeeResponse¶1, at 1;Tr. at 7:15-17(Koppman);Detective Supplemental Reportat 2.

11.The CI also informed Koppman about a subject with "a large amount of methamphetamine,"Tr. at 7:19-20(Koppman), who "had recently traded guns for drugs" with "Chino,"Response¶ 3, at 3.SeeResponse¶1, at 1;Detective Supplemental Reportat 2. 12.Koppman obtained a search warrant in relation to this subject, and, on September 5, 2017, Koppman contacted the subject when BCSO deputies executed the search warrant.SeeResponse¶1, at 1;Tr. at 34:23-35:3(Bhalla, Koppman);id.at 36:7-11(Bhalla, Koppman);Detective Supplemental Reportat 2.

13.The subject became the CS.SeeResponse¶ 3, at 2.

14.Koppman identified the CS as a "confidential source," because the CS began sharing information "immediately" when the BCSO deputies executed the search warrant.Tr. at 10:3-6(Koppman).

15.The CS identified a picture of Cruz, and told Koppman that Cruz supplied the CS' narcotics and "regularly sells methamphetamine."Tr. at 7:18-23(Koppman).SeeResponse¶ 4, at 2;Tr. at 10:20-23(Koppman);Detective Supplemental Reportat 2-3.

16.Koppman verified the CS's knowledge "by quizzing the CS about other known drug traffickers, and other information to which Koppman already knew the answers."Response¶ 5, at 2.

17.The CS divulged to Koppman text messages between Cruz and the CS in which the two individuals discussed recent "drug transactions."Response¶ 5, at 2-3.SeeTr. at 10:13-20(Koppman);Detective Supplemental Reportat 3.

18.The CS told Koppman that Cruz and the CS traded drugs at the intersection of Lansing and Airway, which Koppman recognized as the intersection near Cruz' residence.SeeTr. at 8:3-7(Koppman).

19.The CS informed Koppman that, "at times," the CS stored Cruz' methamphetamine, because Cruz "was on federal probation."Tr. at 8:17-18(Koppman).

20.Koppman "concluded the CS was being truthful."Response¶ 5, at 3.

21."On September 5, 2017, Koppman asked CS to call and request a purchase of methamphetamine from Defendant."Response¶ 6, at 3.SeeTr. at 20:25-21:6(Stanford, Koppman);Detective Supplemental Reportat 3

22.The CS ordered several ounces of methamphetamine.SeeTr. at 13:12-13(Koppman);id.at 17:9-12(Stanford, Koppman).

23.Cruz agreed to make the drug sale to the CS after Cruz left work.SeeResponse¶ 6, at 3;Tr. at 8:13-14(Koppman);Detective Supplemental Reportat 3.

24.Several ounces of methamphetamine is "a trafficking amount," Tr. at 17:15 (Koppman), that is "dangerous to the public,"Tr. at 17:17-18(Stanford).See...