United States District Court, D. Colorado
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 ...