United States v. Lucero

UNITED STATES OF AMERICA, Plaintiff, v. GABRIEL MANUEL LUCERO, Defendant.

Crim. No. 19-138 KG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

April 25, 2019

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon Defendant's "Motion to Suppress, Supporting Memorandum, Franks v. Delaware Challenge and Request for an Evidentiary Hearing Under the Fourth Amendment to the United States Constitution and the Constitution of the State of New Mexico" (Motion to Suppress), filed February 13, 2019. (Doc. 22). Also, on February 13, 2019, Defendant filed an "Appendix to Gabriel Lucero's Motion to Suppress" (Appendix). (Doc. 24). The United States responded on March 8, 2019, while Defendant replied on March 21, 2019. (Docs. 33 and 35).

On April 17, 2018, the Court held a limited evidentiary hearing on two specific questions:

(1) why did the Silver City Police Department Agent Tim Tavizon wait ten days, from the date of the seizure of Defendant's cellphone on August 11, 2018, until August 21, 2018, to apply for a search warrant for that cellphone; and (2) why did Bureau of Alcohol, Tobacco, Firearms, and Explosives [ATF] Special Agent B. Sterling Nixon wait over two months, from the date he received Defendant's cellphone on October 1, 2018, until December 7, 2018, to apply for a search warrant for that cellphone.

(Doc. 36). Assistant United States Attorneys Maria Armijo and Ryan Ellison represented the United States at the limited evidentiary hearing while Brock Benjamin represented Defendant, who was present.

Having considered the Motion to Suppress, the Appendix, the accompanying briefing, the evidence (both written and testimonial), and the argument of counsel at the limited evidentiary hearing, Court (1) denies Defendant's request for a Franks hearing; (2) denies Defendant's request for an evidentiary hearing on the remaining Motion to Suppress issues because a hearing on those issues would not be helpful; and (3) denies the Motion to Suppress.

A. Findings of Fact¹

1. The Search Warrants

On Saturday, August 11, 2018, at about 2:30 a.m., Silver City Police Department (SCPD) officers were dispatched to a possible domestic dispute. (Doc. 24) at 8. Erica Castillo told an officer at the scene that Defendant arrived in his gold "Chevrolet Tahoe and began arguing with her." Id. Castillo stated that Defendant "shot two to three rounds in the air" and possessed two handguns. Id. Castillo then stated that Defendant left in the gold Tahoe. Id. "Officers called dispatch and put out an attempt to locate on the vehicle." Id.

At about 10:00 a.m. that day, an SCPD officer stopped Defendant's gold Tahoe to investigate the domestic dispute. Id. Defendant was driving the Tahoe and his mother was a passenger. Id. SCPD Narcotics Agent Tim Tavizon arrived on the scene and smelled marijuana coining from inside the Tahoe. Id. Tavizon then contacted an assistant district attorney (ADA) who approved a search warrant on the Tahoe "for narcotics and weapons in attempt to possibly recover the firearm used in the shooting earlier on this day." Id. After releasing Defendant andhis mother, SCPD officers sealed the Tahoe and had it towed to the SCPD so officers could obtain a search warrant for the Tahoe.² Id. at 9.

A couple of hours after the Tahoe stop, Tavizon completed an Affidavit for Search Warrant to search the Tahoe for, among other things, firearms, ammunition, drugs (including marijuana, cocaine, and methamphetamines), and cellphones "used for text messaging and phone calls related to narcotics trafficking." Id. at 7. Tavizon's probable cause statement recites the above facts concerning the domestic dispute call and the stop of the Tahoe, including the odor of marijuana from the Tahoe. Id. at 8-9. A state judge subsequently issued a search warrant for the Tahoe that afternoon and less than an hour later the search warrant was executed. Id. at 4. The search resulted in the seizure of two cellphones, one of which belonged to Defendant. Id. at 5. Tavizon also obtained two search warrants for properties where Defendant possibly resided. Transcript of April 17, 2019, limited evidentiary hearing (Tr.) at 12-13.³ Tavizon executed those warrants on the same day he obtained them. Id. at 13.

Once Tavizon seized Defendant's cellphone, the ADA approved a search warrant to search the contents of that cellphone. Tavizon typically coordinates with the Las Cruces High Intensity Drug Traffic Area (HIDTA) office to fully extract information from a cellphone. Id. at 14. After Tavizon gets a timeframe from HIDTA on when the office can extract information from a cellphone, Tavizon will apply for a search warrant for the cellphone. Id.

Defendant went to the SCPD to recover his seized cellphone on Thursday, August 16, 2018, and on Friday, August 17, 2018. (Doc. 24) at 14 and 16. The SCPD did not release the cellphone to Defendant. Tavizon did not work on Friday, August 17, 2018.⁴ On Monday, August 20, 2018, Tavizon returned to work and learned that Defendant had asked the SCPD to return his cellphone on either August 16, 2018, or August 17, 2018. Tr. at 15.

As a result, Tavizon decided not to have HIDTA extract information from the cellphone, which could have taken a couple of weeks to do. Id. at 16. Instead, Tavizon decided to do a "manual dump" of the cellphone himself. Id. Consequently, Tavizon applied for and obtained a search warrant for the cellphone on August 21, 2018, five working days from the date of the cellphone seizure. Id. at 28.

In the cellphone search warrant affidavit, Tavizon indicates that he seeks to search the cellphone for evidence related to narcotics trafficking, including photographs and video of weapons. (Doc. 24) at 13. Tavizon's probable cause statement mirrors the probable cause statement for the Tahoe search warrant affidavit, and adds that an ADA approved a search warrant for the cellphone "to look for evidence of where the firearm or drugs may have went from the vehicle." (Doc. 35-1) at 4.

Tavizon executed the cellphone search warrant on August 21, 2018. (Doc. 24) at 11. The search of the cellphone revealed a July 2018 cellphone video showing an individual's tattooed hands holding and handling an apparently loaded handgun. (Doc. 1) at ¶ 9. Knowing Defendant is a convicted felon, Tavizon turned the cellphone over to SCPD Detective Jory Bascom, an investigator with the Criminal Investigations Division who works with ATF. Tr. at 17 and 32.

Bascom viewed the contents of the cellphone and saw a video of a Glock firearm, manufactured in Austria, with a visible serial number. Id. at 33. Sometime on or after August 21, 2018, Bascom contacted Glock, Incorporated to determine the importation date of the Glock. Id. at 34. Bascom received the importation information from Glock Incorporated on August 24, 2018. Id. On August 27, 2018, ATF Special Agent Nixon traced the handgun depicted in the cellphone video. (Doc. 1) at ¶ 11.

On August 30, 2018, Bascom executed a search warrant on Defendant's body to photograph tattoos of Defendant's hands and wrists. Tr. at 34. After executing that search warrant, Bascom contacted Nixon. Id. at 35. Sometime during the last week of September 2018, Bascom met with Nixon and an Assistant United States Attorney who requested a full extraction of Defendant's cellphone. Id. at 37-38 and 42. On October 1, 2018, Bascom obtained a state search warrant for a full extraction of Defendant's cellphone, but Bascom did not execute that search warrant. Id. at 39-40. Later that day, Bascom gave the cellphone to Nixon. Id. at 40 and 43.

The next day, October 2, 2018, Nixon analyzed the photographs from the July 2018 cellphone video and the SCPD photographs of Defendant's tattoos on his arms and wrists. (Doc. 1) at ¶ 10. "Nixon found the tattoos to be unique and be consistent in the video as well as on [Defendant's] person." Id.

On October 3, 2018, Nixon signed and filed the Criminal Complaint in this matter, and submitted a search warrant application to an Assistant United States Attorney to search Defendant's cellphone and to conduct a cell site data search. Tr. at 46-47. Nixon followed up with the Assistant United States Attorney "numerous times" on the status of his review of thesearch warrant application. Id. at 47. Nixon and the Assistant United States Attorney also exchanged drafts of the search warrant application. Id. at 48.

On November 26, 2018, the Assistant United States Attorney approved a draft of the search warrant application and Nixon submitted the search warrant application to a Magistrate Judge. Id. The Magistrate Judge, however, rejected the search warrant application for not having sufficient facts to support probable cause. Id. The Assistant United States Attorney subsequently worked with Nixon on another draft of the search warrant application, which sought only to search the cellphone. The Assistant United States Attorney and Nixon submitted that search warrant application to the Court on December 4, 2018. Id. at 49. Because of a conflict in schedules, the Magistrate Judge reviewed the search warrant on December 7, 2018, ultimately approving the search warrant. Id.

Nixon's search warrant application notes that the search "related to violations of 18 U.S.C. §§ 922(g)(1) and (3) (possession of a firearm by a felon or by an addict or unlawful user of a controlled substance) ...." (Doc. 24) at 23. In the probable cause statement, Nixon summarizes the August 11, 2018, domestic dispute call and the next morning's traffic stop of the Tahoe. Id. at 26. Nixon notes that the "stopping officer could smell an odor of marijuana emitting from the vehicle and [Defendant] has a prior possession of marijuana conviction from May 2008," a state felony. Id. at 26 and 27. Nixon further summarizes how the SCPD recovered Defendant's cellphone from the Tahoe. Id. at 27. Nixon, however, does not mention the SCPD cellphone search warrant and search of the cellphone, nor does he mention that he had already...