United States v. Devargas, CR 21-0857 JB

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Docket NumberCR 21-0857 JB
Decision Date12 August 2022



No. CR 21-0857 JB

United States District Court, D. New Mexico

August 12, 2022


Alexander M.M. Uballez

United States Attorney

Holland Kastrin

Timothy Trembley

Assistant United States Attorneys

United States Attorney's Office

Attorneys for the Plaintiff

Carter B. Harrison, IV

Nicholas Thomas Hart

Harrison & Hart, LLC

Albuquerque, New Mexico

Attorneys for the Defendant



THIS MATTER comes before the Court on: (i) the Defendant's Second Motion to Suppress Evidence, filed November 10, 2021 (Doc. 74)(“Second MTS”); and (ii) the Defendant's Third Motion to Suppress, filed November 9, 2021 (Doc. 73)(“Third MTS”). The Court held an evidentiary hearing on the Second MTS and the Third MTS, along with other pretrial matters, on December 28, 2021. See Clerk's Minutes at 1, filed December 28, 2021 (Doc. 117). The primary issues are: (i) whether the Court should suppress evidence of a firearm found in Defendant Eusebio Ike DeVargas' home, because (a) the search warrant affidavit supporting the Federal Bureau of Investigation's (“FBI”) search of DeVargas' home does not establish probable cause where the affidavit does not provide specific allegations of criminal activity occurring at DeVargas' home, (b) the search warrant affidavit is so devoid factually that the officers' reliance on the warrant is unreasonable, and (c) the firearm would have been discovered inevitably when officers executed the arrest warrant on DeVargas; and (ii) whether the Court should suppress statements that DeVargas made during an interrogation, because (a) DeVargas asserted his right to counsel, and (b) DeVargas did not voluntarily waive his right to counsel. The Court concludes that: (i) the Court will not suppress the firearm in DeVargas' home, because (a) the search-warrant affidavit has a sufficient factual basis to establish probable cause that officers would find evidence of criminal activity at DeVargas' residence, (b) the officers relied on the search warrant in good faith, and (c) the firearm would inevitably have been discovered; and (ii) the Court will not suppress DeVargas' inculpatory statements, because (a) he did not assert his right to counsel, and (b) he voluntarily, knowingly, and intelligently waived his right to counsel. Consequently, the Court will deny the Second MTS and the Third MTS.



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. See Fed. 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 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, and the voluntariness of an individual's confession or consent to a search. See United 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. See Fed.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.”). “[H]earsay testimony is admissible at suppression hearings . . . and should be considered by a district court[.]” United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004)(citing United States v. Matlock, 415 U.S. 164, 173 (1974)).[2]


In its Memorandum Opinion and Order, filed January 10, 2022 (Doc. 132)(“MOO”), the Court provided a Factual Background. See MOO at 3-8. The Court also makes its factual findings from the Criminal Complaint, filed May 17, 2021 (Doc. 1)(“Complaint”), the Second MTS, the Third MTS, the Amended Application for a Warrant by Telephone or Other Reliable Electronic Means, filed November 10, 2021 (Doc. 74-4)(“Search Warrant Application”), and the evidence and arguments made at the December 28, 2021, evidentiary hearing. The Court recognizes that, insofar as the Court draws facts from the Complaint, these facts largely reflect the United States' version of events.


1. January 7, 2021, Stop.

1. On January 7, 2021, Rio Rancho Police Department Officer Petross observed a Nissan truck with an expired registration traveling near Rio Rancho, New Mexico. See Complaint ¶ 5, at 3.

2. Petross performed a traffic stop on the Nissan truck and identified DeVargas as the driver. See Complaint ¶ 6, at 3.

3. Petross noticed an odor of alcohol from the vehicle, and DeVargas told Petross that he drank one shot of vodka approximately two hours before the stop. See Complaint ¶ 6, at 4.

4. Before conducting a Standard Field Sobriety Test, Petross asked DeVargas if he had any weapons on him, and DeVargas stated that he had a firearm. See Complaint ¶ 7, at 4.

5. DeVargas showed no signs of impairment during the Sobriety Test, and Petross returned DeVargas' firearm and released him from the scene. See Complaint ¶ 8, at 4.

6. Shortly thereafter, Petross realized that DeVargas had a felony conviction and should not possess a firearm, but officers could not relocate DeVargas. See Complaint ¶ 8, at 4.

2. April 10, 2021, Stop.

7. On April 10, 2021, Bernalillo County Sheriff's Office (“BCSO”) Field Services Deputy Alfred Duchaussee observed DeVargas wearing dark clothing riding a red bicycle near the intersection of 2nd St. N.W. and Candelaria St. N.W. in Albuquerque, New Mexico. See Complaint ¶ 9, at 4.

8. DeVargas was riding southbound on 2nd St. without a front mounted head light or rear reflector. See Complaint ¶ 9, at 5.

9. When Duchaussee approached DeVargas, DeVargas pedaled faster and turned down Veranda St., which is a dead-end road. See Complaint ¶ 10, at 5.


10. DeVargas turned around, pedaled past Duchaussee and stated: “I did nothing wrong.” Complaint ¶ 11, at 5.

11. Duchaussee attempted to apprehend DeVargas, who continued to state, “I did nothing wrong,” and resist Duchaussee. Complaint ¶ 11, at 5-6.

12. DeVargas informed Duchaussee that he had a weapon, and Duchaussee approached and handcuffed DeVargas. See Complaint ¶ 11, at 5-6.

13. DeVargas informed Duchaussee that the weapon was in his front pocket, and Duchaussee recovered a firearm from DeVargas' pocket. See Complaint ¶ 12, at 6.

14. On May 17, 2021, the Honorable Jerry H. Ritter, United States Magistrate Judge for the United States District Court for the District of New Mexico, issued an arrest warrant for DeVargas for being a felon in possession of a firearm. See Arrest Warrant, filed May 17, 2021 (Doc. 2).

3. The Search Warrant.

15. On June 2, 2021, the Honorable Laura N. Fashing, United States Magistrate Judge for the United States District Court for the District of New Mexico, issued a search warrant for DeVargas' home and another building, which houses Superior Automotive, located on the same property. See Second MTS at 4.

16. The Search Warrant Application alleges that DeVargas is a member of the Brew Town Locos (“BTL”)[3] gang, and seeks to search his residence for evidence of firearms, drug trafficking, and gang activity. See Second MTS at 4.


17. The Search Warrant Application notes that the FBI Violent Crime Gang Task Force and Albuquerque Police Department Gang Unit have been investigating the BTL gang for approximately two years. See Search Warrant Application ¶ 6, at 2.

18. The Search Warrant Application states that DeVargas, among others, is suspected of participating in a conspiracy to distribute controlled substances to further BTL's objectives and purposes. See Search Warrant Application ¶ 7, at 3.

19. The Search Warrant Application further states that DeVargas, among others, is “currently being sought on U.S. District Court arrest warrants related to this investigation.” Search Warrant Application ¶ 9, at 4.

20. The Search Warrant Application seeks “to search the premises the[] fugitives are associated with to apprehend and bring them before the court,” and lists DeVargas' residence as a premises to search. Search Warrant Application ¶¶ 9-10, at 4-5.

21. The Search Warrant Application also contains the following information about Confidential Human Source 4 (“CHS-4”):

CHS-4 is a street and prison gang associate of BTL and has been for approximately 20 years. CHS-4 knows several veteran BTL street gang members and at one time, CHS-4 distributed heroin with and among members of the BTL. During that period of time, CHS-4 relied on members of the BTL and a related prison gang for protection and to help CHS-4 collect drug debts. Over the past few years, CHS-4 aided me in the collection of evidence against gang members and associates. Information provided by CHS-4 led to the issuance of at least 27 federal search warrants, the arrest of multiple suspects, and the recovery of firearms, ammunition, U.S. currency and significant quantities of controlled substances. CHS-4 is motivated to assist the FBI to help reduce violent crime and drugs in the community.... I consider the information CHS-4 provided to be reliable because much of it was corroborated through law enforcement investigation, controlled buys, and both physical and electronic surveillance. To my knowledge, CHS-4's information has not been found to be false or misleading.

Search Warrant Application ¶ 40, at 16.

22. In identifying the probable cause to search DeVargas' residence, the Search Warrant Application states:


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