United States v. Andasola

          ORDER DENYING MOTION TO SUPPRESS AND MOTION FOR SUPPLEMENTAL DISCOVERY

          William J. Martnez, United States District Judge

         The Government charges Defendant Jose Burciaga Andasola (“Burciaga”) with one count of possessing methamphetamine with intent to distribute (21 U.S.C. § 841(a)(1) & (b)(1)(A)(viii) and 18 U.S.C. § 2), one count of possessing heroin with intent to distribute (21 U.S.C. § 841(a)(1) & (b)(1)(B)(i) and 18 U.S.C. § 2), and one count of possessing a firearm while unlawfully in the United States (18 U.S.C. § 922(g)(5)). (ECF No. 54.) These charges arose from an investigation in which the Government discovered drugs (some buried underground, apparently) and a firearm at “Longhorn Point, ” a rural property associated with Defendant near Pueblo, Colorado. The search of the property was pursuant to a warrant which claimed probable cause based on, among other things, surveillance of the property and information obtained from a confidential informant. (ECF No. 70-1.) The warrant also authorized a “subterranean” search. (Id. at 2.)

         Currently before the Court are two motions: Burciaga's Motion for Supplemental Discovery (ECF No. 68), and Burciaga's Motion to Suppress Evidence from Search Pursuant to Warrant (ECF No. 70). For the reasons explained below, the Court denies both motions.

         I. ANALYSIS

         A. Motion to Suppress Evidence from Search Pursuant to Warrant (ECF No. 70)

         1. General Standards

         a. Burden of Proof “

         Generally, if the search or seizure was pursuant to a warrant, the defendant has the burden of [proving that the Government violated the Fourth Amendment].” United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994) (internal quotation marks omitted). Burciaga has offered no argument why the general rule does not apply in this case, nor is the Court aware of any possible argument. Accordingly, Burciaga bears the burden here.

         b. Deferential Review of Warrants

         The Court's duty

is to ensure that the magistrate judge had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Because of the strong preference for searches conducted pursuant to a warrant, the Supreme Court has instructed us to pay great deference to a magistrate judge's determination of probable cause. Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. The test is whether the facts presented in the affidavit would warrant a man of reasonable caution to believe that evidence of a crime will be found at the place to be searched.

United States v. Nolan, 199 F.3d 1180, 1182-83 (10th Cir. 1999) (internal quotation marks and citations omitted; alterations incorporated).

         2. Burciaga's ...